On the proper boundary of trademark right from the case of "green pepper"

Previously, trademark rights cases such as "Xiaoyao town Hula soup", "Tongguan roujiamo", "green pepper fish hot pot" and "honeysuckle toilet water" were frequently searched on the Internet, which attracted social attention and discussion. The State Intellectual Property Office and the Supreme People's court responded and answered relevant questions successively, which can be described as a rare open course of trademark law popularization.

"Significance" of trademark

Trademark is a kind of common symbols in life, but many people do not understand its specific connotation, function, use and right boundary. Many people simply believe that "green pepper" is the name of a plant fruit or dish seasoning, which should not be registered as a trademark, let alone banned from other operators.

However, the trademark is not simply the symbol itself, but refers to and corresponds to the source of specific goods or services. It is this kind of reference and correspondence that limits the scope of trademark protection and determines that the trademark owner cannot monopolize all the use of the same symbol.

In other words, as a symbol, "green pepper" refers to a plant fruit or dish seasoning, which constitutes a common name and should not be registered as a trademark in the commodity category of "seasoning", but this does not mean that "green pepper" cannot refer to a restaurant or a car.

The core element of judging whether a symbol can be registered as a trademark is "significant". The so-called "saliency" refers to the distance and alienation between the primary meaning of a symbol in a specific business context and the general meaning of a certain kind of goods or services. The farther away the two are, the stronger the significance is, on the contrary, the weaker it is. According to the second paragraph of Article 11 of the current trademark law, those that directly represent the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods shall not be registered as trademarks. Even if the registration is successful, it can be declared invalid due to lack of significance.

As for the "green pepper" sign applied for registration in the catering service category, first of all, it is not the general name of the catering industry; Secondly, as a seasoning name of Sichuan cuisine, it is difficult to form the main raw material of catering service; Finally, whether it only directly represents the "other characteristics" of catering services and has certain flexibility and subjectivity should be comprehensively studied and judged by the State Intellectual Property Office and the people's court according to the evidence of the parties.

What is "proper and reasonable use"

Article 59 of the current trademark law stipulates that the exclusive right holder of a registered trademark has no right to prohibit others from using the general name, graphics and model of the goods contained in the registered trademark, or directly indicating the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods, or the place names contained in the registered trademark. In practice, the accused infringer may, according to this provision, propose that he uses the marks involved in the case properly and reasonably in the sense of non trademark. As for what circumstances belong to reasonable use and what circumstances belong to the use in the sense of trademark, which will substantially affect consumers' purchase decisions, and even lead to confusion and misidentification of the source of goods or services, the law enforcement and judicial organs should combine the font form and use context of the logo involved in the case, whether it is used prominently, the similarity with the plaintiff's trademark The popularity and significance of the plaintiff's trademark and the defendant's intention to use the trademark shall be fully and comprehensively considered.

As pointed out by the higher people's Court of Sichuan Province in the judgment of the second instance of the "green pepper" case, the defendant Wu apo hot pot shop attached its own registered trademark "Zou Yujiang" logo in front of the word "green pepper", followed by the word "fish hot pot". The words "green pepper" and "fish hot pot" were consistent in font, font size, color, height and word spacing, and were not used separately, It is used together with "Zou Yujiang" and "fish hot pot", which completely and clearly expresses to the public that the signature dish it provides to consumers is "green pepper fish hot pot", and the "green pepper" contained in the logo is an objective description of the green pepper seasoning contained in the special dishes it provides, which is not a trademark use. The defendant has no intention of attaching the plaintiff's trademark involved in the case, and the relevant public generally will not associate it with the plaintiff's trademark involved in the case, which will not cause confusion or misunderstanding, and its use does not constitute trademark infringement.

Similarly, since hu la soup is a characteristic dish in Xiaoyao Town, Xihua county, Henan Province, the use or registration of the "Xiaoyao town" logo on hu la soup products obviously only directly indicates the origin of the goods, which is lack of significance. For the infringement litigation filed by such trademark owners, the trademark law has provided sufficient and powerful legal weapons for the accused infringer to maintain their normal business and not be "maliciously ripped off".

Clarify the protection boundary of geographical indications

Of course, not all geographical names can be registered as trademarks. According to relevant regulations, geographical indications can be applied for registration as certification trademarks or collective trademarks. The so-called "geographical indication" refers to the strong correspondence between specific place names and specific commodity quality. This strong correspondence refers to that the specific quality of a commodity is mainly determined by the natural and human factors of its origin.

Like trademarks, once geographical indications are reviewed, publicized and registered successfully by administrative organs, they protect the good reputation carried by geographical indication products, and free riding and counterfeiting are not allowed. Otherwise, it will not only attack the enthusiasm of honest management, but also lead to confusion and misunderstanding of consumers, and then damage the public interest. Protecting a geographical indication can not only promote the sound development of local related industries, improve the level of Taxation and labor employment, but also stimulate fair competition and technological innovation, and protect and enhance the quality needs of consumers.

On the other hand, geographical indications are different from trademarks in a narrow sense. Because the trademark refers to the quality and reputation of a certain commodity or service provided by an operator; Geographical indications refer to the specific quality shared by all similar commodities in a specific region. Therefore, the exclusive right of geographical indications is more exclusive. The registration and examination of geographical indications should be more strict than ordinary trademarks. At the same time, it must meet the requirements of being generally recognized by consumers after long-term use, and its products naturally have and always maintain the specific quality closely related to geographical factors and can not be copied. In other words, not all local products or products made based on traditional processes are suitable for protection as geographical indication products.

At the same time, the holder of the exclusive right to geographical indications should not be a single operator, but should be a widely representative industry organization. It should not only effectively prove that the geographical indication carries the above-mentioned specific quality in the application for registration, but also carry out necessary supervision and management after registration, so as to ensure that this specific quality will not be diluted or even lost.

Tongguan roujiamo Association's practice of carrying out rights protection litigation and charging franchise fees is most criticized because it does not fully prove the legitimate basis for enjoying exclusive property rights, that is, whether Tongguan roujiamo has specific quality determined by natural and human factors in Tongguan County, which is different from other roujiamo products, whether in terms of raw materials or production technology, There is only a collective trademark authorization certificate. This incident also reflects that the current registration, review and management mechanism of geographical indications in China is not very consistent with the due protection boundary of geographical indications, so it is difficult to fundamentally prevent some market entities from using the system for profit.

Any legal system is a text norm carrying a specific value orientation. The core value orientation of trademark law is to define the boundary of property rights, reduce transaction costs, encourage honest management and curb symbolic monopoly. The discussion and in-depth thinking triggered by the above cases have given the public an opportunity to fully understand and correctly understand the trademark law and even the whole intellectual property system, which is conducive to consolidating the value concept and cognitive basis of intellectual property protection, as well as the amendment and improvement of relevant substantive legal rules and procedures in China, so as to improve the overall welfare of society.