Key words administration/invalidation of trademark right/distributor relationship/principal's trademark
Referee Points
Both parties signed a sales contract and a customized product sales contract at the same time. Although there is a distribution relationship, the trademark pattern and product design in dispute are all proposed by the agent, and the customized product sales contract clearly stipulates that the principal shall not If the principal has not used the product concept and advertising terms of the customized product beforehand, the trademark in dispute cannot be determined as the “principal’s trademark” as referred to in Article 15 of the Trademark Law.
Relevant laws
Article 15 of the Trademark Law of the People's Republic of China
basic case
Chongqing Jiangxiaobai Liquor Industry Co., Ltd. (hereinafter referred to as Jiangxiaobai Company) v. the State Intellectual Property Office and Chongqing Jiangjin Distillery (Group) Co., Ltd. (hereinafter referred to as Jiangjin Distillery) in an administrative dispute over the invalidation of trademark rights. It is the No. 10325554 "Jiangxiaobai" trademark. It was registered by Chengdu Geshang Advertising Co., Ltd. on December 19, 2011. It was approved to be used on the 33rd category of alcoholic products. After approval, the obligee has changed to Sichuan New Blueprint Trading Co., Ltd. (hereinafter referred to as New Blueprint Company), Jiangxiaobai Company.
On February 20, 2012, Chongqing Jiangjin District Sugar and Wine Co., Ltd. (including affiliated units such as Jiangjin Winery) and New Blueprint Company (including affiliated subsidiaries, offices and other affiliated units) signed a sales contract and a customized product sales contract on February 20, 2012 . The customized product sales contract clearly stipulates that the products authorized by New Blueprint Company to sell are customized products of the "Jijiang" brand wine series, which does not involve the "Jiangxiaobai" trademark, and the first clause of the customized product sales contract stipulates that "Party A (Jiangjin Winery) authorizes Party B (New Blueprint Company) to be the distributor of customized products of 'Jijiang Brand' Jiangjin Laobaigan 'Qingxiang No. 1, No. 2, No. 3' series of ultra-pure series and vintage aging series wines". Article 6-2 clearly stipulates that "Party B is responsible for the creativity of product concepts, product packaging design, planning and implementation of advertising, and the investment promotion and maintenance of secondary distribution channels for products. Party A will provide full cooperation. Party B's product concept, packaging Designs, advertising patterns, advertising terms, and marketing plans shall be respected by Party A, and shall not be used on products directly sold by Party A or sold by other customers of Party A without the authorization of Party B."
In May 2016, Jiangjin Distillery filed an invalidation request to the former State Administration for Industry and Commerce's Trademark Review and Adjudication Board (hereinafter referred to as the Trademark Review and Adjudication Board) regarding the disputed trademark. The Trademark Review and Adjudication Board believes that Jiangxiaobai Company should have known the "Jiangxiaobai" trademark of Jiangjin Distillery before the date of application for the trademark in dispute, and the registration of the trademark in dispute has constituted the Trademark Law amended in 2001 (hereinafter referred to as the 2001 Trademark Law). Circumstances in which registration is not granted and use is prohibited under Article 15 of the Law). Therefore, it is ruled that the trademark in dispute shall be declared invalid. Jiangxiaobai Company refused to accept it and filed an administrative lawsuit.
referee result
The Beijing Intellectual Property Court made an administrative judgment (2017) Jing 73 Xing Chu No. 1213 on December 25, 2017: 1. Cancellation of Shang Ping Zi [2016] No. 117088 regarding No. 10325554 "Jiang Xiaobai" issued by the Trademark Review and Adjudication Board Trademark invalidation request ruling; 2. The Trademark Review and Adjudication Board made a new ruling on Jiangjin Distillery's invalidation request for the No. 10325554 "Jiangxiaobai" trademark. The Trademark Review and Adjudication Board and Jiangjin Distillery refused to accept it and appealed to the Beijing Higher People's Court. On November 22, 2018, the Higher People’s Court of Beijing issued the (2018) Jing Xing Zhong No. 2122 Administrative Judgment: 1. Revoke the Beijing Intellectual Property Court’s (2017) Jing 73 Xing Chu No. 1213 Administrative Judgment; 2. Reject Jiangxiaobai’s litigation claims. Jiangxiaobai refused to accept the case and applied to the Supreme People's Court for retrial. On December 26, 2019, the Supreme People’s Court made the (2019) Supreme Law Xing Zai No. 224 Administrative Judgment: 1. Revoke the (2018) Jing Xing Zhong No. 2122 Administrative Judgment of the Beijing Higher People’s Court; 2. Uphold the Beijing Intellectual Property Court ( 2017) Beijing 73 Xingchu No. 1213 Administrative Judgment.
