The Sichuan Hot Pot Association and the Condiment Association will file an invalidation application for "green peppercorns"

The Sichuan Hotpot Association and the Condiment Association will file an invalidation application for "green peppercorns". After the trademark infringement scandal of Xiaoyao Town Hu Spicy Soup and Tongguan Roujiamo, green Sichuan pepper has attracted attention again. The Sichuan Hot Pot Association and the Condiment Association will file an invalidation application for "green pepper". The Sichuan Hot Pot Association and the Condiment Association will file an invalidation application for "green pepper" 1

Recently, Shanghai Wancuitang Catering Management Company (hereinafter referred to as "Shanghai Wancuitang") sued dozens of companies in Sichuan Province The "Green Pepper Incident" involving a restaurant's use of the "Green Pepper" trademark has become a hot topic on the Internet. The plaintiff, Shanghai Wancuitang, was questioned for being involved in "porcelain litigation" and "malicious litigation." On December 25, Chairman of Shanghai Wancui Tang exclusively responded to the cover news: We are deeply sorry and withdraw all lawsuits.

At present, the discussion about the "green pepper" trademark controversy is still ongoing. On December 26, the cover news reporter learned that the Sichuan Condiment Association and the Sichuan Hot Pot Association successively issued statements stating that green peppercorns were not suitable for registration as a trademark and would file an invalidation application.

Enterprises are worried:

If the "green pepper" trademark controversy is not completely resolved, who will cooperate with us in the future?

" The "green peppercorns incident" caused huge fluctuations in the Sichuan catering circle. Not only were Sichuan netizens surprised and puzzled by this, but even Chinese cooking master and Sichuan cuisine master Xiao Jianming also said: "I have been a Sichuan cuisine chef all my life, and even the word green peppercorns is Not allowing us to use it is unreasonable.”

The cover news reporter learned that in Chengdu alone, there are at least 3,000 restaurants with green peppercorns in their names, and almost every Sichuan restaurant has green peppercorns. The signature dishes with unique flavor, green peppercorn hotpot seasoning and green peppercorn fish seasoning are frequent visitors in Sichuan kitchens. Green peppercorn is an indispensable part of catering in Chengdu and Sichuan as a whole.

As a specialty catering company in Chengdu that mainly deals in green peppercorns, Chichengdu Green Pepper Hot Pot Fish has been greatly affected recently. Yuan Xianxiang, general manager of Chichengdu Green Pepper Hotpot Fish, said that he was particularly shocked by the "green peppercorn incident". "Everyone knows that peppercorns are the soul of Sichuan cuisine, and peppercorns are divided into green peppercorns and red peppercorns. Chichengdu not only has three generations of single-generation The green peppercorn fish skillet has been rated as one of Dianping’s must-eat green peppercorns. To us, green peppercorns are our soul. It would be a huge blow to us, but also to many other catering colleagues. This has a huge impact on our Sichuan catering industry."

Yuan Xianxiang told reporters that on December 25, he saw the cover news about "Shanghai Wancuitang Chairman's Exclusive Response to Borrowing Green Sichuan Peppercorns". Porcelain lawsuit ": Deeply sorry, all lawsuits withdrawn" report. He is still a little worried about the future. "As a chain catering company in Chengdu, we want to bring Sichuan food and the soul of Sichuan cuisine to the whole country and even the world. However, after the 'green pepper incident', some franchisees and partners expressed We are worried that if the 'green pepper' trademark controversy is not completely resolved, who will cooperate with us in the future? As a company, we are weak and hope that this matter can be properly resolved in the end. At the same time, we also hope that the whole industry and the whole industry can be resolved. The industrial chain can make the Sichuan business card of 'green pepper' better and better, and go out of Sichuan and into the world."

The association said:

Green pepper is a common name for agricultural raw materials and is not suitable. Registered as a trademark

On the evening of December 25, the Sichuan Condiment Association issued a statement stating that green peppercorns are an agricultural product and a raw material from Sichuan, Chongqing, Yunnan, Henan, Anhui and other places, and are rue. Subfamily Zanthoxylum bungeanum, genus Zanthoxylum bungeanum, is a common name well-known in Sichuan and Chongqing regions.

Article 11 of the "Trademark Law of the People's Republic of China" stipulates that only the common name, graphics, and model of the product can only directly represent the quality, main raw materials, functions, uses, weight, quantity, and other characteristics of the product. ', and other trademarks lacking distinctive features shall not be registered as trademarks. A Shanghai company registered green peppercorns as a trademark and intensively sued dozens of restaurants in Sichuan Province. The Sichuan Condiment Association paid close attention to this and raised objections. Green peppercorns are not only used in the development and cooking of dishes, but also in the production and operation of condiments. They are also used in the manufacturing of pharmaceutical products, with a wide range of applications. The condiment industry and the catering industry have an upstream and downstream industrial chain relationship, and they are both paying close attention to the "green pepper incident". The catering industry and the condiment industry are closely interdependent. One prospers and the other suffers. In the "Green Sichuan Pepper Incident" lawsuit, once the court rules to restrict restaurants from using the words and patterns of "Green Sichuan Pepper" in recipes and signboards, the catering industry will be in a passive situation, and condiment brands will be affected. Condiment companies will be hard to escape. This will cause the entire industrial chain to break. In view of this, the Sichuan Provincial Condiment Association hopes that relevant departments can properly coordinate and judicial agencies can carefully handle the "green pepper incident" in accordance with the law.

