Recently, after the court ruled that the use of "green pepper" in wenjiang wu'a po green pepper fish hot pot did not constitute infringement, Jiangsu Haidiwei Biotechnology Co., Ltd. (hereinafter referred to as "Haidiwei" Company) broke the news to Red Star News that the Haidiwei brand honeysuckle dew water produced by itself was sued by Shanghai Bili Cosmetics Co., Ltd. (hereinafter referred to as "Bili Company") because of the three words "honeysuckle", and lost the lawsuit to compensate Bili Company for 100,000 yuan.
Honeysuckle dew produced by Haydaway
"Why did the green pepper win and we lose?" Mr. Yin, the person in charge of Haidiwei Company, was very puzzled by this, he believed that honeysuckle as an ingredient and name of Chinese medicine should not be registered, and his company also had a trademark, and there was no intention to deliberately attach the "honeysuckle" trademark.
It is understood that as many as hundreds of related enterprises have been sued by Bili Company, involving tens of millions of yuan in claims. The Suzhou Intermediate People's Court held that the "honeysuckle" as a medicinal material name is not strongly significant, the "honeysuckle" flower dew produced by Bili Company has a certain market reputation, and the "Honeysuckle" logo font on the flower dew package produced by Haidiwei Company is eye-catching and prominent, which is obviously beyond the scope of describing the proper use of the product ingredients, so it constitutes infringement to Bili Company.
At present, the case has been appealed to the Jiangsu Provincial High People's Court.
"Honeysuckle" can not be used indiscriminately?
Printed on the floral water packaging, the merchant was sued
The information provided by Mr. Yin to the Red Star News reporter shows that Haidiwei Company mainly produces and sells disinfection products and the second class of antibacterial preparation products, and there is a Haidiwei brand honeysuckle dew water bacteriostatic agent in the summer, and the trademark attribute belongs to the fifth category, that is, disinfectant.
In April and May 2021, Mr. Yin received a summons from the Suzhou Intermediate People's Court for allegedly infringing on the registered honeysuckle trademark of Bilili for selling a bottle of Hidaway brand honeysuckle dew bacteriostatic agent on Taobao.
Bili's honeysuckle trademark is the third class in terms of trademark classification
Mr. Yin said that the "Haidiwei brand honeysuckle dew water bacteriostatic agent" produced by Haidway Company belongs to the disinfection product, and the trademark classification is the fifth category, while the honeysuckle trademark of Bili Company is the third category in the trademark classification, which is not a category at all. "In addition, honeysuckle itself is the name of Chinese herbal raw materials, honeysuckle dew is a generic name, Bili Company has no right to prohibit others from using, and the 'green pepper' trademark belongs to the same nature."
According to the judgment of the Suzhou Intermediate People's Court, on January 22, 2021, the agent of Bili Company purchased a copy of the "Genuine Hideaway Honeysuckle Flower Dew Water Repellent Anti-Itching Mosquito Bite Adult Child Spray" from the store operated by Zou Mouqiang of Taobao. The middle of the front of the bottle is marked with the logo of "Honeysuckle Antibacterial Agent Flower Dew", and the upper part is marked with the "Haidway" logo in smaller font. Bili Company collected the goods through notarization and notarized and sealed the goods involved in the case.
Civil Judgment of Suzhou Intermediate People's Court
After comparison, the "honeysuckle" logo is prominently used on the flower lotion bottle, which is the same as the composition of the 603857 "honeysuckle" of Bili Company, and according to the product logo, Haidiwei Company is the entrusting unit and the Xinxing Health Product Factory is the production unit. Therefore, on the grounds of infringing the exclusive right to use its "Honeysuckle" registered trademark, Bili Company sued Haydway Company and other three parties to court, demanding that the infringement be stopped and the economic losses be compensated by 300,000 yuan.
The sample pictures provided by Mr. Yin show that the material and style of the Haldwick Honeysuckle Dew and the Bili Honeysuckle Dew bottle are different, the Haidivian brand is a plastic bottle in a small barrel, and the Bili brand is a glass bottle similar to a small beer bottle. And the "honeysuckle" font and color are not the same.
