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" nine-system tangerine peel " as an industry term does not constitute infringement
01
Basic case information
Jiuzhi tangerine peel is a common name in the fruit processing industry. Searching Jiuzhi tangerine peel on 360 Encyclopedia shows that "Jiuzhi tangerine peel uses high-quality dried orange peels as raw materials. After peeling, soaking Blanching, keeping fresh, cutting, pickling, draining, seasoning, repeated drying, storage, packaging and other processes before it becomes a formal product. Because the process is complicated and rigorous, it is called "nine systems". It is a finished product made through multiple processing steps. In 1983, Yang Yinglin founded Chaozhou Anbu Jiawei Food Factory; on June 28, 1994, Yang Yinglin established Guangdong Jiabao Group Co., Ltd. . Jiabao Company's "Nine-System Chenpi" product is a specialty of the Chaoshan area of Guangdong Province. food.
Xianxianle Company is located in Guangdong, and its food production category also includes fruit processing. Xianxianle Company marks the words "Nine Systems of Chenpi" on the packaging bags of its tangerine peel products and uses them prominently; Jiabao Company believes that The appearance design and decoration of Xianxianle Company's packaging bags are similar to those of Jiabao Company, which is enough to cause confusion and misunderstanding among the relevant public. Therefore, a lawsuit was filed in court requiring Xianxianle Company to compensate RMB 200,000.
The court of first instance ruled that Xianxianle Company should compensate Jiabao Company 60,000 yuan and be prohibited from using the "Nine Systems" text mark on its products. Xianxianle Company was dissatisfied with the verdict and appealed.
02
Judgment result
Regarding the issue of whether the defense of Xianxianle Company’s trademark is legitimate use is established. The main function of the
trademark is its identification. Consumers can rely on the trademark to distinguish the source of goods or services. The main purpose of protecting trademark rights is to prevent source confusion. Fair use that does not cause confusion about the source of goods or services should not be deemed to constitute trademark infringement. To this end, Article 59, Paragraph 1 of the " Trademark Law of the People's Republic of China " (revised in 2013) stipulates that the registered trademark contains the common name, graphics, model of the product, or directly indicates the quality of the product, the main raw materials , function, purpose, weight, quantity and other characteristics, or the place names contained, the owner of the exclusive right to a registered trademark has no right to prohibit others from legitimate use. It can be seen from the provisions of this article that the establishment of fair use defense under my country's Trademark Law should include the following two aspects: First, the registered trademark contains the common name, graphics, and model of the product, or directly indicates the quality, main raw materials, and Function, use, weight, quantity and other characteristics, or descriptive meanings such as place names. Second, other people’s use behavior is legitimate.
Regarding the issue of whether "Nine-System Chenpi" is a descriptive term, that is, a common name for the product. Article 10, Paragraph 1 and 2 of 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 Trademarks" stipulates: "If the trademark in dispute is a legal trade name or a customary trade name, the people's court shall determine that it is If it is a common name specified in Article 11, Item (1) of the Trademark Law, it shall be recognized as a common name by the relevant public. If it refers to a category of goods, it should be considered as a customary Common names. Those listed as trade names in professional reference books, dictionaries, etc. can be used as a reference for determining conventional common names. Common common names are generally judged based on the common understanding of the relevant public across the country due to historical traditions and customs. For goods that are fixed in the relevant market due to factors such as human relationships, geographical environment, etc., the people’s court can recognize the common name in the relevant market as a common name. "
The evidence submitted by Xianxianle Company to this court can prove the following facts: 1. ． "Nine-system tangerine peel" has been stipulated by national standards as a common name for certain types of commodities as early as 2006.In the "General Rules for Preserved Fruits" issued by the Quality and Technical Supervision Bureau of the People's Republic of China and the National Standardization Administration of the People's Republic of China on September 18, 2006, the nine-system tangerine peel is listed as "preserved fruit" together with plum, dried bayberry, and dried mango. "Talk-based" products. 2． In the general understanding of local government agencies, news media and the relevant public, "Nine Systems of Tangerine Peel" has become a common name for a certain type of commodity.
