Following the storm over the rights protection of the trademarks of "Xiaoyao Town", "Tongguan Meat Sandwich Bun" and "Xinyang Maojian", the "Wuchang Rice" rights protection controversy has arisen again.
Recently, Mr. Hu of Zhongshan Xiaoya Rice Agricultural Co., Ltd. reported to nandu reporters that his company was sued for infringement by the Wuchang Rice Association and was sentenced to compensate 200,000 yuan for economic losses due to the use of the words "Wuchang Rice Flower Fragrance" for promotion and publicity, and the use of "Wuchang" as the search keyword for its products. In this regard, a staff member of the Wuchang Rice Association told nandu reporters that the association is legitimately defending rights, there is no monopoly on accumulating wealth, and "the judgments are all given by the court, pay attention to relevant evidence."
Nandu reporters combed and found that there were more than 200 trademark rights protection lawsuits initiated by the Wuchang Rice Association. In the actual jurisprudence, the Trademark Protection Of the Wuchang Rice Association has mostly won the lawsuit, but the amount of its claim has also aroused controversy.
Merchants in Guangdong were sentenced to pay 200,000 yuan to the Wuchang Rice Association for selling "Wuchang Rice Flower Fragrance" rice
"The Five Permanent Rice Association is monopolizing wealth." Recently, Mr. Hu of Zhongshan Xiaoya Rice Agricultural Co., Ltd. told Nandu reporters that because the products sold had the word "Wuchang" in the title, his company was ordered to compensate the Wuchang Rice Association for 200,000 yuan.
The first-instance civil judgment of the case shows that the plaintiff, Wuchang Rice Association, is the registrant of the trademarks "Wuchang WUCHANG and Figure" and "Wuchang Rice". On September 28, 2019, the plaintiff's agent notarized purchase of two bags of rice from the "Xiaoya Dayang Flagship Store" operated by the defendant Xiaoya Rice Company on the e-commerce platform, which was produced and sold by the defendant Xiaoya Rice Company. One of the bags of goods is prominently marked with the words "Wuchang Rice Flower Fragrance" on the front and "Manufacturer: Zhongshan Xiaoya Rice Agriculture Co., Ltd." on the back. The word "five constants" is not seen in the outer packaging of the other bag of goods, but the "five constants" is used as its search keyword.
The Wuchang Rice Association believes that Xiaoya Rice Company has prominently used the words "Wuchang Rice Flower Fragrance" on the online store for promotion and publicity without permission, and uses "Wuchang Rice Flower Fragrance" as the trade name, and prominently uses the words "Wuchang Rice Flower Fragrance" on its production and sales packaging. At the same time, the use of "five constants" as its search keyword and the prominent use of the "five constants" logo, the core part of the trademark involved in the case, as its trade name, infringed the exclusive right to use its registered trademark.
The court of first instance held that xiaoya rice company used a logo similar to the plaintiff's certification trademark on the same kind of goods without the approval of the plaintiff, which was an act of infringing the exclusive right to use the registered trademarks of the Wuchang Rice Association "Wuchang Rice" and "Wuchang WUCHANG and Figure", and should bear the civil liability for stopping the infringement and compensating the losses, and compensate the Wuchang Rice Association for economic losses of 200,000 yuan.
Xiaoya Rice Company appealed to the Beijing Intellectual Property Court against the first-instance judgment. According to its second-instance statement, the Wuchang Rice Association holds a geographical indication certification trademark and does not prohibit non-member units from using it properly. The products of Xiaoya Rice Company are derived from Wuchang, and the product quality meets the quality standards of "Wuchang Rice", and the use of "Wuchang Rice Flower Fragrance" indicates the rational use of commodity sources.
In addition, Xiaobud Rice Company believes that the products it sells are embryo rice, and germ rice and rice correspond to different attributes and consumer groups, belonging to two types that exist side by side, and are not the same commodity. Moreover, the first-instance judgment for the loss of 200,000 yuan has no factual basis, far exceeding the benefits obtained by Xiaoya Rice Company. The small bud rice company is in the early stage of the investment stage, constantly publicizing the characteristics of germ rice, are losses and no profits to speak of.