The trademark "Honeysuckle" held by Billy Company
According to the judgment, Bili Company was established on September 4, 1995, and owns a number of cosmetic brands such as Bili and Honeysuckle. On July 30, 1992, Shanghai Red Star Daily Chemicals Factory was approved and registered the trademark No. 603857 "Honeysuckle", which was approved for use in Class 3 goods, including cosmetics, emollients, perfumes, tamagma powders, and beauty creams. On February 8, 2010, Bili Company acquired the trademark by way of transfer, and after renewal, it is valid until July 29, 2022.
At present, Shanghai Red Star Daily Chemicals Factory has been revoked, and the shareholding structure shows that the company is 100% owned by Bili Company, that is, it is taken over by Bili Company.
It is easy to cause confusion or misidentification among consumers
The court ruled that Haydwick's use of "honeysuckle" constituted infringement
For being sued by Bili Company, Mr. Yin told Red Star News, "Honeysuckle is the main ingredient of honeysuckle dew water, which plays a role in clearing heat and detoxification, and is used in flower dew water, which is the same as the Tongguan meat sandwich steamed bun on the market, Xiaoyao town pepper soup, and green pepper (trademark issue). We have the 'Haydwig' trademark, and the use of honeysuckle is not infringing, just the ingredients are indicated. ”
On October 22, 2021, the Intermediate People's Court of Suzhou Municipality, Jiangsu Province, held in a civil judgment that after the right holder obtained the "Honeysuckle" trademark No. 603857 involved in the case, it used the trademark for publicity, and after years of publicity and use, the "Honeysuckle" special effect repellent flower lotion produced and sold by Bili Company has a certain market popularity.
★ Honeysuckle dew produced by Billy Company
"Honeysuckle dew produced by Haidiva Company, although the logo does not use the specific artistic font of the trademark of Bili Company, the text is exactly the same as the call, which is an approximate logo." The court held that, from the objective effect of the logo, "honeysuckle" was prominently marked in the middle of the product, while the Haydaway trademark was marked in a smaller font on the upper part, and in the case that the plaintiff's honeysuckle dew had a high reputation in the market, the labeling of the product under litigation would in fact play a role in identifying the source, which was an act of labeling in the sense of the Trademark Law, which could easily lead to confusion or misidentification of consumers, and constituted an infringement of the exclusive right to use the registered trademark involved in the case of Bili Company according to law.
With regard to Haydwell's argument that "honeysuckle belongs to a medicinal material name", the court held that although "honeysuckle" is indeed a medicinal material name, its own distinctiveness is not strong, but in addition to its inherent distinctiveness, the trademark can also establish a fixed directional connection with a certain commodity through long-term and extensive use and publicity, so as to have distinctiveness and source identification. In this case, the "Honeysuckle" logo on the packaging of the alleged infringing product was prominently displayed and prominently positioned, which obviously went beyond the scope of describing the proper use of the ingredients of the goods, because the counter-opinion of Haydway Company was not accepted.
In the end, the court ruled that Haidiwei Company and Suzhou Xinxing Health Product Factory compensated the plaintiff Bili Company for 100,000 yuan, and the other defendant, Zou Mouqiang, was jointly and severally liable for 10,000 yuan.
On the afternoon of January 18, a Red Star News reporter called the relevant person in charge of Bili Company to inquire about the prosecution, but as of press time, the phone had not been answered.
Bili Company Business Information
According to the Tianyancha APP, Shanghai Bili Cosmetics Co., Ltd. was established in September 1995 with a registered capital of 1.33 million yuan and currently involves 209 lawsuits. In August 2021, the company was fined 3,000 yuan by the Shanghai Chongming District Health Commission for producing and operating disinfection products that failed to meet the health and safety evaluation or the sanitary quality of the products did not meet the requirements. Previously, the company was administratively punished twice for false publicity, totaling 17,000 yuan.
