cabernet was originally created by Zhang Yu in 1931 and used exclusively for more than 6 years. Only in the late 199s did a few enterprises begin to use cabernet. On April 14th, 22, Zhang Yu successfully registered the trademark of Cabernet, which caused controversy. Since then, more and more enterprises have followed up the use of this trademark because of its high brand value, resulting in more than 3 kinds of "Xiebaina" in the market today.
That is to say, Changyu has been using it exclusively for more than 6 years. Some enterprises took advantage of the opportunity of taking a long time to reconsider Cabernet, and imitated Changyu Company to use the trademark Cabernet.
in may, 21, Yantai Changyu group co., ltd. filed an application for the registration of "jiebaina" trademark with the trademark office of the state administration for industry and commerce. After the preliminary examination and approval by the Trademark Office, it was announced. No objection was raised within the statutory objection period. The Trademark Office approved the registration in April 22, with the trademark registration certificate No.1748888. The designated protected commodities include wine, brandy, shochu, etc., and the exclusive use period is until April 212.
This move caused opposition from wine manufacturers such as COFCO Great Wall. On July 1th, 22, the Trademark Office made the Decision on Revoking the Registered Trademark No.1748888 of Cabernet Sauvignon (22) No.187, considering Cabernet Sauvignon as the name of the raw material variety of red wine, and revoked the registered trademark. At the same time, several wine producers, such as Great Wall, Veyron, Dynasty, etc., also jointly submitted an application for cancellation of registration to the Trademark Review and Adjudication Board on the grounds that Cabernet is the common name of wine and the main raw material for brewing wine, demanding the cancellation of the trademark Cabernet.
Changyu Company filed a request for reexamination with the Trademark Review and Adjudication Board in response to the revocation decision made by the Trademark Office. At the same time, the dispute applications filed by Great Wall and other companies are also being heard by the Trademark Review and Adjudication Board. On May 26th, 28, after repeated argumentation and several rounds of review, the Trademark Review and Adjudication Board made the decision of Shangpingzi (28) No.5143 to revoke the decision of the Trademark Office No.187, and rejected the revocation request of Shangpingzi (28) No.5115 by Great Wall and other units, maintaining the No.17488 registered by Changyu Company on the 33rd category of wine (beverage) and other commodities. Among them, decision 5143 has taken legal effect. At present, the "Cabernet" trademark is still a valid registered trademark.
In June 28, COFCO Liquor Company, Weilong Company (which withdrew its lawsuit during the trial), Dynasty Company and Great Wall Company filed an administrative lawsuit with Beijing No.1 Intermediate People's Court because they refused to accept the ruling of the Trademark Review and Adjudication Board. In October 28, the court heard the case twice in public, and after more than one year, on December 3, 29, the Beijing No.1 Intermediate People's Court made a first-instance judgment on the case. The court held that because the plaintiff and the third party submitted a large amount of evidence that might affect the outcome of the substantive ruling of the case, if they were not considered, it would not be conducive to the protection of the legitimate rights and interests of both parties, especially the interests of the public. Therefore, the court decided to revoke the ruling No.5115 of the defendant Trademark Review and Adjudication Board and make a new ruling on the basis of considering the new evidence submitted by the parties.
From Xie Baina's application for trademark registration, which was registered and cancelled, to maintaining the registration after review, and then to bringing a lawsuit in court, the court decided to require the Trademark Review and Adjudication Board to make a new ruling, from administration to judicature, and now from judicature to administrative procedure.
Although the legal procedure of this case is complicated, has gone through a long time and involves a wide range, the core issue of the dispute between the parties is: Is "Xiebaina" a common name? According to the provisions of China's trademark law, if it is, Changyu Company cannot apply for a registered trademark with this name; If not, Changyu Company can apply for a registered trademark.
