Current Position: Home > IP News > "Every husband" trademark infringement Haitian soy sauce? There are three important enlightenments for a case to be reversed many times!
A trademark similar case between Haifu and Haitian, with different trial results, brings out in-depth thinking on the enterprise's intellectual property strategy


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According to the trial information network of Beijing court, the Trademark Review and Adjudication Board of the former State Administration for Industry and commerce, the Beijing Intellectual Property Court and the Beijing high-level people's court have successively made three rounds of determinations on the validity of the trademark and whether it is similar to the "Haitian" trademark held by Haitian flavor industry.


Among them, the Trademark Review and Adjudication Board of the former State Administration for Industry and Commerce made a ruling to maintain the registration of the former on the ground that "each husband" did not constitute a similar trademark with "Haitian".

However, the court of first instance subsequently made a contrary judgment, holding that the use of "every husband" in "condiments, flour" and other commodities is similar to that of Haitian series trademarks held by Haitian flavor industry.

However, the court of second instance held that some of the facts were found wrong in the judgment of the first instance. In addition to bread and ice cream, the trademark of "Meifu" is similar to the "Haitian" trademark approved for use in 30 categories such as soy sauce, but not similar to some "Haitian" trademarks approved for use on bean products.


  

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Photo source: trademark in dispute (screenshot from China Trademark website)



According to the (2020) Jing Hang Zhong No. 4364 judgment issued at the end of November this year, the trademark in dispute is No. 7120939 "every husband", which was applied by Fang Meihong on December 19, 2008. Approved use of commodities includes thirtieth categories, similar groups: 3001; 3006; 3008; 3009; 3010; 3012; 3013; 3015; 3016; 3018): soy sauce; condiments; ice cream; food flavors (excluding ether flavors and essential oils); cooking food thickeners; rice crust; noodles; flour powder; bread; coffee flavoring (condiments).

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Photo source: quoted trademarks 1, 3 and 5 (screenshot from China Trademark website)




The five trademarks are all registered and held by Foshan Haitian seasoning Food Co., Ltd., which are composed of different formats of Haitian pictures and texts. Among them, the approved use scope of the cited trademarks No.1, No.3 and No.5 mostly revolves around the category 30 soy sauce, vinegar, monosodium glutamate, etc. However, the scope of use of the two and four reference trademarks is category 29, similar group: 2913: bean products.



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Photo source: quoted trademarks 2 and 4 (screenshot from China Trademark website)




In this regard, the Trademark Review and Adjudication Board of the former State Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board) made a ruling on July 11, 2018, on the ground that the registration of the disputed trademark did not constitute the provisions of Article 13, paragraph 3 and Article 30 of the Trademark Law of the people's Republic of China (hereinafter referred to as the Trademark Law of the people's Republic of China) amended in 2013.
Haitian Weiye was not satisfied with the above ruling and sued Beijing Intellectual Property Court.

The Beijing Intellectual Property Court held that the trademark in dispute and the cited trademarks respectively constituted similar trademarks used on the same or similar commodities on the commodities approved to be used, such as "condiments and flour", etc., and ordered the State Intellectual Property Office to make a new ruling.

However, the State Intellectual Property Office refused to accept the first instance decision and appealed to the Beijing Higher People's court.
In the judgment, the Beijing Municipal People's court stated that in judging whether commodities are similar, we should consider whether the functions, uses, production departments, sales channels and consumer groups of commodities are the same or have greater relevance, and whether it is easy for the relevant public to think that commodities are provided by the same subject, or there is a specific connection between their suppliers. The classification table of similar goods and services can be used as a reference to judge similar goods.

At the level of product classification, the Beijing Municipal High Court pointed out that in this case, the goods other than "bread and ice cream" approved by the trademark in dispute and the commodities approved for use by the citation trademarks I, III and V belong to the commodities in the similar groups of 3001, 3008, 3009, 3010, 3012, 3015, 3016 and 3018 in category 31 of the differentiation table, so they belong to similar commodities respectively.
The products of "bread and ice cream" approved by the trademark in dispute and "bean products" approved by the reference trademarks 2 and 4 respectively belong to different similar groups in the discrimination table, and are not indicated to constitute a cross search, so they do not belong to similar products. The judgment of the original trial is wrong in this conclusion, and the court will correct it.

