"Nanxiang Xiaolong", Shanghai's iconic snack, is famous, but around the trademark rights of "Nanxiang", Shanghai Nanxiang Food Co., Ltd. and Shanghai Old Town God Temple Catering (Group) Co., Ltd. in Jiading have started a lawsuit. Old Town God Temple Catering Company sued Nanxiang Food Company and others for trademark infringement and unfair competition in the Pudong Court, and Nanxiang Food Company also sued Old Town God Temple Catering Company and other unfair competition in the Yangpu Court.
The Yangpu court pronounced the verdict
Today (22nd), the two cases were pronounced in the first instance. The Yangpu court ruled that the actions of the Old City God Temple Catering Company did not constitute unfair competition and rejected the litigation claims of Nanxiang Food Company. The Pudong court held that although Nanxiang Food Company's behavior did not constitute unfair competition, it infringed the trademark rights of Old Town God Temple Catering Company, so it ordered it to stop the infringement and compensate Old Town God Temple Catering Company for 2.342 million yuan.
If the results of these two judgments are followed, it means that the two companies will return to the state of the past 20 years, when you sell quick-frozen food, I sell dine-in food, and the well water does not violate the river water.
Who is engaged in unfair competition?
In two trials on September 9 and September 10 last year, the Old City God Temple Catering Company and The Nanxiang Food Company were the plaintiffs, accusing each other of committing acts of unfair competition.
As for the origin of Nanxiang Xiaolong, neither family has any objections. In 1871, Huang Mingxian, the owner of the Rihuaxuan dim sum shop in Nanxiang Town, pioneered the preparation method of "tightly fermented small cage large meat steamed buns". After that, Nanxiang Xiaolong was divided into two branches of development, one was represented by the "Wujiaguan" in Nanxiang Town, after liberation, through the public-private partnership, "Wujiaguan" and many other old hotels were merged into the "City Cooperative Hotel" operated by the Jiading County Catering Service Company under the Jiading County Supply and Marketing Cooperative Union, and after many changes, the relevant skills finally fell to today's Jiading Nanxiang Food Company. The other was inherited by Wu Xiangsheng, a relative of Huang Mingxian, who opened the Changxing Building at the City God Temple, which was later renamed Nanxiang Mantou Shop, the predecessor of the Nanxiang Mantou Shop in Yuyuan Garden.
In the long process of development, the two companies have gradually developed differences in their development paths. The "Nanxiang" trademark held by Jiading Nanxiang Food Company is registered in Class 30 of the International Classification of Goods in China, namely Xiaolongbao, Wonton, Steamed Dumplings, etc., which are biased towards the production of quick-frozen foods. Yuyuan Nanxiang Mantou Shop all the Fang Old City God Temple Catering Company also holds the "Nanxiang" trademark, the approved use class is the 43rd class (formerly class 42) "restaurant", which belongs to the service trademark, that is, it can be used in the store sign, shop name, etc., mainly for dine-in.
Both Nanxiang cages have achieved good results. The reputation of Yuyuan Nanxiang Mantou Shop needless to say, the predecessor of Nanxiang Food Company, Shanghai Jiawei Quick-Frozen Food Factory, has also been recognized as a Chinese time-honored enterprise, and the "Nanxiang Xiaolong" produced by It has won many awards. Two companies hold the same trademark and both enjoy a reputation, and the problem arises.
Jiading Nanxiang Food Company insists that it is the authentic Nanxiang cage. The Old City God Temple Catering Company has long maliciously used other people's well-known commodity names and corporate names to climb and hitchhike. Yuyuan Nanxiang Mantou Shop also made it clear to consumers in various stores that "in 2014, the nanxiang small cage making technology was designated as a national intangible cultural heritage" and "the next cage in the world", which is false propaganda and deceives consumers.
The Old Town God Temple Catering Company retorted that it respected the division of the boundaries of the rights of both sides in its long-term operation, and only engaged in the operation of "Nanxiang Xiaolong" within the scope of the restaurant, and used words and propaganda such as "Nanxiang", "Nanxiang Xiaolong" and "Nanxiang Xiaolong Steamed Buns" in the restaurant. Moreover, it is also a "Chinese time-honored brand" and there is no need to climb it. On the contrary, Nanxiang Food Company stepped out of the scope of use of commodity trademarks and continued to open restaurants, causing disputes between the two sides.
Who belongs to the "Nanxiang" trademark?
In addition to unfair competition, when the Old Town God Temple Restaurant Company filed a lawsuit with the Pudong Court as the plaintiff, it also accused Nanxiang Food Company and a restaurant in Pudong of infringing its trademark rights. What's going on here?
Liu Xiaoming, a lawyer at Beijing Dehe Heng (Shanghai) Law Firm, who represents Nanxiang Food Company, told reporters that Nanxiang Food Company held a number of different words of "Nanxiang" trademark, which was first approved for registration on August 20, 1986, and the 772405 "Nanxiang" trademark held by The Old City God Temple Catering Company was registered in the 1990s.
