Current Position: Home > IP News > Jiugui Liquor "internal reference" trademark was infringed and protected by the court of first and second instance!

"Internal reference" means "internal reference". In China, it generally refers to a kind of news report specially submitted by the news media to the party and government organs at all levels. It is a special form of news. "Internal reference" is an existing vocabulary, but "internal reference" is registered as a trademark, which has no relationship with the approved goods, so it is significant, and the trademark has been registered, and through the continuous advertising, publicity and use of the obligee, it has a high popularity and influence; The defendant used the words "internal reference" on the infringing goods. According to the meaning of the words, it cannot draw a conclusion that it belongs to the descriptive use of "internal supply and internal entertainment".

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First, Lanling fine wine company in its production and sales of "Lanling Dongcang internal ginseng" 62 degree Luzhou flavor Baijiu product packaging box and its product front prominent position, with a striking red background color, separately highlight and enlarge the bold text of "internal ginseng". It plays a role in identifying and distinguishing the source of goods, and belongs to trademark use. Although the defendant argued that there was a trademark mark of "Lanling and Tu" on the packaging box and the top of the product, it could not resist the trademark use of the word "internal reference" on the infringing product and packaging box.

Second, according to Article 64 of the trademark law, if the accused infringer pleads that the exclusive right holder of a registered trademark has not used the registered trademark, the people's court may require the exclusive right holder of a registered trademark to provide evidence of the actual use of the registered trademark within the previous three years. The time for the trademark owner to use the registered trademark shall be three years before the alleged infringement.

Third, the second paragraph of Article 26 of the provisions of the Supreme People's Court on Several Issues concerning the trial of administrative cases of trademark authorization and confirmation stipulates that if there is a slight difference between the actually used trademark mark and the approved trademark mark, but its distinctive characteristics have not been changed, it can be regarded as the use of a registered trademark.

Summary of judgment documents

First instance case No.: (2021) Lu 01 Zhi min Chu No. 101

Second instance case No.: (2022) luminzhong No. 134

Cause of action: trademark infringement dispute

Collegial panel of first instance:

Presiding judge Liu Nianbo

Judge Li Yu

Judge zhangzhengliang

Clerk: Xu Yingqi

Collegial panel of second instance:

Presiding judge Liu Weimin

Judge Yu Zhitao

Judge Zhang Jinzhu

Assistant judge: Zhang Qiong

Clerk: dingyanqi

Parties:

Appellant (defendant of the original trial): Shandong Lanling Fine Wine Co., Ltd., with its domicile in Lanling Town, Lanling County, Linyi City, Shandong Province.

Legal representative: chenxuerong, chairman.

Entrusted litigation agent: Zhang Chong, a staff member of the company.

The appellee (plaintiff of the original trial): Jiugui Liquor Co., Ltd., whose domicile is zhenwuying village, Donghe street, Jishou City, Hunan Province.

Legal representative: Wang Hao, chairman.

Entrusted litigation agent: Wang Shanwei, a lawyer of Shandong Zhuo law firm.

The defendant in the original trial: Haotian liquor marketing department, Changqing District, Jinan City, whose business place is Zhengye, west section of Zhongchuan street, Changqing District, Jinan City, Shandong Province.

Operator: zhuchuanchao.

Judgment result of the first instance:

I. Haotian liquor marketing department shall immediately stop selling goods that infringe the trademark right of Jiugui Liquor Company No. 3981390 "internal ginseng";

2、 Lanling company immediately stopped producing and selling goods that infringed the trademark right of Jiugui Liquor Company No. 3981390 "internal ginseng";

3、 Haotian liquor marketing department shall compensate Jiugui Liquor Company for economic losses and reasonable expenses totaling 2000 yuan within 10 days from the date of the judgment taking effect;

4、 Lanling company shall compensate the Jiugui Liquor Company for the economic losses and reasonable expenses totaling 700000 yuan within 10 days from the date when the judgment takes effect;

5、 Reject other claims of Jiugui Liquor Company.

Judgment result of the second instance:

The appeal was dismissed and the original sentence upheld.

Judgment time of the second instance:

May 12, 2002

Law involved:

Article 48, item 2 and item 3 of Article 57, Article 63 of the Trademark Law of the people's Republic of China, and item 1 of paragraph 1 of article 177 of the Civil Procedure Law of the people's Republic of China

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