The Sichuan Condiment Association stated that it reflects the reasonable demands of enterprises, safeguards the legitimate rights and interests of enterprises, regulates business operations, unites and guides enterprises, and unites all aspects of the industry to promote condiment. It is the responsibility of the Sichuan Condiment Association to strive for the sustainable and healthy development of the condiment industry. The Sichuan Condiment Association supports condiment companies and catering companies to safeguard their legitimate rights and interests in accordance with the law and maintain the sustained and stable development of the industry. When necessary, the Sichuan Provincial Condiment Association will join forces with the legal team, unite the planting, catering, and pharmaceutical industries, and work with major condiment associations, catering associations, and related associations to initiate invalidation proceedings against the "green pepper" trademark, and does not rule out taking all measures Necessary measures to resolve the legal issues involved in the "Green Pepper Incident".

The cover news reporter learned that taking the opportunity of the "green pepper" rights protection incident, the Sichuan Condiment Association will join forces with green pepper companies such as Chichengdu Green Pepper Hotpot Fish to form the Sichuan Green Pepper Enterprise Alliance to enhance the Awareness of intellectual property protection helps the better development of Sichuan food business cards.

On December 26, the Sichuan Hot Pot Association also issued a statement. The statement said that the "Green Zanthoxylum" trademark rights protection case has attracted great attention from the catering industry in many places in Sichuan and Chongqing. To this end, the Sichuan Hot Pot Association makes the following statement: 1. Legal assistance to prosecute merchants; 2. Organize industry experts to conduct research and establish an intellectual property rights protection center; 3. File an invalidation lawsuit against the "Green Pepper" trademark; 4. Actively cooperate with relevant departments Docking; fifth, unite the media to appeal; sixth, appeal to the trademark department to improve relevant laws; seventh, unite Sichuan and Chongqing regional associations. The Sichuan Hot Pot Association and the Condiment Association will file an invalidation application for "green peppercorns" 2

Following the trademark infringement scandals of Xiaoyao Town spicy soup and Tongguan Roujiamo, green peppercorns have attracted attention again. Recently, dozens of catering companies in Chengdu, Suining, Meishan and other places in Sichuan were sued in court because their store signs, recipes, and dishes contained the word "green peppercorns." The reason is that "green pepper" has been registered as a trademark by a Shanghai catering company.

Check the Judgment Documents website and you will find that many shop owners have lost their cases and been ordered to pay tens of thousands of yuan in compensation. In this regard, many businesses are confused. Why can "green pepper" be registered as a trademark? It is reported that dozens of catering companies in Sichuan have encountered this situation and are ready to jointly defend their rights.

These businesses being sued can be described as "people are sitting at home while the pot comes from the sky". Just because they use the word "green pepper", they inexplicably constitute infringement. Not only the merchants involved were shocked, but ordinary netizens were also confused. In fact, this involves the issue of whether a common name can be registered as a trademark, and whether it can affect the use of others after being registered as a trademark.

Is "green pepper" a common name?

Article 10 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases concerning Authorization and Confirmation of Trademark Rights": "If the relevant public generally believes that a certain name can refer to a class of goods, it shall be deemed to be a commonly used generic name. name.

Those listed as trade names in professional reference books, dictionaries, etc. can be used as a reference for determining the conventional common name."

Specific to the dispute over "green pepper", "green pepper" "It can be a plant, it can be a seasoning, it can also be a certain food production method or food raw material. Foods made from green peppercorns are well-known to the general public. Even across the country, it is difficult to use "green peppercorns" as a source of distinguishing products. Therefore, Green Zanthoxylum bungeanum has the characteristics of a common name.

Where is the boundary of the exclusive rights of the Green Zanthoxylum bungeanum?

Although some merchants have registered the word and logo of "Green Zanthoxylum bungeanum". As long as others do not completely copy the registered trademark's logo and pattern when using "green pepper" and do not cause confusion, it should be a fair and reasonable use, and there is no intentional infringement.

On the contrary, the merchant relies on "green pepper". "The act of registering a trademark to sue other operators is questionable. It is necessary to judge based on the actual situation whether this is improper rights protection and whether it will cause interference to the market order.

State Intellectual Property Bureau and the Supreme People's Court speak out

In response, some media called the Trademark Office of the State Intellectual Property Administration, and a staff member responded that if there is an objection to the "Green Zanthoxylum" trademark, the objection applicant can submit an objection application to the Trademark Office for preliminary review and announcement. Trademarks can be opposed to the Trademark Office within the three-month announcement period. If the opposition period is missed, an application for invalidation of the registered trademark can be filed within five years.

