The Paper's reporter Tan Jun intern Chen Ziqiang
A number of shopkeepers claimed to have been sued for selling meat sandwich steamed buns with the word "Tongguan". Source: Screenshot of Henan Minsheng Channel report
The trademark rights protection storm of "Xiaoyao Town Hu Spicy Soup" has not completely subsided, and "Tongguan Meat Sandwich Steamed Bun" has become a hot search on the Internet.
According to media reports, dozens of merchants in Henan said that the meat sandwich steamed buns they sold were sued by the Shaanxi "Tongguan Meat Sandwich Steamed Bun Association" because they carried the word "Tongguan", demanding that they compensate them and pay nearly 100,000 yuan if they want to continue to use the "Tongguan Meat Sandwich Bun" trademark. The tongguan meat sandwich steamed bun association's rights protection has caused controversy.
The Surging News (www.thepaper.cn) investigation found that "Tongguan Meat Sandwich Bun" is a "geographical indication trademark" registered by the Tongguan Meat Sandwich Bun Association, and its nature is "collective" with social welfare attributes. However, the Tongguan Meat Sandwich Bun Association licensed the trademark to be operated by private companies, and companies tried to license franchises by charging a large fee.
A number of lawyers and experts in the field of intellectual property believe that for collective trademarks of social public interest and value applied for by relevant associations, generally relevant eligible individuals can be used after paying less fees to become members. The practice of the Tongguan Meat Sandwich Steamed Bun Association and related enterprises "is suspected of 'appropriating collective trademarks with public welfare attributes for their own purposes', bundling collective interests for profit, and turning them into a way of collecting high local protection fees, which has become a commercial monopoly act, which violates the Trademark Law and the legislative purpose of geographical indication trademarks." ”
Claimed, continue to use to pay nearly 100,000?
On November 21, henan minsheng channel large reference column reported that dozens of snack bar merchants were sued by the Shaanxi "Tongguan Meat Sandwich Steamed Bun Association" for selling meat sandwich steamed buns with the word "Tongguan", demanding that they compensate 30,000 to 50,000 yuan, and want to continue to use the trademark "Tongguan Meat Sandwich Buns", they need to pay 99,800 yuan.
In the video report, some merchants believe that they have been doing a small business for many years, and the inexplicable defendant infringement is very innocent. Most merchants do not approve of the lawsuit of the "Tongguan Meat Sandwich Bun Association". Some said: "A lot of (the other party's) lawyers came to call them, at first saying fifty thousand, finally mediating to eighteen thousand, calling again to say twelve thousand, also calling to say eight thousand, and finally last Thursday called me to say five thousand, he adjusted the price one by one, I think his purpose is not to defend his rights, the purpose is to amass wealth." ”
According to public information, the original name of Tongguan Meat Sandwich Steamed Bun was burnt cake sandwich bun, which originated in the early Tang Dynasty. In June 2011, the traditional handicraft of Tongguan meat sandwich steamed bun was identified as the intangible cultural heritage of Shaanxi Province.
According to the China Trademark Network, the trademark "Tongguan Meat Sandwich Bun" is registered by the Tongguan Meat Sandwich Steamed Bun Association, and the approved use class is the 30th class of Meat Sandwich Bun, and the trademark number is 14369120. The trademark application date is 2014, the registration announcement date is December 14, 2015, and the exclusive trademark use period is until December 13, 2025.
The legal representative of the "Tongguan Meat Sandwich Steamed Bun Association" is named Wang Huafeng Source: National Social Organization Credit Information Publicity Platform
According to the information of the National Social Organization Credit Information Publicity Platform, the Tongguan Meat Sandwich Bun Association was established on June 6, 2016, and the legal representative is Wang Huafeng. The association is a social organization, with a registered capital of 50,000 yuan, the address is Tongguan County Thirteen Flowers Meat Sandwich Bun, the registration authority is the Tongguan County Civil Affairs Bureau, and the certificate is valid from September 7, 2018 to September 6, 2022.
