"Shaoguan meat clip" litigation survey: collective trademarks into a finishing tool, being monopoly operation2021-11-25 14:39:44 7 ℃
More famous shopkeeper said that the "Shaoguan" was complained in the "Shaoguan". Source: Henan Minsheng Channel Report Screenshot
The trademark rights of "Xiaoyao Town Nutong Tang" has not fully calved, "Shaoguan meat clamp" has become hot search.
According to media reports, dozens of merchants in Henan said that they sold the meat club, and they were prosecuted by the "Shaoguan" words, they were prosecuted by Shaanxi "Shaoguan Meat Clutch Association", requiring them to compensate, if they want to continue to use "Shaoguan meat clips "Trademark, you need to pay nearly 100,000 yuan. The rights protection of the Shaoguan Meat Association has aroused disputes.
The investigation of "WWW.THEPAPER.CN) found that" Shaoguan Meat "is" geographic identity trademark "registered by the Shaoguan Meat Clutch Association, and its nature is" collective "with social welfare properties. However, the Shaoguan Meat Association will authorize the trademark to operate private enterprises. Enterprises attempt to join the license by charge of non-Fei Fei.
A number of lawyer experts in the field of intellectual property, believe that for collective trademarks with social public interests and values applications for the relevant associations, the general related eligible individuals will pay less than a member to use. The practice of the Shaoguan meat clamps and related enterprises, "" Suspected to make a collective trademark of public welfare attributes "," the bundle of collective interests, becoming the way of collecting high local protection, becoming a commercial monopoly This behavior violates the trademark law, and also violates the legislative purpose of geographic identity trademarks. "
Claimed, continue to use more 100,000?
On November 21st, Henan Minsheng Channel Big reference column reported that dozens of snacks were brought by "Shaoguan" by the merchants sold, they were reported by Shaanxi "Shaoguan Meat Clutch Association", requiring them to compensate 3 to 50,000 yuan is not equal, and if you want to continue using the trademark of "Shaoguan Meat Clip", you need to pay 99,800 yuan.
In the video report, there are merchants think they are a small business, run for many years, inexplicably defendant infringement is very innocent. Most merchants do not recognize the prosecution of the "Shaoguan Meats Association". Some said: "A lot (each other) lawyer came to call us, just started to say is 50,000, finally mediate it to 10,000, calling 10,000, but also calling 8 thousand, finally The worship called me five thousand. He went this for a price. I think that his purpose is not for the right to defend, the purpose is to converge money. "
The public data shows that the original name of the burnt cake is originally designed to start from the beginning. In June 2011, the traditional handicon technique of Shangong meat was identified as an intangible cultural heritage in Shaanxi Province.
China Trademark Network shows that the "Shaoguan Meat Collapse" trademark is registered by the Shaoguan Meat Clutch Association, and the approved category is the 30th category of meat clamp, the trademark number is 14369120. The date date of the trademark is 2014. The date of registration is December 14, 2015, and the dedicated period of trademark is December 13, 2025.
"Shaoguan Meats Association" legal representative is called Wang Huafeng Source: National Social Organization Credit Information Publicity Platform
According to information on the national social organization credit information publicity platform, the Shaoguan Meat Clutch Association was established on June 6, 2016, and the legal representative Wang Huafeng. The association is a social group, and the registered capital is 50,000 yuan. The address is the thirteen flower meat clamps in Shaoguan County. The registration authority is the Civil Affairs Bureau of Shaoguan County, the certificate is valid for September 6, 2018 to September 6, 2018.
The Shaoguan Meat Clutch Association is conducting "bulk" prosecution. Investigation information showed that there were 396 legal proceedings, 28 cases, 11 referee documents, and one before the court, 355 were announced. The announcement of the court showed that most of the v. The defendant is involved from Tianjin, Inner Mongolia, Hubei, Hebei, Henan, Zhejiang, Guangdong, Jiangsu, Gansu, Jilin, Guizhou, Zhejiang, Shanghai, Liaoning, Anhui, Fujian, Shandong, and Hunan and other catering snackers.
The news contacted two defendant merchants.
Mr. Zhao, who is operating in Guangzhou, said that his name has no "Shaoguan" two words, only some of the menus have the "Shaoguan Meat Clip". He is also very surprised by infringement allegations. He is ready to actively respond, and he is not willing to accept compensation or joining requirements for the Shaoguan Meat Association.
And the Shaanxi Yan'an Li Jun, who has operated a husband and wife in Inner Mongolia.
