Key words civil/anti-unfair competition/false publicity/advertising language/misleading/improper appropriation of goodwill
Referee Points
When the people's court determines whether an advertisement constitutes a false publicity act as stipulated in the Anti-Unfair Competition Law, it should consider whether the content of the relevant slogan is ambiguous, whether it is easy to misunderstand the relevant public, and whether the actor is at fault for false publicity. Based on factors such as the previous trademark license contract relationship between the two parties and the contribution it has made to enhance the goodwill of the relevant trademark, one party released the advertisements involved in the case to inform consumers of the basic facts, which is in line with the objective situation and does not easily mislead the relevant public. It is possible, and there is no fault of improperly occupying the popularity and good reputation of the relevant trademark, and it does not constitute false publicity as stipulated in the Anti-Unfair Competition Law.
Relevant laws
Paragraph 1 of Article 8 of the Anti-Unfair Competition Law of the People's Republic of China (amended in 2019) (this case applies Paragraph 1 of Article 9 of the Anti-Unfair Competition Law of the People's Republic of China implemented in 1993)
basic case
Guangzhou Pharmaceutical Group Co., Ltd. (hereinafter referred to as Guangzhou Pharmaceutical Group) is the trademark owner of No. 626155, No. 3980709 and No. 9095940 "Wanglaoji" series of registered trademarks. The types of goods approved for use of the above trademarks are all in category 32: including non-alcoholic beverages, fruit juices, plant beverages, etc. On March 28 and September 14, 1995, Hongdao Group Co., Ltd. (hereinafter referred to as Hongdao Group) and Guangzhou Yangcheng Pharmaceutical Co., Ltd. Wanglaoji Food and Beverage Branch respectively signed the "Trademark License Contract" and "Trademark License Supplementary Agreement to the Contract”, obtaining the exclusive right to use the No. 626155 trademark to produce and sell red paper packaging and canned herbal tea beverages with the three characters "Wanglaoji". On June 14, 1997, Chen Hongdao was awarded the "Appearance Design Patent Certificate" by the National Patent Office, and obtained the "Wanglaoji" design patent with the name of the appearance design as "Can Tie". On May 2, 2000, Guangzhou Pharmaceutical Group (licensor) and Hongdao Group (licensee) signed the "Trademark Licensing Agreement", stipulating that the licensor authorizes the licensee to use the No. 626155 "Wanglaoji" registered trademark to produce and sell red cans and red bottled Wanglaoji herbal tea. The licensee shall not license the trademark to other third parties without the written consent of the licensor, except when the enterprise invested by the licensee (including wholly-owned or joint venture) uses the trademark. The licensor; except for the green paper-packed "Wanglaoji" herbal tea that the licensor and its subsidiaries have produced and sold, the licensor shall not use the "Wanglaoji" trademark on the 32nd category of goods (beverages) or authorize a third party to use the "Wanglaoji" trademark. Wanglaoji” trademark, the nature of the license agreed by both parties is an exclusive license, and the license period is from May 2, 2000 to May 2, 2010. In September 1998, Hongdao Group invested in the establishment of Dongguan Jiaduobao Food and Beverage Co., Ltd., which was later renamed Guangdong Jiaduobao Beverage and Food Co., Ltd. JDB (China) Beverage Co., Ltd. (hereinafter referred to as JDB China) was established in March 2004 and is an affiliated company of JDB Group.
Since then, through the long-term multi-channel marketing, public welfare activities and advertising of Hongdao Group and its affiliated companies, the red canned "Wanglaoji" herbal tea brand has been cultivated and won many honors. The Intermediate People's Court of Foshan City identified it as a well-known commodity, and the decoration of "Wanglaoji" canned herbal tea was identified as a well-known commodity packaging and decoration; canned "Wanglaoji" herbal tea was rated as "the most influential brand" by relevant industry associations for many times; according to As evidenced by China Industry Enterprise Information Publishing Center, canned "Wanglaoji" herbal tea won the first place in market sales or sales in 2007-2012, etc. After the establishment of Jiaduobao China Co., Ltd., it began to use the aforementioned "Wanglaoji" trademark to produce red canned herbal tea (the "Wanglaoji" trademark was printed on both sides of the can body symmetrically from top to bottom).