The court of second instance held that in the absence of evidence to prove the actual losses of the Wuchang Rice Association, the profits from infringement by Xiaoya Rice Company, and the reasonable trademark license fees for the "Wuchang Rice" geographical indication, the first-instance judgment found that the facts were clear and the applicable law was correct and should be upheld. The date of the judgment is October 26, 2021.
For the results of the second instance, Xiaoya Rice Company believes that it is unreasonable. Chen Feng, an agent of the enterprise and a lawyer at Beijing MingBentian Law Firm, told Nandu reporters, "The first instance found that the rice involved in the case came from Wuchang City, and its product source did not deceive consumers and did not infringe on the interests of local farmers, and the embryo rice produced by the enterprise in the second trial was tested by a professional organization to meet the requirements of GB/T 19266-2008, and we believe that the use of the word 'Wuchang' on the packaging bag meets the legal requirements for the proper and reasonable use of place names." ”
Mr. Hu also said that the existence of the Wuchang Rice Association is to protect the interests of local farmers, and its base is in Wuchang, "We have not brought losses to the industry and local farmers." ”
"We will apply to the court for a retrial." Mr. Hu said.
The association responded that it was a normal rights protection, and some merchants had previously been claimed 1 million yuan
Nandu reporter inquired about the information of the Trademark Office of the State Intellectual Property Office and found that the "Wuchang Rice" trademark was applied for by the Wuchang Rice Association in 2006, the trademark type was proof, and the exclusive right period was from December 21, 2017 to December 20, 2027.
According to the official website information, the predecessor of the Wuchang Rice Association was the management and service agency of the Wuchang Municipal Government that was responsible for the geographical certification of "Wuchang Rice" and the "Wuchang Rice" pattern logo. In the past few years, wuchang rice association has developed 530 members, 232 lawsuits and anti-counterfeiting cases, and promoted the brand value of wuchang rice to 70.327 billion yuan.
On December 14, a staff member of the Wuchang Rice Association told Nandu reporters that its trademark protection process is generally: by entrusting a team of lawyers to observe the infringement phenomenon instead, and investigate and collect evidence on the clues of infringement, then the association will feedback and determine whether it is necessary to protect rights. If it is determined that it is an infringement, the association will go through the relevant legal proceedings.
In response to the statement that Xiaomiya Company believes that it "monopolizes and accumulates wealth", the above-mentioned staff told Nandu reporter that the association is legitimately defending rights, there is no monopoly to accumulate wealth, and the judgments are given by the court, paying attention to relevant evidence.
On December 15, Nandu reporters searched for more than 300 related documents on the China Judgment Documents Network using the "Wuchang Rice Association" as the keyword, most of which were trademark infringement disputes. Among them, in 2021, in addition to the case, the Wuchang Rice Association and a number of entities involved in the case had dozens of trademark infringement disputes.
Nandu reporter noted that in 2021, in the four first-instance civil judgments involved in the Wuchang Rice Association, the Wuchang Rice Association sued as plaintiffs, and the court ruled that the defendant infringed the exclusive right to use its registered trademark and compensated its economic losses and reasonable expenses. Among them, the Wuchang Rice Association received a maximum economic loss of 100,000 yuan.
In the two second-instance civil judgments, the Wuchang Rice Association appealed as appellants (plaintiffs in the original trial), and the court rejected the appeal and upheld the original judgment. Among them, in the trademark infringement dispute with Langfang Hengfeng Grain, Oil and Food Co., Ltd., the Wuchang Rice Association held that the amount of compensation awarded by the court of first instance to 200,000 yuan was obviously too low, and requested that Langfang Hengfeng Company be changed to compensate the Wuchang Rice Association for economic losses and reasonable expenses of 1 million yuan in accordance with the law.
