Dozens of restaurants in Sichuan were accused of having their names marked "green pepper". Recently, some netizens posted on the Internet that many restaurants in Sichuan were sued for their signboards with the words "green pepper". Dozens of restaurants in Sichuan have been accused just because of the name "green pepper".
Dozens of restaurants in Sichuan were accused because of the name "Green Pepper" 1. 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 this netizen, a company named Shanghai Wancuitang Catering Management Co., Ltd. sued dozens of restaurants in Sichuan Province in the months of 5438+065438+ 10 and 5438+February.
Why do companies in Shanghai sue restaurants in Sichuan Province? It turns out that Shanghai Wancuitang Catering Management Co., Ltd. obtained the trademark of "Green Pepper" on 20 14. In the view of Shanghai Wancuitang Catering Management Co., Ltd., some restaurants in Sichuan use the trademark with the word "green pepper" to operate shop doors, plaques, billboards, menu ordering, and background walls in the store without authorization. Infringed on their trademark.
Is the use of a trademark with the word "green pepper" suspected of infringement? Is the behavior of Shanghai Wancuitang Catering Management Co., Ltd. suspected of malicious litigation? In the face of prosecution, how should Sichuan restaurant respond? On February 23rd, 12, an online reporter from Sichuan conducted an interview.
Defendant: I feel very wronged.
I didn't expect "green pepper" to be registered as a trademark.
"When I received a phone call from the court, the first feeling was shock, and the second feeling was injustice." Zhu Paixuan, head of Yuxuan Green 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 202118, suing the "green pepper" in its restaurant trademark for infringing its trademark right. The case was heard on 20021125, and Shanghai wancuitang catering management co., ltd sued yuxuan green pepper fish restaurant, which became the first case of a series of trademark disputes in Sichuan.
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, claiming that Sichuan stores used the name "green pepper" for infringement, which was completely unexpected. Unexpectedly, "green pepper" can even be registered as a trademark.
According to the data, there are several groups of green pepper trademarks of Shanghai Wancuitang Catering Management Co., Ltd.: "Green pepper" logo trademark; Fish in green pepper casserole and its English label. After consulting official website of China National Intellectual Property Administration Trademark Office, Sichuan online reporter found that the above trademarks were registered by Shanghai Wancuitang Catering Management Co., Ltd. from 20 13 at regular intervals. According to official website of China National Intellectual Property Administration Trademark Office, as of July 20021and July 20021,Shanghai Wancuitang Restaurant 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, 202 1 165438, Shanghai Wancuitang Catering Management Co., Ltd. withdrew its claim from the court. "In my opinion, Shanghai Wancuitang Catering Management Co., Ltd. is guilty." Zhu Paixuan told Sichuan Online reporter that the trademark used in his business license was 20 1 1 on March 29th, which was more than two years earlier than that company in Shanghai. The reason must be on his own side. "Although the companies in Shanghai dropped the lawsuit, their actions were indeed immoral." Zhu Paixuan said.
Photo courtesy of respondents
Also sued is Tangji Tsinghua Hotpot Restaurant in Qingyang District.
On February 6th, 20021/kloc-0, Chengdu Intermediate People's Court filed a case of trademark infringement against Shanghai Wancuitang Restaurant Management Co., Ltd. v. Tangji Tsinghua Hotpot Restaurant in Qingyang District, Chengdu. "At present, the trial time of our case has not yet been determined." Tang Huachun of Tangji Tsinghua Hotpot Restaurant told reporters that he felt very wronged. In her opinion, her store name only contains the word "blue and white". "Green pepper" is a common name and a specialty of Sichuan and Chongqing. And my family sells green pepper hot pot, which is a dish. "Just like Sichuan-style pork is a dish, all the shops are selling it. You can't 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 someone infringes, so it is natural to take relevant countermeasures.
