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"Daoxiangcun": Double lose or win-win?
Time: October 17, 2018      Source: Jinliyuan      Key words: Catering Management      Views: 680

The two judgments of "one south and one north" attracted the attention of the outside world.

On October 12, the people's Court of Suzhou Industrial Park, Jiangsu Province, ruled in the first instance that Beijing daoxiangcun food company had infringed the exclusive right of trademark of Suzhou daoxiangcun food company, requiring Beijing daoxiangcun to immediately stop using the word "daoxiangcun" on its cakes and cakes, and compensate Suzhou daoxiangcun with 1.15 million yuan.

Just one month ago, Daoxiang village in Beijing sued Suzhou Daoxiang village for infringement of trademark exclusive right and unfair competition. The first instance decision of Beijing Intellectual Property Court demanded that Suzhou Daoxiang Village stop using the "Daoxiang village" logo on its cakes, zongzi, moon cakes and other commodities, and compensate for the economic loss of 30 million yuan.

Daoxiang village in Beijing won in Beijing court, and Daoxiang village in Suzhou won in Suzhou court. What's going on?

In response to the defeat in Suzhou, Beijing daoxiangcun company said it would continue to appeal to the China Youth Daily. Zhongqing online reporter, "this is only the result of the first instance, and it is not the time for dust to settle."

Liu Zhiyong, director of the president's office of Suzhou daoxiangcun group, said: "an appeal has been filed in accordance with the law in order to defend its own rights."

Daoxiang village is a well-known and time-honored brand.

Daoxiang village in Suzhou was founded in 1773 when Emperor Qianlong was in charge of the Qing Dynasty. At that time, it was called "Suzhou Daoxiang village tea shop". According to the records of the business history of the late Qing Dynasty (I) and the rise and fall of Suzhou Industrial and commercial offices, daoxiangcun tea candy company and daoxiangcun tea shop were also opened during the Guangxu period of the Qing Dynasty and the Republic of China. Although they were renamed several times, Liu Zhiyong stressed that the inheritors and skills of Daoxiang village in Suzhou have been inherited in one continuous line without interruption.

There are two versions of the history of Daoxiang village in Beijing. According to its official website, Daoxiang village in Beijing was born in the reign of Guangxu in 1895. At that time, Guo Yusheng, a Nanjing native, founded the "daoxiangcun Nanhuo shop" in Guanyin temple, Qianmen, Beijing. It was the first shop in Beijing to produce and operate Nanwei food. Later, it was closed in 1926 for various reasons. However, the Nanwei food faction created by daoxiangcun in Beijing was inherited. In 1984, Liu Zhenying, the fifth generation successor of this faction, prepared to build Daoxiang village in Beijing.

Another argument submitted to the court by Suzhou daoxiangcun company is that there is no inheritance relationship between the daoxiangcun village in Beijing founded by Liu Zhenying in 1984 and the "Nanhuo store of daoxiangcun" in Beijing in the late Qing Dynasty and the early Republic of China. Because Liu Zhenying was only 5 years old when the "Daoxiang Village South goods store" was closed, and it was impossible for Liu Zhenying to work there. There was no inheritance relationship between the inheritors and the skills. It was a "new store". This point is often used in court to refute Daoxiang village in Beijing.

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After the reform and opening up, the two Daoxiang villages have entered the period of corporate management. In 1980, Suzhou daoxiangcun food factory was established, and Beijing daoxiangcun company was established in 1984. It was also in the 1980s that China introduced the trademark law.

                      . Among them, the trademarks 184905 and 352997 are owned by sudao company, and the Trademark No. 1011610 belongs to Beidao company.

   the main body of the three trademarks is "daoxiangcun" logo, although the font is different.

   that is to say, both of the two Daoxiang villages have the relevant trademarks of "Daoxiang village". The difference lies in the categories of goods or services approved for use.

   the two registered trademarks held by Daoxiang village in Suzhou were registered in 1983 and 1989 respectively. The patterns are the same, but the difference lies in the scope of approved use. One is registered on biscuits and the other is registered on fruit bread and pastry, which belong to group 3006 of Chinese trademark.

   the Trademark No. 1011610, belonging to Daoxiang village, Beijing, was registered in 1997. It is registered on pies, baked pies (Italian style), dumplings, New Year cakes and other commodities. It belongs to group 3007 of China's trademark. The approved scope of use does not include "cake" goods.

  this time, the difference between the two decisions is in the category of "pastry".

Sudao pointed out that Beidao's use of the "daoxiangcun" logo on the packaging of pastry products and the prominent use of the word "daoxiangcun" in the enterprise name marked on the above packaging infringed on its exclusive trademark right.

Beidao company emphasized that the Trademark No. 352997 held by sudao was registered in 1989, but Beidao company used the word "Daoxiang village" before sudao in pastry products“ Beidao company is the inheritor of the time-honored brand of daoxiangcun in Beijing. Its trademark of "daoxiangcun" is the use of time-honored brand. The use of "daoxiangcun" has a legal source of use. "

In addition, Beidao company believes that there is a big difference between the trademark of the accused infringement and that of sudao company. The long-term use of the trademark has formed regional differences and does not constitute a similar trademark.

   the people's Court of Suzhou Industrial Park holds that the exclusive right to use a registered trademark is divided into exclusive right and self-use right. Generally, the scope of the former is larger than that of the latter. The former can exclude others from using the same or similar trademarks on the same or similar goods or services, but the latter is only limited to the approved categories of goods or services. Beidao No. 1011610 registered trademark does not include pastry products. This became the main reason for Beidao's losing lawsuit.

