Recently, the Shaanxi Tongguan Meat Sandwich Steamed Bun Association launched a nationwide rights protection action. According to the "Tianyan Inspection", the Tongguan Meat Sandwich Steamed Bun Association has more than 200 court announcements, which are basically suing trademark disputes in "Tongguan Meat Sandwich Bun" stores across the country.
The Tongguan Meat Sandwich Bun Association has a large number of court announcements
After arousing widespread public concern, on the morning of November 26, the State Intellectual Property Office made it clear that "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.
In the eyes of legal circles, such a result is expected. Looking at the whole country, there are many trademarks similar to "Tongguan Meat Sandwich Bun", such as Shaxian snacks, Lanzhou beef ramen, Jiaxing rice dumplings and so on. The reorganization of the incident may help us to correctly understand the legal boundaries of such trademarks.
Hundreds of rights defense lawsuits have sparked outrage
On November 21, henan minsheng channel large reference column reported that dozens of local snack bar merchants were sued by the Tongguan Meat Sandwich Association for selling meat sandwich steamed buns with the word "Tongguan", demanding that they compensate 30,000-50,000 yuan. These snack bar owners find it difficult to understand, and most of the lawsuits against the Tongguan Meat Sandwich Association are not recognized. This report has aroused widespread concern in public opinion.
According to the staff of the Tongguan Meat Sandwich Bun Association, the association's rights protection action began in February this year. They have fought lawsuits nationwide, province by province, and have now advanced to Henan Province. At the same time, the staff said that their rights protection has a sufficient legal basis.
After searching the information published on the trademark network of the State Intellectual Property Office, "Tongguan Meat Sandwich Bun" is a collective trademark registered by the Tongguan Meat Sandwich Steamed Bun Association in 2015. According to the relevant provisions of the Trademark Law, a collective trademark is a sign registered in the name of a group, association or other organization for use by members of that organization in commercial activities to indicate the user's membership in the organization.
"Tongguan Meat Sandwich Bun" is indeed a successfully registered trademark
"The Tongguan Meat Sandwich Steamed Bun Association, as the exclusive right holder of the registered trademark, filed a trademark infringement lawsuit based on the trademark law's determination of trademark infringement." Yan Binbin, a lawyer at Shanghai Lvhong Law Firm, said that trademark infringement has many forms of expression, such as using a trademark identical to its registered trademark on the same kind of goods without the permission of the trademark registrant; using a trademark similar to its registered trademark on the same kind of goods without the permission of the trademark registrant, or using a trademark identical to or similar to its registered trademark on similar goods, which is likely to cause confusion; selling goods that infringe the exclusive right to use a registered trademark, and so on.
That is to say, the Tongguan Meat Sandwich Bun Association does hold the relevant trademark, and if other merchants use the trademark without authorization, the association's lawsuit is not without legal basis. In one case that had already been decided, the defendant, a snack bar, did not submit any relevant reasons and evidence to the court for defense, in which case the court ordered the defendant to compensate the plaintiff Tongguan Meat Sandwich Steamed Bun Association for 11,000 yuan as appropriate.
Then, at a time when the whole society is paying more and more attention to the protection of intellectual property rights, why does the seemingly legitimate act of rights protection attract unanimous criticism?
GiF trademarks are not paid for use
In the view of legal circles, the Tongguan Meat Sandwich Association can certainly defend its rights, but its actual practice has crossed the line.
This is also determined by the special properties of the trademark. Tongguan is an ancient place name that has been used for thousands of years and has a relatively high reputation in China, and the collective trademark of "Tongguan Meat Sandwich Bun" contains geographical indications. According to the relevant provisions of the Trademark Law, geographical indications are indicators that indicate that a certain product originates from a certain region, and the specific quality, reputation or other characteristics of the goods are mainly determined by the natural factors or human factors in the region. The general trademark reputation comes from a certain company, but the trademark of Tongguan Meat Sandwich Bun is made by many shopkeepers who use the same craftsmanship.