Many netizens in Sichuan are puzzled and angry about this. Netizen @ Donald Duck loves to eat fish, saying that green peppers have always been a specialty of Sichuan and an essential seasoning for Sichuanese. If the word "green pepper" is registered by Shanghai merchants, isn't it illegal for Sichuanese to go to restaurants to eat green peppers? 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 businessmen can use a joint application to cancel the "green pepper" trademark to safeguard their rights.
Tianyancha website shows that Shanghai Wancuitang Catering Management Co., Ltd. was established on June 24, 2003 with a registered capital of 562,493 yuan. On Tianyancha.com, Sichuan online reporter also found that Shanghai Wancuitang Catering Management Co., Ltd. faced 62 pieces of information at its own risk. Among them, legal litigation information 16, 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 incidents, Wang Jianping, a professor at Sichuan University Law School, said that businesses may have taken advantage of negative censorship when applying for trademarks. The so-called negative review means 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 there is no 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 trademark registration." Wang Jianping said that after obtaining the trademark registration, the Shanghai merchants filed a trademark lawsuit against the merchants with the words "green pepper" everywhere, which was suspected of malicious prosecution.
Whether the word "green pepper" can be registered as a trademark is worth discussing in Wang Jianping. In Wang Jianping's view, according to China's Trademark Law, Zanthoxylum bungeanum and Mapo Tofu are generic names and cannot be registered as trademarks. However, for a name like "green pepper", adding "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. A trademark listed in the preceding paragraph may be registered as a trademark if it has obvious characteristics and is easy to identify after use.
In this regard, Chen Jun, a partner of Beijing Shang Tong (Cheng) Law Firm, believes that "green pepper", as a raw material, is generally not allowed to be registered as a trademark, unless the applicant obtains remarkable characteristics after using it, and can be registered as a trademark for easy identification.
"But it is worth noting that the restaurants that Shanghai Wancuitang Catering Management Co., Ltd. has used before applying for trademarks 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 "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.
After being sued, how should businesses in Sichuan protect their legitimate rights and interests?
Wang Jianping suggested that there are two ways to safeguard rights. First of all, businesses with the word "green pepper" in Sichuan 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 word "green pepper". It is understood that at present, there are 18 restaurants in Sichuan that have established WeChat groups and are ready to jointly defend their rights.
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 was also recognized by Xia, a researcher of Sichuan Academy of Social Sciences and a lawyer of Beijing Deheng (Chengdu) Law Firm. In Xia's view, green pepper, as a widely planted and widely used main raw material for food seasoning, cannot be registered as a trademark itself. As a big green pepper producing province, Sichuan can hire professional lawyers to protect intellectual property rights.
Dozens of restaurants in Sichuan have been accused just because of the name "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 word "green pepper" on the signboard. According to the post posted by this netizen, a company named Shanghai Wancuitang Catering Management Co., Ltd. sued dozens of restaurants in Sichuan Province in the months of 5438+065438+ 10 and 5438+February. -From Zhengguan News
Is the use of a trademark with the word "green pepper" suspected of infringement?
It turns out that Shanghai Wancuitang Catering Management Co., Ltd. obtained the trademark of "Green Pepper" on 20 14. Because some restaurants in Sichuan, without authorization, used the trademark containing the word "green pepper" on the doorsteps, plaques, billboards, menu items, background walls and other places of the store, infringing their trademarks.
The court ruled that green pepper is not the common name of the hotel. The court's statement is correct. The registered trademark of green pepper is no problem and does not violate the trademark law. Apples and millet can be registered trademarks, and green peppers can also be registered. But green pepper is also the name of a condiment, which means that no matter who registers the green pepper trademark, he has no right to interfere with others' use of this condiment.
Green pepper is just a seasoning and cooking method.
In fact, the green peppers in the green pepper fish shop and the green peppers in the green pepper hot pot restaurant are just seasonings, which means the cooking method of the dishes. This is not a trademark use, so it does not constitute infringement. The shopkeeper did not put forward this key point, and the judge did not take the initiative to consider it. It is understandable that judges remain neutral and do not 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. A trademark listed in the preceding paragraph may be registered as a trademark if it has obvious characteristics and is easy to identify after use.
