On the morning of April 22, the Shanghai Yangpu District People's Court (hereinafter referred to as the Shanghai Yangpu Court) rendered a first-instance judgment on the plaintiff, Shanghai Nanxiang Food Co., Ltd., against the defendants Shanghai Yuyuan Nanxiang Mantou Shop Co., Ltd., Shanghai Yuyuan Nanxiang Mantou Shop Co., Ltd., Shanghai Yuyuan Tourism Mall (Group) Co., Ltd., and Shanghai Yuyuan Mall (Group) Co., Ltd. Nanxiang Mantou Shop Unfair Competition Dispute, rejecting all of the plaintiff's litigation claims.
The two sides on the historical inheritance of "Nanxiang Xiaolong",
There are different opinions on the issue of the right to use
During the trial, the plaintiff and the defendant passed on the history of "Nanxiang Xiaolong"
and whether the defendant used it fairly
Intense confrontation ensues
The plaintiff argued that:
Nanxiang Xiaolong originated from the "Rihuaxuan" in Nanxiang Town, and later took the Nanxiang Xiaolong made by the "Wujiaguan" in Nanxiang Town as the best, becoming the representative of the authentic Nanxiang Xiaolong in Jiading. After liberation, through public-private partnership, "Wujiaguan" and other old hotels were merged into "city cooperative hotels" operated by Jiading County Catering Service Company, a subsidiary of Jiading County Supply and Marketing Cooperative. In this process, the recipe and production process of Nanxiang Xiaolong was passed down from "Wujiaguan" to Jiading County Catering Service Company. Jiading County Catering Service Company registered the No. 260205 Nanxiang trademark in 1985, and then opened Shanghai Jiawei Quick-Frozen Food Factory to produce "Nanxiang Xiaolongbao". The No. 260205 Nanxiang trademark was inherited by the plaintiff, so the authentic Nanxiang small cage formula and production process owned by it were continuously passed down from Jiading County Catering Service Company to the plaintiff.
The plaintiff argued that the defendant had improperly used the "Nanxiang" logo, the "Nanxiang" trademark held by the plaintiff belonged to the "China Time-honored Brand", the predecessor Shanghai Jiawei Quick-Frozen Food Factory was identified as a Chinese time-honored enterprise, and the "Nanxiang Xiaolong" products produced by the plaintiff had won many awards and were well known. The defendant maliciously used the plaintiff's well-known trade name and enterprise name for a long time to attach and hitchhike the plaintiff.
The plaintiff also argued that the defendant Yuyuan Nanxiang Mantou Shop Company also made it clear to consumers in each store that "in 2014, the production technology of Nanxiang Xiaolong was designated as a national intangible cultural heritage" and "the next cage in the world", etc., and carried out false publicity to deceive consumers.
Accordingly, the four defendants were requested to immediately stop the unfair competition act of infringing on the use of the plaintiff's trade name and enterprise name, immediately stop the false publicity behavior, and jointly publish a statement in Shanghai Wen Wei Po, Xinmin Evening News, and Oriental Morning Post, eliminate the impact, and jointly compensate the plaintiff for reasonable expenses such as economic losses totaling 3,000,000 yuan.
The defendant argued that:
Nanxiang Xiaolongbao was invented by Huang Mingxian, the heir of "Rihuaxuan" and Nanxiang, and then his daughter-in-law's cousin Wu Xiangsheng entered the shop to learn art, Wu Xiangsheng opened Changxing Lou in the City God Temple, and changxing Lou was renamed Nanxiang Mantou Shop after changxing building, and the WeChat public account article "Nanxiang Mantou Xiaokao, take you to understand the past and present life of Shanghai Xiaolong" published by the WeChat platform of the Information Office of the Jiading District Government also introduces this article. According to relevant industrial and commercial information, nanxiang mantou shop belonged to Shanghai Yuyuan Mall Old Town God Temple Catering Co., Ltd. (now Shanghai Old Town God Temple Catering Group Co., Ltd.) before October 2002, and after December 2002, it belonged to Shanghai Yuyuan Tourism Mall Co., Ltd. (i.e., the current defendant Shanghai Yuyuan Tourism Mall (Group) Co., Ltd.), and the defendant Shanghai Yuyuan Nanxiang Mantou Shop Co., Ltd. was a wholly-owned subsidiary of Shanghai Old Town God Temple Catering Group Co., Ltd "There are sufficient historical origins and historical inheritance.
The defendant argued that it was a fair use, and claimed that it respected the demarcation of the boundaries of the respective rights of the two parties in its long-term operation, and only engaged in the operation of "Nanxiang Xiaolong" within the scope of the restaurant, and that there was a reasonable basis for using words and propaganda such as "Nanxiang", "Nanxiang Xiaolong" and "Nanxiang Xiaolong Steamed Buns" in the restaurant, moreover, the "Nanxiang" trademark used by the defendant was also assessed as a "Chinese time-honored brand", and there was no need to attach itself to the plaintiff. On the contrary, the plaintiff stepped out of the scope of use of the commodity trademark and continued to open restaurants, triggering disputes between the two parties. As for the plaintiff's claim that "the defendant's relevant publicity constitutes false publicity", because the relevant information used by the defendant's publicity exists, it does not constitute false publicity.
