"Ximei" was sentenced not to infringe using "Dong'e Ejiao"
When describing the donkey-hide gelatin products produced in Dong'a County, Shandong Province, does the use of the words “Donge donkey-hide gelatin” constitute an infringement of the exclusive right to use the registered trademark of “Donge donkey-hide gelatin” in others? Due to dissatisfaction with Beijing Zimeitang Biotechnology Co., Ltd. (hereinafter referred to as Zimeitang Company) in the course of sales of the website, unauthorized use of the word “Dong'e Ejiao”, Shandong Dong'e Ejiao Co., Ltd. (hereinafter referred to as Dong'e Ejiao Co., Ltd.) is a trademark Infringement and unfair competition lodged a complaint against Zimeitang Company to the court, requesting the court to order Zimeitang to stop the infringement and compensate its economic loss and reasonable expenditure of more than RMB 200,000.
Recently, according to the final judgment of the Beijing Intellectual Property Court, the court of second instance found that Zimeitang’s use of the words “Dong'e gelatin” was the proper use of descriptive information in the trademark, and did not infringe on the registered trademark of Donga Elud Corporation. The right did not constitute unfair competition. According to this, the final judgment upheld the original verdict, that is, it dismissed Dong'e E-Jiao's claim.
Product Description Triggers Infringement Disputes
It is understood that in February 2002, China Resources East Ejiao Co., Ltd. was approved to register the “Donge Ejiao” trademark No. 1708470 (hereinafter referred to as the trademark), which was approved for use on the fifth category of donkey-hide gelatin products.
In November 2012, China Resources East Ejiao Co., Ltd. and Dong E Ejiao Co., Ltd. signed the "License Agreement on the Use of Trademarks." The trademark in question was granted to Dong E Ejiao Co., Ltd. with an exclusive license. The license period was from February 2012 to 2022. month. The two parties filed a record with the Trademark Office of the State Administration for Industry and Commerce on the licensing contract for the trademark involved.
In June 2014, Dong'e E-Jiao Co., Ltd. found that searching for “Dong'e Ejiao” as a key word on JD.com showed that Zimeitang’s company will “Shandong Donga Ejiao Xie Ah film 240g iron box...” When the product name is set to search using the keyword “Dong'e Ejiao”, the search result including Zi Mei Tang's product can be obtained, and the description information is also displayed on the product page.
Dong-E E-Jiao believes that “Dong E-Jiao” is not only a registered trademark of the company that enjoys an exclusive license, but also the company’s corporate name. Zimeitang used the words “Dong'e Ejiao” to sell goods at the Zimeitang flagship store on the Jingdong Mall for commercial purposes. The purpose was to allow consumers to mistakenly believe that the product was a product produced by the East Ejiao Company. Or there is an inevitable link with Dong-E E-Jiao.
Therefore, Dong'e E-Jiao Co., Ltd. appealed Zi Mei Tang to the People’s Court of Haidian District, Beijing, and claimed that Zi Mei Tang’s deliberately misunderstood false propaganda activities violated its exclusive right to use registered trademarks and constituted unfair competition. The court was ordered to order Zimeitang to stop the infringement and compensate its economic losses and reasonable expenses totaling more than RMB 200,000.
The person in charge of Zimeitang Company stated that the product sold by the company was "Ximei" brand A film, not "Dong Ejiao" brand A film. Although the title of the sale site involved in the case was used, the words containing the trademark involved were used. “Shandong Donga Ejiao Block Xi Mei A Film”, but the above usage is intended to show that the product is from Dong'a County, Shandong Province, and it did not infringe the exclusive right of the Dong’e Ejiao Company’s registered trademark, nor did it constitute unfair competition.
In order to prove the above assertion, Zimeitang submitted the goods involved in Jingdong Mall in court at the trial of the first trial, showing that the “Meimei” word mark and the “Ahui and Map” trademark were on the outer packaging of the product involved. On the back of the product packaging, the product name is “Ahui” brand A film, originated from Dong'a County, Liaocheng City, Shandong Province, and the production company is Shandong Dong'egu Gujia Ejiao Series Products Co., Ltd., and the address is Chenji Township Resident of Dong'e County.
Final Judgment for Reasonable Use
The first instance court held that "Dong A" is an abbreviation of Dong'a County, Liaocheng City, Shandong Province. It is a place name and is also the main origin of donkey-hide gelatin and its series of products. The goods involved were produced in Dong'a County. Zimeitang used the words “Shandong Dong'a” to reflect the internal links between the goods it sold and its place of origin. It was not used to distinguish the source of goods, and in fact it was unable to distinguish the source of goods. The role.
Regarding Zimeitang’s use of “Dong'e Ejiao”, the court of first instance held that Zimeitang did not highlight the use of “Dong Ejiao” and did not use the same font as the trademark involved to describe its place of production, subjectively. There is no subjective malice of the popularity of the “Donge Ejiao” trademark. At the same time, Zimeitang Inc. has indicated on the website of its sales website a title to improve the stickiness between its products and its production areas and attract the attention of many consumers. This method is in line with the characteristics of the sellers in the sales process. The practice of promoting goods does not exceed the limit of fair use.
In the case that Zimeitang did not use the word “Dong'e-ejiao” prominently, consumers would not misunderstand that the product originated from Dong’e E-Jiao Co., Ltd. or There is a link between Dong-E E-Jiao. Therefore, Zimeitang's use of the words “Dong'e Ejiao” is a legitimate use and does not constitute an infringement of Donga Ejiao’s exclusive right to use a registered trademark.
In addition, Zimeitang's use of the expression “donga donkey-hide gelatin” does not cause confusion or misrepresentation by consumers, nor does it falsely indicate the origin of goods, and does not constitute unfair competition.
In summary, the first-instance court's decision rejected Dong'e E-Jiao's claim.
Dong'e Ejiao Co., Ltd. refused to accept the first-instance judgment and appealed to the Beijing Intellectual Property Court.
After trial, the court of second instance held that for the average consumer, the search results and webpage information usually do not contain the words “Dong'e gelatin” before they are purchased, meaning that their corresponding products are products provided by Dong'e E-Jiao. According to the product name, descriptive information, and the contents shown in the product's photo, the product identified in the product page will be identified as “Ximei” Ejiao. The description of the Ejiao product from Dong’a County, Shandong Province, will be necessary. When using the words "Dong A" and "Jiao Gu," when using a product name, etc., due to the limited number of characters in the description information, it is reasonable to use "Dong A" and "Ejiao" together, and Zi Mei Tang also uses " The descriptive text of Shandong "block" fully indicates its description of the origin and nature of the commodity. Accordingly, the court of second instance found that Zimeitang's use of the words “Dong'e Ejiao” was a legitimate use of descriptive information in the trademark and did not infringe the exclusive right of Dong Ejiao’s registered trademark.
Regarding whether or not Zimeitang’s actions involved in the case constitute unfair competition, the court of second instance found that “Dong'e Ejiao” is only the name of Dong E Ejiao Co., Ltd., and this name has other meanings, that is, the nature and origin of a certain type of goods. Zimeitang Company did not use the company name of Dong-E E-Jiao Co., Ltd., and its use of the word “Dong E-Jiao” did not make consumers misrecognize that their products were Dong E E-Jiao's products, and therefore did not Ejiao Company constitutes unfair competition.
In summary, the Beijing Intellectual Property Court made the above final judgment. (Transfer from China Intellectual Property News)