Reporter Qu Lili
Editor's Note / Although there have been numerous trademark ownership disputes related to long-established brands over the years, in recent years, with the development of the Internet economy, the market leveling and cross-border operation brought about by the new economy and new marketing are triggering a new round of long-established trademark disputes.
Liang Chuang, the founder of Yanxuan, pointed out that "the development of the Internet has actually flattened the primary market to the four-five-six-level market, so in the process of the continuous sinking of the market, enterprises must not only see the local market, otherwise it will be more than worth the loss." ”
This also means that under the new business environment, many long-established brands that were originally only dedicated to a certain regional market or local market will usher in new challenges. Due to historical reasons, the same long-established brand is often held by several or more people in different regions, and there is no asset relationship between each family. However, when everyone has entered the Internet and is facing users across the country, the problem of unique trademark registration begins to stand out, and in the face of greater commercial interests, trademark ownership disputes are more and more complicated.
This issue of Business Cases hopes to explore the new survival map of long-established enterprises by focusing on the disputes over the ownership of long-established trademarks in the new business context.
1. The market is flattened
GuanshengYuan & Rui Feng Xiang
On September 26, 2017, the official website of the State Food and Drug Administration announced that a mooncake in Chengdu Shangguanshengyuan was unqualified, and what people did not expect was that this food safety news led to the complex interest ownership relationship behind many "Guanshengyuan" brands across the country.
At that time, Shanghai Guanshengyuan made an urgent voice, on the one hand, it cleared the relationship with Chengdu Shangguanshengyuan, saying that the two had no asset relationship. On the other hand, it also makes people see the current situation that long-established enterprises have to maintain "separate land operations" due to the division of regional interests.
Public information shows that there are more than 50 enterprises related to "Guanshengyuan". In addition to Shanghai Guanshengyuan Food Co., Ltd., which applied for the trademark "Guanshengyuan", Kunming Guanshengyuan, Nanjing Guanshengyuan, Chongqing Guanshengyuan and Guanshengyuan (Group) were also rated as "Chinese Time-honored Brands".
It is worth noting that Shanghai Guanshengyuan Food Co., Ltd. is the core enterprise of Guanshengyuan (Group), and the inquiry of Tianyancha information shows that Guanshengyuan (Group) was established on July 31, 1996, with a registered capital of 1 billion yuan, which is a wholly-owned state-owned enterprise, and Bright Food International Co., Ltd. is the suspected actual controller.
Nanjing Guanshengyuan Food Factory Group Co., Ltd. was registered in Nanjing Administration for Industry and Commerce on April 1, 1991, and its wholly-owned shareholder is Guanshengyuan International Food Group Co., Ltd. (registered in Hong Kong SAR).
Kunming Guanshengyuan Food Co., Ltd. was founded in 1939 and is one of the first batch of "Chinese time-honored brand" enterprises recognized by the Ministry of Commerce. Its industrial and commercial registration was established on January 3, 1986, with a registered capital of 50 million yuan, and its holders were four individual shareholders.
Originally, in the period of pure offline sales, such a pattern was still peaceful, but with the Internet erasing the "region", the way of using the same old brand to operate in various places began to face challenges. For example, searching for "Guanshengyuan Mooncake" on the e-commerce platform can simultaneously appear in many places of Guanshengyuan products. Some enterprises print the words "×× Crown Shengyuan" in a prominent position on the packaging, while weakening the real trademark logo of the product, which is very easy to confuse consumers.
At the same time, food safety issues, debt problems, bankruptcy issues, etc., which have a great impact on the reputation of enterprises, often "affect the whole body (affecting multiple enterprises)". In 2012, Shanghai Guanshengyuan sued Xindu Guanshengyuan (chongqing Guanshengyuan Food Company and Xindu Ruichunyuan Food Factory joint venture) to stop infringing the exclusive right to use the registered trademark, and won the lawsuit.
The reason behind Shanghai Guanshengyuan's victory in the lawsuit is that as early as the 1980s, it registered the "Guanshengyuan" trademark No. 6895650, No. 1959928, No. 761052, etc., and the approved use of goods included condiments, honey, candy, pastries, mooncakes, etc. This further demonstrates the importance of applying for trademark registration.