The Tongguan Meat Sandwich Bun Association is conducting a "bulk" prosecution. According to the enterprise investigation information, it has a total of 396 legal proceedings, 28 cases filed, 11 judgment documents, one pre-trial mediation, and 355 court announcements. According to the announcement of the hearing, the vast majority of the causes of litigation are the Tongguan Meat Sandwich Bun Association suing merchants for trademark infringement. The defendant merchants involved catering and snack bars from Tianjin, Inner Mongolia, Hubei, Hebei, Henan, Zhejiang, Guangdong, Jiangsu, Gansu, Jilin, Guizhou, Zhejiang, Shanghai, Liaoning, Anhui, Fujian, Shandong, Hunan and other provinces.
The Paper contacted two of the defendant merchants who were indicted.
Mr. Zhao, a Shaanxi native who operates in Guangzhou, said that his store name did not have the word "Tongguan", and only some menus had the option of "Tongguan Meat Sandwich Steamed Bun". He was also surprised by the infringement allegations, and he was prepared to respond actively, unwilling to accept the compensation or franchise request made by the Tongguan Meat Sandwich Bun Association.
Li Jun, a native of Yan'an, Shaanxi Province, who runs a mom-and-pop shop in Ordos, Inner Mongolia, said, "I used this shop to compensate him, and I couldn't come up with ninety-eight thousand!" ”
Li Jun said that his shop opened in 2017, because he came to Ordos to work after working in Ordos, he found that there was no meat sandwich steamed bun shop here, so he opened a shop. He was startled by a court summons, along with a CD-ROM documenting the plaintiff's "evidence gathering process"—one day in May of this year, someone came to his store to buy a meat sandwich and photographed his shop's signboard.
Li Jun's lawsuit will be heard on December 24. He noticed that the shop next door to him was directly called "Tongguan Meat Sandwich Bun", and the trademark was the same as the trademark and font of the "Association", and it was not prosecuted.
The Paper also noted that in a number of previous trademark infringement lawsuits, the Tongguan Meat Sandwich Bun Association withdrew the lawsuit as the plaintiff.
Geographical indications and collective marks
Are meat sandwich merchants using the word "Tongguan" infringing?
In the view of Yao Kefeng, a lawyer at Beijing Guobiao Law Firm, this depends first and foremost on whether the Tongguan Meat Sandwich Steamed Bun Association has trademark rights. Although some trademarks may have illegal sources such as bad faith squatting and deception, the right holder enjoys the exclusive right to use the trademark before it is declared invalid or revoked. In addition, the alleged infringer may not be considered to constitute infringement because of prior use, bona fide use, fair use, etc., and specifically trust the court's fair trial.
Tongguan Meat Sandwich Bun Association registered "collective" trademark Source: Screenshot of China Trademark Network
It should be noted that in this wave of Tongguan meat sandwich steamed bun trademark disputes, the "Tongguan Meat Sandwich Bun Association" registered "Tongguan Meat Sandwich Bun" trademark is "collective", which is a geographical indication trademark.
Liu Kai, a lawyer at Beijing Zhongwen (Changsha) Law Firm, introduced that "collective" trademarks are different from "ordinary trademarks" and belong to collective ownership, have public attributes, and have the nature of public welfare. "Geographical indications, as signs indicating that a certain commodity originates from a certain region and prove the specific quality, credibility or other characteristics of the commodity, are of great significance for cultivating local leading industries, developing regional economies, and creating distinctive brands.
The surging news found that the "Rules for the Use of the Collective Trademark of the Geographical Indication of "Tongguan Meat Sandwich Bun" (hereinafter referred to as the "Rules of Use") clearly states that the "Tongguan Meat Sandwich Bun" is used to indicate that the operator of the collective trademark belongs to the members of the Lao Tong Guan Snack Association, as well as the origin region and specific quality of the product. Enterprise investigation data show that the Tongguan County Meat Sandwich Steamed Bun Association once used the name "Lao Tongguan Snack Association".
At the end of the Rules of Use, the "Rules of Use" also lists the members who used the collective trademark "Tongguan Meat Sandwich Bun" in 2014, including 35 units and individuals such as Tongguan Shengtong Restaurant Management Co., Ltd., Wang Huafeng, Wang Di, and Dong Kaifeng.
