Nanjing Big Brand File won two trademark lawsuits in Anhui.

On July 11th and August 31st, 222, Hefei Intermediate People's Court successively ruled in two judgments that Nanjing Dahui Enterprise Development Co., Ltd. (referred to as Nanjing Dahui), the owner of Nanjing big-name stalls, won the case.

The court asked the defendants to change the name of the enterprise and not to use the word "big name file". At the same time, they compensated Dahui Company for economic losses and reasonable expenses of 2, yuan and 3, yuan respectively, and they also paid corresponding legal fees and preservation fees.

The Paper previously reported that there are more than 4 catering enterprises with the words "big-name stalls" registered by the industrial and commercial departments nationwide, including Cantonese, the birthplace of "big-name stalls". The verdict of this case may affect whether these enterprises constitute trademark infringement and unfair competition.

The judgment holds that the defendant's use of "big-name files" constitutes trademark infringement. However, the judgment did not respond positively to the dispute whether the "big name file" is a common name.

After the verdict was issued, The Paper learned that one of the defendants had filed an appeal, and the other said that it would appeal.

court: the defendant's use of "big-name file" trademark constitutes infringement

(222) The defendant in the judgment No.186 of Anhui 1 Minchu is the store and actual operator of Chaozhou Big-name file hotel, and the defendant in the judgment No.496 of Anhui 1 Minchu is the store and actual operator of Hefei Big-name file, hereinafter collectively referred to as the defendant.

in addition to paying compensation of * * * 5, yuan, the court asked the defendants to stop infringing on the exclusive right to use registered trademarks of the plaintiff Dahui Company, and at the same time asked the defendants to stop using the words "big brand file" in their enterprise names.

regarding trademark infringement, the court relied on the provisions of paragraph 1 of Article 3 and paragraph 2 of Article 57 of the Trademark Law of the People's Republic of China. The exclusive right to use a registered trademark is protected by law. Without the permission of the trademark owner, using a trademark identical to its registered trademark on the same commodity or using a trademark similar to its registered trademark on the same commodity will easily lead to confusion, which is an infringement of the exclusive right to use a registered trademark.

At the same time, according to the relevant judicial interpretation, the judgment explains the standard of identical or similar trademarks.

The court held that a trademark is a mark used by a provider of goods or services to distinguish their own goods or services from similar or similar goods or services provided by others. The primary function of a trademark is the identification function, which is used to distinguish the source and provider of goods and services. Therefore, distinctiveness is the essential attribute of a trademark.

the distinctiveness of a trademark comes from two aspects, one is inherent distinctiveness. In the process of trademark creation, due to the differences in pronunciation, graphics and text combinations, the identification of other goods or service providers. The second is to gain salience, and the trademark has formed popularity after long-term use and publicity. Consumers refer to trademarks as specific goods or services accordingly. Therefore, in judging whether the exclusive right to use a registered trademark is infringed, we should not only compare the similarity of related trademarks in terms of pronunciation, meaning and other elements, but also comprehensively consider the salience of related trademarks, the business conditions of both parties, the actual use of trademarks and other factors to judge whether it is enough to confuse consumers with goods or services.

the court held that in this case, the evidence provided by Nanjing dahui can prove that the trademarks No.3885, No.1887721 and No.1727685 that it claimed to protect have gained certain significance and influence after long-term use and publicity, and have the function of trademark recognition.

the court's logic is that the plaintiff has already obtained a series of trademarks of "big brand files", and the use of "big brand files" by others is infringement. At the same time, the court held that the identification function of Nanjing Dahui's "big brand file" series trademarks was the result of its long-term use and publicity.

The court held that the business scope of each defendant was the same as the approved scope of the trademark involved, and the "big-name file" used by the defendant's offline storefront and online platform, and the alleged infringing mark could identify the source of goods or services, which belonged to trademark use. After comparison, the above-mentioned alleged infringement marks are similar to the trademarks involved, which may easily cause consumers to be confused about the source of goods or services. The defendant's use of the above-mentioned alleged infringement marks without the plaintiff's permission belongs to the infringement of the exclusive right to use the registered trademark involved.

The two stores of "Chaozhou Dapaidang" have been renamed

In the judgment No.186 of (222) Wan's 1 Minchu, the court held that the three stores of Chaozhoufu Restaurant, Xiweifang Restaurant and Chaozhou Dapaidang had been accused of trademark infringement and unfair competition, and should undertake to stop the infringement according to the provisions of the first paragraph of Article 179 of the People's Republic of China and the Civil Code of China. Anhui Xiweifang Company, as a brand operator, has actually participated in the management of Chaozhoufu Restaurant, Xiweifang Restaurant and Chaozhou Big-name Store. According to Article 168 of the Civil Code of the People's Republic of China, it should also bear the civil liability to stop the infringement and compensate for the losses.

according to the judgment, in view of the fact that Chaozhoufu Restaurant and Xiweifang Restaurant have changed the original enterprise name in the course of this lawsuit, the two defendants no longer need to bear the responsibility of changing the enterprise name.