On May 9, 2012, the China International Economic and Trade Arbitration Commission made a final ruling on the trademark licensing contract dispute between Guangzhou Pharmaceutical Group and Hongdao Group: (1) "Wanglaoji" Trademark Licensing Supplementary Agreement" and "Wanglaoji" The Supplementary Agreement to the Trademark Licensing Contract is invalid; (2) Hongdao Group stops using the "Wanglaoji" trademark.
On May 25, 2012, Guangzhou Pharmaceutical Group signed the "Trademark Licensing Contract" with Guangzhou Wanglaoji Great Health Industry Co., Ltd. (hereinafter referred to as Great Health Company), allowing Great Health Company to use the No. 3980709 "Wanglaoji" trademark. Big Health started to produce "Wanglaoji" red canned herbal tea around June 2012.
In March 2013, Great Health purchased the "Jiaduobao" red canned herbal tea products with the slogan "National leading red canned herbal tea renamed as Jiaduobao" printed on the outer packaging and marked with "Jiaduobao" in several supermarkets in Chongqing The tote bag with the slogan "The red canned herbal tea with the leading sales in the country is renamed Jiaduobao". According to the notarial certificate (2013) Yuzhengzi No. 17516 of the Chongqing Notary Office, on the "www.womai.com" COFCO Womai.com website, there are "Jiaduobao" red canned herbal tea products for sale, and on the sales page , there is an advertisement with the words "The red canned herbal tea with the leading sales in the country is renamed Jiaduobao". According to the (2013) Yuzhengzi No. 20363 notarial certificate, in the VIP brand club of the advertising channel of CCTV, there is also a "Jiaduobao" red can with the words "the red canned herbal tea with the leading sales in the country is renamed Jiaduobao". Advertising promotion for herbal tea products. On May 16, 2012, the food channel of People's Daily Online made a report titled "The red canned Wanglaoji was renamed to 'Jiaduobao', and the recipe and process remained unchanged". On May 18, 2012, Sohu News reported on "Red Pot Wanglaoji Renamed to Jiaduobao". On May 23, 2012, the electronic edition of China Food News made a report with the title "Jiaduobao is the former Wanglaoji"; on the same day, Netease News also published a report with the title "The red pot 'Wanglaoji' officially changed its name to 'Jiaduobao'". Made a report, and marked the information as "Beijing Evening News". On June 1, 2012, "China Youth Daily" reported on the title "Jiaduobao Herbal Tea, Red Pot Wanglaoji officially changed its name on the national market".
Big Health believes that the content of the above-mentioned advertisements does not match the objective facts, causing consumers to form a misunderstanding, and requests to confirm that the advertisements released by Jiaduobao China that contain the advertisements involved in the case constitute unfair competition as stipulated in the Anti-Unfair Competition Law and are false propaganda , and ordered the immediate cessation of publication of media advertisements such as television, the Internet, newspapers, and magazines containing the advertising language involved or similar to it.
referee result
On June 26, 2014, the No. 5 Intermediate People's Court of Chongqing made a civil judgment (2013) Yuwu Zhongfa Minchu Zi No. 00345: 1. Confirm that the defendant Jiaduobao China Company issued a red pot containing "national sales leader" The promotional behavior of the advertising words of "herbal tea changed to Jiaduobao" constituted false publicity of unfair competition; 2. The defendant Jiaduobao China Company immediately stopped using and destroyed, deleted and replaced the advertisement containing "the national leading red canned herbal tea renamed as Jiaduobao" ” Advertisement product packaging and advertisements on TV, Internet, video and print media; 3. The defendant Jiaduobao China Company publicly issued a statement on the Chongqing Daily within ten days after this judgment came into force to eliminate the impact (the content of the statement must be approved by this Court review); 4. The defendant Jiaduobao China Company shall compensate the plaintiff Great Health Company for economic losses and reasonable expenses of 400,000 yuan within ten days after this judgment takes effect; 5. The other claims of the plaintiff Great Health Company are rejected. After the verdict was pronounced, Jiaduobao China and Big Health appealed. On December 15, 2015, the Chongqing Higher People's Court made a civil judgment (2014) Yu Gao Fa Min Zhong Zi No. 00318, rejecting the appeal and affirming the original judgment. Jiaduobao China refused to accept the case and applied to the Supreme People's Court for retrial. On May 28, 2019, the Supreme People’s Court made the (2017) Supreme Court Civil Judgment No. 151: 1. Revoke the Civil Judgment (2014) Yu Gao Fa Min Zhong Zi No. 00318 of the Chongqing Higher People’s Court; Fifth Intermediate People's Court (2013) Yuwu Zhongfa Minchu Zi No. 00345 Civil Judgment; 3. The claim of Big Health Company was rejected.
