Dozens of restaurants in Sichuan were accused only because their shop names were marked with "green pepper"

Dozens of restaurants in Sichuan were accused only because their shop names were marked with "green pepper". Recently, some netizens posted on the Internet that many restaurants in Sichuan were sued because their signboards had the words "green pepper". Dozens of restaurants in Sichuan were accused only because of the name "green pepper". Dozens of restaurants in Sichuan were accused only because their store names were marked with "green pepper"

Recently, some netizens posted on the Internet that many restaurants in Sichuan were sued by a catering company in Shanghai because of the words "green pepper" on the signboard. According to the post posted by the netizen, a company in Shanghai named Shanghai Wancuitang Catering Management Co., Ltd. sued dozens of restaurants in Sichuan Province in November and December.

why do companies in Shanghai sue restaurants in Sichuan province? It turned out that Shanghai Wancuitang Catering Management Co., Ltd. obtained the trademark of "Green Pepper" in 214. In the view of Shanghai Wancuitang Restaurant Management Co., Ltd., some restaurants in Sichuan have used the trademark containing the word "green pepper" without authorization to operate the store's doorways, plaques, billboards, menu ordering, background walls in the store, etc., infringing their trademarks.

is it suspected of infringement to use a trademark with the word "green pepper"? Is the behavior of Shanghai Wancuitang Catering Management Co., Ltd. suspected of malicious litigation? In the face of prosecution, how should Sichuan restaurants respond? On December 23rd, an online reporter from Sichuan conducted an interview.

sued enterprise: I feel very wronged

I didn't expect "green pepper" to be registered as a trademark

"When I received the phone call from the court, my first feeling was shock, and my second feeling was injustice." Zhu Paixuan, the person in charge of Yuxuanqing Pepper Fish Restaurant in Guang 'an District, Guang 'an City, told Sichuan Online reporter that Shanghai Wancuitang Catering Management Co., Ltd. filed a lawsuit with Guang 'an Intermediate People's Court on October 18, 221, suing the "green pepper" in the trademark of its restaurant for infringing its trademark right. The case was opened on November 25, 221. Shanghai Wancuitang Catering Management Co., Ltd. sued Yuxuanqing Pepper Fish Restaurant, which became the first case in Sichuan's series of trademark disputes.

As an authentic Sichuanese, Zhu Paixuan said that green pepper, as a kind of plant and condiment, is a household name in Sichuan. Suddenly, a company in Shanghai went to court to sue, saying that Sichuan stores used the name of "green pepper" for infringement, which was completely unexpected. What I didn't expect was that "green pepper" could even be registered as a trademark.

according to the data, Shanghai wancuitang catering management co., ltd. has several groups of green pepper trademarks: "green pepper" logo; Fish in casserole with green pepper and its English label. After consulting official website of China National Intellectual Property Administration Trademark Office, Sichuan online reporter found that the above-mentioned trademarks will be registered by Shanghai Wancuitang Catering Management Co., Ltd. every once in a while from 213. According to official website of China National Intellectual Property Administration Trademark Office, as of July 21st, 221, Shanghai Wancuitang Catering Management Co., Ltd. has registered 97 trademarks, many of which contain the words "green pepper".

according to the civil ruling of Guang 'an Intermediate People's Court, on November 26th, 221, Shanghai Wancuitang Catering Management Co., Ltd. withdrew its lawsuit from the court. "In my opinion, Shanghai Wancuitang Catering Management Co., Ltd. is guilty." Zhu Paixuan told Sichuan Online reporter that the trademark on his business license was used on March 29th, 211, more than two years earlier than that company in Shanghai, and the reason must be on his own side. "Although the companies in Shanghai have dropped the lawsuit, their behavior is indeed immoral." Zhu Paixuan said.

Photo courtesy of the interviewee

Also prosecuted is Tangji Qinghua Hotpot Restaurant in Qingyang District, Chengdu.

on December 6th, 221, Chengdu Intermediate People's Court filed a case of Shanghai Wancuitang Catering Management Co., Ltd. v. Tangji Qinghua Hot Pot Restaurant in Qingyang District, Chengdu for trademark infringement. "At present, the trial time of our case has not yet been determined." Tang Huachun of Tangji Qinghua Hotpot Restaurant told reporters that he felt very wronged. In her opinion, her own store name only contains the word "blue and white". Green pepper "is a common name, which is a specialty of Sichuan and Chongqing." Moreover, my family sells hot pot with green pepper, which is a dish. "Just like Sichuan style pork is a dish, all stores are selling it. Can't you say that all businesses with Sichuan style pork are infringing?"

In response to this matter, Shanghai Wancuitang Catering Management Co., Ltd. responded in an interview with the media: its trademark is reasonable and legal, and some people infringe on it, so they naturally have to take relevant countermeasures.

