Another "green pepper" case won the second instance! Restaurant owner: "Green pepper" shop sign more assured

Cover news reporter Gou Chun Dai Zhuxin

Mr. Zhang runs a "green pepper fish" hot pot fish shop in Chengdu. In October 2021, he suddenly received a court summons, and Shanghai Wancuitang Restaurant Management Co., Ltd. sued him to the court, believing that Mr. Zhang's restaurant sign "Green Pepper" was suspected of infringement, and the court ruled that Mr. Zhang lost the case.

Mr. Zhang appealed to the Sichuan Provincial High People's Court, and on January 14, the second instance trial of the case began. On January 19, he received the long-awaited verdict of the second instance. The court ruled to revoke the first-instance judgment and rejected all litigation claims of Shanghai Wancuitang Restaurant Management Co., Ltd.

According to the judgment provided by Mr. Zhang, the court of second instance held that a trademark registered in accordance with the law is protected by law. Wancuitang Company is the exclusive right holder of the registered trademarks No. 12046607, 17320763 and 23986528, and the above registered trademarks are within the validity period, and the legal rights of Wancuitang Company shall be protected by law, and others shall not use them illegally without the permission of the right holder.

The use of the word "green pepper" by the cat fish hot pot restaurant (mr. Zhang's hot pot restaurant, named "Chongqing Green Pepper Fish Hot Pot Buffet") is a fair use. The words "green peppercorns" contained in the store name of the store and the store name of the Meituan website are the same as the words "green peppercorns" contained in the trademark involved in the case of Wancuitang Company and the call, but the "Green Peppercorns" are not prominently used separately by the Hungry Cat Fish Hot Pot Restaurant.

The court held that in this case, the logo used by the cat fish hot pot restaurant completely and clearly expressed to the public the characteristics of the dishes it provided to consumers, and the word "green pepper" contained in the logo was an objective description of the green peppercorn seasoning contained in the fish hot pot it provided, and was not a trademark use, and the use method was also in line with business practices.

At present, the scope of business activities of Wancuitang Company is mainly in Shanghai and Jiangsu, and the trademarks involved in the case are not familiar to the relevant public in Sichuan and Chongqing. Therefore, the relevant public generally does not associate it with the trademark involved in the case with the trademark involved in the case by wancuitang company subjectively, and the relevant public generally does not associate it with the trademark involved in the case of the wancuitang company in Shanghai; the word "green pepper" on the physical store sign of the steamed cat fish hotpot restaurant and the name of the store on the Meituan website does not have the function of identifying the source of the service, nor will it cause confusion or misidentification among the relevant public, and its proper use does not constitute trademark infringement and should not bear the liability for infringement.

As a catering industry operator, Wancuitang Company shall also follow the principle of good faith and exercise its rights in accordance with the law, and shall have no right to interfere with or prohibit the proper use and honest operation of the word "green pepper" in the Steamed Cat Fish Hot Pot Restaurant, and its litigation claims should not be supported.

"I've always believed that I was justified in using 'green peppercorns.'" Mr. Zhang said that although he received a court summons in October 2021, he had not removed the sign of green peppercorns. Now, the court has won the second trial and won the lawsuit, "more down-to-earth, and it is very reassuring."

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