Cao Aman, a famous wife-accused teacher in history, wrote the sentence "How to solve your worries, only Du Kang" in his representative work, which means that if your aunt cheated you, you should drink a glass of wine to solve it, and if you can't solve it, you should drink another glass.
although people have to sigh, compared with the people who lived by the principle of "how to solve their worries and only get rich", the values of the ancients are really simple! However, it is precisely because of this famous poem by Mr. Cao that a pair of old enemies have been entangled in disputes for thousands of years.
Yes, these two "Du Kang" liquor companies, which have been involved in lawsuits for ten years, have fought again over trademark issues. Recently, the Tianjin Higher People's Court launched a second trial of a trademark infringement case caused by a trademark with the same name.
Actually, this is not the first time that two Du Kang liquor companies have met in court. This is only one case among the numerous lawsuits that Baishui Du Kang and Luoyang Du Kang have conducted around the trademark of "Du Kang". After all, since 28, both sides have launched many lawsuits around the trademark issue, and the litigation places have traveled all over Shaanxi, Henan, Shanghai, Beijing and other places.
The dispute in this lawsuit mainly lies in that the plaintiff Luoyang Du Kang Holding Co., Ltd. is the owner of the trademark "Du Kang" (the legendary "Luoyang Du Kang"). Originally, there was another Yichuan Du Kang, whose trademark was originally owned by Du Kang, which was renamed as Luoyang Du Kang after being merged with the former Ruyang Du Kang. The defendant Shaanxi Baishui Du Kang Liquor Co., Ltd. (the legendary Baishui Du Kang) is the owner of the trademark Baishui Du Kang.
The plaintiff believes that when using his trademark "Baishui Du Kang", the defendant designed the words "Du Kang" and "Baishui" of the trademark, made patterns with different sizes, and emphasized the word "Du Kang", which constituted an infringement on the exclusive right of the trademark "Du Kang".
This case has already 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.
It also stated that both the trademarks of "Du Kang" and "Baishui Du Kang" 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 218, the Henan Intermediate People's Court held that Baishui Du Kang had infringed the trademark right of Luoyang Du Kang in the Du Kang trademark dispute case brought to court for the same appeal.
However, at present, the second trial in Tianjin, the judge finally said that after the trial, the case would be reviewed on an optional basis according to the facts ascertained by the court and the appeal opinions of both parties, and no judgment was 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 this really the case?
According to Article 49 of the Trademark Law:
If a trademark registrant changes the registered trademark, the registrant's name, address or other registered items during the use of 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.
Therefore, it can be seen that trademarks need to be used in a standardized way, and they are not used at will after successful registration. The basic points of using trademarks in a standardized way can be summarized from this article, including:
1. The actual users of trademarks should be consistent with trademark registrants, or perhaps at least should be allowed by the latter
2. The specific form of trademarks in actual use should be consistent with the logo form on the trademark registration certificate, that is, what font should be registered.
3. The actual use of a trademark is limited to the type of goods or services that it is approved to use.
that is to say, the irregular use of trademarks also includes: the subject of using trademarks is inconsistent with the subject of registered trademarks; The trademark is inconsistent with the logo in the registration certificate when it is actually used; Trademarks are used on goods or services designated without approval.
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" as a whole according to the registration form-the four-character horizontal form, but used the word "Du Kang" and the word "Baishui" separately and arranged them left and right, and the word "Du Kang" was arranged left and right.
Moreover, on the box body of the accused infringing goods, the word "Du Kang" is clearly marked with a single color, and the word "Baishui" arranged up and down on the upper left side is smaller in font and similar in color to the background color, which is easy to cause consumers to confuse and mistake the accused infringing goods with "Du Kang" wine.
on the other hand, in fact, the horizontal four-character "Baishui Du Kang" logo is the only registered trademark in Baishui Du Kang with stable trademark rights, while other vertical and double-line "Baishui Du Kang" and the horizontal and vertical combination of "Baishui Du Kang" logo rights are unstable. Therefore, Baishui Du Kang was convicted of infringement.
Although the confusion of trademarks is a historical legacy, Luoyang Du Kang Company and Baishui Du Kang Company should use their trademarks in strict accordance with the standard formats of their respective trademarks, so as to achieve the purpose of distinguishing their respective commodities, and they should not arbitrarily change their trademarks, resulting in market confusion.
What is particularly alarming 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 think the same as Baishui Du Kang-whether pretending to be ignorant or really ignorant-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 neglect and neglect of the right holder's own trademark rights. However, the improper use of trademarks is likely to bring huge economic losses and injuries-money and material resources have always been invested in the process of trademark application and registration. If the trademark is corrected or revoked within a time limit due to improper use, the resources for advertising, publicity and trademark acquisition will be invested in the early stage.
Therefore, we should pay attention to the following points in the standardized use of registration:
1. In actual use, a trademark should be consistent with the logo, owner, registered address, designated goods or services in the registration certificate;
2. If the name or registered address of the trademark owner is changed, the relevant trademark change matters shall be handled in time;
3. If a trademark is licensed to others for use, first of all, the trademark license should be filed in advance, and secondly, it is necessary to supervise whether the other party's use is also standardized, so as to avoid bringing unnecessary trouble to themselves;
4. In the process of using the trademark, 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 and losing the trademark right.
Finally, let's review the chronicle of trademark disputes in Du Kang.
In the 197s,
Yichuan Du Kang, Ruyang Du Kang and Baishui Du Kang were established to produce Dukang wine.
in the early 198s
three Du Kang wineries all applied for "Du Kang" trademark.
in p>1981
under the coordination of many government departments, Yichuan Du Kang registered the trademark "Du Kang", which was used by Ruyang Du Kang and Baishui Du Kang.
In p>1983, the Trademark Law was implemented. In the same year, Yichuan Du Kang signed a cooperation agreement with Ruyang Du Kang and Baishui Du Kang to license the latter two companies to use the "Du Kang" trademark.
in p>1992,
the trademark of "Du Kang" was renewed, and the three enterprises had another dispute over the trademark issue, but the problem was still not solved under the coordination of the regulatory authorities.
in December p>1996
upon the application of Baishui Du Kang, the Trademark Office approved its trademark "Baishui Du Kang".
in p>29
Yichuan Du Kang and Ruyang Du Kang merged, both of which belong to Luoyang Du Kang, and the trademark "Du Kang" belongs to Luoyang Du Kang.
In p>216, Baishui Du Kang sued Luoyang Du Kang for business 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.
In p>216,
Tianjin, Beijing and other local authorities issued a notice and made a judgment of "ordering to make corrections" on the grounds that local enterprises sold white water Du Kang liquor with prominent use of "Du Kang".
in may p>216
Luoyang Du Kang v. Baishui Du Kang for infringement. The first instance of Henan Intermediate People's Court ruled that Baishui Du Kang stopped producing and selling goods that infringed the exclusive right to use the trademark of "Du Kang".
in September p>217
Luoyang Du Kang plans to sue Baishui Du Kang for trademark infringement in Tianjin.
In February p>218,
Du Kang of Luoyang sued Du Kang of Shaanxi Baishui and Beichen Store of Lotte Supermarket in Tianjin for infringement of trademark rights, and Tianjin No.1 Intermediate People's Court ruled in the first instance that Du Kang of Baishui did not constitute infringement on Du Kang of Luoyang. Luoyang Du Kang appealed.
On May 9, 218,
Tianjin Higher People's Court held a trial in the second instance around the above-mentioned case, but no verdict was pronounced in court.