Sichuan Hot Pot Association and Condiment Association will file an invalid application for "green pepper". Following the trademark infringement of Hulatang in Xiaoyao Town and Chinese hamburger in Tongguan, green peppers have once again attracted attention. Sichuan Hot Pot Association and Condiment Association will file an invalid application for "green pepper".
Sichuan Hotpot Association and Condiment Association will file an invalid application for "green pepper" 1 Recently, Shanghai Wancuitang Restaurant Management Company (hereinafter referred to as "Shanghai Wancuitang") sued dozens of restaurants in Sichuan Province for "green pepper incident", which became a hot spot on the Internet. Shanghai Wancuitang, the plaintiff, is suspected of "touching porcelain lawsuit" and "malicious lawsuit". On February 25th, Chairman 65438 Shanghai Wan exclusively responded to the cover news: I'm deeply sorry, all charges were dropped.
At present, the discussion on the trademark storm of "green pepper" continues. On February 26th, 65438, the cover journalist learned that Sichuan Condiment Association and Sichuan Hot Pot Association successively issued statements saying that green peppers were not suitable for trademark registration and would file an invalid application.
Corporate concern:
"Green pepper" trademark storm is not completely solved, who will cooperate with us in the future?
The "green pepper incident" has caused great fluctuations in Sichuan catering circle. Not only Sichuan netizens were surprised and puzzled by this, but even Xiao Jianming, a China cooking master and Sichuan cuisine master, said, "I have been a Sichuan cuisine chef all my life, and even the word green pepper is not allowed to be used by us. It is unreasonable. "
The cover journalist learned that in Chengdu alone, there are at least 3,000 restaurants with green peppers, and almost every Sichuan restaurant has a signature dish of green peppers. Green pepper hot pot ingredients and green pepper fish seasoning are frequent visitors in Sichuan cuisine, and green pepper is an indispensable presence in Chengdu and Sichuan cuisine.
As a special catering enterprise with green peppers in Chengdu, eating hot pot fish with green peppers in Chengdu has been greatly affected recently. Yuan Xianxiang, general manager of Chili fish in Chichengdu hot pot, said that he was particularly shocked by the "green pepper incident". "Everyone knows that peppers are the soul of Sichuan cuisine, and peppers are divided into green peppers and red peppers. Chihuo City not only has three generations of unique green pepper fish, but also has won the public comment on the list of green peppers. Green pepper is the soul for us. If we give it to ourselves, it is equivalent to taking radical measures. Not only us, but also many catering colleagues have been affected, which is a big blow to our Sichuan catering industry. "
Yuan Xianxiang told reporters that on February 25th, 65438 saw the cover news report about "Chairman Shanghai Wan's exclusive response to the lawsuit of borrowing green peppers to touch porcelain: I am deeply sorry, and all charges are dropped". He still has some worries about the future. "As a chain catering enterprise in Chengdu, we should bring the soul of Sichuan cuisine and Sichuan cuisine to the whole country and even the whole world. However, after the' green pepper incident', some franchisees and partners expressed concern. If the' green pepper' trademark storm is not completely solved, who will cooperate with us in the future? As an enterprise, we are weak, and we hope this matter can be properly solved in the end. At the same time, we also hope that the whole industry and the whole industrial chain can make the Sichuan business card' green pepper' better and better, go out of Sichuan and go global. "
Association voice:
Green pepper is a common name for agricultural raw materials and is not suitable for trademark registration.
65438+On the evening of February 25th, Sichuan Condiment Association issued a statement saying that green peppers are agricultural products and raw materials in Sichuan, Chongqing, Yunnan, Henan, Anhui and other places, belonging to Rutaceae and Zanthoxylum, and are well-known in Sichuan and Chongqing. Article 11 of the Trademark Law of People's Republic of China (PRC) stipulates that only the common name, figure and model of a commodity directly indicate the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the commodity, while others lack obvious characteristics, and shall not be registered as trademarks. A company in Shanghai registered green peppers as trademarks and intensively sued dozens of restaurants in Sichuan Province. Sichuan Condiment Association is highly concerned about this and raises objections. Green pepper is not only used for the research and development of dishes, but also for the production and management of condiments, and also for the manufacture of pharmaceutical products, which is widely used. Condiment industry and catering industry are upstream and downstream industrial chains, and they are highly concerned about the "green pepper incident". The catering industry and the condiment industry are as close as lips and teeth, sharing weal and woe. In the "green pepper incident" lawsuit, once the court decides to restrict restaurants from using the word "green pepper" and patterns in their menus and signboards, it will put the catering industry in a passive position, hurt condiment brands, make condiment enterprises born to die, and thus cause the whole industrial chain to break. In view of this, Sichuan Condiment Association expects the relevant departments to coordinate properly and the judicial organs to handle the "green pepper incident" carefully according to law.