At the aspect of trademark style, the Beijing Municipal People's court holds that judging whether the two trademarks are similar or not should be carried out according to the general recognition of the trademark by the relevant public and the understanding of the text, graphics and other trademark components. It is necessary to consider not only the similarity of the trademark as a whole, but also the significance and popularity of the relevant trademark, the intention of applying for registration, and the use of the trademark Whether it is easy to cause confusion is the judgment standard.


In this case, although there are differences in meaning between the Chinese character "Meifu" of the trademark in dispute and "Haitian", which is the distinctive identification character of the three quoted trademarks, the "every" is the right half of the font structure of "Hai". Compared with "Tian", the "Fu" is only a little more in the upper part of the font than "Tian". As a result, it is similar in shape and overall appearance, and the relevant public has applied it in a state of isolation and comparison Attention is difficult to distinguish, so it constitutes an approximate sign.


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Based on this, the Beijing Municipal High Court held that, according to the evidence in the case, the citation trademarks 1, 3 and 5 had a high popularity after long-term use in soy sauce and other commodities, and the citation trademark 3 was once recognized as a well-known trademark. If the litigious trademark and the citation trademark I, III and V are used together on the same or similar goods, it is easy for the relevant public to confuse and misunderstand the origin of the goods or think that there is a specific connection between the sources of the goods.
Therefore, this case should consider that the trademark in dispute and the reference trademark 1, 3 and 5 respectively constitute the similar trademark used in the same or similar goods except for "bread and ice cream", while the two and four do not constitute the similar trademark used in the same or similar goods respectively.
According to the above conclusion, the judgment of the original trial was wrong in determining the facts, but it has no substantial impact on the conclusion of the case, so the court only corrects it. The main appeal grounds of the State Intellectual Property Office have no factual and legal basis, and this court will not support it.

The Beijing Municipal High Court finally said that the original judgment found some facts improper, but the application of law is correct, the procedure is legal, and the conclusion is correct, which should be maintained. The appeal of the State Intellectual Property Office was rejected and the original judgment was upheld.






Enlightenment of case to enterprises



From the perspective of enterprises, the most important thing is to do a good job in the distribution of intellectual property and lay a good foundation for rights. We should actively apply for registration to obtain certain rights protection, maintain the trademark registration of the enterprise, and keep effective trademark use evidence.

Because many enterprises do not submit the registration application in time, or fail to renew the registered trademark on time, or arbitrarily give up the renewal of the trademark, the enterprise's right base is lost, and the intellectual property including trademark cannot effectively support the further rapid development of the enterprise, which is inseparable from the linkage and cooperation of multiple departments.


Secondly, risk prevention and control, regular monitoring and good use of tools. On the basis of establishing the right protection defense, the regular trademark monitoring shall be started every month, and strict retrieval shall be conducted for the same trademarks in 1-45 categories in the application and highly similar trademarks in the corresponding commodity / service categories in the key operation scenarios. In addition to the active rejection of the routine examination and approval by the Trademark Office of the State Intellectual Property Office, the enterprise shall timely raise the above-mentioned trademarks that enter the preliminary approval announcement In order to prevent them from obtaining the exclusive right to use trademarks, they should apply for objection to prevent them from becoming familiar with the country and raising tigers


For registered trademarks, we can apply for invalidation or cancel three-year non-use applications according to different situations, supplemented by other dispute resolution ways such as administrative confirmation, anti unfair competition, civil rights protection, and so on. For the subjective state identification that is difficult to grasp in the case, such as malicious, we should make good use of big data tools to conduct multi-dimensional analysis to help the reviewers to accurately and effectively identify the facts of relevant cases.


Finally, enterprises should turn passive into active, multi scene marketing. Intellectual property rights, including trademarks, serve the business strategy and operation of enterprises. Reasonable use and consideration of the use of a variety of dispute resolution mechanisms, reduce the cost of litigation, strive to turn hostility into peace. When the infringement occurs, in addition to actively safeguarding rights, it is possible to reach a favorable situation of enterprise brand marketing through negotiation and mediation, so as to promote the effective and rapid spread of enterprise products or services.

Source: intellectual property industry observation, financial network

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