"Tongguan meat sandwich steamed bun" is not unique to a certain company, but a symbol of a region
"This kind of trademark is not the same as the trademark we usually see, which does not mean that the association can monopolize the right to use it once it registers this trademark." Liu Minxuan, deputy director of the Intellectual Property Business Committee of the Shanghai Lawyers Association, told Jiefang Daily Shangguan News that according to the trademark law, if the meat sandwich bun sold by each snack bar meets the geographical indication conditions and quality standards of The Tongguan Meat Sandwich Bun, it has the right to use the "Tongguan Meat Sandwich Bun" trademark without joining the association or team members.
In addition, the high compensation demanded by the association is another important cause of public dissatisfaction. According to reports, most of the merchants sued face tens of thousands of yuan in compensation or are required to pay tens of thousands of yuan in membership fees. In this regard, Yan Binbin believes that the real purpose of the association's rights protection is more like seeking huge profits through litigation. "The judicial procedures initiated by the association have a wide geographical scope, involving a large number of people, and most of them are self-employed businesses with their own duties, and the merchants generally cannot accept the amount of large claims they have made, and they have fraudulently obtained huge profits through legal intimidation, litigation threats, etc. The so-called rights protection is actually fighting a 'hooligan lawsuit', and the social impact is extremely bad."
Liu Minxuan also believes that the Tongguan Meat Sandwich Steamed Bun Association is suspected of obtaining compensation costs in the name of safeguarding rights, which is contrary to the original intention of the establishment of the collective trademark system for geographical indications, but is not conducive to the management and development of local special snacks.
How should Shaxian snacks correctly defend their rights
Although public opinion has one-sidedly accused the association of "eating too ugly" for its rights protection, leaving aside the high claims, it is undeniable that there are indeed some Tongguan meat sandwich steamed bun shops on the market, with uneven quality, and even "hanging sheep's head to sell dog meat", which will undoubtedly affect the reputation of the trademark "Tongguan Meat Sandwich Bun".
The Tongguan Meat Sandwich Steamed Bun Association issued a statement of accountability
In April 2018, the Tongguan Meat Sandwich Steamed Bun Association issued the Statement on Pursuing Responsibility for Violations, Violations of The Law and Infringements. The statement mentioned that at present, there are individual illegal and illegal cottage shops in Shaanxi Province and other parts of the country under the brand of "Tongguan Meat Sandwich Bun", which seriously infringes the trademark rights of the association. Its operators generally have not received any food safety training and assessment, and the restaurants they operate have unknown sources of food raw materials, chaotic internal personnel management, and dirty and chaotic health environment, which seriously affects the food health of consumers and also hurts the brand image of "Tongguan Meat Sandwich Bun". At the same time, major online platforms have listed suspected and similar Tongguan meat sandwich steamed bun stores, which has seriously confused consumers and has an extremely bad impact on the brand and impact of the association. The existence of such violations and infringements has seriously deceived consumers and damaged the legitimate rights and interests of consumers, and has also caused irreparable goodwill impact on the association, damaged the image of the association, and caused brand losses and economic losses.
In the same way, for collective trademarks such as Shaxian snacks and Lanzhou beef ramen, how should we protect our rights in the face of such situations in the future?
In the eyes of legal professionals, the key is to see what is the starting point of the association's rights protection. "If the association is to protect its rights with the original intention of improving the overall quality of Tongguan meat sandwich steamed buns, it is legal and reasonable." But its current litigation claim is more like a profit for the purpose of collecting a franchise fee, which is out of the original intention of the law, unreasonable and illegal. Pan Jian, director of the intellectual property department of Shanghai Xiaocheng Law Firm, said that for those merchants whose craftsmanship and taste do not match, the association can ask the other party to accept relevant guidance and help make it authentic. In this process, some membership fees can be appropriately charged. However, in this incident, the subject of the association's rights protection has clearly departed from the normal fees for joining the association, and the essence is to collect trademark licensing royalties, which is beyond the scope of the association's rights, so the rights protection action has been stopped.
Column Editor-in-Chief: Wang Haiyan Text Editor: Wang Xianle Title Image Source: Tongguan Meat Sandwich Steamed Bun Association official website
Source: Author: Wang Xianle Liu Xueyan