Sichuan Condiment Association said that Sichuan Condiment Association has the responsibility to reflect the reasonable demands of enterprises, safeguard the legitimate rights and interests of enterprises, standardize business practices, unite and guide enterprises, unite all forces in the whole industry, and work hard to promote the sustained and healthy development of condiment industry. Sichuan Condiment Association supports condiment enterprises and catering enterprises to safeguard their legitimate rights and interests according to law and maintain the sustained and stable development of the industry. When necessary, Sichuan Condiment Association will join hands with the legal team, join the planting, catering and pharmaceutical industries, and together with major condiment associations, catering associations and related associations, file an invalid procedure for the "green pepper" trademark, without excluding taking all necessary measures to solve the legal problems involved in the "green pepper incident".
The cover journalist was informed that taking the event of "Green Pepper" being protected as an opportunity, Sichuan Condiment Association will jointly establish Sichuan Green Pepper Enterprise Alliance with Chengdu Green Pepper Hot Pot Fish and other green pepper enterprises to raise awareness of intellectual property protection and help Sichuan business cards develop better.
On February 26th, 65438, Sichuan Hotpot Association also issued a statement. According to the statement, the trademark rights protection case of "green pepper" has aroused great concern in the catering industry in Sichuan and Chongqing. To this end, Sichuan Hotpot Association made the following statement: 1. Legal aid for suing enterprises; Second; Organize industry experts to study and set up intellectual property rights protection centers; Third, file a lawsuit for the invalidation of the "green pepper" trademark; Fourth, actively connect with relevant departments; 5. Joint mass media appeal; Sixth, appeal to the trademark department to improve relevant laws; 7. Sichuan-Chongqing Federation.
Sichuan Hot Pot Association and Condiment Association will file an invalid application for "green pepper". Following the trademark infringement of Hulatang in Xiaoyao Town and Chinese hamburger in Tongguan, green pepper once again attracted attention. Recently, dozens of catering enterprises in Chengdu, Suining, Meishan and other places in Sichuan were sued for having the word "green pepper" in their store menus and dishes. The reason is that "green pepper" has been registered as a trademark by a catering company in Shanghai.
Check the referee document network. Many shopkeepers lost the case and were awarded 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 enterprises in Sichuan have encountered this situation and are ready to jointly defend their rights.
These sued businesses can really be described as "people falling from the sky sitting in a pot at home". Just because they used the words "green pepper", it somehow constituted infringement. Not only do the businesses involved feel wrong, but ordinary netizens also feel very confused. This actually involves the question of whether a generic 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 generic name?
Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization Confirmation: "If the relevant public generally thinks that a certain name can refer to a class of goods, it shall be recognized as a common name established by convention. If it is listed as a commodity name by professional reference books and dictionaries, it can be used as a reference for identifying established common names. "
Specific to the "green pepper" dispute, "green pepper" can be a plant, a seasoning, a food preparation method or a food raw material. Foods made from green peppers are well known to the public. Even in the whole country, it is difficult to use "green pepper" as a symbol to distinguish the source of products, so green pepper has the characteristics of a common name.
Where is the right boundary of the exclusive owner of green pepper trademark?
Although some businesses have registered the words and logo of "green pepper", as long as others do not completely copy the logo of the registered trademark when using "green pepper" and do not cause confusion, it should be fair and reasonable use, and there is no intentional infringement.
On the contrary, it is debatable for a merchant to sue other operators with the registered trademark of "green pepper". It is necessary to judge whether this is improper rights protection and whether it will interfere with the market order according to the actual situation.
The national knowledge bureau and the supreme law speak out.
In response, some media called the China National Intellectual Property Administration Trademark Office, and a staff member responded that if there is any objection to the "green pepper" trademark, the objection applicant can file an objection application with the Trademark Office. A trademark that has been preliminarily approved for announcement may raise an objection to the Trademark Office within the three-month announcement period. If the objection period expires, an application for invalidation of a registered trademark may be filed within five years.