The plaintiffs COFCO, Dynasty Company and Great Wall Company have basically the same reasons for opposing Changyu's registration of the trademark cabernet, namely, "Cabernet" is the name of a wine grape variety produced in southern France, which is the main raw material for brewing red wine internationally, and "Cabernet" is the translation of the French name. Therefore, the disputed trademark directly represents the main raw materials of the goods, and at the same time, "Cabernet Sauvignon" also represents the characteristics of this variety of wine, such as style and aroma. Therefore, "Cabernet Sauvignon" is the common name of wine.
according to the provisions of China's trademark law, a generic name refers to a commodity name that is standardized or established by national standards and industry standards. Changyu Company believes that, firstly, "Jiebaina" is Changyu's original brand name in 193s, not the translation of "cabernet". What's more, there are many translations of the French word "cabernet", such as "Jia Ben Li", "Jia Bennerdt" and "cabernet", and there is no fixed correspondence between "Cabernet" and "Cabernet". Secondly, there is no saying that "cabernet" and "Cabernet" are grape varieties and strains in all relevant standards of grape varieties issued at home and abroad; Third, in international grapes? In OIV regulations and national standards for wine, dry red wine and sweet white wine are all common names of wine, and no wine is classified as Cabernet.
As to whether it is a common name, Changyu Company believes that in the nearly 6 years since 1936, there is no statement or record that cabernet is a grape variety or a translation of Cabernet, and there is no scientific basis for the statement that Cabernet is a grape variety or wine in some books since the middle and late 199s, and the relevant statements are confusing. Obviously, short-term contradictory views can't form the conclusion that "Xiebaina" is a common name of "convention", on the contrary, it shows that "Xiebaina" has no clear unified reference and it is impossible to try to unify it.
Changyu Company also stated that "Jiebaina" was originally created and named by Changyu Company in 1931. In 1937, with the approval of the Trademark Office of the Ministry of Industry of the Republic of China, Changyu Company officially registered the trademark of "Jiebaina". In 1959, the company applied for trademark registration with the then "Central Administration for Industry and Commerce". It is an indisputable fact that only a few enterprises began to use this name until the middle and late 199s. For more than 7 years, Changyu Company has been using "Jiebaina" as a trademark, which has indisputable remarkable characteristics.
The Trademark Review and Adjudication Board ruled that generic names should have normative characteristics and meet certain standards, reflecting the fundamental difference between one kind of goods and another, that is, they should refer to clearly. According to the records of dictionaries, professional books and descriptions of trade associations, "cabernet" is not a specific grape variety, and there are many translations of "cabernet", and there is no fixed correspondence between "cabernet" and "Cabernet". According to the current evidence, it is still difficult to identify "cabernet" and "Cabernet" as common names that refer to a certain grape or wine with clear and normative meanings.
The plaintiffs, COFCO Liquor Company, Dynasty Company and Great Wall Company, believe that even if Changyu Company uses "Cabernet Sauvignon" as a trademark, it has been widely used in the wine industry for many years because of its nonstandard use and long-term neglect of protection, and its trademark significance has been diluted, and it has become a common name in the wine industry.
Changyu Company believes that "Cabernet" was originally created by Changyu in 1931 and used exclusively for more than 6 years. Only in the late 199s did a few enterprises begin to use the name Cabernet. On April 14th, 22, Zhang Yu successfully registered the trademark of Cabernet, which caused controversy. Since then, more and more enterprises have followed up the use of this trademark because of the high brand value of Cabernet, resulting in more than 3 kinds of Cabernet in the market today. That is to say, Changyu has been using it exclusively for more than 6 years. Some enterprises have taken advantage of the opportunity of the long reconsideration of Cabernet Sauvignon to imitate Changyu Company and use the trademark of Cabernet Sauvignon in an attempt to "genericize" it. This use belongs to trademark infringement, and the follow-up production after Cabernet Sauvignon has become a well-known brand is not "generic" but "indiscriminate".
The Trademark Review and Adjudication Board believes that "Jiebaina" was first created by Changyu Company and used exclusively for a long time, and has established close contact with it, which has played a role in distinguishing the source of goods. Although the improper use of Changyu Company and the use of other subjects have had a negative impact on the distinctiveness of the "Jiebaina" trademark, it is not enough to cause the trademark to lose its distinctiveness.