The Paper reporter learned that there were three stores in Chaozhou Big Brand File, and two stores are still in operation. The original "Chaozhou Big Brand Store" was renamed as "Chaozhou House Restaurant", and the original "Chaozhou Big Brand Store 2" was renamed as "Xiweifang Restaurant".

in the judgment No.496 of (222) Wan 1 Republic of China, the court also asked the defendants to change the name of the enterprise, and the words "big name file" were not allowed.

for more than 4 enterprises whose names contain "big-name files", whether they need to change their enterprise names in the future depends to some extent on Nanjing Dahui's willingness to safeguard rights. As of press time, the company has not been interviewed by The Paper reporter.

is "big brand file" a common name in the industry?

The Paper previously reported that Article 9 of the Trademark Law stipulates that a trademark applied for registration shall have distinctive features and be easy to identify. Paragraph 1 of Article 11 of the Trademark Law stipulates that only the common name, figure and model of this commodity shall not be registered as a trademark.

Therefore, one of the focuses of this case is whether the "big name file" belongs to a generic name.

the plaintiff believes that "big name file" is not a common name.

The plaintiff gave evidence that the authoritative dictionaries and dictionaries published in Chinese mainland, such as General Standard Chinese Character Dictionary, Modern Chinese Standard Dictionary and Xinhua Dictionary, have excerpts, proving that these authoritative dictionaries and dictionaries published in Chinese mainland do not have big-name entries, and "big-name files" are not the general names of dictionary income.

The plaintiff provided evidence that dictionaries and dictionaries compiled by authoritative organizations in Hong Kong and Taiwan Province, such as the Hong Kong Primary School Learning Glossary and the Compendium of the Mandarin Dictionary of the Ministry of Education, had no descriptions of "big-name files" in dictionaries and dictionaries compiled by authoritative organizations in Hong Kong and Taiwan Province. In Hongkong, Taiwan Province and other places where traditional Chinese characters are used, "big name file" is not a common name included in authoritative dictionaries.

The plaintiff also provided evidence that the CCL corpus of the Linguistic Research Center in China, Peking University was developed and maintained by an authoritative organization, which proved that it belonged to an authoritative corpus. This corpus does not include "big-name files" but a large number of "food stalls", which proves that the authoritative corpus does not include "big-name files" as a common vocabulary.

according to China's trademark examination and trial standards, generic names refer to the names of goods stipulated by national standards and industry standards or established by convention, including full names, abbreviations, abbreviations and conventions.

The defendant believes that "big-name stall" is a common name, which is widely used by the public in the industry, and obviously does not have the function of distinguishing the goods or services of different producers and operators.

The defendant claimed that the "big-name stalls" originated in the early days when the Hong Kong government issued a bigger license to the big-name stalls than the ordinary hawkers at that time, and they needed to be hung in a conspicuous place. So the file with this big license plate is called "big file". Because "Pai" is homophonic with "Pai", many people think that "big-name stalls" are named after being arranged on the street, and they are mistakenly called "food stalls".

The defendant gave evidence that according to A Concise Dictionary of Hong Kong Dialect, big-name stalls refer to "stalls for cooked food or clothes and groceries (one of Hong Kong's local characteristics) set up by the roadside in downtown areas", and according to the Book of Language and Character Standardization, "food stalls refer to rows of sales stalls (mostly catering stalls) set up on the roadside or in the square. Originally known as the big-name file, because the cards are homophones, they write food stalls. " According to the Comparative Dictionary of Hong Kong Dialect and Putonghua, big-name stalls are stalls selling cooked food, tea, snacks, clothes and groceries on the roadside in downtown areas. The stall owner holds a business license and hangs it on a simple wooden board or tin shed, which is very conspicuous, so people call it "big-name stall" or "food stall". The Cantonese Dictionary (published by Guangdong People's Publishing House) records that big-name stalls are licensed stalls selling food and sundries on the street. According to the Book of Guangzhou Dialect Folklore (Chinese Publishing House), food stalls are originally "big-name stalls", which refer to food stalls licensed to operate on the street or in lower-grade areas. No matter from dictionary books or conventions, big-name stalls are also called food stalls, which refer to food stalls.

In the two judgments of Hefei Intermediate People's Court, the court did not demonstrate whether "big-name file" is a common name, nor did it affirm or deny the above evidence and proof purpose of the original and defendant.