Due to the use of the word "honeysuckle dew" in the product name, 60 enterprises of the Jiangxi Health care and disinfection Products Industry Association were sued by the holders of the "honeysuckle" trademark, with a total amount of 12 million yuan.
According to the enterprise investigation data, Shanghai Bili Cosmetics Co., Ltd. applied for the registration of two "honeysuckle" trademarks in the category of daily chemical products. At present, the company has linked hundreds of court announcements and 80 pieces of legal litigation information across the country, all of which involve trademark infringement disputes. It is worth noting that these lawsuits have a record of victory for Billy Company.
At the end of last year, from the peppery soup in Xiaoyao Town to the Tongguan meat sandwich steamed bun to the Korla fragrant pear and green peppercorns, the controversy caused by the generic name trademark from time to time dominated the hot search of social media and attracted widespread attention from public opinion. The State Intellectual Property Office and the Supreme Court have spoken out to clarify the boundaries of the rights protection of common trademarks, collective trademarks and geographical indication trademarks containing generic names. Some trademark rights protection lawsuits suspected of "touching porcelain" were stopped, and some "touching porcelain rights protection" were lost by the court. The Supreme Court also particularly emphasized the need to weave a cage of dense systems so that parties to malicious litigation can "steal chickens and not corrupt rice."
At present, the parties to the malicious litigation have not yet "eroded the rice" because "stealing chickens is not successful".
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. The court held that due to the natural connection between catering services and dish spices, the boundary between the service trademark logo and the specialty dishes with the words "green pepper" is delicate and confusing, which greatly reduces the distinctiveness of the relevant registered trademarks and makes it 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.
This heart-wrenching verdict was successfully overturned for those who were "touched by porcelain". However, even if the lawsuit is lost, there is no substantive punishment for the plaintiff in the first instance who filed the lawsuit, except for the legal fee of 25 yuan, which is basically unscathed. Such a case adjudication cannot play a role in alerting future generations.
Under the litigation model of "casting a wide net", the actor does not really want to protect his rights, but only wants to meet a few or more parties who are not professional in the field of trademark rights and litigation response. If you can "touch", you will "touch", and if you can 'touch', you will earn; if you can't "touch", you will withdraw, and there will be no loss if you withdraw. In the "Rights Protection Guide" of the "porcelain touchers", they did exactly this: as long as the respondent responded to the lawsuit with a professional defense, the lawsuit was directly withdrawn. Some media have even been surprised to find that some malicious litigants have maintained a fairly high rate of victory through investigation.
Whether the "Honeysuckle Series Trademark Rights Protection Case" also belongs to the "Touching Porcelain Rights Protection Case", the author does not dare to arbitrarily give a conclusion. Trademark protection is normal in the field of intellectual property rights, and it is a measure to seek judicial remedies that deserves to be encouraged and advocated. Public opinion is disgusted by trademark "touching porcelain" is not antipathy to trademark rights protection. For example, "Lei Bi" to "Sprite", "Yong Dong" to "Pulse", "Kang Shuai Fu" to "Master Kang", and "Fairy Tale King" Zheng Yuanjie has been troubled for many years by Shuk underwear, Pipilu pork skin meat, etc., there is not much controversy in the public opinion field on the issue of whether to infringe. Most of the comments in the media also pointed out that trademark protection should not be so difficult.
Corresponding to this, it is so easy to "touch porcelain rights protection" in the field of trademarks. Popularizing intellectual property knowledge and cracking down on malicious registration and malicious rights protection are both indispensable. Some professionals only see the first half and turn a blind eye to the latter. This has become an important reason for the separation of elite and grassroots views in the public opinion controversy of trademark "touching porcelain rights protection".
In short, the main contradiction surrounding the protection of trademark rights is still the contradiction between unbalanced development and insufficient development. Some market entities still do not know what trademark rights are, and some have gone a long way on the road of malicious rights protection.
Taking the trademark infringement dispute between Bili Company and Mingchen Health Products Co., Ltd. as an example, the product that Mingchen Health was sued for was a honeysuckle dew of The Beauty of Tihua. From the appearance of the product, the brand name "Tihua Show" is prominently marked above the bottle, and the word "honeysuckle" below is also obviously different from the "honeysuckle" applied for by Bili Company. Placing two products with huge differences together, ordinary people may not be mistaken. However, the court held that there was no evidence that "Honeysuckle Dew" was a generic trade name, and the word "Honeysuckle" on the packaging of this flower dew of Tihua Noxiu was located in a prominent part of the front of the bottle, and its font was significantly larger than its "Tihua Noxiu" trademark, and judging by the location and size of the use, the healthy use of Mingchen would confuse the public, which was indeed an infringement of the trademark right of Bili Company.
Paragraph 1 of Article 59 of the Trademark Law stipulates that the holder of the exclusive right to use the registered trademark shall not have the right to prohibit the proper use of the registered trademark from the generic name, graphic or model of the goods contained in the registered trademark, or directly indicating the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods, or the geographical name contained therein. Honeysuckle, as the main raw material and common name of flower dew, enterprises have the right to use it properly. This has the same legal basis as restaurants for the proper use of "green pepper fish". Let the raw materials return to the standard, not for the trademark registrant to dominate, this is to create a good market environment, so that enterprises return to fair competition is necessary.
Although the Supreme Court has previously responded to the protection of trademarks that contain generic names, it is clear that this is not enough. In the face of the complex environment for rights protection, especially when some malicious lawsuits that knowingly do not have a legitimate rights foundation and only seek illegal benefits, infringe upon the legitimate rights and interests of others, or harm the legitimate business interests of others are still emerging, it seems impossible to expect malicious defenders to take the initiative to give up "touching porcelain". What can be expected is that judges who are the last line of defense for social justice should maintain professional determination, and the judiciary should strictly regulate judges' discretion, strengthen adjudication guidance for similar cases, and refine the standards for adapting the law, so as to seek the same case and the same judgment. Only when universal justice is realized can we block the "casting a wide net" strategy of "touching porcelain to safeguard rights", and can we truly make malicious litigants unprofitable and "steal chickens and not become erosion of rice" can be stopped. (The author is a legal person) (For more news, please pay attention to Yangcheng Faction pai.ycwb.com)
Source | Yangcheng Evening News Yangcheng Pie
Editor-in-charge | Fu Mingtu
Edit | Lee Mei Yeon