Liang Chuang told reporters: "Many of the original long-established brands may only operate in a certain area or a local market, and once there is a problem with the old-fashioned brands in other regions or markets, they will inevitably involve themselves." ”
Zhang Haiyan, president of China Trademark and Patent Law Firm, also pointed out, "Enterprises should have a certain degree of prejudgment in brand recognition through trademark construction, and if there are the same trademark brands in the market, it is more necessary to increase the differentiation of their own brands and let customers identify the differences between them." ”
Or this is an important reason for the increasing concentration and prominence of long-established trademark litigation in recent years, because this is directly related to the future competitive landscape of enterprises and how far enterprises can go.
The trademark dispute of the "founder of Rui Feng Xiang" is one of the typical cases, around the ownership of this trademark, Beijing Rui Feng Xiang Company and Meng Mou, the sixth generation descendant of Rui Feng Xiang, have launched a fierce game, from trademark opposition to trademark invalidation to administrative litigation, and the two sides have exhausted almost all legal procedures.
In September 2015, Beijing Ruixiang Company submitted the trademarks of "Founder of Ruixiang" No. 17897308 and 17897309, which were later approved for registration and use in Class 40 services such as textile finishing and garment production, and Class 25 goods such as clothing and shoes after opposition procedures.
In July 2018, Meng Mou, the sixth generation descendant of Rui Fengxiang, filed an application for invalidation of the disputed trademark and provided relevant family certificates, pointing out that Beijing Rui Feng Xiang Company is only one of many Rui Feng Xiang semicolons, and cannot represent all "Rui Feng Xiang" semicolons to apply for registration of the disputed trademarks. Subsequently, after trial, the State Intellectual Property Office made a ruling: the disputed trademark should be invalidated.
Beijing Ruifengxiang Company was not satisfied with the ruling and filed an administrative lawsuit with the Beijing Intellectual Property Court. After the first and second instances, the Beijing Municipal Higher People's Court finally determined that Beijing Rui Feng Xiang Company was not the founder of "Rui Feng Xiang" and rejected its litigation claims.
Obviously, not only Guanshengyuan and Rui Fengxiang, but also a considerable number of long-established brands have the same problem. Lawyer Liu Chunquan, a partner at Shanghai Duanhe Duan Law Firm, told the China Business Daily reporter, "Although many long-established brands in history are national chains, after the public-private partnership, the relationship between the national chains has been broken, and because of regional relations, different long-established brands have become different property rights subjects, becoming the main body of competition in the market economy environment, and at the same time, with the advent of the e-commerce era, competition has become direct and white-hot." For long-established brands, this further highlights the importance of market competition rules and trademark legal rules. ”
2. Cross-border operation
Nanxiang Xiaolong & Daoxiang Village
If the development of technology and e-commerce retail brought about by the Internet has eliminated the difference between "regional competition" of long-established brands, then the "cross-border operation" based on reducing costs and expanding markets, based on business and competition without boundaries, is bringing new controversies to long-established brands.
Typical examples such as the case of "Nanxiang Xiaolong", the original Shanghai Old Town God Temple Catering (Group) Co., Ltd. and Shanghai Nanxiang Food Co., Ltd. two enterprises enjoyed registered trademarks in the restaurant category and frozen food respectively, however, when the latter joined the catering store to attract investment, the original pattern of interests was disrupted.
Originally, Nanxiang Xiaolong Steamed Bun is a special delicacy that originated in Jiading and flourished in Chenghuangmiao City, and is a Chinese time-honored brand that has been passed down for 120 years. However, with the development of history, there have been two companies with "fan users" and "Nanxiang" trademarks.
In 1985, Jiading County Catering Service Company, the predecessor of Shanghai Nanxiang Food Co., Ltd., applied for the registration of the "Nanxiang" brand registered trademark in the field of 30 categories of goods: xiaolongbao, wonton, spring rolls, steamed dumplings and vegetable bags, which was approved for registration on August 20, 1986. In 1988, Jiading County Catering Service Company wholly owned the Shanghai Jiawei Quick-Frozen Food Factory, and added a new assembly line of "Nanxiang Xiaolongbao", mainly engaged in the production of "Nanxiang Xiaolongbao".