Referee reason
The Supreme People's Court held that the main focus of dispute in this case was whether the application for registration of the trademark in dispute violated Article 15 of the 2001 Trademark Law. Article 15 of the Trademark Law of 2001 stipulates: “If an agent or representative registers the trademark of the principal or the represented person in his own name without authorization, and the principal or the represented person raises an objection, the trademark shall not be granted. Register and prohibit use.” The trademark signs that the agent or representative may not apply for registration include not only the same signs as the trademarks of the principal or the represented person, but also similar signs; Goods that are identical to the goods used by the trademark of the registered or represented person also include similar goods. In this case, Jiangjin Distillery claimed that New Blueprint Company was its distributor, New Blueprint Company designed the disputed trademark for it, and it used the disputed trademark first, so the application for registration of the disputed trademark violated the Article 10 of the Trademark Law of 2001. Five provisions.
First of all, the evidence provided by Jiangjin Distillery is not sufficient to prove its prior use of the disputed trademark. Jiangjin Distillery claims that most of the evidence of its prior use of the disputed trademark is evidence formed after the application date of the disputed trademark. The sales contract, product delivery note, and audit report of the company (hereinafter referred to as Senou Company). The sales contract between Jiangjin Distillery and Sen'ou Company had been submitted in the trademark dispute review procedure, but it was not accepted by the Trademark Review and Adjudication Board because it did not reflect the signature of Sen'ou Company and lacked other evidence such as invoices. Although the sales contract submitted by Jiangjin Distillery in this case has the official seal of Senou Company, the signing time of the contract is earlier than the establishment time of Senou Company shown in the industrial and commercial files, and Jiangjin Distillery also admits that the signing time of the contract is backward sign. According to the retrial evidence submitted by Jiangxiaobai Company, that is, the handwriting appraisal opinion issued by Beijing Shengtang Judicial Appraisal Institute, there are doubts about the authenticity of the handwriting of the maker on the delivery note from Jiangjin Distillery to Senou Company, and there is no other evidence such as invoices to support it. , so the above evidence cannot prove that Jiangjin Distillery used the disputed trademark first. Jiangjin Distillery submitted an audit report as evidence of prior use after the court session of the first instance. However, in the absence of original accounting documents, the mention of "Jiangxiaobai" liquor in the audit report entrusted by Jiangjin Distillery is not enough to prove that Jiangjin Distillery used "Jiangxiaobai" before the trademark application date. white". In addition, Jiangjin Distillery submitted that it signed a contract with Chongqing Baoxing Glass Products Co., Ltd. on February 15, 2012 to purchase the bottle of "I am Jiang Xiaobai" with an amount of 690,000 yuan, which is much higher than the sales statistics in the audit report. The amount and gross profit of sales also further indicate that the authenticity of the audit report cannot be determined.
Secondly, although Jiangjin Distillery has a distribution relationship with New Blueprint Company, the customized product sales contract between the two parties also stipulates that the rights to the product concepts and advertising terms of the customized products belong to New Blueprint Company. During the trademark invalidation declaration and the first and second trial stages, the main evidence provided by Jiangjin Distillery to prove that it has a distribution relationship with New Blueprint Company is the sales contract and customized product sales contract signed by the two parties on February 20, 2012. The customized product sales contract clearly stipulates that the products authorized by New Blueprint Company to sell are customized products of the "Jijiang" brand wine series, which does not involve the "Jiangxiaobai" trademark, and the customized product sales contract clearly stipulates that Party B (New Blueprint Company) Party A (Jiangjin Distillery) shall respect product concepts, packaging designs, advertising patterns, advertising terms, and marketing planning plans, and shall not be used on products directly sold by Party A or sold by other customers of Party A without the authorization of Party B. . To sum up, it should be considered that Jiangjin Distillery does not enjoy intellectual property rights to the product concepts and advertising terms on the customized products of New Blueprint Company except for "Jijiang", which also shows that New Blueprint Company's application for registration of the "Jiangxiaobai" trademark has not damaged The rights to Jiangjin Distillery. The evidence in this case is insufficient to prove that the trademark in dispute is the trademark of Jiangjin Distillery. Therefore, it cannot be determined that the application for registration of the trademark in dispute violates the provisions of Article 15 of the 2001 Trademark Law based on the above evidence alone.
Finally, evidence such as e-mails during the cooperation between Jiangjin Distillery and New Blueprint Company proves that the name of "Jiang Xiaobai" and related product designs were first proposed by Tao Shiquan, then the legal representative of New Blueprint Company. According to the relevant evidence submitted by Jiangxiaobai Company to the court, it can be proved that the design of "Jiangxiaobai" and its related products was first proposed by Tao Shiquan and provided to Jiangjin Distillery. According to the customized product sales contract between the two parties, the product concept and design All other rights belong to New Blueprint Company. The existing evidence is insufficient to prove that New Blueprint Company designed the trademark for Jiangjin Distillery.
To sum up, before the date of application for the trademark in dispute, the trademark "Jiangxiaobai" was not the trademark of Jiangjin Distillery. According to the customized product sales contract, Jiangjin Distillery was not responsible for the product concepts and advertising terms of the customized products except for its registered trademark "Jijiang". etc. do not enjoy intellectual property rights, and New Blueprint’s application for registration of the disputed trademark did not infringe upon the legitimate rights and interests of Jiangjin Distillery, and did not violate the provisions of Article 15 of the 2001 Trademark Law.
(Effective referees: Qin Yuanming, Lang Guimei, Ma Xiurong)