A contract in 2001 forced the division of the rights to use the "Lulu" trademark in the northern and southern markets. In order to understand the ownership of the "Lulu" trademark, the reporter rushed to the Intermediate People's Court of Shantou City, Guangdong Province and attended the hearing between Hebei Chengde Lulu Co., Ltd. (hereinafter referred to as "Chengde Lulu") and Shantou High-tech Zone Lulu South Co., Ltd. (hereinafter referred to as "Shantou Lulu"), Hong Kong Feida, and Linlin Group (formerly "Lulu Group"), the whole process of the second instance of the "trademark license contract dispute case".

The validity of the "Memo" was questioned

It was accused of horizontal competition

At the beginning of the trial, the four parties exchanged supplementary evidence for the trial. It is understood that this court hearing is still focusing on the validity of the "Memorandum" and "Supplementary Memorandum".

According to evidence from Shantou Lulu, the "Memorandum" and "Supplementary Memorandum" allow Shantou Lulu to permanently use the "Lulu" trademark and patent, and Chengde Lulu is permanently prohibited from operating in markets in eight southern provinces. Chengde Lulu is permanently prohibited from producing and operating Tetra Pak almond milk.

However, according to Chengde Lulu’s attorney, Chengde Lulu had never known the existence of the above-mentioned contract until February 2015. After 14 years, this “invisible contract” was The existence of the "Memorandum" and the "Supplementary Memorandum" were only discovered during the financing due diligence.

At the same time, Chengde Lulu’s attorney stated during the trial: “The exclusive operation of Lulu almond milk and the exclusive use of the ‘Lulu’ trademark and patent are the basic conditions for the listing of Chengde Lulu.”

“The Memorandum was signed on December 27, 2001, when Chengde Lulu had just been listed for four years. The signing of this contract means that Shantou Lulu can compete in the same industry,” said Chengde Lulu’s attorney. 》Violates the public commitments in the prospectus, fundamentally changes the listing conditions of listed companies, and seriously damages the interests of listed companies and small and medium-sized shareholders and investors.

It is understood that Chengde Lulu was listed in 1997. The original Lulu Group, as the sponsor, publicly promised in the prospectus that it and its affiliated companies would not compete with listed companies in the same industry, and would not compete with listed companies. Exclusive trademark and patent licensing agreements signed.

The "authentic and fake" contract sparked heated debate

The authenticity still needs to be verified

It is reported that at the third hearing of the first trial, the evidence submitted by Chengde Lulu It was not accepted by the court. In this second trial, Chengde Lulu re-submitted supplementary evidence.

Concerning this supplementary evidence, Chengde Lulu's attorney believes that based on the existing evidence, it is proven that the "Supplementary Memorandum" was probably forged after 2006, and the signing date was not March 28, 2002 as indicated on it. day.

"The "Supplementary Memorandum" has made substantial changes to the "Memorandum" and its content is false. Its contractual validity should be reviewed separately. The company seal used in the "Memorandum" is not coded, and the seal used in the "Supplementary Memorandum" is coded, which shows that the company seal used by the original Lulu Group on the two agreements is different. According to the content of the seal filing in the industrial and commercial archives of the original Lulu Group submitted by us, the earliest time when the coded seal was used. It was early 2005, so we applied to identify the true time of formation of the Supplementary Memorandum," Chengde Lulu's attorney said during the court defense.

Facing Chengde Lulu’s doubts, the original Lulu Group temporarily expressed its intention to add a new piece of evidence at the court hearing. The former Lulu Group attorney said that Lulu Group had just sent a picture of an internal document dated 2002 via WeChat, which indicated that the seal used on the document was coded.

In this regard, Chengde Lulu’s attorney stated that since the document was signed and stamped by the original Lulu Group itself, its true issuance time could not be confirmed, so it doubted the authenticity of the evidence.

However, Shantou Lulu’s attorney responded in court: “The contract has the signature of the company chairman and the company seal, and Chengde Lulu should fulfill the contract.”

After a round of fierce competition After the defense, the presiding judge of the court said that the court would make arrangements after the trial as to whether the "Supplementary Memorandum" requires appraisal.

The "Memo" involves related-party transactions

Only four people decided the fate of "Lulu"?

In addition to questioning the authenticity of the contract, Chengde Lulu believes that the "Memorandum" and "Supplementary Memorandum" also involve violations of relevant laws and regulations on related-party transactions of listed companies.

It is worth noting that in 2001, Wang Baolin (representing the original Lulu Group), Wang Qiumin (representing Chengde Lulu), Lin Weiyi (representing Shantou Lulu), Yang Xiaoyan (representing Hong Kong Feida) Four people signed the "Memorandum". Among them, Wang Baolin also serves as the chairman and legal representative of Chengde Lulu, Lulu Group and Shantou Lulu; Wang Qiumin serves as a director of three companies at the same time; the original Lulu Group is the joint venture between Chengde Lulu and Shantou Lulu. shareholder.