It is understood that China divides the trademarks of goods and services into 45 categories, of which 1-34 are commodities and 35-45 are services, and the use of trademarks between different classes does not constitute infringement. In fact, it is not unusual for different types of goods to have the same trademark name, such as "Great Wall" lubricating oil, "Great Wall" wine, etc. Therefore, the same "Nanxiang" trademark, in the previous 20 years, the two sides have been at peace with each other, within the scope of the law to use the "Nanxiang" trademark.
This Nanxiang Xiaolong shop in Tian Zi Fang was also considered to be infringing by the Old City God Temple Catering Company
But in the past two years, the Old City God Temple Catering Company found that there were more stores called "Nanxiang Xiaolong" in Shanghai, such as the Runze Xiaolong Store in Beicai Town, Pudong New Area, one of the enterprises involved in this case. These store signboards, store decorations, store and store posters, menus, tableware, etc. are prominently marked with the word "Nanxiang". In the view of the Old City God Temple Catering Company, this kind of behavior has undoubtedly "stepped over the boundary" and infringed on the service trademark it holds.
"We believe that the other party has exceeded the approved use scope of its registered trademark for goods without any basis for the right to registered trademarks in the restaurant category." The relevant person in charge of the Old Town God Temple Catering Company said that in order to safeguard the rights and interests of its own registered trademark rights and trade names of the "Nanxiang" restaurant, the company first filed a trademark infringement and unfair competition lawsuit with the Pudong court, requiring Nanxiang Food Company and its affiliates to stop trademark infringement and false publicity.
Nanxiang Food Company argued that these stores appearing on the market are not directly related to Nanxiang Food Company, they are all catering stores opened by Nanxiang Catering Management Co., Ltd., a wholly-owned subsidiary, through direct operation or technical cooperation, and Nanxiang Food Company is only responsible for directly supplying these stores to authentic Nanxiang Xiaolong. As for the word "Nanxiang" on the store sign, it is a fair use of the name of Nanxiang and the names of two enterprises, and does not constitute infringement.
Why can the two "Nanxiang" coexist?
Judging from the judgment of the court, both courts held that Nanxiang Food Company and Old Town God Temple Catering Company legally held the "Nanxiang" trademark, and both belonged to the "China Time-honored Brand", so the two parties could use the "Nanxiang" trademark when publicizing, which did not constitute unfair competition.
According to the regulations, the Yangpu Court has centralized jurisdiction over first-instance intellectual property cases that occurred in Yangpu District, Huangpu District, Hongkou District, Baoshan District, Jiading District and Chongming District. Therefore, the case of Unfair Competition between Nanxiang Food Company and Old City God Temple Catering Company was heard by the Intellectual Property Division of Yangpu Court. Presiding Judge Zhang Cheng pointed out in an interview that according to the facts ascertained in this case, both parties have certain historical origins with "Nanxiang Xiaolong", and enjoy rights in the registered trademark of "Nanxiang" in the field of goods and services respectively, reflecting that both parties have actually coexisted in long-term operations, and have continued to obtain various honors, including Chinese time-honored brands, and have been introduced and reported, which is enough to prove that both parties have a high reputation in their respective fields of business, so from the perspective of fairness, the relevant business marks of "Nanxiang" of both parties should still coexist in the market.
"Nanxiang Mantou Restaurant is engaged in catering services, which does not exceed the boundaries of its long-formed business field. The 'Nanxiang' related dishes provided in the business premises are also freshly made and sold rather than sold quick-frozen foods, and do not exceed the boundaries of the long-term use areas of Nanxiang Mantou Shop. Zhang Cheng said.
Judge Jin Minzhen of the Pudong Court, who is in charge of hearing the case, also said that the trademarks that both parties enjoy rights have coexisted for a long time and contributed to the good goodwill of the "Nanxiang" brand, and the corresponding market pattern and legal order have been formed and recognized and accepted by the public. Therefore, considering the formation and development history of the two parties and the coexistence status of the "Nanxiang" trademark, it is not appropriate to identify the behavior of Nanxiang Food Company as unfair competition.
The Pudong court pronounced the verdict on the scene of Cao Yunxian photographed
However, the Pudong court held that Nanxiang Food Company's act of allowing the opening of dine-in restaurants did infringe the trademark rights enjoyed by the Old City God Temple Catering Company. "Nanxiang Food Company prominently uses the 'Nanxiang' and 'Nanxiang Xiaolong' logos in tangible items such as store signs and service tools for catering services, as well as in the investment of catering franchises, beyond the necessary scope of indicating the source of its own goods, and producing the effect of identifying the source of services." Under the premise of knowing that the service trademark of the Old City God Temple Catering Company has a high reputation, it still exceeds the boundary of rights, resulting in confusion and misidentification, constituting an infringement of the exclusive right to use its service mark. Jin Minzhen said that considering the consequences of the damage caused, the court ordered Nanxiang Food Company to stop the infringement and compensate the Old City God Temple Catering Company for 2.342 million yuan.
Column Editor-in-Chief: Wang Haiyan Text Editor: Wang Xiaole Title Image Source: Shangguan Photography Photo Editor: Xiang Jianying
Source: Author: Wang Xiaole Wang Yingge