In the case of Beidao v. sudao, the Beijing Intellectual Property Court cited an administrative ruling of the Supreme People's court in 2014 (known as "Document No. 85") to confirm that commodities such as "biscuits, bread and cakes" of trademark group 3006 are closely related to "pancakes, babaofan, Dousha" of group 3007 in terms of production departments, sales channels and consumption objects, Constitute a similar commodity. Therefore, sudao company was convicted of infringement.

   in the court in Suzhou, Beijing daoxiangcun company also submitted "No. 85 document" as evidence. However, the people's Court of Suzhou Industrial Park held that the trial of the case focused on the exclusive right of the two registered trademarks claimed by sudao company“ At that time, it was a ruling on another issue of trademark registration.

The administrative ruling of the Supreme People's court is also made against the "North South dispute" in Daoxiang village.

In 2006, daoxiangcun in Suzhou applied for registration of fan-shaped daoxiangcun trademark on group 3006 commodities such as "cakes, bread and biscuits", which was approved in 2009. Later, Beijing Daoxiang Village applied to the Trademark Review and Adjudication Board for reconsideration. After reconsideration, the Trademark Review and Adjudication Board held that the fan-shaped trademark was "similar" to Beidao's Trademark No. 1011610, and the registration was not approved. Therefore, Suzhou Daoxiang Village sued the Trademark Review and Adjudication Board and Beidao to the court. The Supreme People's Court issued an administrative ruling that the fan-shaped trademark of Daoxiang village in Suzhou was not approved.

Since then, the trademark disputes between sudao and Beidao continued.

Although the trademark of "daoxiangcun" held by Daoxiang village in Suzhou is the first, Beidao did not receive any objection when it registered the trademark of "daoxiangcun" in 1997. Sudao explained that at that time, the markets of the two sides were not overlapping, and their trademark awareness was not enough. They even had the idea of "making Daoxiang village together".

                          . Daoxiang village in Beijing and Daoxiang village in Suzhou were recognized as "China time honored brand" in 1993 and 2006 respectively. In 2013, sudao's "daoxiangcun" trademark was recognized as "China's well-known trademark", and the following year, Beidao was also recognized.

In order to be able to use the "Daoxiang village" logo on the "cake" category, Beidao company also obtained the authorization from sudao company, which authorized Beidao to use the Trademark No. 352997 twice in 2003 and 2008 respectively.

As the authorized person counterclaims against the authorized person for infringement, we think it is inconceivable. I hope you can respect history and the provisions of trademark law. " Suzhou daoxiangcun group president office director Liu Zhiyong told reporters.

In order to break the restrictions on the use of "daoxiangcun" trademark in "pastry" products, Beidao company also successfully registered "Sanhe" Trademark No. 10521539 and "Beijing daoxiangcun" Trademark No. 13907103 in 2013 and 2015 respectively.

Article 30 of the trademark law stipulates that trademark registration shall follow the principle of prior application. If the trademark applied later is the same or similar to the trademark already registered by others and used in the same or similar goods and services, the trademark applied later shall not be registered. Before that, the category of pastry already had the trademark of "daoxiangcun" of sudao company.

At present, sudao has also filed an invalid application to the court for the trademark of "Beijing Daoxiang village", and the case is under trial.

Ning Lizhi, director of the Institute of intellectual property and competition law of Wuhan University, is also confused about the two judgments. "When Beijing court and Suzhou court handle this case, they should be based on the same fact. But why did the judges of the two places take different plots in the same paragraph of facts?"

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Huang Wushuang, Dean of the intellectual property School of East China University of political science and law, believes that when the trademark of sudao and Beidao are involved in multiple disputes due to historical reasons and the law has to delimit boundaries for both parties, a good way is to "use whatever is approved by the State Trademark Office."

   he said that in order to avoid infringement, both parties can use the registered trademark on the goods approved for use respectively and exercise the exclusive right to use the registered trademark. If sudao and Beidao continue to claim the rights and interests of other marks such as "time honored brand" and unregistered trademark, sufficient evidence shall be submitted to the court to clearly define and divide the boundary.

Huang Wushuang pointed out to reporters that at present, there are many cases of using registered trademarks beyond the approved scope of goods or changing the logo. In the case that the suspected infringer does not have other legitimate and legal reasons such as the prior use and the right of first use, the court will usually determine that the infringement constitutes and require each party to standardize the use.

However, in recent years, due to the complex historical context, the judgments of time-honored brands such as "Daoxiang village", "Jiebaina" and "Wanglaoji" are often complicated. Huang Wushuang believes that the key to the judgment is to clearly define the rights and interests boundaries of both parties. He believes that the existing legal rules are sufficient to resolve disputes between the two sides.

However, so far, the law has not been able to achieve this in the "dispute over Daoxiang village" - this time, if two court judgments in Beijing and Suzhou come into effect, customers may not be able to buy "Daoxiang village" pastries even though there are two "Daoxiang villages" in the market. According to the judgment, both parties' cakes were ordered to stop using the "daoxiangcun" trademark.

 
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