Cao Aman, a famous dissatisfied housewife teacher in history, wrote the sentence "How can I solve my worries, only Du Kang" in his masterpiece "A Short Song Line", which means that if my aunt cheated you, you should drink a glass of wine to resolve it, and if you can't resolve it, you should drink another glass.
Although people have to sigh, compared with the truth that "how to solve worries and only get rich", the values of the ancients are still relatively simple! However, it is precisely because of this famous poem by Mr. Cao that a pair of old enemies have been entangled in a thousand-year dispute.
Yes, these two "Du Kang" liquor companies, which have been involved in lawsuits for ten years, fought again because of trademark issues. Recently, the Tianjin Higher People's Court conducted a second trial of a trademark infringement case caused by a trademark with the same name.
In fact, this is not the first time that two Du Kang liquor companies have gone to court. This is just one of many lawsuits about the trademark "Du Kang" between Baishui Du Kang and Luoyang Du Kang. After all, since 2008, the two sides have conducted many lawsuits around trademark issues, covering Shaanxi, Henan, Shanghai, Beijing and other places.
The dispute in this case mainly lies in that the plaintiff Luoyang Du Kang Holdings Co., Ltd. is the owner of the trademark "Du Kang" (the legendary "Luoyang Du Kang"). Originally, there was an Yichuan Du Kang whose trademark originally belonged to Du Kang, and it was renamed as Luoyang Du Kang after merging with the original Ruyang Du Kang. Defendant Shaanxi Baishui Du Kang Liquor Co., Ltd. (the legendary Baishui Du Kang) is the owner of Baishui Du Kang trademark.
The plaintiff believes that when using its trademark "Baishui Du Kang", the defendant designed the words "Du Kang" and "Baishui" of the trademark, made patterns of different sizes, and emphasized the word "Du Kang", thus infringing the exclusive right of the trademark "Du Kang".
The case has been tried in Tianjin No.1 Intermediate People's Court. The court of first instance ruled that the plaintiff's claim that the defendant constituted an infringement of the trademark rights involved could not be established.
Du Kang and Baishui Du Kang trademarks both exist, and Luoyang Du Kang should allow Baishui Du Kang to use the words in their trademarks as commodity names in a friendly and reasonable way.
Different from the first-instance judgment of Tianjin No.1 Intermediate People's Court, at the end of April 20 18, Henan Intermediate People's Court held that Baishui Du Kang had infringed the trademark right of Luoyang Du Kang.
However, at present, there is a second trial in Tianjin. Finally, the judge said that after the trial, the case will be retried on an optional basis according to the facts ascertained by the court and the appeals of both parties, and no judgment has been made.
However, Baishui Du Kang's reason statement in responding to the lawsuit is quite striking-Baishui Du Kang said in court that there is no legal standard for the proportion of "Baishui" and "Du Kang" in the trademark, so the use of Baishui Du Kang does not constitute infringement, will not cause market confusion, and naturally does not have to bear the liability for compensation.
Is that really the case?
According to Article 49 of the Trademark Law:
Where a trademark registrant changes the registered trademark, the registrant's name, address or other registered items by himself in the process of using the registered trademark, the local administrative department for industry and commerce shall order it to make corrections within a time limit; If it fails to make corrections within the time limit, its registered trademark shall be revoked by the Trademark Office.
It can be seen that trademarks need to be standardized in use, and they are not used at will by the applicant after successful registration. From this article, we can summarize the basic points of trademark standardization, including:
The actual users of the 1. trademark shall be consistent with the trademark registrant, or at least with the licensee of the latter.
2, the specific form of the actual use of the trademark should be consistent with the logo form on the trademark registration certificate, that is, what font and pattern of the registered trademark, and the font and logo form of this pattern must be strictly used in use;
3. The actual use of a trademark is limited to the types of goods or services it is allowed to use.
In other words, the nonstandard use of trademarks also includes: the subject of trademark use is inconsistent with the subject of registered trademarks; The actual use of the trademark is inconsistent with the logo on the registration certificate; Using trademarks on designated goods or services without approval.
Going back to the dispute between Du and Kang, in the previous lawsuit in Henan, the court found that Baishui Du Kang Company did not use the word "Baishui Du Kang" in accordance with the registration form, but used the words "Du Kang" and "Baishui" separately and arranged them left and right, highlighting the word "Du Kang".
Moreover, on the packaging box of the accused infringing goods, the words "Du Kang" are obviously marked in a single color, and the words "Baishui" arranged up and down in the upper left are small in font, and the color is similar to the background color, which is easy to cause consumers to confuse the accused infringing goods with "Du Kang" wine.