Similarly, in the 1990s, the Old Town God Temple Restaurant Company applied for the registration of the trademark "Nanxiang" No. 772405, and its approved use class was Class 43 (formerly Class 42) "Restaurant".
So far, the two enterprises have developed separately in the catering service industry and the frozen food industry, and the well water does not violate the river water within the scope delimited by law. However, in 2018, with the change of the legal representative of Shanghai Nanxiang Food Co., Ltd., it began to operate catering services, and this "cross-border" triggered a court of court between the two sides.
The Old Town God Temple restaurant first filed a trademark infringement and unfair competition lawsuit with the Pudong court, demanding that Nanxiang Food Company and its affiliates stop trademark infringement and false publicity.
According to the relevant person in charge of Shanghai Old Town God Temple Catering (Group) Co., Ltd., "We believe that the brand ownership in this case is clear, one is a catering trademark, the other is a food trademark, and it is the other party's cross-border operation that triggers our company's defensive litigation, and we believe that both parties should return to their respective trademark boundaries and jointly do a good job in the inheritance of time-honored brands." ”
However, the transformation of the market, the changes in the boundaries of competition, including the origin of history, I am afraid that it is difficult to say that each of them can return to the border and be at peace. This is precisely where the potential risks of many long-established brands lie.
The root cause behind the decade-long dispute between the north and the south of Daoxiang Village is not the conflict caused by the sudden change of the competitive boundary. Public information shows that since 2014, there have been more than ten legal proceedings related to Beijing Daoxiangcun (referred to as Beidao) and Suzhou Daoxiangcun (referred to as Sudao). Even if the court has a judgment and a penalty, the brand battle between the two parties is far from over.
The starting point of the dispute between the two sides is very clear, that is, the change of the boundaries of competition. As early as 2006, because of the different processing modes, the "central factory" model of Sudao developed better than the Beidao e-commerce of the "front shop and back factory", so it was also the earliest "cross-boundary" person, and immediately attracted the lawsuit of Beidao.
According to Tianyan, Su Dao had used the name "Suzhou Daoxiangcun Food Factory", which was registered in December 1980 and had a registered capital of 31 million yuan. The "Daoxiangcun" trademark was first used as Baoding Daoxiangcun (pastry products).
In 2004, Baoding Daoxiangcun, Beijing New Asia Fun XiangXiang Food Co., Ltd. and Suzhou Daoxiangcun jointly established "Suzhou Daoxiangcun Food Industry Co., Ltd.", and the "Daoxiangcun" word and figure trademarks were immediately transferred to the hands of Suzhou Daoxiangcun. With Su Dao's active layout of online sales channels as early as 2009, coupled with the help of its "central factory" production method, Su Dao has become a star merchant of Tmall Jingdong for many consecutive years.
At the same time, in 2008, Beidao registered the trademark "Beijing Daoxiangcun" during the cooperation period of Sudao's licensing of trademarks, and attached the word "Beijing" to the regional name. Although this act has been criticized, due to the principle of "registration priority + special protection for well-known trademarks" upheld by China's trademark law, coupled with the product reputation and brand accumulation formed by Beidao in the Beijing area for many years, it has finally made Nanbei Daoxiangcun a special case of trademark disputes.
Controversy on the one hand, development on the other. According to the public information of Su Dao, it was founded in 1773 (the thirty-eighth year of Qianlong) in Guanqian Street, Suzhou, with 9 modern food processing and production centers, nearly 600 franchise stores nationwide, and sales of 3.2 billion yuan in 2017.
Beidao's information shows that it was founded in 1895 (the twenty-first year of Guangxu) on Guanyin Temple Outer Street outside the Qianmen gate of Beijing. It has a modern production base and more than 270 chain stores, mainly distributed in the surrounding areas of Beijing, with sales of 5 billion yuan in 2017.
Obviously, not only Nanxiang Xiaolong, Nanbei Daoxiang Village, but also more long-established enterprises may not be able to avoid the new market competition that cross-border operations may bring, as well as inevitable trademark disputes. All intellectual property lawyers understand that intellectual property rights are a powerful tool for market competition, and for long-established enterprises, the gold content of trademark rights is more prominent.