Green pepper is a common commodity name, is it widely used in this area?
The dispute over the name is that if the trademark is a common name of a commodity that is commonly used in the region, it can request the Trademark Review and Adjudication Board to revoke the plaintiff's trademark through trademark disputes. A generic name as a part of a trademark constitutes a legitimate use of the generic name of a commodity, and after applying for use as a registered trademark or a part of a registered trademark, the trademark owner may enjoy the exclusive right to use the trademark, but shall not restrict others from using the generic name of the commodity.
According to the precedent in the Supreme People's Court so far, due to historical traditions, local customs, geographical environment and other reasons, the common names of goods in the relevant markets are relatively fixed, which can be recognized as common names; The owner of a registered trademark cannot claim the trademark right of the common name of a commodity because of its promotion to 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 peppers, but Shanghai Wancuitang Catering Management Co., Ltd. registered "green peppers" not for the purpose of use, but maliciously. Any individual or unit may request the Trademark Review and Adjudication Board to declare the registered trademark invalid.
If you don't sue for infringement through a registered trademark for the purpose of use, you are suspected of malicious prosecution.
As of July 20021and July 20021,Shanghai wancuitang catering management co., ltd has registered 97 trademarks, many of which contain the word "green pepper", and has been involved in many trademark lawsuits. It can be seen that if the purpose of this green pepper registrant is not the purpose of use, their purpose is to sue for infringement and profit by registering vague trademarks, which is essentially abuse.
In addition, it is understood that the plaintiff withdrew the lawsuit from the court in two lawsuits because it was found that the store name containing the word green pepper had been used for more than ten years, much earlier than the time when the plaintiff registered the green pepper trademark. According to the principle of prior use, it means no infringement anyway!
Dozens of restaurants in Sichuan have been accused that Sichuan's green peppers have also been "targeted" just because the store name is "Green Pepper" after "Hu Spicy Soup" and "Meat Sandwich".
On February 22, 65438, a netizen posted in the spicy community that there were many restaurants in Sichuan, which were sued by a catering company in Shanghai because of the word "green pepper". Netizens questioned that it was unreasonable for "green pepper" to be registered as a trademark as a condiment, fearing that such a lawsuit would bring a huge blow to catering businesses.
On February 23, 65438 cover journalist contacted Mr. Wang, the owner of "Green Pepper Fish Restaurant in Shehong County", one of the sued businesses. Mr. Wang said that in order to respond to the lawsuit, he has been preparing for more than a month. Unexpectedly, before the court hearing on165438+1October 25th, the plaintiff Shanghai Wancuitang Restaurant Management Co., Ltd. withdrew the lawsuit in court after reading the materials prepared by itself.
Is the name of the store infringed by "green pepper"?
Many restaurants in Sichuan were sued by Shanghai enterprises.
In this post that attracted attention, netizens said that many restaurants in Sichuan were sued by a catering company in Shanghai because of the word "green pepper" on the signboard.
Shanghai Wancuitang Restaurant Management Co., Ltd. sued these Sichuan restaurants, and sued dozens of Sichuan restaurants in 20211and 65438+2 months respectively.
The reason for the lawsuit is that Shanghai Wancuitang Restaurant Management Co., Ltd. has obtained the trademark of "Green Pepper", and these restaurants have used it at the entrance of their shops, plaques, billboards, menu items and background walls without authorization, infringing their trademark rights and causing great economic losses.
Some of the sued businesses listed by netizens
In this regard, this netizen feels that this matter is "very outrageous" on the one hand. "As a big province of green pepper production and consumption, Sichuan never expected to be sued for green peppers."
On the other hand, this netizen thinks that it is unreasonable to register the ingredient condiment "green pepper" as a trademark. He is worried that this kind of "play" and purposeful "malicious litigation" will bring a huge blow to catering businesses that have been struggling to maintain during the epidemic, and at the same time, he calls on relevant departments to pay attention to it and crack down on similar malicious litigation.
