Per editor: Cheng Peng, Yi Qijiang
Speaking of "Absolute Taste Duck Neck", everyone is no stranger, and there are stores in the streets and alleys, however, recently "Absolute Taste Duck Neck" sued a snack shop in a county town in Anhui Province with the sign of "Absolute Taste Cold Skin", because this snack bar infringed the trademark rights of The Company that sells duck neck (the company's full name is "Absolute Taste Food Co., Ltd.").
However, the first instance lost the lawsuit, and then the company appealed. Recently, the court made a final judgment in the second instance, and the company lost the lawsuit again. It is worth mentioning that a poem by the Northern Song Dynasty poet Huang Tingjian became one of the important bases for the judgment.
"Tasteless duck neck" sued "tasteless cold skin"
Absolute Taste Food Co., Ltd. (hereinafter referred to as Absolute Taste Company) is located in Changsha City, Hunan Province, established in December 2008, the main scope of food, agricultural and sideline products production, processing, sales, technology development, technical services, etc.
Absolute Taste Company was transferred to obtain the exclusive right to use the relevant "Absolute Taste" registered trademark, and the relevant trademark approved the use of goods as Class 29, including plate duck, dead poultry, pork food, edible animal bone marrow, sausage, pickled vegetables, dried meat, tofu products, etc.; Class 35, including sales (for others), restaurant management, business management assistance, business management consulting, advertising and publicity, etc.
The relevant "absolute taste" registered trademark has been recognized as a well-known trademark by the State Trademark Office.
In the course of its operation, the company discovered that there was a "absolutely delicious cold skin" shop located in Wuhe County, Bengbu City, and believed that the cold skin shop was infringing.
It is understood that this Wuhe County Weizhengxiang snack bar was established in December 2016, the business scope is snack services, mainly engaged in cold skin.
According to the Yangtze River Daily, the data photos show that the four large characters of "AbsoluteLy Tasted Cool Skin" hanging at the door of the Weizhengxiang Snack Bar are more eye-catching, the four characters are of the same size, using the line book font, and the small font below is hung "Bridge Rice Noodles, Special Snacks, Meal Hotline...", and the glass door of the snack bar is pasted with the snack variety "Sour and Spicy Powder Rice Noodle Fried Rice Rolled Dough Skin Cold Skin Burritos Brine".
Once the signature of the "Tasteless Cold Skin" snack bar. Image source: Yangtze River Daily
At the beginning of 2021, Absolute Taste Company sued Wei Zheng Xiang Snack Bar to the court, and Absolute Taste Company believed that it knew that the "Absolute Taste" trademark had a very high degree of popularity and influence, and had a high degree of recognizability, and still used the same logo on its store signboard, which was suspected of free riding.
Weizhengxiang Snack Bar is required to stop infringing the exclusive right to use the trademark of Absolute Taste Company, immediately stop the use of the word "Absolute Taste" on the inside and outside of the store and on the auxiliary facilities, equipment, and packaging of goods; immediately stop the act of unfair competition; and compensate Absolute Taste Company for economic losses and reasonable expenses totaling 30,000 yuan.
According to the Yangtze River Daily, the reporter 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 infringement of the company. In Chen Xiaowei's eyes, his own snack bar, the store is not large, like a food stall.
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."
According to the Anhui Business Daily, Weizhengxiang Snack Bar argued that the Chinese thesaurus contains the word "tasteless", which is interpreted as a wonderful taste, a unique taste, which shows that the word is the precipitation of Chinese civilization for thousands of years, and the use of this word is the right of every Chinese son. As long as the user does not directly use the word taste for the same goods under the corresponding trademark, or use the word taste to identify the product trademark, then the company has no right to restrict the use of others.
The four words of "absolutely tasteful cool skin" are only the description of the taste and quality of the cool skin; from the perspective of the use scene, the registered name of the weizhengxiang snack bar is Wuhe County weizhengxiang snack bar, and the weizhengxiang snack bar only uses the "absolutely delicious cool skin" on the door, which is essentially a representation of the business variety (menu type nature), and other snack categories do not use the word "tasteless".