There are many netizens in Sichuan who are puzzled and angry about this. Netizen @ Donald Duck loves to eat fish, saying that green pepper has always been a specialty of Sichuan and a necessary seasoning for Sichuanese to eat. If the word "green pepper" is registered by the merchants in Shanghai, wouldn't it be illegal for Sichuanese to go to restaurants to eat green pepper? In addition, if the word "green pepper" can be registered as a trademark, will the names of famous dishes such as Mapo tofu and Sichuan pork be registered by others in the future?

Legal expert: Shanghai company is suspected of malicious prosecution

Sichuan merchants can use joint application to cancel the trademark of "green pepper" to protect their rights

Tianyancha website shows that Shanghai Wancuitang Catering Management Co., Ltd. was established on June 24, 213 with a registered capital of 562,493 yuan. In Tianyancha website, Sichuan online reporter also found that Shanghai Wancuitang Catering Management Co., Ltd. faced 62 pieces of self-risk information. Among them, there are 16 pieces of legal litigation information, many of which are trademark infringement disputes.

Image source: Tianyancha

"The behavior of this company in Shanghai may be suspected of malicious prosecution." Regarding the above incident, Wang Jianping, a professor at Sichuan University Law School, said that the merchant may have taken advantage of the loophole of negative review when applying for a trademark. The so-called negative review refers to the fact that after a merchant applies for a trademark, the China National Intellectual Property Administration Trademark Office will publish it through its website and paper magazines. If no one raises an objection, it means that the application is passed. However, because ordinary merchants will not pay attention to the relevant notices and information of China National Intellectual Property Administration Trademark Office, few people raise objections.

"In this case, the merchants in Shanghai may have taken advantage of the aforementioned loopholes and obtained the trademark registration." Wang Jianping said that after obtaining the trademark registration, Shanghai merchants filed trademark lawsuits against businesses with the words "green pepper" everywhere, which was suspected of malicious prosecution.

Wang Jianping thinks it is worth discussing whether the word "green pepper" can be registered as a trademark. In Wang Jianping's view, according to China's Trademark Law, Zanthoxylum bungeanum and Mapo Tofu are common names and cannot be registered as trademarks. However, a name like "green pepper" with a "green" in front of "pepper" may have certain characteristics, so it is authorized by the trademark.

Article 11 of China's Trademark Law stipulates that the following marks shall not be registered as trademarks: (1) Only the common name, figure and model of the commodity; (2) directly indicating only the quality, main raw materials, functions, uses, weight, quantity and other characteristics of commodities; (three) other lack of distinctive features. The marks listed in the preceding paragraph may be registered as trademarks if they have acquired remarkable features through use and are easy to identify.

In this regard, Chen Jun, a partner of Beijing Tongshang (Chengdu) Law Firm, believes that "green pepper", as a raw material, should not be registered as a trademark, unless the applicant obtains remarkable characteristics after use, and it can be registered as a trademark for easy identification.

"However, it is worth noting that the restaurants that were used before Shanghai Wancuitang Restaurant Management Co., Ltd. applied for the trademark can be legally used within the original scope. At the same time, because' green pepper' belongs to raw materials, Shanghai Wancuitang Catering Management Co., Ltd. has no right to prohibit others from using it properly. " Chen Jun said, in addition, if Shanghai Wancuitang Catering Management Co., Ltd. registered the "green pepper" not for the purpose of use, but maliciously registered the trademark, any individual or unit may request the Trademark Review and Adjudication Board to declare the registered trademark invalid.

how should businesses in Sichuan protect their legitimate rights and interests after being sued?

Wang Jianping suggested two ways to defend rights. First of all, businesses with the words "green pepper" in Sichuan province's trademarks can unite to file an objection with the China National Intellectual Property Administration Trademark Office and apply for cancellation of the trademark with the words "green pepper". It is understood that at present, 18 restaurants in Sichuan have set up WeChat groups to prepare for joint rights protection.

in addition to joint rights protection, Wang Jianping also gave suggestions. "Secondly, merchants can also unite to choose the way of judicial proceedings and sue Shanghai Wancuitang Catering Management Co., Ltd. for infringing the prior rights of Sichuan merchants." The so-called prior right means that no matter whether it is a brand or a trademark, as long as I use it first, I get a right, which is called prior right.

Wang Jianping's statement has also been recognized by Xia Liangtian, a researcher of Sichuan Academy of Social Sciences and a lawyer of Beijing Deheng (Chengdu) Law Firm. In Xia Liangtian's view, green pepper, as a widely planted and widely used main raw material for food seasoning, cannot be registered as a trademark itself. Sichuan, as a big province producing green pepper, can hire professional lawyers for intellectual property rights protection. Dozens of restaurants in Sichuan were accused only because their names were marked with "green pepper". Recently, some netizens posted on the Internet that many restaurants in Sichuan were sued by a catering company in Shanghai because their signboards had the words "green pepper". According to the post posted by the netizen, a company in Shanghai named Shanghai Wancuitang Catering Management Co., Ltd. sued dozens of restaurants in Sichuan Province in November and December. -source zhengguan news

is it suspected of infringement to use a trademark with the word "green pepper"?

originally, Shanghai wancuitang catering management co., ltd. obtained the trademark of "green pepper" in 214. Because some restaurants in Sichuan, without authorization, use the trademark containing the word "green pepper" for the doorsteps, plaques, billboards, menu items, background walls and other places of the store without authorization, infringing their trademarks.