Accordingly, it is sought that all of the plaintiff's claims be dismissed.
After trial, the Yangpu Court in Shanghai held that:
Both the plaintiff and the defendant belong to the enterprises in the city that have long been engaged in the operation of the "Nanxiang Xiaolong" food label related to "Nanxiang", and the "Nanxiang" trademark related to the operation of the plaintiff and the defendant has been awarded the title of "Chinese Time-honored Brand". At present, the plaintiff claims that the defendant has carried out the unfair competition act of using the plaintiff's influential enterprise name "Nanxiang" and the influential trade names "Nanxiang Xiaolongbao" and "Nanxiang Xiaolongbao" without authorization, which actually involves a dispute between the two parties over whether they have the right to use the business marks related to "Nanxiang" and how to demarcate the boundaries when both have the right to use.
Judging from the historical origins, both parties agreed that Nanxiang Xiaolong was created by Huang Mingxian of Rihuaxuan, and submitted relevant documents to support it. Among them, the historical inheritance materials submitted by the plaintiff can reflect the historical existence of Wujiaguan and engaged in the production of Nanxiang Xiaolong, after which the store was merged into Jiading County Catering Service Company during the public-private partnership, and Jiading County Catering Service Company invested in the establishment of Shanghai Jiawei Frozen Food Factory to produce and operate quick-frozen Nanxiang Xiaolongbao; in February 1993, the plaintiff established and used the enterprise name of Shanghai Nanxiang Quick-Frozen Food Co., Ltd., and the address at the time of its establishment was the original site of Shanghai Jiawei Quick-Frozen Food Factory. The relevant documents during the establishment period reflected that the current assets of the former Shanghai Jiawei Quick-Frozen Food Factory and the workers in the original factory entered the plaintiff. The above facts reflect that there is a certain historical connection between the plaintiff and "Wujiaguan", based on the relationship between "Wujiaguan" and "Nanxiang Xiaolong", the plaintiff also has a certain historical relationship with "Nanxiang Xiaolong", so that its use of "Nanxiang" related operational marks has a certain historical basis.
The defendant submitted historical inheritance materials that "Wu Xiangsheng built Changxing Building, which was later renamed Nanxiang Mantou Shop", and the "Commercial Survey Form of the Industrial and Commercial Bureau of the Shanghai Municipal People's Government" records that the old Changxing Building was founded in 1900, and the historical evolution is "Changxing Lou - Chaoyang Dim Sum Shop - Nanxiang Mantou Shop", and the relevant industrial and commercial archives of Nanxiang Mantou Shop also show that Nanxiang Mantou Shop belongs to Shanghai Yuyuan Tourism Mall Co., Ltd. The above facts reflect that the Nanxiang Mantou Shop and its business related parties involved in the case, that is, the defendant in this case, also have a certain historical relationship with the "Nanxiang Xiaolong", so that the use of the "Nanxiang" relevant operational mark by the Nanxiang Mantou Shop also has a corresponding historical basis.
Judging from the current situation formed by the long-term operation, the purpose of Shanghai Jiawei Quick-frozen Food Factory in 1988 is to "increase the export of 'Nanxiang Xiaolong' new assembly line" and "produce and operate Nanxiang Xiaolongbao and Quick-frozen Food", and since then, after the establishment of the factory and the plaintiffs who have a related and successor relationship with it, they continue to engage in the production and sales of quick-frozen food including quick-frozen Nanxiang Xiaolongbao, and continue to this day. It proves that the plaintiff and its associated Shanghai Jiawei Quick-Frozen Food Factory have long used the mark related to "Nanxiang" in the field of quick-frozen food commodities to operate. Nanxiang Mantou Shop and its predecessor Changxing Building, since its establishment, have provided catering services related to Nanxiang Xiaolong in Yuyuan Garden, and have continued to this day, which is enough to prove that the defendant's relevant Nanxiang Mantou Shop has long used the mark related to "Nanxiang" in the restaurant field to operate.
From the perspective of existing rights, Shanghai Jiawei Quick-Frozen Food Factory and the plaintiff successively held food products registered in Class 30 Small Dumplings
trademark, and used in related quick-frozen food, the pattern trademark has been recognized as a famous trademark of Shanghai, a key protected trademark of Shanghai, a time-honored brand in China, etc. The defendant registered on Category 42 restaurant services
Trademark, the trademark is actually used by the relevant catering stores of Nanxiang Mantou Shop, and the pattern trademark has also been identified as a famous trademark in Shanghai, a key protected trademark in Shanghai, a time-honored brand in China, etc. The above facts reflect that the plaintiff and the defendant have obtained or been authorized to use the registered trademark "Nanxiang" in the field of goods and services respectively, and both parties have relevant rights to the "Nanxiang" business mark.