Li Jun said that his store was opened in 2017, because he found it from the snack meat, it was found that there was no meat clamp shop, and I opened a store. The court's sumbrum was shocked, and there was a CD that recorded the plaintiff's "forensic process" - one day in May this year, some people came to him to buy a meat clamp, and shooted The signboard of his store.
Li Jun's lawsuit will be held on December 24. He noted that he is a trademark of "Shaoguan Meat", trademark and "Association", and the font is not prosecuted.
The news also noted that in many trademark infringement lawsuits, the Shaoguan Meats Association was carried out as the plaintiff.
Geographical identity and collective trademark
Is the meat clutch merchant infringement using the words "Shaoguan"?
In the view of Yao Kefeng, a lawyer of Beijing National Standard Law Firm, this first depends on whether the Shaoguan Meat Clutch Association has a trademark right. Although some trademarks may have malicious rush, deception, etc., the right of the right personnel have the right to trademark prior to not being invalid and revoked. In addition, people who have been infringent may be considered to not constitute an infringement because of the reason why the use, goodwill use, reasonable use, etc., and can be considered not to constitute an infringement. The "Collective" trademark of the Shaoguan meat clip Association Source: China Trademark Network Screenshot
It should be noted that in this wave of governance meat clips trademark disputes, the "Shaoguan Meat Clutch" registered "Shaoguan Meats" trademark nature is "collective", which is a geographic identity trademark.
Liu Ka, a lawyer (Changsha) Law Firm, Beijing, China "Geographical Sign as a sign indicative of a certain area, proves that the specific quality, reputation or other characteristics of the commodity, is of great significance for cultivating local leading industries, developing regional economy, building a characteristic brand, as long as it is the geographical logo logo The range of merchants can apply for use in a very low fee. "
The news review found, "" Shaoguan meat clip "Geographic identity collective trademark usage rules (hereinafter referred to as" Rules ") clearly," Shaoguan Meat Clip "is used to indicate that the operator of the collective trademark is a member of the Old Tuanguan Snack Association. , As well as the original region of the product and specific quality. According to inspection data, the Meat Clutch Association of Shaoguan County has been named "Old Tuanguan Snack Association".
"Usage rules" finally collected members of the collective trademark of "Shaoguan Meat", including 35 units and individuals such as Shaoguan Shengshi Catering Management Co., Ltd., Wang Huafeng, Wang Di, and Dong Kai.
However, this does not mean that the above 35 units and individuals can monopolize the trademark. Article 4 of the Rules of Use, "Members of the Old Tuanguan Snack Association can use the 'Shaoguan meat clip' geographic logo collective trademark." "Use Rules" introduced "Shaoguan Meat Clip" After the specific production method, Article 8 stipulates that "product operators who meet the above conditions can apply for use of 'Shaoguan meat clip' geographic identity collective trademark."
In the report of Henan Satellite TV Minsheng Channel, the association staff also said that "I hope that all this can join the association, and we will develop this brand together."
If the association's trademark rights litigation is "promoted", then, the Shaoguan meat clip Association, a registered capital of only 50,000 yuan, why is it referred to as tens of thousands of merchants, or even nearly 100,000?
The lawyer Yao Kefeng said, "Shaoguan meat clip" registered institutions Shaoguan Meat Clutch Association As a community institution registered in the civil affairs department, "The charges of their membership fees should be approved by the civil affairs department, this membership cost is usually lower, civil affairs The department is impossible to approve tens of thousands of yuan. "
In the report of Henan Minsheng Channel, in communication with a merchant, the person in charge said that its membership fee is 2400 yuan a year, 200 yuan in January.
The Shaoguan Meat Clutch Association authorizes two companies to conduct trademark use and operation Source: Shaoguan Meat Clutch Association WeChat Public Number
The collective trademark is brought by private enterprises?
What is the 99880 yuan fees mentioned by the infringement merchant?
In the interview of Henan Minsheng Channel, the person in charge of the Association said this: "Join this piece, because the association is authorized, there is a professional operation company, catering company."
According to this method, suing the merchant infringement is the Shaoguan Meat Clutch Association, and 99880 yuan is the "franchise fee" of the operation company asked for merchants.
How to join this company? The interpretation of the association is that "the company is the association to authorize it to use this brand to do the catering management, the association relies on the various standards made by the company." In a report of Henan Minsheng Channel, the name of the operation company is "Wansheng, Wansheng Catering Management Co., Ltd.