Chengde Lulu Fang’s lawyer stated in court that the above-mentioned three-party companies are related companies. According to the provisions of the Articles of Association at the time of signing, related transactions should be reviewed by the board of directors.

The "Securities Daily" reporter checked Chengde Lulu's 2000 version of the "Articles of Association" and found that the first paragraph of Article 86 stipulates that "the individual directors or other companies they work for have direct or indirect interests with the company." When there is a related relationship with a contract, transaction or arrangement in a plan, the nature and extent of the related relationship shall be disclosed to the board of directors as soon as possible, regardless of whether the relevant matter generally requires the approval of the board of directors.”

At the same time, the "Articles of Association" stipulate that directors with related relationships should explain the relevant situation in detail at the board of directors meeting and clearly indicate that they will abstain from voting.

"Wang Baolin and Wang Qiumin took advantage of their position as company executives to control the seal of the listed company to secretly sign a "Memorandum" with Lin Weiyi and Yang Xiaoyan without the approval of the board of directors and shareholders' meeting, and never disclosed it to the outside world. , violating the relevant provisions of the company's articles of association on related-party transactions." Chengde Lulu's attorney said that the "Memorandum" and "Supplementary Memorandum", as related-party transaction contracts, violated the "Company Law" revised on January 1, 2006, which stipulates that "no "Using affiliated relationships to harm the interests of the company" and other mandatory laws and regulations, it should be an invalid contract.

However, the lawyer representing the original Lulu Group countered that there were no legal rules for related transactions when the transaction occurred.

Chengde Lulu's attorney pointed out that the "Memorandum" and "Supplementary Memorandum" are contracts with no termination period and permanent and continuous performance. Current laws should be applied. Just because they were signed early, their illegal behavior cannot be justified. Lasts forever. Moreover, the "Supplementary Memorandum" has not been authenticated and its true formation time cannot be confirmed.

The second trial was tense

The outcome of the trial is still uncertain

In addition, Chengde Lulu also stated that the "Memorandum" and "Supplementary Memorandum" were signed by Wang Baolin beyond the scope of his authority. .

Chengde Lulu's attorney said: "Almond milk is the only core product of Chengde Lulu, and the intellectual property rights such as 'Lulu' related trademarks and patents are its core intellectual property rights. The signing of the above contract is part of the decision to list the company." Major matters of the business policy and business plan fundamentally change the basic conditions for the company's listing. According to the "Company Law" and the "Articles of Association", the power to decide on this matter can only be enjoyed by the company's authority, the "shareholders' meeting", and must be approved by the China Securities Regulatory Commission. The meeting will approve it, Wang Baolin has no right to decide.”

However, the original Lulu Group attorney believes that the signing of the "Memorandum" is Chengde Lulu's daily business decision-making and does not require review by the board of directors and shareholders' meeting.

"Wang Baolin's signing of the "Memorandum" is an act of authorized representative. From beginning to end, Lulu Group has recognized Wang Baolin's act of signing the above-mentioned memorandum as the legal representative of the group. Therefore, Wang Baolin signed the above-mentioned memorandum. His behavior did not exceed his authority," said the above-mentioned attorney for the original Lulu Group.

It is worth mentioning that Chengde Lulu’s lawyer Fang added during the defense stage that in addition to seriously damaging the interests of Chengde Lulu and the majority of small and medium-sized shareholders and investors, the “Memorandum” and “Supplementary Memorandum” also Seriously damaging the national interests, because the original Lulu Group is a wholly state-owned company, Wang Baolin, as the legal representative of the state-owned company, agreed in the "Memorandum" to waive the trademark and patent license fees for the first three years without the approval of the state-owned assets department, which will belong to About 50 million yuan in license fees from the state-owned Lulu Group was illegally disposed of, seriously damaging national interests.

Shantou Lulu’s attorney stated that the “Memorandum” and “Supplementary Memorandum” are to protect Chengde Lulu, because the sales volume of almond milk in the southern market is far less than that in the northern market, and the signing of the above-mentioned contract does not harm it. To the benefit of Chengde Lulu.

The trial lasted about 5 hours. Lawyers from all sides argued hard, and the trial scene was filled with smoke. Finally, regarding the outcome of the trial, the presiding judge of the court said that the court needs to review the evidence presented in court, and the trial results will be announced at a later date.

Regarding this case, a person engaged in relevant legal work said in an interview with reporters: "The validity of the trademark license has been reviewed in the first instance, and Shantou Lulu has added litigation claims and Hebei Province If the High People's Court accepts the lawsuit filed by Chengde Lulu's major shareholder regarding related transactions involving the above-mentioned documents, the second instance may wait for the outcome of the Supreme Court case before continuing the trial. ”

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