However, this does not mean that the above 35 units and individuals can monopolize the trademark. Article 4 of the Rules of Use stipulates that "the members of the Laotongguan Snack Association may use the collective trademark of the geographical indication 'Tongguan Meat Sandwich Bun' after performing the formalities in accordance with these Rules." After the "Rules of Use" introduces the specific production method of "Tongguan Meat Sandwich Bun", Article 8 stipulates that "product operators who meet the above conditions may apply for the use of the collective trademark of the geographical indication of 'Tongguan Meat Sandwich Bun'." ”
In the report of Henan Satellite TV's People's Livelihood Channel, the staff of the association also said, "I hope that all those who do this can join the association and we will jointly develop this brand." ”
If the association's trademark protection lawsuit is to "promote peace", then why is the Tongguan Meat Sandwich Bun Association, a community organization with a registered capital of only 50,000 yuan, accused of charging tens of thousands or even nearly 100,000 yuan to merchants?
Lawyer Yao Kefeng introduced that the registration agency of "Tongguan Meat Sandwich Bun" Tongguan Meat Sandwich Bun Association, as a community institution registered with the civil affairs department, "the collection of its membership fee must be approved by the civil affairs department, and this membership fee is usually low, and the civil affairs department cannot approve tens of thousands of yuan of membership fees." ”
The surging news noted that in the report of Henan Minsheng Channel, in the communication with a merchant, the head of the association said that its membership fee was 2400 yuan a year and 200 yuan in January.
Tongguan Meat Sandwich Steamed Bread Association authorized two enterprises to use and operate trademarks Source: Tongguan Meat Sandwich Steamed Bread Association WeChat public account
Collective trademarks are franchised and operated by private companies?
What is the 99,880 yuan fee mentioned by the alleged infringing merchant?
In an interview with Henan Minsheng Channel, the person in charge of the association said to the merchants: "Join this piece, because the association is authorized, there are professional operating companies and catering companies at the bottom." ”
According to this statement, it was the Tongguan Meat Sandwich Steamed Bun Association that sued the merchant for infringement, and the 99,880 yuan was the "franchise fee" required by the operating company to the merchant.
Why should merchants join this company? The association's explanation is that "the company is authorized by the association to use this brand to do food and beverage management, and the association relies on the various standards that the company does." In a report on henan minsheng channel, the name of the operating company is "Xi'an Wansheng Catering Management Co., Ltd."
The official WeChat public account of the "Tongguan Meat Sandwich Steamed Bun Association" "Tongguan Meat Sandwich Bun" article disclosed that on December 25, 2015, the Lao Tong Guan Snack Association authorized the "Tongguan Meat Sandwich Bun" brand to "Xi'an Wansheng Catering Management Co., Ltd." and "Tongguan County Shengtong Catering Management Co., Ltd." to use and operate the trademark.
According to the enterprise investigation data, the legal representative of Tongguan Shengtong Catering Management Co., Ltd. is Dong Kaifeng, accounting for 40% of the shares, but the actual controller is Wang Huafeng, and the final beneficiary shares are 60%. The legal representative of Xi'an Wansheng Restaurant Management Co., Ltd. is Wang Di, and the controlling shareholder is also named Wang Huafeng. At the same time, both companies hold or apply for registered trademarks such as "Wang Huafeng Meat Sandwich Bun" and "Wang Huafeng".
Public reports show that Wang Huafeng in the two companies is the same person. The legal representative of the "Tongguan Meat Sandwich Steamed Bun Association" is also named "Wang Huafeng".
According to the Weinan Daily in April 2020, "Wang Huafeng, 43 years old, has been in the meat sandwich business for nearly 20 years and runs Tongguan County Shengtong Catering Management Co., Ltd." The company's annual output value reached more than 30 million yuan, and more than 500 stores spread throughout more than 20 provinces across the country. ”
Franchise fee price Source: Tongguan Meat Sandwich Steamed Bread Association WeChat public account
The Surging News noted that in the official account "Customs Clearance Meat Sandwich Bun" certified as the "Tongguan Meat Sandwich Steamed Bun Association", under the "About Us" column, it mainly operates "franchise details", "snack training" and "infringement statement" and other content.
Among them, the introduction of franchise fees is divided into three grades, namely 99,800 flagship stores, 59,800 standard stores, and 39,800 entrepreneurial stores. Under the category of "franchise fee", there are also small fees, such as security deposits, management fees and 200 yuan "snack association membership fees".