The official WeChat blessings of the "Shaoguan Meats Association" articles disclosed, December 25, 2015, the old Tuanguan snacks will authorize the "Shao Guan Meng" brand to "Xi'an Wan Sheng Drink Management Co., Ltd. "The use and operation of the trademark and operation of the trademark and" Shaoguan County Shengyi Food Management Co., Ltd. "
Input investigation data shows that the statutory representative of Shaoguan County Shengshi Catering Management Co., Ltd. is Dong Kaifeng, accounting for 40% of the stock, but the actual controller is Wang Huafeng, and the final benefit of 60%. Xi'an Wan Sai Drink Management Co., Ltd. legal representative is Wang Di and the controlling shareholder is also known as Wang Huafeng. At the same time, both companies hold or apply for registered trademarks such as "Wang Huafeng" and other registered trademarks.
Public report shows that Wang Huafeng in the above two companies is the same person. The statutory representative of the "Shaoguan Meats Association" also named "Wang Huafeng".
According to the "Weinan Daily" reported in April 2020, "Wang Huafeng is 43 years old this year, making meat clamps in nearly 20 years, operates Shaoguan County Shengshun Catering Management Co., Ltd. The company has an annual output value of more than 30 million yuan, more than 500 The store has more than 20 provinces across the country. "
新闻 新 注意 新闻 官 官 官content. The introduction of the franchise fees are divided into three gears, respectively, 99,800 flagship stores, 59,800 standard shops, and 39,800 entrepreneurship stores. Under the big category of "franchise fee", there are small costs, such as margin, management fees, and 200 yuan "Snack Association."
The news note that under the official WeChat blessings "join details" columns, it is listed in the "infringement statement" column. "The statement on violations, illegal and infringement" is released in the name of the "Shaoguan Meat Snack Association". The release time is April 8, 2018. According to the statement, there is currently in Shaanxi and all over the country, and all major network platforms have individual network platforms, the violations, illegal, cottage stores, and seriously violate the trademark right of the association, and the association shall stop the infringement. Relevant platforms related to illegal stores. It has entrusted the "Shaanxi Ren and the Wannan Law Firm" President Association's accountability through legal ways.
The above information shows that one side is the "infringement", and the other is also an authorized company to operate in a manner in the way.
According to the disclosure of Huaxi Metropolitan Daily, the subject matter of the Tongguan Meatshell Association is in front of the lawyer, "the respondent needs to be submitted to the premises and payment of the conference" .
On November 18th, the high-quality development symposium of Shaoguan meat is held in Shengyi Catering Company: Shaoguan Meat Clutch Association WeChat Public Number
Lawyers: Bundle of collective interests, and illegal
This mode of operation of the "Shaoguan Meats Association", the lawyer Yao Kefeng believes that "this is a collective trademark with social attributes, earning private interest. It is a variety of public rights to private, bundled collective trademarks Illegal behavior. "
Yao Kefeng analyzed that the normal rights protection rights of the Shaoguan Meat Association itself did not have a problem, but it could not combine the rights of interest rights and related companies. "Commercial joining and geographic trademark authorization is two separate legal acts. Become a member, authorized to use geographic trademarks, only requires little costs, many merchants may consider. And the above two companies will pay a lot of affordable The way, authorized to use the trademark of meat clamps across the Republic of China, if the other party does not join, the association is prosecuted with trademark infringement. This is a trademark license other than the promotion of the promotion and changing members, it is illegal. "
新闻 新 注意Feeded to the collective trademark identification, you must not allow others to use the collective trademark. "
Article 17 of the "Collective Trademark, Proven Trademark" issued by the General Administration of Industry and Commerce in the Organization Administration, "" "Collective trademarks must not be used for non-collective members."
Liu Kai pointed out that "Joining the business of the business" means that the identity of the commercial brand is not a geographical restriction, but the geographical logo collective trademark must first be a collective member, and will be used according to the management rules set by the collective This trademark. If the geographic logo collective trademark is separated from the region, the merchants in any place can become the actual user of the geographical symbol collective trademark, which exceeds the use of geographical logo trademarks, and also has a design of the geographical logo. The initial heart. "
Liu Bin, a lawyer of Beijing Zhongwen Law Firm, also believes that "the business main body will conduct its personal business expansion through geographical trademarks, violating the purpose of geographical identity legislation."
Yao Kefeng believes that "Geographical trademarks belong to collective trademarks as registered trademarks, should also have rights boundaries, and geographical marks have significant differences from ordinary trademarks. Geographical trademarks not only have to distinguish between goods and services, prevent others, but also With social attributes, if this kind of trademark authorization of social public interests and value, it becomes a business monopoly, which is a commercial monopoly, which is obviously in violation of the original intention of the law.
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