Post-trademark registration, proper usage is also necessary.

　　Following the controversial "Tongguan Meat Sandwich" trademark dispute, dozens of Sichuan restaurants have been sued by a Shanghai catering management company for alleged infringement of the "Qinghua Pepper" trademark. Recently, the "Qinghua Pepper" case was finally settled, with the Sichuan Provincial Higher People's Court issuing a final judgment to "overturn the first-instance judgment and dismiss the infringement lawsuit." This series of cases reminds operators that malicious lawsuits under the guise of protecting intellectual property rights will not be supported, and trademarks should not be used as tools for "opportunistic litigation."

　　 Sichuan restaurants can still use "Qinghua Pepper"

　　In 2021, "Qinghua Pepper" stirred up the catering industry, with dozens of Sichuan restaurants being sued by Shanghai Wantuitang Catering Management Co., Ltd. The company argued that it had obtained the "Qinghua Pepper" trademark, and many Sichuan restaurants had used it without authorization on their shop signs, billboards, etc., infringing on its trademark rights and causing significant economic losses.

　　On November 26, 2021, the Chengdu Intermediate People's Court ruled in the first instance that the actions of Wu Apo Qinghua Pepper Fish Hot Pot constituted trademark infringement. The court ordered Wu Apo Qinghua Pepper Fish Hot Pot to cease using the "Qinghua Pepper" logo and pay the plaintiff 30,000 yuan in economic compensation. The defendant appealed to the Sichuan Provincial Higher People's Court.

　　On January 13, 2022, the Sichuan Provincial Higher People's Court publicly heard the appeal in this trademark rights dispute. The court found that the Wenjiang Wu Apo Qinghua Pepper Fish Hot Pot restaurant's use of the "Qinghua Pepper" logo did not constitute infringement of the trademark's exclusive rights. The court believed that the first-instance court's findings of fact and application of the law were incorrect and should be corrected.

　　The Sichuan Higher Court held that while Shanghai Wantuitang Catering Management Co., Ltd.'s registration of "Qinghua Pepper" in Class 43 services could be considered to have a certain degree of distinctiveness and could distinguish the source of services, the natural connection between catering services and food seasonings made the distinction between the service trademark logo and dishes with "Qinghua Pepper" subtle and easily confused, greatly reducing the distinctiveness of the registered trademark and making it almost impossible to identify the source of services through the trademark.

　　Article 59, Paragraph 1 of China's Trademark Law stipulates that the registrant of a registered trademark containing the common name, graphic, model number, or directly indicating the quality, main raw materials, function, use, weight, quantity, and other characteristics of the goods, or containing place names, shall not be entitled to prohibit others from using it legitimately.

　　According to China's Trademark Law, common names lacking distinctiveness cannot be registered as trademarks. Although they can be registered across categories in other non-directly descriptive categories, the registrant has no right to prohibit others from legitimate use. Zhou Yixia, a lawyer from Beijing Hanwei Law Firm, said that if "Qinghua Pepper" were applied for registration on seasonings, it would be rejected, so it was registered in the category of fast-food restaurants and restaurants. Even so, it has no right to prohibit others from legitimate use.

　 　Others can also legitimately use well-known place names

　　In 2021, the Shaanxi Tongguan Meat Sandwich Association also launched a nationwide rights protection campaign. Dozens of local snack shops in Henan were sued by the Tongguan Meat Sandwich Association for selling meat sandwiches with the words "Tongguan," and were ordered to pay compensation ranging from 30,000 to 50,000 yuan.

　　In addition, more than 50 Xiaoyao Town Hu La Tang shops in Jiaozuo, Henan, also received court summons because they used "Xiaoyao Town" on their shop signs, and these three words were registered as a trademark by the Xiaoyao Town Hu La Tang Association. If the shops want to continue using this sign, they have to pay an annual membership fee of 1,000 yuan, otherwise they have to pay compensation of 30,000 to 50,000 yuan.

　　In response to the controversy, the person in charge of the Third Civil Tribunal of the Supreme People's Court responded to the issue of rights protection of geographical indications such as "Tongguan Meat Sandwich." This person stated that some trademarks contain place names, which often have unique commercial value. According to China's Trademark Law, even if the exclusive right to use a registered trademark is obtained, the right holder is not entitled to prohibit others from legitimately using the place name contained in the registered trademark. If others legitimately use the place name contained in the registered trademark, and the right holder brings a related lawsuit to the people's court, the people's court shall not support it according to law.

　　 Standardized trademark use should provide refined services

　　"The "Qinghua Pepper" style of rights protection is not a genuine protection of its own trademark rights, but rather the use of preemptively occupied public resources, targeting small and micro individual businesses, and using the banner of trademark rights protection to engage in "opportunistic litigation" to obtain undue benefits." Zhou Yixia believes that this is both a disruption of the normal market operating order and a waste of judicial resources, and a challenge to judicial fairness.

　　Regarding the Xiaoyao Town Hu La Tang Association's rights protection of the "Xiaoyao Town" trademark, the relevant person in charge of the association once explained to the media that the Hu La Tang shops with the "Xiaoyao Town" sign are of uneven quality and lack unified technical standards. A considerable number of Hu La Tang shops with the "Xiaoyao Town" sign have no connection with Xiaoyao Town. In this context, the urgent need to "separate the genuine from the fake" and unify and standardize the technical standards of Xiaoyao Town Hu La Tang has been put on the agenda.

　　The standardization of a certain type of brand should not rely solely on rights protection and the collection of membership fees. Trademark use is far from simply "granting a license." Brand operation institutions should provide service guarantees and dynamic supervision for merchants, and continuously increase the value of the brand during operation. Only in this way can the trademark transform from a piece of registration certificate into intangible assets.

　　Source: China Trademark Association WeChat Official Account