"Trademarks are reviewed by professional examiners in accordance with the current trademark law. There are strict standards and regulations for review and review standards, and objections can be raised if rights and interests are harmed. "The above-mentioned staff also stated that for later registered trademarks related to "green pepper", different trademarks may be allowed to be registered even if they have the same words and different goods and services. If the same goods and services have similar words, they may not be registered. Registration.

In addition, Feng Xiaoqing, a researcher at the Intellectual Property Judicial Protection Research Center of the Supreme People’s Court and vice president of the China Intellectual Property Law Research Association, said in an interview with the media that the owner of the exclusive right to the "Green Pepper" trademark has its legal rights. Article 11 of the "Trademark Law" stipulates that only the common name, graphics, and model of the product, or only the quality and main raw materials of the product, can be claimed. , function, purpose, weight, quantity and other characteristics, and signs that lack distinctive features shall not be registered as trademarks

Feng Xiaoqing also introduced Article 59 of the Trademark Law. Paragraph 1 stipulates: If the registered trademark contains the common name, graphics, model of the product, or directly represents the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the product, or contains the place name, the exclusive right to register the trademark People have no right to prohibit others from legitimate use.

Regarding the issue of how to define and maintain the fairness of common names, Feng Xiaoqing believes that the fairness of common names depends on the cooperation between operators and consumers. Only through joint maintenance can we create a good market environment for operators and consumers and promote the normal circulation of goods. “Once an operator takes advantage of legal loopholes and obtains the exclusive trademark rights of generic names through trademark registration, it will destroy generics. The publicity attribute of the name will cause other operators to face the negative effects caused by it, which will have an adverse impact on the entire market circulation. "

Feng Xiaoqing also said that although generic names have long been reflected in the "Trademark Law", it only illustrates the statutory prohibition of generic trademarks in registered trademarks. For registered trademarks containing generic names, so far There is a lack of a systematic concept. This is one of the reasons why there is great controversy over the handling of common name issues in judicial practice. The Sichuan Hotpot Association and the Condiment Association will file an invalidation application for "green pepper" 3

Recently, many catering operators in Chengdu, Suining, Meishan and other places in Sichuan received summons from the court because their use of the "green pepper" trademark constituted infringement. This reminds people of the Hu spicy incident in Xiaoyao Town not long ago. Regarding the Tang and Tongguan Roujiamo rights protection incident, the State Intellectual Property Office previously responded clearly that "Xiaoyao Town" and "Tongguan Roujiamo" have no right to charge franchise fees.

This time, the green peppercorns were also "lying on the gun". The difference is that the focus has changed from place names to common condiments, which is even more outrageous.

The "Zanthoxylum bungeanum" in spices is mainly divided into red Zanthoxylum bungeanum and green Zanthoxylum bungeanum. Sichuan is a major producer of green Zanthoxylum bungeanum. Green Zanthoxylum bungeanum has also spread to all parts of the country with the popularity of Sichuan cuisine. In the eyes of ordinary people, green Zanthoxylum bungeanum. Sichuan peppercorns are like star anise, cinnamon, bay leaves, fennel and other condiments. The words "green Sichuan peppercorns" are written on signboards, recipes, and dishes to explain the cooking method and taste. Grilled fish with green Sichuan peppercorns is just like onions. It’s the same as fried pork, cumin mutton, and fish head with chopped pepper, so why is it infringement?

The key point in this matter is, how can ordinary seasonings become registered trademarks? Registration is successful, but where are the boundaries of rights?

my country’s trademark law does not prohibit cross-category registration of common names like green peppercorns. That is to say, if “green peppercorns” is applied for registration in the category of condiments, , may be rejected based on common name. However, Shanghai Wancuitang Catering Management Co., Ltd. has registered multiple valid trademarks in other categories, and registered trademarks enjoy corresponding legal rights. This does not mean that rights holders can do whatever they want and exercise their rights beyond legal boundaries. The registered trademark owner has no right to prohibit others from using the common name, graphics, model of the product contained in the registered trademark, or directly indicating the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the product, or containing the place name. fair use. In addition, if the store existed before the trademark was registered, it can also claim rights according to law.

For many merchants, the legal provisions are not easy to understand. After learning that they have "broken the law", many people choose to spend money to get rid of the problem. Lack of legal knowledge and fear have become a lever for some people, and trademark rights protection has become a way to make money. Using porcelain to trap people, casting a net to catch fish, harming the interests of merchants, and disrupting business order have obviously deviated from the original intention of intellectual property protection.

This case is another popularization of legal knowledge related to intellectual property protection. It is also a warning to improve the law and plug loopholes. Relevant departments must adopt a clearer attitude and issue more detailed guidelines to curb the use of trademarks for malicious litigation. If malicious preemptive registration is not curbed, malicious litigation will be difficult to terminate. It is even more important to focus on the source and restore the true nature of intellectual property protection.