"The absolute taste trademark of the absolute taste company is well-known in the country, and every foodie who prefers duck neck, duck head and other duck products can think of 'absolute taste duck neck', but the taste of the snack bar operates a cool skin, which is not within the protected varieties of the absolute taste registration, and will not cause the public to think that it has a specific connection with the 'tasteless duck neck', and will not cause confusion of goods." For example, according to the logic of the absolute taste company, the absolute taste company uses the two Chinese characters of the absolute taste, then the whole country and even the world, where the food and catering industry and even the ingredient industry, can not have their own product taste quality taste and taste of the introduction and expression. ”
Court: Huang Tingjian's poems have a tasteless taste
Absolutely cool skin is not infringing
The court of first instance held that the types of goods approved for use by the two registered trademarks were not the same, and at the same time, the relevant public generally did not believe that there was a specific connection between food products such as plate duck, dead poultry, pork and other foods with cold skins and noodles, thus causing confusion, so the two were not similar goods.
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. The use of the word "Absolute Taste" on the signboard of Weizhengxiang Snack Bar is a description of the quality of the goods it operates, which is a fair use, and subjectively there is no intention to attach the registered trademark of the Absolute Taste Company, and the holder of the exclusive right to use the registered trademark has no right to prohibit it.
Accordingly, the court of first instance ruled to reject all the litigation claims of Absolute Taste Food Co., Ltd.
According to The Yangtze River Daily, 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 snack bar, which has been renamed "Miso Xiang Liang Pi", still faintly traces of the "Absolute Taste Cool Skin" on the signboard. Image source: Yangtze River Daily
The final judgment of "dismissal of appeal, upheld of the original judgment"
Absolute Taste Company appealed against the first-instance judgment. One of the appeal requests was to "change the judgment of WeiZhengxiang Snack Bar to compensate The Company for economic losses and reasonable expenses for safeguarding rights totaling RMB30,000".
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 Second Instance Trial of the Bengbu Intermediate People's Court held that Weizhengxiang Snack Bar is an individual industrial and commercial household, and its business scope is catering services, and the relevant contents in the service scope approved by the trademark of Absolute Taste Company do not belong to the same or similar goods and services; secondly, "Absolute Taste" is not a contrived word, it has the meaning of "Wonderful Taste", and the text size and font used in the signature of Wei Zheng Xiang Snack Shop "Absolute Taste Cool Skin" are exactly the same, which is obviously different from the word "Absolute Taste" registered by the Absolute Taste Company Trademark, and the word "Absolute Taste" and "Absolute Taste" are not used separately and prominently. Also not significantly identified parts.
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".
"Absolutely delicious grilled fish" and "absolutely delicious rabbit" also became defendants
The company has cracked down on a number of rights protection companies
In addition to the "tasteless cold skin", the "tasteless rabbit" also became the defendant.
According to the cover news, on January 6, Mr. Gan, who opened a Chinese restaurant in Chengdu High-tech Zone, Sichuan Province, told reporters that not long ago, he received a first-instance judgment from the court, ruling that he would compensate 10,000 yuan to Absolute Taste Food Co., Ltd. (the parent company of "Absolute Taste Duck Neck", hereinafter referred to as Absolute Taste Food), and Mr. Gan said that he would appeal against this result.
Mr. Gan recalled that in June 2021, the person with the taste of duck neck went to the store to get evidence, and in August someone came to communicate with him and let him give money privately, otherwise he would face prosecution.
"They said 30,000 yuan at that time, let us have an affair with him, we thought it was a liar, we ignored him, and then we received a court summons." Mr. Gan said, "A few days ago, I received a court judgment that we lost, but we felt very wronged, they were selling duck neck, we were making Chinese food, and the two had nothing to do with each other, so we planned to appeal." ”
"In fact, like our small shops, there is not so much energy, and they can't afford to spend." Mr. Gan said, "In the past two years, everyone has been surviving the epidemic, and we have to earn a lot of time for the money they claim." ”
Also indicted is the "delicious grilled fish".
"We now understand that there are many shops that have become defendants, some do grilled fish, some do fake dishes, they all sue, there are 4 or 5 that can be contacted in Chengdu, and there may be hundreds of them in other provinces." Mr. Gan said.
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.
According to the Yangtze River Daily, 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 absolute taste of duck neck Jiangdong store in Dunhua City, Jilin Province, the red bright duck bawang in Anxiang County, Hunan Province, the Xiang absolute taste duck bawang store in Qianyang County, Shaanxi Province, and the Xiangxiang absolute taste duck neck shop in Yulin High-tech Zone in Shaanxi Province, and the amount of compensation proposed ranged from nearly 10,000 yuan to tens of thousands of yuan.
In a number of cases, the 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.
Editor| Cheng Peng, Yi Qijiang, Wang Jiaqi
Proofreading | Lu Xiangyong
Image source: Yangtze River Daily
Daily economic news is synthesized from Yangtze River Daily, Anhui Business Daily, cover news
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