In 1999, Chen opened a restaurant in a village in Baiyun District, "Shikeng Roast Chicken Farm", with "characteristic roast chicken" as the signboard, operating for more than 20 years; Wei a company applied for the registration of the trademark "Shikeng Roast Chicken Farm", and officially registered the trademark No. 42681890 on September 7, 2020, the scope of use is self-service restaurants, restaurants, restaurants, etc. Does a restaurant named after "Shek Hang Roast Chicken" meet a company with the exclusive right to use the registered trademark of "Shek Hang Roast Chicken Farm" constitute unfair competition?
Recently, the events of "Xiaoyao Town Huspicy soup" and "Tongguan Rou Jia Mo" have caused a round of trademark controversy, and also aroused high attention from public opinion. So, when the enterprise name right meets the trademark right, does it constitute infringement?
A few days ago, the Baiyun Court concluded an intellectual property case, with the name of "Shikeng roast chicken" name of the restaurant met with the "Shikeng roast chicken farm" registered trademark exclusive rights of the company, whether it constitutes unfair competition?
Basic case
In 1999, Chen opened a restaurant in a village in Baiyun District, "Shikeng Roast Chicken Farm", with "characteristic roast chicken" as the signboard, operating for more than 20 years, has been loved by many consumers, and has formed a certain popularity and market influence in the local.
In 2019, Chen Mou Mei opened a restaurant "Guangzhou Baiyun District Shikeng Food Restaurant", and then changed the name of the store to "Guangzhou Shikeng Roast Chicken Family Food Restaurant" on June 16, 2020.
Wei a company applied for the registration of the trademark "Shikeng Roast Chicken Farm", and officially registered the trademark No. 42681890 on September 7, 2020, the scope of use is self-service restaurants, restaurants, restaurants, etc.
Chen Mou Quan and Wei Mou Company believe that the "Shikeng roast chicken" used by Chen Mou Mei infringes on the exclusive right to use its registered trademark No. 42681890 and constitutes unfair competition, so they jointly act as plaintiffs and Sue Chen Mou Mei to the court.
Chen argues:
1, I and Chen Quan is a brother and sister relationship, since 2008, I have leased Chen Quan's site to operate, has been doing 13 years, "Shikeng roast chicken farm" fame is my credit.
2. Shikeng Roast Chicken is only one of the features, and there are many Cantonese fried dishes. As for the consumers' active choice to consume in my shop, it is the reputation that I have worked hard for more than ten years, not that I intentionally misled them.
Results of judgments and rulings
The two plaintiffs filed this lawsuit based on the exclusive right to use the registered trademark No. 42681890, the registered trademark of a company named Wei, Chen did not provide evidence to prove that it is related to the registered trademark involved, so Chen filed this lawsuit on the grounds that the name of Chen Mei enterprise infringes on the registered trademark right involved and constitutes unfair competition, which lacks factual basis. Chen's claim shall be rejected.
On whether the behavior of Chen Mou Mei constitutes unfair competition to Wei a company. In this case, Chen Mou Mei began to use the store names of "Guangzhou Shikeng Roast Chicken Family Restaurant" and "Shikeng Roast Chicken Family" on June 16, 2020, and the plaintiff Wei Mou Company involved in the trademark registration No. 42681890 was registered on September 7, 2020. It can be seen that the time Chen Mou Mei registered and used the name of the enterprise involved was earlier than the registration time of the trademark involved in an industrial company in Wei. The right of enterprise name and the right to exclusive use of trademark have their own scope of rights and are protected by law. The right holder who obtains the right of enterprise name in advance has the right to use its own enterprise name properly, which does not constitute an infringement of the exclusive right to use a later registered trademark. Therefore, Wei a company claims that Chen Mou Mei's use of the name of the enterprise involved infringes on its registered trademark and constitutes unfair competition, which lacks factual and legal basis and should not be supported.
The lawsuit request of Wei Company requiring Chen Moumei to stop using "Shikeng-roasted chicken" or similar words as the brand name of unfair competition, compensation for economic losses, and payment of legal fees shall be rejected.
In view of the fact that Wei an industrial company has registered trademarks on Class 43, including restaurants, restaurants and restaurants, Chen Mei should reasonably avoid the trademark in the future business activities, complete and standardized use of their own business name "Guangzhou Shikeng Roast Chicken family Restaurant".
In summary, the court rejected all the claims of the three plaintiffs in accordance with the law. After the judgment, all parties shall serve the judgment.
Judge's statement
The right of enterprise name and the right to exclusive use of trademark have their own scope of rights and are protected by law. When there is a conflict between the right of enterprise name and the right to exclusive use of trademark, the right to be protected should be determined according to the principle of prior right.
In this case, Chen Mou Mei registered and used the name of the enterprise involved earlier than the registration time of the trademark No. 42681890, which does not constitute an infringement of the exclusive right to use the trademark after the registration of Wei Mou Industrial company.
From the formation and development history of "Shikeng Roast chicken", the "Shikeng roast chicken" logo has been used since 1999 by Chen Mou to open "Shikeng Roast Chicken farm", "Shikeng" is the name of a village in Baiyun District, Guangzhou, "roast chicken" refers to a food name. From 2008 to January 2020, Chen Mou Mei leased the aforementioned "Shikeng Roast Chicken Farm" from Chen mou to operate. It can be seen that Chen Mou Quan and Chen Mou Mei have made certain contributions to the popularity and reputation of the "Shikeng Roast Chicken" brand.
Although Wei Company and Chen Quan claim that there is a relationship between the two, but Wei company is an independent legal entity, the fact that Chen Quan initially opened the "Shikeng Roast Chicken Farm" and the contribution to the brand awareness and reputation of "Shikeng Roast Chicken" have nothing to do with Wei Real Company. Therefore, Chen Mou Mei's use of the name of the enterprise involved does not constitute unfair competition.
Registered trademark right, enterprise name right, design patent right and other rights have their own scope of rights and are protected by law. The acquisition and exercise of the above rights should follow the principle of good faith, so as to win awareness and reputation for their own brand, and it is possible to create a well-known trademark and make a century-old brand. Source: Intellectual Property Case
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