Is the red can the unique logo of Jiaduobao herbal tea, or the unique logo of Wanglaoji herbal tea?

In trademark licensing, new intellectual property rights will also be generated, such as product appearance Design rights, copyright of packaging design, affiliated brands other than licensed trademarks (such as sub-trademarks, unique names of goods, etc.), well-known packaging and decoration, advertising slogans for the product (trademark rights or copyrights), etc. The ownership of these rights depends on the free agreement between the parties. However, no matter how the agreement is made, there is a basic principle: after the expiration of the trademark license period, it will not cause the parties to use the relevant designs, packaging, trademarks, advertising slogans, etc. in the future. Contradictions and disputes over the subject matter of intellectual property rights.

After the trademark license is terminated, the licensee can no longer produce and sell goods containing the trademark. If the goods may also have rights to design, packaging and decoration, advertising slogans, etc., under ideal circumstances, , the trademark owner should enjoy these rights at the same time (of course there can be other considerations)? Otherwise, if the rights existing on a product will be enjoyed by different legal entities, any party will have many problems when continuing to produce and sell the product. Legal obstacles create constant disputes and disputes.

And such an unfortunate thing happened again in the Wong Lo Kat trademark licensing. In the "Trademark License Contract" signed by Guangzhou Pharmaceutical and Hongdao Group, the parent company of Jiaduobao, in 1995, it was clearly agreed that Hongdao Group was authorized to produce and operate red canned and red bottled Wanglaoji herbal tea, but during the licensing period, Guangzhou Pharmaceutical would not produce red cans. For packaged herbal tea, we only produce green box packaged herbal tea. Since the packaging of the red can of Wanglaoji was designed by Hongdao (Jiaduobao), although the design patent has been invalidated, as a well-known and unique commercial logo, who exactly belongs to the packaging is because the two parties did not clearly agree in the contract in advance. , it can be said that the father-in-law is right and the mother-in-law is right.

There is a view that the Foshan Intermediate People's Court of Guangdong Province (2003) Fo Zhong Fa Min San Chu Zi No. 19 Civil Judgment and the Guangdong Provincial Higher People's Court (2003) Guangdong Gao Fa Min San Zhong Zi No. 212 Civil Judgment No. 1 has clearly stated that the red can packaging of Wanglaoji Herbal Tea produced by Jiaduobao Company is a well-known and unique product packaging. Therefore, the rights to this unique packaging obviously belong to Duobao Company.

It should be pointed out that Article 5 of the "Anti-Unfair Competition Law" protects well-known commercial logos (the red can packaging of herbal tea), rather than the well-known product itself (herbal tea produced by Jiaduobao ). It cannot be said that because the Wanglaoji herbal tea at that time was produced by Jiaduobao, the unique packaging of the herbal tea must belong to Jiaduobao.

Because Jiaduobao, as the trademark licensee at that time, was producing and selling herbal tea under the brand name "Wanglaoji" instead of the herbal tea under the brand name "Jiaduobao", it is common sense for consumers to identify products. For example, when you see herbal tea packaged in red cans, you should think of Wanglaoji brand herbal tea, and you will not pay attention to whether the herbal tea is produced by Jiaduobao or who produces it. Therefore, for the public, the commercial logo of "Red Canned Herbal Tea Packaging" at that time should be pointing to "Wanglaoji" instead of "Jiaduobao". Even though many consumers now know the fact that the original red can of Wanglaoji herbal tea is produced by Jiaduobao, it is undeniable that the majority of consumers may not understand the relationship between the two. At least for now, there are still consumers who often refer to "Red Can Jiaduobao" herbal tea as "Wanglaoji" herbal tea.

There is also a view that the licensee’s use of its own commercial logo on the goods may also increase the popularity and commercial value of its own trademark. If there is no special agreement on the rights and interests related to these commercial logos, , shall belong to the licensee.

The author does not deny that on one product, there can be commercial logos of multiple different rights holders at the same time (for example, Lenovo computers have the trademarks of window operating system and intel CPU) ; If there is a stipulation in the trademark license contract or there is no prohibition, the licensee can also use his own unique commercial logo (for example, the seller affixes his own sales trademark on the goods he sells)? But this kind of multiple The prerequisite for the coexistence of trademarks of different entities on one product is that the public should clearly know that the commercial mark is a unique commercial mark belonging to the "licensee". For example, the purchaser of a "Lenovo" computer will not buy a "Lenovo" computer because it has a "?" window? trademark, they will mistakenly think that it is a product of Microsoft; although the Jiaduobao herbal tea sold by Carrefour has a Carrefour logo on it, consumers will not think that it is produced by Carrefour. Herbal tea; consumers who buy "BMW Brilliance" obviously understand that this is "BMW" produced by "Brilliance".

The red canned herbal tea produced by Jiaduobao Company obviously does not fall into the above situation: during the trademark licensing period, the red canned herbal tea produced by Jiaduobao Company has been called "Wanglaoji" herbal tea, not "Jiaduobao". Duobao Wanglaoji? Herbal tea. Although Jiaduobao Company has also tried to quietly change consumers' perceptions: making the public associate "Wanglaoji" and "Jiaduobao" or even equate them, at least before the trademark license was terminated, most of the public still only knew about "Wong Lo Kat" and "Jiaduobao". The can is Wong Lo Kat, but I don’t know the red can is Jiaduobao.

So, when there are two distinctive commercial marks on a product (Wong Lao Kat herbal tea) (the unique name of the product or the unique red can packaging and decoration of the trademark Wong Lo Kat product), in order to avoid public confusion, in principle We must try our best to maintain the unity of the identification functions of the two commercial logos; at least in the case where there is no clear agreement in the contract, when GPHL has withdrawn the right to use the "Wong Lo Kat" trademark, the unique "red can packaging" right of Wong Lao Kat herbal tea It must belong to Jiaduobao Company. The view that Jiaduobao can ban the production and packaging of herbal tea in red cans by Guangzhou Pharmaceutical is questionable.

However, one fact that needs to be acknowledged is that although Guangzhou Pharmaceutical has started to produce and sell its own red canned Wonglaoji herbal tea after terminating the "Wanglaoji" trademark license, Jiaduobao has taken advantage of its own advantages. With its commercial channels and effective advertising, it quickly launched the red canned Jiaduobao herbal tea with the same outer packaging on the market. Guangzhou Yao was unable to ban it for the time being. Although Jiaduobao can no longer use the word "Wanglaoji" on the red can of herbal tea, and although consumers are still accustomed to calling the red can of herbal tea "Wanglaoji", when consumers buy and drink "Jiaduobao" herbal tea, they are completely It is calm, and even consumers have slowly accepted it: there are two red cans of herbal tea in the market, one is called Wanglaoji and the other is called Jiaduobao.

Therefore, if consumers can clearly distinguish between two different brands of red canned herbal tea, is this red canned packaging still so-called? Unique? Packaging? Red canned Wonglao Kat herbal tea and red canned Jiaduobao herbal tea, do you have to fight to the death?