Based on the fact that both the plaintiff and the defendant have certain historical origins with "Nanxiang Xiaolong", the plaintiff's use of business marks related to "Nanxiang" is mainly in the frozen food industry, and the defendant's relevant Nanxiang mantou shop mainly uses the business marks related to "Nanxiang" in the catering service industry, and the two parties respectively enjoy rights in the field of goods and services in the "Nanxiang" registered trademark, reflecting that the two parties have actually coexisted in long-term operation, and have continued to obtain various honors, including Chinese time-honored brands, which have been introduced and reported. It is enough to prove that the two parties have a high reputation in their respective fields of operation, so from the perspective of fairness, the "Nanxiang" related business marks of both parties should still coexist in the market.
When determining the boundaries of the rights of both parties to the business marks related to "Nanxiang", full consideration should be given to the above-mentioned historical origins, the objective status quo formed by the long-term operation, and the situation of the existing rights, and the boundaries of the rights should be demarcated according to the existing fields, scopes, and methods of use formed by the plaintiff and the defendant in the long-term historical operation, and the plaintiff and the defendant should operate in good faith within the boundaries of the rights.
Where the plaintiff believes that the Nanxiang Mantou Shop involved in the case constitutes an act of unfair competition, it should be judged on the basis of whether the defendant's alleged conduct exceeds the boundaries of the aforementioned rights.
In view of the fact that the Nanxiang Mantou Shop involved in the case is engaged in catering services, it does not exceed the boundaries of the business field that nanxiang Mantou Shop has formed for a long time. The "Nanxiang" related dishes provided in its business premises are provided in the form of freshly made and sold in the restaurant, not in the form of quick-frozen food, so it does not exceed the boundaries of the use field that Nanxiang Mantou Shop has formed for a long time. In addition, the above-mentioned business entities have the right to use the service trademark in their stores, and the above-mentioned use of the word "Nanxiang" on the freshly sold dishes does not exceed the scope of the fair use of the service trademark, and in the environment related to the relevant Nanxiang mantou shop involved in the case, consumers will not mistakenly believe that the above dishes have a specific connection with the plaintiff and its business, which is mainly engaged in the business of quick-frozen food, thus causing confusion.
The Nanxiang Mantou Shop involved in the case has a certain historical relationship with the "Nanxiang Xiaolong", so its "descendants of the cage" and "the true source and representative of the Nanxiang Xiaolong in Shanghai" and other statements that publicize the existence of a inheritance relationship with the Nanxiang Xiaolong do not constitute false information; nor does it constitute false propaganda for the "Tianxia Cage" and "The Originator of the Small Cage" advertised by the Nanxiang Mantou Shop involved in the case.
Based on the above, none of the acts of unfair competition claimed by the plaintiff in this case were established, and its claim that the four defendants bore corresponding civil liability, had no factual and legal basis, and did not support it, so the above judgment was made in accordance with law.
The judge said:
In this case, the plaintiff and the defendant had a certain historical relationship with "Nanxiang Xiaolong", both of them engaged in business activities marked by "Nanxiang" for a long time, and in the process of their long-term operation, they won a large number of honors, and the "Nanxiang" logo they held was awarded the title of "Chinese Time-honored Brand", and both accumulated high goodwill. In this case, the main issue in this case is how to demarcate the boundaries of their respective rights when both the plaintiff and the defendant have the right to use the "Nanxiang" mark.
When handling disputes involving Chinese time-honored brands, the division of the boundaries of the rights of enterprises with Chinese time-honored brands will generally be comprehensively considered for the history, business status, fairness and other factors of both parties. Specific to this case, the court held that the two parties' "Nanxiang" related business marks should coexist in the market, and when determining the boundaries of the rights of the two parties to the "Nanxiang" related business marks, fully consider the historical origin of the two parties, the objective status quo formed by the long-term operation, and the existing rights, and divide the boundaries of rights according to the existing use fields, scopes, and methods formed by the plaintiff and the defendant in the historical long-term operation, and the plaintiff and the defendant should operate in good faith within the boundaries of the rights.
In this case, the Nanxiang Mantou Shop involved in the case was engaged in catering services, and the "Nanxiang" related dishes provided in the store were provided in the form of ready-made and ready-made sales in the restaurant, not in the form of quick-frozen food, and on the whole, the Nanxiang Mantou Shop involved in the case used the "Nanxiang" related mark in its restaurant store environment, and did not exceed the boundaries of the field, scope and method of use that Nanxiang Mantou Shop had formed for a long time. Based on this finding, the court dismissed the plaintiff's claim.
Contributed by: Yangpu District People's Court
Editor: Wu Baixin
Yangpu District Rong Media Center