Referee reason
The Supreme People's Court held that whether Jiaduobao China's use of the advertising slogan "rename the country's leading red canned herbal tea to Jiaduobao" constituted false publicity depends on the specific circumstances of the case, daily life experience, and the general attention of the relevant public. , to determine whether the advertising language involved in the case is one-sided, whether there is ambiguity, and whether it is easy to misunderstand the relevant public.
First of all, judging from the meaning of the advertising slogan involved in the case, Jiaduobao China’s description and publicity of the advertising slogan involved in the case “the red canned herbal tea with the largest sales volume in the country is renamed Jiaduobao” is true and in line with objective facts. According to the ascertained facts, Hongdao Group obtained the license to use the "Wanglaoji" trademark in 1995 and exclusively produced and sold "Wanglaoji" red canned herbal tea. Arbitration ruling on the trademark licensing contract between Hongdao Group, Hongdao Group stopped using the "Wanglaoji" trademark, and Jiaduobao China Company and its affiliates were licensed to use the "Wanglaoji" trademark for seventeen years People, through years of advertising and use, have made "Wanglaoji" red canned herbal tea have a high popularity and reputation in the herbal tea market. According to the certificate of China Industry and Enterprise Information Release Center, canned "Wanglaoji" herbal tea won the first place in market sales or sales in 2007-2012. During the licensing period of the "Wanglaoji" trademark, Guangzhou Pharmaceutical Group does not produce and sell "Wanglaoji" red canned herbal tea. Therefore, the description in the first half of the advertising slogan involved in the case, "The red canned herbal tea with the leading sales in the country" is consistent with the statistical conclusions, there is no false situation, and its direction is also very clear, pointing to the production of Jiaduobao China Company and its affiliated companies. And sell "Wanglaoji" red canned herbal tea. On May 9, 2012, the "Wanglaoji" trademark licensing agreement was ruled invalid by the China International Economic and Trade Arbitration Commission. Jiaduobao China Company and its affiliated companies began to produce "Jiaduobao" red canned herbal tea. Therefore, in the second half of the advertising slogan involved Some claim that "renamed Jiaduobao" is also a description of objective facts.
Secondly, from the perspective of the purpose of the anti-unfair competition law to regulate false propaganda, the anti-unfair competition law is to maintain a fair market competition order by stopping false propaganda of goods or services. On the one hand, from the perspective of unfair competition actors, the infringer obtains market competitive advantages and Market opportunities damage the interests of the obligee; on the other hand, from the perspective of consumers, it is precisely because of the infringer's false publicity of goods or services that consumers misidentify and purchase, which damages the interests of the obligee. Therefore, the foothold of false publicity in the Anti-Unfair Competition Law lies in misleading false publicity. If the publicity of goods or services does not mislead the relevant public, it is not a false publicity act regulated by the Anti-Unfair Competition Law. . In this case, during the licensing period of the trademark, Jiaduobao China Company and its affiliated companies have not only significantly increased the popularity of Wanglaoji red canned herbal tea through years of continuous and large-scale publicity and use, but also conveyed the benefits of Wanglaoji red canned herbal tea to consumers. The actual operating entity is Jiaduobao China Company and its affiliated companies. Since the “Wanglaoji” red-can herbal tea produced by Jiaduobao China Company and its affiliated companies during the trademark licensing period has become very well-known, the relevant public generally recognizes the “Wanglaoji” red-can herbal tea produced by Jiaduobao China Company, while It is not the "Wanglaoji" red canned herbal tea produced and sold by Big Health Company around June 2012. After Jiaduobao China Company and its affiliated companies no longer produced "Wanglaoji" red canned herbal tea, Jiaduobao China's use of the advertising slogan involved in the case was actually an obligation to inform the relevant public of the previous "Wanglaoji" red canned herbal tea Now the trademark is Jiaduobao, otherwise the relevant public will mistakenly think that the "Wanglaoji" red canned herbal tea produced by Big Health Company is the original "Wanglaoji" red canned herbal tea produced by Jiaduobao China Company. Therefore, there is no possibility that Jiaduobao China's use of the advertising language involved in the case will easily cause the relevant public to misidentify and purchase by mistake.