Nandu reporter noted that the focus of the dispute in the second instance of the case was whether the calculation method and amount of compensation awarded by the court of first instance were appropriate. After investigation, the Wuchang Rice Association claimed that the price of four "Wuchang Rice Fragrant Rice" per 5 kilograms in Hengfeng Company's stores did not exclude the price of using coupons, and from the actual sales price after subtracting the preferential treatment and excluding the freight, langfang Hengfeng Company's profit was meager. Therefore, the amount of compensation in the first instance was relatively reasonable, and the court of second instance upheld it.
The rights protection of industry associations has frequently attracted controversy, and the nature of trademarks is not the same
The Wuchang Rice Association is not alone in initiating trademark protection. Nandu previously reported that the trademarks of "Xiaoyao Town", "Tongguan Meat Sandwich Bun", "Xinyang Maojian" and "Korla Fragrant Pear" were all initiated by industry associations to protect trademark rights and caused controversy.
Among them, the storms of "Happy Town" and "Tongguan Meat Sandwich Bun" were temporarily ended due to the apologies of relevant associations and the suspension of rights protection. The Korla Fragrant Pear Association issued a statement saying that it is a legitimate right to protect rights, there is no case of suing for wealth, and there is no high joining fee or forced merchants to join the association. The staff of Xinyang Tea Development Center responded that Xinyang Maojian belongs to local protected products, and the tea labeling "Xinyang Maojian" in other places of origin is counterfeiting and infringement, and the association is legitimately safeguarding its rights.
Although they are all trademark rights protection, the nature of trademarks is different, and the types of rights protection acts are not the same. Zhao Liangshan, a senior partner at Shaanxi Hengda Law Firm and a public interest lawyer, once told Nandu reporter that "Xiaoyao Town" is not a collective trademark, but an ordinary trademark, and the license fee for the use of the trademark can be charged, but the so-called "membership fee" cannot be collected accordingly; and "Tongguan Meat Sandwich Bun" is a geographical indication registered as a collective trademark, and its trademark rights belong to all members of the association, only the meat sandwich steamed bun merchants within the area of origin can use the collective trademark, and foreign merchants can neither join the association nor join in different places. It cannot be used at the same time.
Nandu reporter learned that "Korla fragrant pear" and "Xinyang Maojian" are geographical indication certification trademarks, geographical indication certification trademarks have strict restrictions on the origin, quality and quality of goods, if the merchant sells goods produced in other regions in the name of its trademark, does not meet its trademark standards, the industry association has the right to protect the rights of "anti-counterfeiting".
Nandu reporter noted that "Wuchang Rice" also belongs to the geographical indication certification trademark. According to the judgment of the first instance, the registrant of the giga proving mark authorizes the use of the giga proving mark to the production operators who meet the specific conditions for the use of the gigap through management and supervision. Xiaoya Rice Company claimed that the raw material rice for the commodities involved in the case came from Wuchang, but it did not have the examination and approval of the Wuchang Rice Association, that is, it used a mark similar to the certification trademark of the Wuchang Rice Association on the same kind of goods, which belonged to the use of a trademark similar to the registered trademark on the same kind of goods, which was an act of infringing the exclusive right to use the registered trademark of the Wuchang Rice Association.
However, the protection of intellectual property rights does not mean that rights can be abused. Shan Xiaoguang, dean of the International Intellectual Property Institute of Tongji University, pointed out in an interview that for trademarks containing geographical indications or specific meanings, their rights protection should be strictly in accordance with the provisions of the law, and they cannot "expand rights" or engage in "universal casting of nets" without authorization, otherwise it will adversely affect the normal market economic order.
In addition to rights protection acts, in the turmoil, whether the registration of trademarks with generic names such as "Tongguan Meat Sandwich Bun" is reasonable has also become the focus of discussion. You Yunting, a senior partner at Shanghai Dabang Law Firm and an intellectual property lawyer, once told Nandu reporters that in the future, when the intellectual property department approves similar traditional food trademarks, it should introduce corresponding promotion, rights protection and authorization guidelines, "So that trademark rights holders should be more cautious when exercising their trademark rights." ”
Producer: Nandu New Format Rule of Law Research Center
Written by: Nandu reporter Wu Jialing intern Zhang Mengyuan