More than 100 companies have been prosecuted for "honeysuckle"
The total amount of claims made by the trademark holders exceeded 10 million
On January 13, 2022, the Sichuan Provincial High People's Court pronounced a judgment that the use of the word "green pepper" at Wu'a Po Qinghua Pepper Fish Hot pot restaurant in Wenjiang District, Chengdu city did not constitute infringement, revoked the first-instance judgment, and rejected all the litigation claims of Shanghai Wancuitang Catering Management Co., Ltd.
Wenjiang green pepper fish hot pot
It is understood that on April 6, 2016, Shanghai Wancuitang Catering Management Co., Ltd. was transferred to obtain the registered trademark No. 12046607, and its trademark content is the text "green pepper" arranged from top to bottom. On September 7, 2016, the company obtained the trademark of "green peppercorn" arranged horizontally, with a cloud-like pepper pattern on the left, and on June 21, 2018, it obtained the trademark of "green peppercorn" arranged horizontally, with a cloud-like pepper pattern on the top.
The approved services of the above registered trademarks are all class 43, including restaurants, restaurants, etc., and are within the validity period.
The court held that "green pepper" is the name of a plant fruit and the seasoning made from it, which has a long history of cultivation in the Sichuan-Chongqing region, and has been widely known as the seasoning of Sichuan cuisine, becoming an indispensable element of Sichuan cuisine and a unique imprint of Sichuan cuisine. Shanghai Wancuitang Catering Management Co., Ltd. registered the application for "green peppercorns" on the 43rd type of service, which can be considered to have a certain degree of significance and can play a role in distinguishing the source of services. However, due to the natural connection between catering services and dish spices, the boundary between the service trademark logo and the specialty dishes with the word green pepper is delicate and confusing, which greatly reduces the distinctiveness of its registered trademarks, and it is almost difficult to identify the source of services through trademarks. Wenjiang Wu'a Po Qinghua Pepper Fish Hot Pot Shop operates a green peppercorn-flavored hot pot through the registration of the "Zou Yusmith" trademark, without the intention of attaching the registered trademark involved in the case, which will not lead to misunderstanding and confusion among the relevant public, and its use does not constitute infringement and should not bear the liability for infringement.
Zhao Zhiqing, a lawyer representing Haidiwei Company, told Red Star News that similar to the above-mentioned green pepper case, "honeysuckle" is only the name of the raw material, indicating that the flower dew water contains honeysuckle ingredients and has no subjective intention to infringe. Although the court has decided many similar cases (the use of the name "honeysuckle" constitutes infringement), the industry has objections to this judgment, and honeysuckle itself is not significant. ”
The Jiangxi Health care and Disinfection Products Industry Association issued an early warning notice
During the interview, Mr. Yin told Red Star News that hundreds of companies have been sued for the "honeysuckle" trademark. After the inquiry of the Red Star News reporter, he saw that the China Trademark Network showed that in recent years, there have been hundreds of enterprises applying for registration with the word "honeysuckle", with uses including catering, medicine, daily necessities, etc., and the vast majority of them are in the state of "waiting for substantive examination" or rejection. The Jiangxi Health care and Disinfection Products Industry Association also reported that 60 enterprises of its association were sued by the "Honeysuckle" trademark holder Bili Company for producing products such as "Honeysuckle Dew", with a total amount of about 12 million yuan, and in the vast majority of judgments, the enterprises were judged to constitute infringement and compensation. As cases of court judgments continue to emerge, the association issued an early warning on April 28, 2021, suggesting that enterprises temporarily remove products named "honeysuckle" from the shelves and wait for the honeysuckle trademark case to be clarified before marketing.
Tao Guonan, the lawyer representing Bili Company, believes that the honeysuckle trademark held by the company is still in a valid state, which is somewhat different from the green pepper case. "Specifically, we should respect judicial judgments, from the perspective of trademark law, the use of identical or similar trademarks on the same or similar goods constitutes trademark infringement." We respect judicial judgments, and the specific judgment of right and wrong judgment is actually a matter of the court's discretion. ”
At present, the case has been appealed to the Jiangsu Provincial High People's Court. Mr. Yin insisted that the name "Honeysuckle" flower dew was in normal use, "in 1994 the trademark was revoked, I don't know why it was later transferred successfully."
Red Star News reporter Lu Yanfei
Edited by Guo Yu
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