The Surging News noted that under the official WeChat public account "Franchise Details" column, the "Infringement Statement" column is juxtaposed. The "Statement on Pursuing Responsibility for Violations, Violations of Laws and Regulations" was issued under the name of "Tongguan Meat Sandwich Snack Association". Published on April 8, 2018. The statement said that at present, in Shaanxi and all parts of the country, there are individual illegal, illegal and copycat stores on major online platforms with the brand of "Tongguan Meat Sandwich Bun", which seriously infringes on the trademark rights of the association, and the association wants the relevant stores to stop the infringement, and the relevant platforms remove the relevant illegal stores. It has entrusted the "Shaanxi Renhe Wanguo Law Firm" Plenipotentiary Association to pursue responsibility through legal channels.
The above information shows that on the one hand, the Tongguan Meat Sandwich Steamed Bun Association is carrying out "infringement liability", and on the other hand, it is also authorized companies to conduct commercial operations in the form of "sincere invitation to join".
According to the Measures for the Handling of Infringement by the Tongguan County Meat Sandwich Steamed Bread Association disclosed by The West China Metropolis Daily, the first of the conditions for the accused merchant to negotiate with the lawyer before litigation and implement the settlement is that "the party being sued needs to go through the membership formalities and pay the membership fee".
On November 18th, the Tongguan Meat Sandwich Steamed Bread Industry High-quality Development Symposium was held in Shengtong Catering Company Source: Tongguan Meat Sandwich Steamed Bread Association WeChat public account
Lawyer: Binding collective interests for profit is involved in violation of the law
Regarding this mode of operation of the "Tongguan Meat Sandwich Steamed Bun Association", lawyer Yao Kefeng believes that "this is a kind of collective trademark with social attributes and earning private profits." It is an illegal act of subscribing public interests to private property and bundling collective trademarks for profit. ”
Yao Kefeng analyzed that there is no problem with the normal rights protection of the Tongguan Meat Sandwich Association itself, but it cannot combine the rights protection with the commercial operations of related enterprises. "Commercial franchising and authorizing the use of geographical trademarks are two separate legal acts. Becoming a member and obtaining authorized use of geographical trademarks requires only a small fee, which many merchants may consider. The above two enterprises authorize meat sandwich steamed buns across the country to use the trademark by paying a large franchise fee, and if the other party does not join, the association will sue for trademark infringement. This is to promote membership by joining the association, disguised as a trademark license other than membership, which is illegal. ”
The Paper noted that the Rules for the Use of collective trademarks for geographical indications of "Tongguan Meat Sandwich Buns" clearly stipulate the use of collective trademarks, "to ensure that the collective trademark logo is not out of control, not misappropriated, not lost, not transferred, sold or gifted to others, and must not be licensed to others to use the collective trademark." ”
Article 17 of the Measures for the Administration of the Registration and Administration of Collective Trademarks and Certification Marks issued by the former State Administration for Industry and Commerce stipulates that "collective trademarks shall not be licensed for use by non-collective members." ”
Liu Kai pointed out that "joining in the commercial field refers to the agency joining of commercial brands, and there is no geographical restriction on the identity of the franchisee, but the collective trademark of geographical indications must first be a member of the collective, and then the trademark can be used according to the management rules formulated by the collective." If the collective trademark of geographical indications is separated from the geographical restriction, merchants in any place can become the actual users of the collective trademark of geographical indications by joining, which is beyond the scope of use of geographical indication trademarks, and also violates the original intention of the design of the geographical indication trademark system. ”
Liu Bin, a lawyer at Beijing Zhongwen Law Firm, also believes that "the business entity carries out its personal business expansion through geographical trademarks, which violates the purpose of geographical indication legislation." ”
Yao Kefeng believes that "geographical trademarks, as registered trademarks, are collective trademarks and should also have boundaries of rights, and geographical indications are significantly different from ordinary trademarks. Geographical trademarks not only play a role in distinguishing the geographical sources of goods and services and preventing confusion among others, but also have social attributes, and if this trademark authorization behavior that reflects the public interest and value of society is turned into a way of charging high local protection fees, it becomes a commercial monopoly behavior, which obviously violates the original intention of the law.
Editor-in-charge: Ma Shipeng