Lawyer Liu Chunquan told reporters: "Trademark applications are divided into 45 categories, the first 30 classes are commodity trademarks, the last 15 classes are service trademarks, the applicant may have registered as soon as he saw Xiaolongbaozi, and did not notice that this is just frozen food." So, really professional applicants have to do defensive trademarks, even full-class registration. However, the registration fee for all categories is high, and it can be revoked if it is not used for three years. For large enterprises, even after 45 categories are registered, it is impossible to use each category, in order to ensure that it is foolproof, then it is registered every three years, but this is a large fee, for people who do small dumplings, the first he does not understand, the second is that he understands, and he cannot afford to pay these fees. ”
Liu Chunquan believes that "for long-established brands, especially for long-established brands facing cross-border operations, trademark protection may not only be covered by the principle of registration priority, but in recent years, squatting and a large number of garbage applications have proved that it is wrong to adhere to the priority of registration, and should gradually introduce the priority of creation and use, especially for old-fashioned brands." ”
Undoubtedly, this should be a problem solved by long-established legislation. It is reported that at present, promoting the protection of long-established trademarks has been included in the topic of revising the Trademark Law.
3. Change the name storm
Wang Laoji & Jubaoyuan
After Wang Laoji's operators changed their name to Jiaduobao, some long-established operators also began to stage a storm of name change. Beijing's time-honored "Jubaoyuan" is a typical case that has been concerned recently.
As one of the hottest shabu-shabu restaurants in Beijing, the veteran halal restaurant "Jubaoyuan" was born in 1937 as a beef and mutton shop. After the founding of New China, Jubaoyuan went through the stage of public-private partnership and changed owners several times. In 1993, Ma Gang took over the business, and in 2003, the business scope was further expanded to shabu-shabu, and gradually became famous in Beijing with the hand-cut mutton of the treasure of the town store, and the cow street jubaoyuan also became a symbol of people's cognition of this old brand.
However, the trademark of Jubaoyuan is not in the hands of the operator Ma Gang, but belongs to the State-owned Assets Supervision and Administration Commission of Xicheng District, and was previously only authorized for the operators of Niujie Jubaoyuan to use. With the development and growth of the old brand, invisible conflicts began to appear.
On the one hand, as the trademark owner, the State-owned Assets Supervision and Administration Commission of Xicheng District has a new development plan for the Jubaoyuan trademark, and decided to set up a new company in the form of mixed reform (70% of which is state-owned), planning to open a shabu-shabu restaurant on the one hand, and a large number of beef and mutton shops in the community on the other hand. In fact, the new Jubaoyuan Shabu Shabu Restaurant has opened into a lively shopping mall and formed an innovation in the dishes and decoration style.
On the other hand, Niujie Jubaoyuan wanted to expand its store, but the newly opened store was not authorized, so it could not use the store name. Moreover, the authorization period expires, and other stores are also facing the problem of renaming.
In this regard, lawyer Liu Chunquan believes that "it is reasonable and legal to request for recovery at the expiration of the trademark authorization contract, and there is no dispute. Even if the authorized party violates the contractual stipulations in the course of its business and constitutes a condition for the termination of the contract, the authorizing party may unilaterally terminate the contract and withdraw the authorization in advance. The question worth studying is how operators evaluate the contribution of the brand and to the development of the long-established brand. ”
In fact, the issue of trademark user protection has been mentioned many times as early as the case of Wang Laoji and Jiaduobao, and many experts have asked "Who created Wang Laoji's 100 billion trademark value?" Yang Yanchao, an associate researcher at the Intellectual Property Center of the Chinese Academy of Social Sciences, once proposed to establish a "user protection system" based on this.
Public information shows that the trademark "Wang Laoji" originally belonged to the Guangzhou Pharmaceutical Group, and in 1997, the Guangzhou Pharmaceutical Group licensed the "Wang Laoji" trademark to Hong Kong Hongdao Group (an investor of JDB). In 2000, the two parties signed a license agreement for the second time, stipulating that the license period would be until May 2, 2010. From 2002 to 2003, the two sides reached an agreement for the third time to extend the trademark license period until 2020.
