On May 25, 2012, the XY County Industrial and Commercial Bureau received a notification from Henan Lotus Ruixiang Fertilizer Co., Ltd. (hereinafter referred to as Lotus Company), the registrant of the Golden Fruit trademark, and Zhengzhou Aobang Engineering Technology Co., Ltd. (hereinafter referred to as Lotus Company), the authorized user. (hereinafter referred to as Zhengzhou Aobang Company) and the XY County dealer Wen Mou, the complainant stated that in recent years, the complainant has complained to CCTV Agriculture and Military Channel, "Henan Science and Technology News", "Henan Daily", XY County TV Station and other media The Golden Fruit brand foliar fertilizer produced and operated by Lotus Company has been widely publicized and promoted. The advertisement "Spray peanuts, increase yield by 300 kilograms" played by XY County TV station has become a household name. The Golden Fruit brand foliar fertilizer has been recognized by farmers. With the increase in product popularity, a large number of products counterfeiting the registered trademark of Golden Fruit have appeared. After receiving the report, law enforcement officers from the XY County Industrial and Commercial Bureau immediately launched an investigation.
Case handling process
1. Golden fruit was originally the name of a plant. In recent years, due to the promotion of foliar fertilizer manufacturers, golden fruit has lost its original meaning and has become The common name for foliar fertilizers sprayed on peanuts and other autumn crops. The right to use the name of Golden Fruit should not be exclusive to one manufacturer.
2. The registered crops of the Golden Fruit fertilizer produced by Zhengzhou Aobang Company are Chinese cabbage (vegetables) and not suitable for peanuts (oil crops). It exceeds the scope of goods approved for the Golden Fruit trademark and does not Obtained authorization from Lotus Company, the registrant of the Golden Fruit trademark. Article 51 of the "Trademark Law" stipulates: "The exclusive right to register a trademark is limited to the trademark approved for registration and the goods approved for use." Zhengzhou Aobang Company has no right to prohibit others from using the Golden Fruit trademark.
3. The foliar fertilizer produced by Zhengzhou Aobang Company contains paclobutrazol extender, which is a plant growth regulator and the product is a pesticide. According to the "Fertilizer Management Regulations", if fertilizers and pesticides are mixed, a pesticide registration certificate must be obtained. According to Article 7 of the "Pesticide Advertising Review Standards", pesticide advertisements must not directly or indirectly cause people to mislead people about the safety, applicability and government approval of the product. The publicity of Zhengzhou Aobang Company and the advertisement placed by dealer Wen on the TV station are misleading and false propaganda, which excludes and restricts fair competition of other operators.
In order to find out the facts, the case-handling agency consulted agricultural experts on issues such as whether the product properties of foliar fertilizer and paclobutrazol extender are pesticides and whether a pesticide registration certificate should be obtained. According to Liu, a senior agronomist at the XY County Plant Protection Station, foliar fertilizer is also called plant nutrients and plant compound liquid fertilizer. It is a combination of nitrogen, phosphorus, potassium, iron, zinc, manganese, boron, copper and other large or trace elements. A type of nutrients made together, which can be sprayed on leaves to supplement nutrients and promote crop growth and development when the crop root system cannot absorb water and fertilizer. The general name of the product is trace element water-soluble fertilizer. The fertilizer registration certificate of the Ministry of Agriculture has approved applicable crops, but in principle it is applicable to all foliage crops. If you want to expand the scope of applicable crops, you should register with the Ministry of Agriculture.
It is understood that plant growth regulators are a class of substances that have similar physiological and biological effects to plant hormones. They have been found to have the function of regulating plant growth and development and are artificially synthesized. It is a class of organic compounds with plant natural hormone activity, and its product properties are pesticides. Plant growth regulators are not applicable to all crops. For example, the Ministry of Agriculture’s Announcement No. 274 of 2003 prohibits the use of butyric acid hydrazide (also known as Bijiu) on peanut oil crops. Most of the foliar fertilizers sold on the market in XY County are varieties that combine the effects of foliar fertilizer and plant growth regulator. The plant growth regulator can reduce the tension on the surface of the plant and increase the residence time of liquid fertilizer on the surface of the plant. , penetration, spreading and rapid absorption by plants. As an auxiliary, if only a small amount (about 5) is added to the foliar fertilizer, it will not change the characteristics of the product. Such foliar fertilizers are registered as fertilizers with the Ministry of Agriculture, but the name and content of the auxiliaries should be indicated.
Processing results
According to the general description of the International Classification of Goods and Services for Trademark Registration (Nice Agreement, Ninth Edition), finished products are in principle classified according to their functions and uses. . The trademark approved by the Trademark Registration Certificate No. 6358117 of the State Administration for Industry and Commerce is Golden Fruit, and the approved products are plant growth regulators, fertilizers, etc., which belong to the first category 0105 of the similar goods and services classification table "for agriculture, gardening, and forestry" "Chemicals, chemical preparations" rather than "insecticides, pesticides" in Category 5 0505. Combining the opinions of agricultural experts, the case handling agency determined:
2. The foliar fertilizer produced by Zhengzhou Aobang Company contains paclobutrazol extender, which is a plant growth regulator and is a water-soluble fertilizer approved by its fertilizer registration certificate They are similar commodities and are chemicals used in agriculture, horticulture and forestry, so they do not constitute false advertising on pesticide products.
3. Wen, a dealer in XY County, made misleading and false propaganda on the functions and uses of the foliar fertilizer products he sold on the XY County TV station, which exceeded the crops that the fertilizer registration certificate was applicable to, which constituted unfair For acts of fair competition, according to the relevant provisions of the Anti-Unfair Competition Law, a fine of 50,000 yuan will be imposed.
Analysis and thinking
1. The exclusive right of trademark includes two aspects: permission right and prohibition right. In this case, the products approved by the licensee Zhengzhou Aobang Company’s pesticide registration certificate are water-soluble fertilizers, and the products approved by the trademark registrant’s trademark registration certificate are plant growth regulators and fertilizers. The third party sold the same or similar products without permission. Lotus Company or Zhengzhou Aobang Company has the right to prohibit the use of trademarks that are identical or similar to its registered trademarks. The party claimed that Golden Fruit is a common name for fertilizer used on peanut oil crops, which lacks factual basis.
The XY County Industrial and Commercial Bureau handled this case for nearly two months. The investigators have the following experiences.
Finally, it is necessary to actively carry out post-case guidance and standardize competitive behavior. After the case was concluded, the XY County Industrial and Commercial Bureau specially held a symposium attended by both parties and relevant agricultural input operators. Participants all believed that disorderly competition ultimately harms the interests of all operators, and they all expressed the need to standardize business behavior, consciously maintain the order of the agricultural supplies market, and achieve a win-win situation.
□Liu Qingguang Huang Xicai