Considering the above factors, this court believes that although "Jiu Zhi" has been registered as a trademark by Jiabao Company, "Jiu Zhi Chenpi" itself is an tangerine peel product pickled through a complex process. It was applied for by Jiabao Company It becomes a common name before registration. Even though Jiabao Company has made outstanding contributions to the research and development of "Nine-System Chenpi", it cannot monopolize the use of this term. Xianxianle Company uses the word "Nine-System Chenpi" in the generic name of the product, and also uses its own registered trademark "Xianxianle" in a standardized manner, so as not to cause confusion among consumers as to the source of the product. Xianxianle Company's use did not exceed the legitimate and reasonable limits, so it should not be determined that it constituted trademark infringement.
On the issue of whether Xianxianle Company constitutes unfair competition
The front of the packaging bag is the part that the relevant public is most likely to pay attention to when purchasing products. The design elements, color combinations and The text layout is quite similar, enough to cause the relevant public to confuse the source of the two products or mistakenly believe that the two are related.
The product packaging of Jiabao Company can obtain design authorization, which shows that it has a certain degree of novelty and uniqueness in packaging and decoration design. Xianxianle Company is a candied fruit manufacturer in Guangdong. When it was founded, Jiabao Company was already a leading company in the field of "nine-system tangerine peel". Therefore, it is impossible for it to be unaware of the packaging and decoration of Jiabao Company's "nine-system tangerine peel". As an honest market operator, Xianxianle Company should try its best to adopt packaging and decoration that are clearly different from Jiabao Company, instead of imitating Jiabao Company's packaging and decoration and blurring the boundaries between the two products. Xianxianle Company uses packaging and decoration that are similar to those of Jiabao Company without authorization. Subjectively, it has the intention to cling to the reputation of Jiabao Company’s products. Objectively, it is enough to cause the relevant public to confuse the source of the two products or misunderstand them. It is believed that the two are related and constitute unfair competition.
The court of second instance ruled that Xianxianle Company should stop using packaging and decoration similar to the packaging and decoration of Jiabao Company's "Jiabao" brand "Nine-System Tangerine Peel" and changed the amount of compensation to 40,000 yuan.
03
Dialogue with Lawyer Yuan
What are the conditions for establishing the defense of trademark prior use rights?
Lawyer Yuan said
Paragraph 3 of Article 59 of the Trademark Law of the People's Republic of China stipulates that before the trademark registrant applies for trademark registration, others have already used and registered the trademark on the same or similar goods before the trademark registrant. For trademarks that are identical or similar and have certain influence, the owner of the exclusive right to a registered trademark has no right to prohibit the user from continuing to use the trademark within the original scope of use, but may require the user to attach appropriate distinguishing marks. The
trademark prior use right system is an exception to the trademark registration principle . Its purpose is to protect unregistered trademarks that have been used previously and have a certain influence and can continue to be used within the original scope, thereby balancing the use of prior trademarks. conflicts of interest between the trademark registrant and the subsequent trademark registrant, and maintain the market order of fair competition. It can be seen from the above provisions of the Trademark Law that the defense of prior right to use a trademark is established. In terms of formal requirements, it usually requires that the defendant used the accused infringing mark earlier than the time when the trademark involved in the case applied for registration and earlier than the time when the trademark involved in the case was actually used. time, that is, "double priority"; in terms of substantive requirements, it is also necessary that the accused infringing mark has had a certain influence before the trademark involved in the case is applied for registration. The full text of
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Lawyer Yuan Tiefeng
Partner of Zhejiang Shangrui Law Firm, focusing on litigation and non-litigation business such as intellectual property, corporate governance, design of corporate system structure, contract disputes, etc.