"Trademarks are examined by professional examiners according to the current trademark law and examination standards. There are strict standards and regulations, and you can raise objections if your rights are damaged. " The above-mentioned staff also said that for the late registered trademarks related to "green pepper", even if different trademarks have the same text, different goods and services can be registered. The same goods and services with similar words may not be registered.
In addition, Feng Xiaoqing, a researcher at the Supreme People's Court Intellectual Property Judicial Protection Research Center and vice president of China Intellectual Property Law Research Association, said in an interview with the media that the exclusive owner of the "green pepper" trademark has its legal boundaries and is not allowed to legally use the claimed rights against others, let alone abuse their rights. Article 11 of the Trademark Law stipulates that only the common name, figure and model of a commodity, or a sign that directly indicates the quality, main raw materials, function, use, weight and quantity of a commodity, and lacks distinctive features, shall not be registered as a trademark.
Feng Xiaoqing also introduced that the first paragraph of Article 59 of the Trademark Law stipulates that the exclusive right holder of a registered trademark has no right to prohibit others from properly using the common name, figure and model of the goods contained in the registered trademark, or directly indicate the quality, main raw materials, functions, uses, weight and quantity of the goods, or the place names contained therein.
Regarding how to define and maintain the publicity of common names, Feng Xiaoqing believes that the publicity of common names depends on the joint maintenance of operators and consumers, creating a good market environment for operators and consumers and promoting normal commodity circulation. "Once an operator uses the law to obtain the exclusive right to use a common name through trademark registration, it will destroy the publicity of the common name, make other operators face negative effects, and then adversely affect the circulation of the whole market."
Feng Xiaoqing also said that although the generic name has long been reflected in the Trademark Law, it only shows that the law prohibits generic trademarks from appearing in registered trademarks. Up to now, there is no systematic concept about registered trademarks with generic names. This is also one of the reasons why there is great controversy about the handling of common names in judicial practice.
Sichuan Hot Pot Association and Condiment Association will file an invalid application for "green pepper". Recently, many catering operators in Chengdu, Suining, Meishan and other places in Sichuan received a court summons because they used the "green pepper" trademark, which constituted infringement. This is reminiscent of the recent rights protection incidents of Hu spicy soup and Tongguan Chinese hamburger in Xiaoyao Town. China National Intellectual Property Administration had previously made a clear response that Xiaoyao Town and Tongguan Chinese hamburger had no right to charge the franchise fee. This time, the green pepper is also "lying down". The difference is that the focus has changed from place names to common spices, which is even more outrageous.
"Zanthoxylum bungeanum" in spices is mainly divided into red pepper and green pepper. Sichuan is the main producing area of green pepper. With the popularity of Sichuan cuisine, green pepper has also spread to all parts of the country. In the eyes of ordinary people, green peppers are like spices such as star anise, cinnamon, fragrant leaves and fennel. Signboards, recipes and dishes are all written with the words "green pepper" to explain the practice and taste. Grilled fish with green peppers is like fried meat with chopped green onion.
The key point of this matter is, how did ordinary spices become registered trademarks? Registration is successful, where is the right boundary?
China's Trademark Law does not prohibit cross-category registration of common names such as green pepper, that is to say, if "green pepper" applies for registration in the category of seasoning products, it may be rejected because of the common name. However, Shanghai Wancuitang Catering Management Co., Ltd. has registered several valid trademarks in other categories, and registered trademarks enjoy corresponding legal rights. This does not mean that the obligee can do whatever he wants and exercise his rights beyond the legal boundaries. A registered trademark contains the common name, figure and model of a commodity, or directly indicates the quality, main raw materials, function, use, weight and quantity of the commodity, or contains a place name, and the exclusive right holder of a registered trademark has no right to prohibit others from using it properly. In addition, if the store existed before the trademark registration, it can also claim rights according to law.
For many businesses, the legal provisions are not easy to understand. Many people choose to spend money after learning that they are "breaking the law". Lack of legal knowledge and fear have become the handle of some people, and trademark rights protection has become a way to make money. Touching porcelain to deceive people and casting nets for fishing have harmed the interests of merchants, disrupted the commercial order and obviously deviated from the original intention of intellectual property protection.
This case is another popularization of legal knowledge related to intellectual property protection, and it is also a warning to improve the law and plug loopholes. Relevant departments should adopt a clearer attitude and issue more detailed guidelines to curb malicious litigation using trademarks. Malicious cybersquatting can not be curbed, and malicious litigation is difficult to end. More importantly, it is necessary to control the source and protect intellectual property rights.