The legitimate boundary of trademark right from the case of “Green Pepper”

2022-07-21 0 By

Prior to that, “free and unfettered, hu hot soup” and “tongguan meat clip buns,” “green pepper fish hot pot” “honeysuckle toilet water” and other trademarks cases out frequently on network, cause social attention and discussion, the state intellectual property office and the Supreme People’s Court has made a response to the problems and solutions, is a rare brand dissemination public class.Trademark is a common symbol in daily life, but many people do not understand its specific connotation, function and right boundary.Many people think simply, “green pepper” is a plant fruit or dish seasoning name, should not be registered as a trademark, more should not be used to prohibit other operators.However, a trademark is not simply a symbol itself, but a symbol that refers to and corresponds to the source of a particular commodity or service.It is this kind of reference and correspondence relation that limits the protection scope of trademark right, and also determines that the trademark right holder cannot monopolize all the use of the same symbol.In other words, as a symbol, “green Pepper” if it refers to a plant fruit or dish seasoning, it constitutes a generic name and should not be registered as a trademark in the “seasoning” category. But that doesn’t mean that “green pepper” can’t refer to a restaurant or a car.To judge whether a symbol can be registered as a trademark, the core requirement is “distinctiveness”.The so-called “salience” refers to the distance between the primary meaning of a symbol in a specific commercial context and the common meaning of a certain kind of goods or services in the eyes of the relevant public.The further the distance between the two is, the stronger the significance is, and vice versa.In accordance with the provisions of paragraph 2 of Article 11 of the current Trademark Law, no trademark shall be registered as a trademark if the quality, main raw materials, function, use, weight, quantity or other characteristics of a commodity are directly expressed.Even if a registration is successful, it can be nullified for lack of salience.In terms of the application for registration of the “green pepper” logo in the food service category, first of all, it is not a general name of the restaurant industry;Secondly, as a condiment name of Sichuan cuisine, it is difficult to constitute the main raw material of catering services;Finally, whether it directly represents “other characteristics” of catering services, which is flexible and subjective, should be determined by the State Intellectual Property Office and the People’s Court based on the evidence of the parties concerned.What is “fair, fair use” provisions of article 59 of the current trademark law, is contained in the registered trademark of the generic name of the commodity, graphics, models, or directly represent the quality of the goods, the main raw material, function, quantity, weight, and other characteristics, or contains the place name, use of a registered trademark of people the right to prohibit others to use it wisely.In practice, the sued infringer may, according to the provisions of this article, claim that he is justified and reasonable in using the marks involved in the non-trademark sense.As to what is fair use and what is trademark use, which will materially affect consumers’ purchase decisions and even lead to confusion and misidentification of the source of goods or services,In specific cases, law enforcement and judicial authorities should fully and comprehensively consider the font form and use context of the symbols involved, whether they are used prominently, the similarity with the plaintiff’s trademark, the popularity and prominence of the plaintiff’s trademark, and the intention of the infringer being sued.Like sichuan province higher people’s court in the verdict “green Chinese prickly ash” case, points out, the defendant five mai hotpot restaurant in front of the words “green Chinese prickly ash” additional own registered trademark “zou fish” logo, the back with a “fish hotpot” three words, “green pepper” and “fish” in the font, font size, color, height, space and etc are consistent,No single feature, but rather with “zou fish” common use “fish hot pot”, complete and clear to the public to express is the specialty of its offering consumers “green pepper fish hot pot”, the logo included in the “green pepper” is to provide dishes containing the objective description of green pepper sauce, is not a trademark use.The defendant has no intention to attach the trademark involved by the plaintiff, and the relevant public generally will not associate it with the trademark involved by the plaintiff, so there will be no confusion or misidentification, and the use of the trademark does not constitute trademark infringement.Similarly, because hu spicy soup is a characteristic dish in Xiaoyao Town, Xihua County, Henan Province, the use or registration of the “Xiaoyao Town” logo on hu spicy soup products is obviously only a direct indication of the origin of the product, the lack of significance.The trademark law has provided sufficient and powerful legal weapons for the infringers to maintain their normal operation and not to be “maliciously ripped off”.Of course, not all geographical names cannot 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 a specific place name and the quality of a specific commodity, which means that the specific quality of a commodity is mainly determined by the natural and human factors of its origin.Like trademarks, geographical indications, once examined and published by administrative authorities and registered successfully, protect the good reputation borne by geographical indication products, and do not allow free riding and imitation.Otherwise, it will not only discourage the enthusiasm of honest management, but also lead to confusion and misidentification of consumers, thus damaging the public interest.The protection of a geographical indication can not only promote the sound development of local relevant industries, improve tax revenue and labor employment level, but also stimulate fair competition and technological innovation, and guarantee and improve the quality demand of consumers.On the other hand, geographical indication is different from trademark in narrow sense.Because what the trademark refers to is the quality and reputation of a commodity or service provided by an operator;However, geographical indication refers to the specific quality common to all similar goods in a specific geographical area.Therefore, the right to exclusive use of geographical indications is more exclusive, and the registration and examination of geographical indications should be stricter than that of ordinary trademarks. Geographical indications must also meet the requirements of being widely recognized by consumers after long-term use, being natural and always closely related to geographical factors, and being non-replicable.In other words, not all local products or products based on traditional techniques are suitable for protection as GEOGRAPHICAL indication products.At the same time, the holder of geographical indication exclusive right should not be a single operator, but should be a widely representative industry organization.It shall not only effectively prove that the geographical indication bears the aforementioned specific quality in the process of application for registration, but also carry out necessary supervision and management after obtaining registration to ensure that the specific quality is not diluted or even lost.Association of tongguan meat clip buns in litigation and the practice of charging jiamingfei, the most annoying is that it does not prove fully enjoy exclusive property rights as the foundation, namely, both on the raw material and in the manufacture craft in tongguan meat clip buns is determined by the tongguan county natural factors and human factors, do not copy the particular quality,Thus different from other rou jia mo products, but only a collective trademark authorization certificate.This incident also reflects that the registration, review and management mechanism of China’s geographical indications is not quite consistent with the protection boundaries of geographical indications, and it is difficult to fundamentally prevent some market subjects from taking advantage of the absence of the system for profit.Any legal system is a textual norm bearing 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.Caused by the above case discussion and deep thinking, give the public a comprehensive understanding and correct understanding of the trademark law and the intellectual property system, to strengthen protection of intellectual property values and cognitive basis, but also to our country related physical modification and improvement of the legal rules and procedures, so as to enhance overall well-being society.(Xiong Wencong, Associate professor of Law School, Minzu University of China)