Jimu Rui commented that | "Tongguan Meat Sandwich Bun Association" does not have the right to collect franchise fees, so how did they win the lawsuit?

Jimu News commentator Wu Shuangjian

Recently, the State Intellectual Property Office pointed out that legally, "Xiaoyao Town" is an ordinary trademark, and its registrant cannot collect the so-called "membership fee" accordingly. "Tongguan Meat Sandwich Bun" is a geographical indication registered as a collective trademark, and its registrant has no right to license the use of the geographical indication collective trademark to merchants outside the specific area of Tongguan and collect a franchise fee. At the same time, it has no right to prohibit merchants in a specific area of Tongguan from properly using the geographical names in the collective trademarks of geographical indications. (According to Jimu News on November 26)

The "Tongguan Meat Sandwich Steamed Bun Association" is old and powerful, which alarmed the State Intellectual Property Office. In the midst of the controversy, the authorities gave the controversy a conclusive conclusion.

Previously, the "Tongguan Meat Sandwich Steamed Bun Association" cut leeks to defend its rights and collect membership fees, which attracted heated discussion. Some media inquiries, since June 17, the association's court announcement information reached 352, but most of the cases were withdrawn, and the litigation areas spread throughout the country. Among them, many reasons for the withdrawal of the lawsuit are because the two parties reached a compensation agreement, and the defendant spent money to "eliminate the disaster".

The State Intellectual Property Office gave the conclusion, so why did some of the association's lawsuits actually win?

For example, on June 17, 2021, the Intermediate People's Court of Jiaxing City, Zhejiang Province, held a trial and found that the act of "Jiaxing Jingkai Changshui Panhao Snack Bar" infringed the exclusive right to register the trademark "Tongguan Meat Sandwich Bun" and needed to compensate the "Tongguan Meat Sandwich Steamed Bun Association" for economic losses of 11,000 yuan.

The public has a simple understanding, Tongguan is a place name, meat sandwich bun is an ordinary commodity name, and now you have to pay money to use it, isn't it strange? Some netizens also said that registering a trademark for "breakfast" is not that no one else can sell breakfast?

These doubts of netizens are not unfounded. Some lawyers said that according to Article 59 of the Trademark Law, "the holder of the exclusive right to use the registered trademark shall not have the right to prohibit the proper use of the common name of the goods contained in the registered trademark or the geographical name contained in it." Therefore, "meat sandwich bun" is a generic name for the food industry, "Tongguan" is a place name, and the trademark owner has no right to prohibit others from using it properly.

Then, some local courts have ruled in favor of the "Tongguan Meat Sandwich Association", I don't know what kind of considerations, this needs to be clarified to the public. After all, it is precisely because of some of the cases in which the association won the case that some small merchants mistakenly believe that they have infringed and have to compromise privately.

At present, those small merchants who have privately reached a compensation agreement and paid the so-called franchise fee membership fee should have their rights and interests protected, and those who should be refunded should be refunded.

Recently, various associations have appeared in many places, making profits under the guise of rights protection. For example, the "Xiaoyao Town Hu Spicy Soup Association", as long as there are merchants who sell Hu Spicy Soup use the "Xiaoyao Town" brand, they must pay 1,000 yuan in membership fees every year, otherwise they will have to compensate 30,000 yuan to 50,000 yuan.

The original intention of the establishment of the relevant associations should be to promote and standardize related snacks, form a brand effect, and make the cake bigger and stronger together. If you just register a trademark, you will start to start litigation, sue one province after another, and make money by suing merchants, although you have made a lot of money, but the final result of these special snacks is probably slowly disappearing from the market. Objectively speaking, this is not the original intention of intellectual property protection.

Therefore, it is very important for the State Intellectual Property Office to speak out in a timely manner, and some other localities and departments must also quickly correct their mistakes.

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