Defendant's business:
After the trial, the other party withdrew the lawsuit and questioned that "the purpose of prosecution is not simple"
"I feel that they are completely extortion and looking for money in the name of infringement!" On the afternoon of February 23, 65438, Mr. Wang, the owner of "Green Pepper Fish Restaurant in Shehong County", one of the sued businesses, was still indignant.
In June of this year, 65438+ 10, Mr. Wang was shocked to learn that he was being sued. He immediately began to prepare his own business information and other materials, and responded with his family. "I was really busy for more than a month and couldn't sleep well."
Business license of the sued merchant
According to Mr. Wang, the industrial and commercial registration time of the "Green Pepper Fish Restaurant" it operated was 2011August 30th, while the industrial and commercial registration time of Shanghai Wancuitang Catering Management Co., Ltd. was 2065438+June 24th, 2003, much earlier than the other party.
Mr. Wang said that the word "green pepper" was used in his shop to highlight the raw materials added in food production, not as a catering service trademark. Moreover, the plaque at the entrance of the restaurant highlights the words "Wang Ji" and is not confused with the registered trademark of "Green Pepper".
Mr. Wang, who has worked in the catering industry for many years, believes that green pepper fish has become a folk food in Sichuan. In any county or city in Sichuan or Chongqing, if you search for the word "green pepper fish" by map, there are many such restaurants, but the font size in front of the plaque is different. In Sichuan, "green pepper" is a well-known seasoning material.
"On the afternoon of June 25th, before preparing for the trial, 165438+, the other party read my whole set of defense opinions. As a result, they directly withdrew the lawsuit. " For such a lawsuit, Mr. Wang questioned the company's purpose is not simple. "Is it intentional extortion?"
The plaintiff withdrew the lawsuit.
Lawyer's point of view:
If a lawsuit is filed without factual basis and justifiable reasons, the responsibility shall be investigated according to law.
For this matter, lawyer Lin Xiaoming, a partner of Sichuan Shang Yi Law Firm, believes that according to the provisions of the Trademark Law, this commodity only has a common name, figure and model; Marks that directly indicate the quality, main raw materials, functions, uses, weight and quantity of goods shall not be registered as trademarks. A trademark listed in the preceding paragraph may be registered as a trademark if it has obvious characteristics and is easy to identify after use.
In addition, the Trademark Law also stipulates that place names of administrative divisions at or above the county level or foreign place names known to the public shall not be used as trademarks. However, unless the place name has other meaning or is part of a collective trademark or certification trademark; Registered trademarks using geographical names shall remain valid.
Therefore, if "green pepper" itself is a common name, it should not be registered as a trademark if it is not used to obtain distinctive features and is easy to identify. If the registrant of "green pepper" has a place name above the county level before its name, and its place name is not part of the collective trademark or certification trademark, then the infringement lawsuit filed by the registrant based on this has no corresponding factual basis and justifiable reasons, and it does not rule out its abuse of litigation right or even malicious litigation.
According to the regulations, if a civil lawsuit is filed without factual basis and justifiable reasons, especially if there is no basis for rights in intellectual property litigation, it is the main basis for determining malicious litigation. According to the provisions of the Civil Procedure Law, if the parties collude maliciously and attempt to infringe upon the legitimate rights and interests of others through litigation or mediation, the people's court shall reject their request and impose fines and detention according to the seriousness of the case; If a crime is constituted, criminal responsibility shall be investigated according to law.
In addition, according to the Supreme Law and the Supreme People's Procuratorate's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases in false litigation, it is suspected that false litigation has filed civil lawsuits with fabricated facts for many times. Of course, judging from this lawsuit, it is not enough to be considered as "bringing a civil lawsuit with fabricated facts." Therefore, this kind of behavior is more manifested as abuse of the right to appeal and should be rejected according to law. The plaintiff's withdrawal of this application is also a way to exercise his rights, but this behavior should not be encouraged.