What is the difference between "exclusive business rights" and trademark infringement
China.com.cn Time: 2013-07-17 Content source: China.com
Introduction to the case
In August 2001, the party outside the case, Hainan Yebao Food Factory, applied to the State Administration for Industry and Commerce to register the "Yebao" brand trademark, and the use was approved for beverages. Due to its pure taste, "Ye Bao" brand drinks are very popular among consumers. In order to make the product sell well in northern my country, Hainan Yebao Food Factory, a non-party outside the case, authorized the plaintiff Tianjin Jiajia Food Company to be the exclusive distributor in Tianjin in May 2002, with the right to maintain "Coconut" in Tianjin. The legal rights and interests of the "Bao" brand trademark are valid for two years. In January 2003, the plaintiff Tianjin Jiajia Food Co., Ltd. discovered that the defendant Zhang Jie was also engaged in the wholesale business of "Ye Bao" brand beverages in a food wholesale market in this city. The plaintiff would purchase the "Ye Bao" brand beverages from the defendant. It was sent to the Tianjin Municipal Technical Supervision Bureau for comparative inspection, and the inspection concluded that the "Yebao" brand beverage wholesaled by the defendant was not produced by the Hainan Yebao Food Wholesale Factory, a party outside the case. Therefore, the plaintiff believed that the defendant's behavior had infringed upon its right to use the registered trademark "Yebao" and requested the court to order the defendant to stop the infringement, apologize and compensate for losses.
There are two different opinions on the identification and handling of the facts of this case; one opinion is that the plaintiff in this case, as the licensee, can file a lawsuit alone and accuse the defendant of constituting a trademark In the case of infringement, the court should order the defendant to stop the infringement, apologize, and compensate for losses.
Another opinion is that the plaintiff filed the lawsuit as the "exclusive distributor" of the "Yebao" brand beverage products, accusing the defendant of trademark infringement, which obviously did not comply with the legal provisions, and the court should rule to dismiss the lawsuit.
Analysis of the case
The focus of the two opinions; one is the legal nature of the "exclusive business right"; the other is whether the plaintiff has the right to use the "Ye Bao" trademark or whether the plaintiff Whether you have the qualifications to claim trademark infringement against the defendant as determined by law. The author agrees with the second opinion for four reasons
1. "Exclusive operation right" is only a property right for specific commodities
"Exclusive operation" belongs to the market operation model. kind of. The "exclusive right" generated based on this model is only a kind of property right to a specific commodity. It is enjoyed within a specific period and in a specific area, and can bring greater profit margins to the right holder than other sellers. . This kind of rights and obligations based on the contractual agreement can only restrict the parties to the contract, but this binding force should not extend to the third party
2. There is no trademark licensing law between the plaintiff and the party outside the case. Relationship
In this case, once the "Yebao" brand beverage was sold from the outsider to the plaintiff, the outsider's trademark rights on this specific product have been exhausted, and this right will not be extinguished due to the circulation of the goods. exhaustion, and at the same time, the right will no longer continue to change the subject of the right due to the circulation of commodities. In addition, the plaintiff and the party outside the case did not agree on a trademark use license. Therefore, it cannot be inferred that there is a legal relationship between the outsider and the plaintiff that there is a trademark use license contrary to the objective facts.
3. The plaintiff has no right to claim the right to use the trademark
Based on the above content, the author believes that the authorization intention of the outsider is unclear and can be understood from the following aspects; 1. The outsider The plaintiff was authorized to directly exercise the exclusive right to use the registered trademark, but in the end the plaintiff was unable to file a lawsuit because he did not enjoy this right; 2. The outsider authorized the plaintiff to exercise the exclusive right to use the registered trademark on his behalf, but the outsider had to be the plaintiff to file a lawsuit. In this case, the plaintiff could only Exercise the right of litigation agency within a specific period and within a specific area; 3. The outsider authorizes the plaintiff to claim rights in the name of the trademark owner. However, since there is no legal relationship between the plaintiff and the outsider in this case, the plaintiff has no right to claim the trademark. Rights of use.
4. The plaintiff does not have the subject qualifications determined by law and has no right to file a lawsuit in his own name and accuse the defendant of trademark infringement
The plaintiff in this case is neither the trademark registrant nor the registered trademark owner. The plaintiff is the licensee of the trademark license contract and the legal successor of the registered trademark property rights. Therefore, the plaintiff does not have the subject qualifications determined by law. It has no right to file a lawsuit in its own name and accuse the defendant of trademark infringement.
To sum up, the author believes that the entity that enjoys the "exclusive operating rights" cannot claim trademark infringement without owning the right to use the trademark. Therefore, the first opinion is that the plaintiff uses the "Yebao" brand beverage products The lawsuit filed as an "exclusive dealer" accused the defendant of trademark infringement, which obviously did not comply with the legal provisions. The court should rule that the opinion of dismissing the lawsuit was correct.
Relevant Laws
"Trademark Law of the People's Republic of China"
Article 53 includes infringements listed in Article 52 of this Law If a dispute arises from one of the acts of registering the exclusive right to use a trademark, the parties shall resolve it through negotiation; if the parties are unwilling to negotiate or the negotiation fails, the trademark registrant or interested party may file a lawsuit in the People's Court or request the industrial and commercial administrative department to handle the matter. When the industrial and commercial administration department determines that the infringement is established, it shall order the infringement to cease immediately, confiscate and destroy the infringing goods and tools specifically used to manufacture infringing goods and counterfeit registered trademarks, and may impose a fine. If the party concerned is dissatisfied with the handling decision, he may file a lawsuit with the People's Court in accordance with the "Administrative Procedure Law of the People's Republic of China" within fifteen days from the date of receipt of the handling notice; if the infringer does not file a lawsuit or perform the duties upon expiration of the time limit, the industrial and commercial administration shall The department may apply to the People's Court for compulsory enforcement. The industrial and commercial administrative department handling the case may mediate the amount of compensation for infringement of trademark exclusive rights at the request of the parties; if mediation fails, the parties may file a lawsuit in the People's Court in accordance with the Civil Procedure Law of the People's Republic of China.
"Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases"
Article 4: Interested parties specified in Article 53 of the Trademark Law, including registered trademark license contracts Licensees, legal successors of registered trademark property rights, etc.
When the exclusive right to use a registered trademark is infringed, the licensee of the exclusive use license contract may file a lawsuit with the People's Court; the licensee of the exclusive use license contract may file a lawsuit together with the trademark registrant*** , or may initiate a lawsuit on its own without the trademark registrant filing a lawsuit; the licensee of a general use license contract may file a lawsuit if expressly authorized by the trademark registrant.