However, with the east window incident of Li Yimin, the general manager of Guangzhou Pharmaceutical Group, due to the bribery case of millions of yuan, the agreement signed by Li Yimin to extend the trademark license period to 2020 due to bribery was said to be invalid, and Guangzhou Pharmaceutical Group recovered the "Wang Laoji" trademark accordingly.
In this regard, lawyer Liu Chunquan said, "Wang Laoji has been a local small brand in the hands of Guangzhou Pharmaceutical for so many years, and has made a national big brand in the hands of Jiaduobao, although Chen Hongdao has committed a crime, but this history of becoming bigger cannot be denied." Wang Laoji is like this, and the licensing of many long-established brands may have more or less problems. ”
For the operators of the old brand, the market is the king, change the name or can establish their own brand as soon as possible, but for the development of the old brand, this history can not be changed, and the old brand cognition formed in the minds of consumers for many years also needs to move forward steadily in inheritance and innovation, especially when the owner of the time-honored trademark is a state-owned enterprise, how to ride the wind and waves in the competitive industry still needs enough courage and responsibility.
observe
The road to IP innovation for time-honored brands
For long-established enterprises, the new market environment is bringing many new impacts, in addition to the market leveling, cross-border operation, trademark historical ownership caused by many controversies, marketing innovation and brand innovation capabilities have also brought new challenges.
Liang Chuang, the founder of Yanxuan, told reporters: "From a marketing point of view, we usually focus on two dimensions: one is the product, and the other is the customer. New marketing pays more attention to starting from the customer's point of view, but many long-established brands that have not done special transformation are still starting from the so-called products and brands, driven by products and brands, which is essentially eating the dividends of the old brands, in fact, consumers are increasingly unrecognized by this model of eating dividends. ”
"Because today's young consumers, they are more identified with social, from the customer, so the successful business models we see now, especially the current new economy, new brands, basically from the product to the customer has a close connection, around everyone's needs to do." On the other hand, some of the old brands have not made much change for a long time, and still look at this market with a downward attitude, which is a deep-seated root problem. Liang Chuang said.
The root of the brand's overlook, in addition to the inertia of the old brand "relying on the old and selling the old", is not unrelated to the ownership of the old brand and its operating mechanism.
Hong Qigong, founder of Foodie Continent, told reporters, "The core and most common problem of the old brand is the hard wound of the top-level structure. The top-level structure is the property rights structure, the second is the governance structure, and the third is the operation and management structure. These three structures are related to each other, and an enterprise needs the unity and harmony of the three, that is, the unity and harmony of property rights, governance rights, and management rights, so that it is possible (only possible) to survive and operate, otherwise the probability is to die, but the method of death is different. And most of the problems with the old brands are here. ”
It is the separation or conflict between property rights, governance rights and management rights that makes it difficult for many long-established brands to fully devote themselves to new challenges.
Liang Chuang said, "The cutting-edge brands seen in the market now usually have the following characteristics: First, explosive thinking, whether from the functional point of view or the value of the product, can find a point that resonates with everyone, these resonance points can make it easy for enterprises to spread, thus producing a 'self-propagation' function on new media such as WeChat, Little Red Book, Weibo, and Douyin. This is incomparable in terms of time efficiency to traditional communication, and thus also has a cost advantage. The second is the external empowerment of the overall ability, from the perspective of the development of the catering industry, the previous gene emphasized the brand side, the appeal is to make the brand bigger and stronger, but now everyone emphasizes the supply chain and infrastructure to become bigger and stronger, and then empower the outside world, which requires enterprises to have an overall systematic thinking. The third is to lock in the market segment, now the market segment has been divided into particularly fine, the competition is also extremely fierce, there are excellent players on each track, from the perspective of supply chain, operation and brand, there are winners on each segment. Therefore, long-established enterprises should pay attention to changes in the market environment, reposition according to their own advantages, and reconsider the original brand strategy and trademark strategy of the enterprise at the height of corporate strategy. ”
The articles in this edition were all written by Qu Lili, a reporter of this newspaper