The court ruled that green pepper is not the common name of the hotel, which is correct. The registered trademark of green pepper is no problem and does not violate the trademark law. Apples and millet can be registered as trademarks, and green peppers can also be registered as trademarks. However, green pepper is also the name of a seasoning, which means that no matter who registers the green pepper trademark, he has no right to interfere with others' use of this seasoning.

Green pepper is only the seasoning and cooking method

In fact, the green pepper in the shop name Green Pepper Fish Shop and Green Pepper Hot Pot Restaurant is only the seasoning and the cooking method of the dish, which is not a trademark use, so it does not constitute infringement. Shopkeepers didn't put forward this key point, and judges didn't take the initiative to consider it. It is understandable that judges remain neutral and don't take the initiative to explain. In fact, this is legal common sense in the field of trademarks. Don't you understand?

Article 11 of China's Trademark Law stipulates that the following marks shall not be registered as trademarks: (1) Only the common name, figure and model of the commodity; (2) directly indicating only the quality, main raw materials, functions, uses, weight, quantity and other characteristics of commodities; (three) other lack of distinctive features. The marks listed in the preceding paragraph may be registered as trademarks if they have acquired remarkable features through use and are easy to identify.

is green pepper a common commodity name and widely used in different regions?

the dispute over the name is that if the trademark is a common name of a commodity that has been established by convention and is widely used in the region, the Trademark Review and Adjudication Board can be requested to cancel the plaintiff's trademark through trademark dispute. As a generic name that is a part of a trademark, after anyone constitutes a legitimate use of the generic name of a commodity and is applied as a registered trademark or a part of a registered trademark, the trademark owner may enjoy the exclusive right to the trademark, but may not restrict others from using the generic name of the commodity.

according to the case of the Supreme People's Court until now, the common appellations of commodities with relatively fixed relevant markets due to historical traditions, local customs, geographical environment and other reasons can be identified as common names; The registered trademark owner cannot claim the trademark right to the common name of the commodity because of his contribution to the promotion of the commodity market, and has no right to prohibit others from using the common name to indicate the source of the commodity variety. From this point of view, green pepper, as a widely planted and widely used main raw material for food seasoning, cannot be registered as a trademark itself. Sichuan is a big province producing green pepper, but Shanghai Wancuitang Catering Management Co., Ltd. registered the "green pepper" not for the purpose of use, but maliciously, so any individual or unit can request the Trademark Review and Adjudication Board to declare the registered trademark invalid.

If you don't sue for infringement through registered trademarks for the purpose of use, you are suspected of malicious prosecution

As of July 21st, 221, Shanghai Wancuitang Catering Management Co., Ltd. has registered 97 trademarks, many of which contain the words "green pepper" and are involved in many trademark lawsuits. From this, we can see that if the purpose of the company is not the purpose of use, their purpose is to sue and pass.

Besides, it is understood that the plaintiffs in two lawsuits withdrew their cases in court because it was found that the name of the store with the words green pepper had been used for more than ten years, much earlier than the plaintiff registered the trademark of green pepper. According to the principle of prior use, it means that it is not infringement anyway! Dozens of restaurants in Sichuan were accused, because the name of the restaurant was "green pepper". 3

After "Hu spicy soup" and "Chinese hamburger", the green pepper in Sichuan was also "targeted".

on December 22nd, a netizen posted in the spicy community that there were many restaurants in Sichuan and were sued by a catering company in Shanghai because the store signs contained the word "green pepper". Netizens questioned that as a condiment, it is unreasonable for "green pepper" to be registered as a trademark, fearing that such a lawsuit will bring a huge blow to catering businesses.

On December 23rd, the cover journalist contacted Mr. Wang, the owner of "Wangji Green Pepper Fish Restaurant in Shehong County", one of the sued businesses. Mr. Wang said that in order to respond to the lawsuit, he prepared for more than a month. Unexpectedly, before the trial on November 25, the plaintiff Shanghai Wancuitang Catering Management Co., Ltd. withdrew the lawsuit in court after reading the materials he prepared.

Is the name of the store infringed by "Green Pepper"?

Many restaurants in Sichuan have been sued by Shanghai enterprises

In this attracting net post, netizens said that many restaurants in Sichuan were sued by a catering company in Shanghai because of the words "green pepper" on the signboard.

Shanghai Wancuitang Restaurant Management Co., Ltd. sued dozens of Sichuan restaurants in November and December, 221.

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