Thirdly, whether the advertising slogan involved in the case, "The red canned herbal tea with the largest sales volume in the country is renamed Jiaduobao" has improperly completely occupied the popularity and good reputation of "Wanglaoji" red canned herbal tea, making "Wanglaoji" red canned herbal tea lose its original ownership virtually. reputation and goodwill, and made the relevant public mistakenly believe that the "Wanglaoji" trademark has ceased to be used or is no longer used. First, although the popularity and good reputation of the "Wanglaoji" trademark is the result of joint publicity and use by Guangzhou Pharmaceutical Group as the trademark owner and Jiaduobao China Company and its affiliated companies, the increase in the popularity of the "Wanglaoji" trademark and its huge goodwill are mainly It originated from the massive publicity and use of the trademark by Jiaduobao China and its affiliated companies during the licensing period. Even though Jiaduobao China Co., Ltd. used the slogan involved in the case to occupy part of the goodwill of the "Wanglaoji" trademark, since the "Wanglaoji" trademark goodwill mainly comes from the contribution of Jiaduobao China Co., Ltd. and its affiliated companies, this occupation has certain significance. rationality. Second, after the Guangzhou Pharmaceutical Group took back the "Wanglaoji" trademark, it began to authorize the big health company to produce "Wanglaoji" red canned herbal tea. This use itself has obtained the goodwill and reputation of the "Wanglaoji" trademark. Third, in June 2012, Great Health Company began to produce "Wanglaoji" red canned herbal tea. Therefore, consumers will not mistakenly think that the "Wanglaoji" trademark has been discontinued or no longer used when they see the advertising slogan involved. "The goodwill on the red canned herbal tea is naturally enjoyed by the big health company after it produces the "Wanglaoji" red canned herbal tea. Fourth, Big Health started to produce "Wanglaoji" red canned herbal tea after the arbitration award of the trademark licensing contract was invalid. Invisibly lost the original popularity and goodwill.
In this case, although the advertising language involved in the case did not fully reflect the relevant facts of why Jiaduobao China used, terminated and changed the trademark during the period of trademark license use and after the termination of the trademark license contract, it was indeed inappropriate. After the termination of the trademark licensing contract, in order to retain the rights and interests enjoyed by its contribution to the promotion of the reputation of "Wanglaoji" red canned herbal tea during the trademark licensing period, the basic fact that "Wanglaoji" red canned herbal tea was renamed "Jiaduobao" was reported to Consumers informed that it was not obviously inappropriate subjectively; objectively, based on the short and concise characteristics of the slogan, as well as the licensed use of the "Wanglaoji" trademark, Jiaduobao China Company and its affiliated companies have made great efforts to enhance the reputation of the "Wanglaoji" trademark. The huge contribution made, consumers' cognition of the actual business entity of Wanglaoji red canned herbal tea, combined with consumers' general attention, the fact of misunderstanding and the actual situation of the advertised object, Jiaduobao China Company used the advertising language involved in the case It does not produce misleading effects, does not damage the market order of fair competition and the legitimate rights and interests of consumers, and does not constitute false propaganda. Even if some consumers may change the "Wanglaoji" trademark to "Jiaduobao" trademark after seeing the advertising slogan involved, the original "Wanglaoji" trademark has been discontinued or no longer used.