On the other hand, in fact, the four-character logo "Baishui Du Kang" is the only registered trademark in Baishui Dukang with relatively stable trademark rights, while the other vertical and double-line logo rights of "Baishui Du Kang" and "Baishui Du Kang" combined with the left and right branches are unstable. Therefore, Baishui Du Kang was convicted of infringement.
Although trademark confusion is a problem left over from history, Luoyang Du Kang Company and Baishui Du Kang Company should use their trademarks in strict accordance with the standard format of their respective trademarks, so as to achieve the purpose of distinguishing their respective commodities, and shall not change their trademarks at will, resulting in market confusion.
Especially worthy of vigilance is the attitude of Baishui Du Kang-in fact, in the daily practical use of trademarks, many registered trademark owners will adjust and change the use of trademarks according to the needs of brand development, and they all have the same idea as Baishui Du Kang-whether pretending not to know or really not-that this is harmless behavior.
But this is by no means the case. We must realize that the method of changing the trademark form at will not only does not conform to the provisions of the Trademark Law, but also reflects the right holder's neglect and indifference to his own trademark right. However, improper use of trademarks is likely to bring huge economic losses and injuries-in the process of trademark application and registration, money and material resources have been invested. If the trademark is corrected or revoked within a time limit due to improper use, the resources such as advertising, publicity and trademark rights invested in the early stage will be wasted.
Therefore, when standardizing the use of registration, we should also pay attention to the following points:
1. In actual use, the trademark shall be consistent with the logo, owner, registered address and designated goods or services on the registration certificate;
2. Where the name or registered address of the trademark owner is changed, the relevant trademark change matters shall be handled in time;
3. If you license a trademark to others, you must first file the trademark license in advance, and then monitor whether the other party's use is standardized, so as not to bring unnecessary trouble to yourself;
4. In the process of trademark use, the obligee should also keep the evidence of use to prevent others from claiming to cancel the trademark on the grounds of not using it for three consecutive years or losing the trademark right.
Finally, let's review the chronicle of trademark disputes in Du Kang.
In the 1970s.
Established Yichuan Du Kang, Ruyang Du Kang and Baishui Du Kang to produce Dukang wine.
In the early 1980s.
All three Du Kang wineries have applied for the trademark of "Du Kang".
198 1 year
Under the coordination of various government departments, Yichuan Du Kang registered the trademark "Du Kang", which was used by Ruyang Du Kang and Baishui Du Kang.
1983
Trademark law came into effect. In the same year, Yichuan Du Kang signed a cooperation agreement with Ruyang Du Kang and Baishui Du Kang, allowing the latter two companies to use the "Du Kang" trademark.
1992
The trademark of "Du Kang" entered the renewal period, and the three enterprises had another dispute over the trademark issue, but it was still not resolved under the coordination of the regulatory authorities.
1996 65438+ February
After the application of Baishui Dukang Company, the Trademark Office approved its trademark as "Baishui Dukang".
In 2009
Yichuan Du Kang and Ruyang Du Kang merged, both belonging to Luoyang Du Kang, and the trademark "Du Kang" belongs to Luoyang Du Kang.
20 16
Baishui Du Kang sued Luoyang Du Kang for commercial slander in Weinan Intermediate People's Court, and Shaanxi High Court made a second-instance judgment on the case, which supported Baishui Du Kang's appeal. Du Kang refused to accept the verdict and prepared to appeal.
20 16
Authorities in Tianjin, Beijing and other places have issued notices to local enterprises for selling white water and Dukang wine with the word "Du Kang" prominently, infringing on the exclusive right to use trademarks, and made a judgment of "ordering correction".
2065438+May 2006
Luoyang Du Kang v. Baishui Du Kang. The Henan Intermediate People's Court ruled in the first instance that Baishui Du Kang stopped producing and selling goods that infringed the exclusive right to use the trademark of "Du Kang".
2065438+September 2007
Luoyang Du Kang plans to sue Baishui Du Kang for trademark infringement in Tianjin.
2065438+February 2008
Luoyang Du Kang sued Shaanxi Baishui Du Kang and Lotte Supermarket Tianjin Beichen Store for trademark infringement, and Tianjin No.1 Intermediate People's Court ruled in the first instance that Baishui Du Kang did not infringe Luoyang Du Kang. Luoyang Du Kang appealed.
2065438+May 9, 2008
The Tianjin Higher People's Court held a trial around the second instance of the above-mentioned case, but it did not pronounce a sentence in court.