China Foreign Trade: Jiaduobao retains the right of recourse to the value-added part of the Wanglaoji brand. How do you think this reflects fairness?
Gui Qingkai: Regarding the basic licensing contract, If the contract does not account for the huge investment in commercial advertising made by the licensee after expiration and the value of the licensed trademark increases sharply, how to make arrangements and calculations between the two parties? Will the licensor be able to directly take back the licensed trademark? trademark. This may involve contract law issues such as consideration and whether it constitutes a show of fairness.
In addition to unilateral contracts, for dual-service contracts, we consider the consideration when signing the contract. The law usually does not interfere with the disposal and arrangement of consideration by normal business people. If you voluntarily spend 100 yuan to If you buy goods worth only one yuan, the law will not interfere. But if it is like the situation in this case, Jiaduobao spent hundreds of millions to establish its first brand, and eventually the contract will expire and it will have to give it up without any compensation. What Jiaduobao will get is only the benefits during the licensing period; while Guangzhou Pharmaceutical will not only get In addition to the expected license fee, you still "accidentally" obtained a priceless top commercial brand. Is this just a normal business loss and profit, or is the content of the licensing contract already a matter of fairness? If it is a matter of fairness There are also issues such as the statute of limitations for revocation. In addition, if the basic licensing contract does not constitute fairness, whether it involves unclear provisions in Article 62 of the Contract Law and other issues are worthy of consideration and research.
China Foreign Trade: Whether the supplementary trademark licensing agreement signed by GPHL and Hongdao Group is valid depends on whether Chen Hongdao of Hongdao Group bribed Li Yimin. What do you think about the validity of the supplementary trademark license agreement signed between GPHL and Hongdao Group?
Gui Qingkai: Regarding the signing between GPHL and Hongdao (Group) Co., Ltd., the parent company of Jiaduobao Regarding the validity of the "Wanglaoji" Trademark Licensing Supplementary Agreement and the "Wanglaoji" Trademark License Supplementary Agreement, the relationship between the bribery case of Li Yimin and Chen Hongdao totaling HK$3 million and the two supplementary agreements is one A relatively interesting legal game. Not every criminal case will inevitably lead to the invalidation of the corresponding civil contract. If Jiaduobao's bribery was merely an opportunity to renew the contract and did not involve a reduction in the price of the contract, the contract should not be deemed invalid. There seems to be a problem in this case. The basic contract stipulates that Jiaduobao’s priority renewal qualification under the same conditions should be fulfilled even without bribery. Bribery made this qualification in fact fulfilled.
If the bribery involves an unreasonably low license fee, it may affect the validity of the contract.
Therefore, when it comes to judging the impact of the bribery case on the supplementary agreement, Li Yimin’s confession in the bribery case seems to be very important when Chen Hongdao is unable to attend the case.
If a very unreasonable and low license fee is given to Jiaduobao based on bribery, it does involve whether Article 52, paragraph 2, of the Contract Law should be applied: "Malicious collusion, harm to the country, the collective or the interests of a third party", the contract is invalid. My understanding of this is: Although the individuals who committed or were suspected of criminal crimes were Li Yimin or Chen Hongdao, there may also be legal person crimes involved, especially the bribery party. The malicious collusion in Article 52 should be the malicious collusion between the parties to the contract. If an unreasonably low license fee is the object of the transaction between the two parties, the actions of Li Yimin and Chen Hongdao can be regarded as collusion between the two parties, but how to determine "damage" and whether there is really damage. This also involves the basis for determining the license fee. Should it be measured on the basis of the original basic license contract, or should the renewal license fee be negotiated on the basis that Jiaduobao has increased the value of the trademark from 1995 to 2002.
If the license fee is determined based on the current level in 2002 and 2003, it must also be considered whether it is the realization of the priority renewal right under the same conditions, or whether both parties know that the license fee is very low and Jiaduobao takes a big advantage.
The determination of contract invalidity should be strictly controlled. Overturning the existing transaction order will have a large-scale chain reaction. For example, the validity and performance issues of various other contracts derived from the invalid contract. For example, in this case, on May 28 this year, GPHL held a press conference and believed that the contract between GPHL and Jiaduobao expired in 2010. Since then, all the income gained by Jiaduobao from Wanglaoji was illegal income. The profit of 7.5 billion yuan is regarded as "illegal income" and will be used as the basis for compensation.
In most cases, the determination of invalidity may not achieve the perfect combination of legal, economic and social effects. I used to think that only Chinese courts pay attention to social and economic effects. Last year I took a contract law course at San Francisco Law School. I was surprised to find that American contract law also places great emphasis on the social value and effects of case judgments. As an important achievement of human spiritual civilization, law has many similarities despite different legal jurisdictions.
China’s foreign trade: The red cans launched by Guangzhou Pharmaceutical are very similar to the red cans directly operated by Jiaduobao. There must be intellectual property conflicts between the two red cans. As a professional intellectual property litigation lawyer, what do you think?
Gui Qingkai: This may involve infringement of appearance patents or infringement of decoration issues unique to well-known products.
If Jiaduobao has a design patent, judging from the time, it seems that the 10-year period has passed. Therefore, a new question arises: after the expiration of the design patent, whether the anti-unfair competition law can be used to obtain protection. This issue is worth studying. In the United States, patents are federal laws and anti-unfair laws are state laws. Several well-known cases prohibit expired patents from receiving anti-law protection, arguing that this violates the original legislative intention of the patent monopoly granted by the federal government. However, this problem does not seem to exist in our country. Some scholars and judges believe that if the appearance rights of Jiaduobao expire in this case, the unique decoration of well-known products can be used as the basis for claiming rights, which of course requires a lot of proof costs.
The well-known advertising slogan "If you are afraid of getting angry, drink Wanglaoji", what rights does Jiaduobao have? It is worth studying. Whether there is a copyright or not is a matter of opinion and wisdom. The key is the question of originality. Since copyright law protects original intellectual achievements, if the advertising slogan is not original, it will certainly not be protected by copyright. This is why not all advertising slogans are protected by copyright law. From another perspective, "the advertising slogan is independently completed by the author. Compared with other people's works, the advertising slogan represents his own personality and characteristics, so it should be protected by copyright law." A considerable number of people believe that this slogan is too original and has no copyright. But if there is no copyright, can other rights be protected? Otherwise,
Can "He Qi Zheng" be used on a large scale? "If you are afraid of getting angry, drink He Qi Zheng".