The tasteless duck neck sued the taste of cold skin infringement and did not win

A snack bar in the county town with the sign of "Absolute Taste Cold Skin" infringed the trademark rights of the Absolute Taste Company (the full name of the company is "Absolute Taste Food Co., Ltd.") featuring the sale of duck necks. After losing the first instance, Absolute Taste Company appealed. Recently, the court made a final judgment in the second instance, and the company lost the lawsuit again.

The "tasteless cold skin" shop accidentally became the defendant

A reporter from the Yangtze River Daily recently contacted Chen Xiaowei, the former owner of the Weizhengxiang Snack Bar in Wuhe County, Bengbu City, Anhui Province, and she felt very wronged about the lawsuit against herself by the Absolute Taste Company.

In December 2016, Chen Xiaowei opened a snack bar registered as Wuhe County's Weizhengxiang in Chengguan Town, Wuhe County, mainly dealing in cold skins.

The information photos seen by the reporter show that the four big characters of "AbsoluteLy Tasted Cold Skin" on the signboard of the snack bar are more eye-catching, and there are "bridge rice noodles special snacks" and ordering telephone information below. In Chen Xiaowei's eyes, his own snack bar, the store is not large, like a food stall.

In early 2021, Chen Xiaowei's "AbsoluteLy Tasted Cool Skin" was sued by the Changsha-based Absolute Taste Company. Absolute Taste Company believes that knowing that the "Absolute Taste" trademark has a very high degree of popularity and influence, it still uses the same logo on its store signboard, which is suspected of free-riding.

Chen Xiaowei said that when the store was named in 2016, he had not heard of "absolutely delicious duck neck", and the reason why he played "absolutely delicious cool skin" on the signboard was to describe his cool skin as having a good taste. "If I had known they were also called Tasteless, I wouldn't have used that name."

Huang Tingjian's poem once used "absolute taste"

The court of first instance held that the use of the word "Absolute Taste" on the signboard of Weizhengxiang Snack Bar was a description of the quality of the goods it operated, which was a fair use, and subjectively there was no intention to attach the registered trademark of Absolute Taste Company, and the holder of the exclusive right to use the registered trademark had no right to prohibit it.

The court of first instance also held that Huang Tingjian of the Northern Song Dynasty wrote in his poem "Liao Zhiping Sends Green Lizhi to the First Prince of Rongzhou Lizhi Green Wine": "Whoever can win with this is the poem of Old Du Donglou." It can be seen that the word "tasteless" itself is a description of the quality of food, has its historical origin, is a common word for the public, and is not prominent as a trademark itself.

Wang Xiang, Chen Xiaowei's litigation agent, said that the average daily turnover of snack bars is one or two hundred yuan, and when the business is good, it is only two or three hundred yuan.

Wang Xiang told reporters that in April 2021, after Chen Xiaowei learned of the defendant of his snack bar, he changed the sign of the snack bar from "absolutely delicious cool skin" to "taste of the cool skin" without waiting for the first trial to pronounce the verdict.

The final judgment of "dismissal of appeal, upheld of the original judgment"

After the company lost the lawsuit in the first instance, it appealed again, and one of the appeal requests was to "change the judgment of the weizhengxiang snack bar to compensate the company for economic losses and reasonable expenses for rights protection totaling 30,000 yuan".

For the appeal of The Tasteless Company, the Intermediate People's Court of Bengbu City, Anhui Province, after filing the case on November 16, 2021, formed a collegial panel in accordance with the law and conducted the trial.

The Bengbu Intermediate People's Court held that the business scope of Weizhengxiang Snack Bar and the relevant contents in the service scope approved by the trademark of Weiwei Company did not belong to the same or similar goods and services; the text size and font used in the signature "Absolute Taste Cool Skin" of Weizhengxiang Snack Shop were exactly the same, which was obviously different from the word "Absolute Taste" registered by the trademark of Weizhengxiang Company, and the word "Absolute Taste" was not used separately and prominently.

The Bengbu Intermediate People's Court also believes that the location of the Weizhengxiang snack bar is in Chengguan Town, Wuhe County, Anhui Province, and according to the general attention standards of the relevant public, the "absolutely delicious cool skin" as the store signboard is not easy to cause consumers to confuse the source of the service.

"Based on the evidence in the case, the court of first instance found that there was no infringement of the trademark right of The Taste Company by the Taste Of Taste Restaurant, and that the grounds for appeal of the Taste Company could not be established, and this court did not support it." On December 15, 2021, the Bengbu Intermediate People's Court made a final judgment that "rejected the appeal and upheld the original judgment".

The company has cracked down on a number of rights protection companies

According to the data, The company was established on December 17, 2008, registered the trademark "Absolute Taste" on March 7, 2009, and was recognized as a well-known trademark by the State Trademark Office in October 2010.

The reporter found through the China Judgment Document Network that in 2021, the company sued a number of restaurants that used the word "absolute taste", such as the tasteless duck neck Jiangdong store in Dunhua City, Jilin Province, the Red Bright Duck King in Anxiang County, Hunan Province, the Xiangzhi Taste Duck Bawang Store in Qianyang County, Shaanxi Province, and the Xiangxiang Duck Neck Shop in the High-tech Zone of Yulin City, Shaanxi Province, with the amount of compensation ranging from nearly 10,000 yuan to tens of thousands of yuan.

The reporter noted that in many cases, the two parties finally reached a compensation settlement agreement, and the company proposed to withdraw the lawsuit. Absolute Taste Company's complaint against "Absolute Taste Cool Skin" is one of the few cases that have been lost.

Column Editor-in-Chief: Gu Wanquan Text Editor: Yang Rong Caption Source: IC photo Image Editor: Cao Liyuan

Source: Author: Yangtze River Daily