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Where a contractor processes goods bearing another person's registered trademark, the contractor shall examine whether the ordering party enjoys the exclusive right to use the registered trademark. Where the contractor and the ordering party fail to fulfill their duty of care in processing the goods that infringe upon the exclusive right to use a registered trademark, the contractor and the ordering party constitute a joint infringement and shall be jointly liable for damages and other liabilities. Where the contractor does not know that the goods infringe the exclusive right to use a registered trademark and is able to provide proof of the ordering party and its trademark rights, it shall not be liable for damages. Contributed by: Qin Lin, Aikesong
Please stamp the court papers
(2019) Beijing 0102 Minchu 5293
【 Case Summary 】
On December 14, 2014, Jiangzhong Pharmaceutical Group approved and registered the trademark No. 13055691 "Monkey Mushroom", which is valid until December 13, 2024. On June 28, 2015, Jiangzhong Pharmaceutical Group approved the registration of the trademark No. 14717187 "Jiangzhong Monkey Mushroom", which is valid until June 27, 2025. The above two trademarks are approved for use on Class 30 goods: coffee; Chocolate drinks; Tea; Tea beverage; Sugar; Honey; Pollen fitness cream; Cookies; Cake; Pancakes; Food made from grain flour; Macaroons (pastries); Bread; Pies (pastries); Pastries; Oat food; Breakfast foods made from grains, dried fruits and nuts; Grain-based snacks; Pastry icing (icing); Sesame paste; A mooncake; Porridge; Cereal products; Flour products; Bean Powder; Edible starch; Edible ice; Condiments; Yeast; Flavoring for food (except flavoring containing ether and essential oils); Household meat tenderizer (cutoff).
On December 27, 2016, Jiangzhong Pharmaceutical Group transferred the registered trademark of "Jiangzhong Monkey Mushroom" No. 14717187 to the plaintiff Jiangzhong Dietary Therapy Company. On November 6, 2017, Jiangzhong Pharmaceutical Group transferred the trademark No. 13055691 "Monkey Mushroom" to the plaintiff Jiangzhong Dietary Therapy Company.
The plaintiff believes that the food company without authorization, commissioned Yourun food company to produce and sell the cookie products highlighted the use of "monkey head mushroom", which is similar to the plaintiff's registered trademark, and the behavior of the two defendants constitutes trademark infringement. Panzhai Food company opened the "Mushroom Mushroom official flagship store" on the website of Jingdong Company to sell the above infringing goods, at the same time, in the process of sales, the use of "monkey head mushroom cookie", "monkey mushroom cookie" words, and the sale of infringement is still continuing, which also constitutes trademark infringement. So the plaintiff appealed to the court.
Panzhai Food company argued that "hericium mushroom" is a common food and medicine, and it is known by the public "monkey mushroom", which is a common name, so its behavior is a reasonable use of the common name. And the biscuits of the food company do add "hericium mushroom" ingredients, so the use of the above words in the packaging and website belongs to the description of the ingredients of the products sold, in order to let consumers know, is legitimate use. At the same time, the words on its products are not the same and similar to the plaintiff's registered trademarks, and it also obviously highlights its own trademarks "Pantian" and "Mushroom mushroom", so it will not cause consumers to confuse and misidentify.
Yurun Food Company argued: 1. Yurun Food Company did not intend to infringe, and the infringing products were commissioned and produced by Shanzhai Food Company, and the products and packaging were provided by Shanzhai Food Company. 2. The plaintiff's economic loss shall not be borne by Yourun Food Co., LTD., as agreed in the contract between Shanzhai Food Co., LTD and Yourun Food Co., LTD. 3. The use of Hericius mushroom by Panzhai Food Company is a reasonable use. Hericius mushroom is a generic name, indicating the ingredients of the product, not a trademark use, and the words used by Panzhai Food Company are clearly different from the plaintiff's trademark.
【 Court confirmation 】
Shanzhai Food Company and Yourun Food Company enter into the "Purchase and Sale Contract of Licensed Products", which contains the following provisions: Yourun Food Company is synonymous with Shanzhai Food Company to manufacture a series of products with the legitimate registered trademark of Shanzhai Food Company, and deliver the contract products to Shanzhai Food Company in accordance with the agreement, Shanzhai Food Company shall pay the corresponding payment to Yourun Food Company in accordance with the agreement; Product name: the registered trademark name is "Shan Tian", the product name is "monkey head mushroom biscuit", the specification is 4.75 (kg), the unit price is 10 (kg), the box price is 47.5 (yuan); The packaging of all products in the contract shall be designed and printed by Yourun Food Company according to the requirements of Shanzhai Food Company; Shanzhai Food Company authorizes Yourun Food Company to process and produce the registered trademark products of "Shanzhai Mushroom Mushroom Mushroom". Yourun Food Company must produce the products in strict accordance with the processing quantity and authorized scope entrusted by Shanzhai Food Company, and shall not infringe on the rights and interests of Shanzhai Food Company and shall not sell the products of Shanzhai Food Company (including the waste and defective products that do not meet the requirements of the standard); The quality standard and design, graphics, text description, color and layout of the packaging are in the responsibility of Shanzhai Food Co., LTD., and shall be submitted to both parties by email (Email: jindong@guziguzi.cn; You Run Food Company email: http:// www.lhbaile.com) can be executed after confirmation; After the contract is signed, the supporting documents to be submitted by both parties shall include the packing manuscript with the company seal affixed by Shanzhai Food Company; The contract is valid from September 4, 2017 to September 3, 2018.
On September 4, 2017, the "Explanatory Letter" issued by Yourun Food Company stated that the content of hericium mushroom per 100 grams of the main ingredient is not less than 12%. On September 20, 2017, the email address of jindong@guziguzi.cn sent the packing style involved to 1034396772@qq.com with the subject as: Monkey Girl cookies, please follow this. During the period of cooperation between the two parties, the relevant staff communicated on the delivery, the price per kilogram, the delivery address, whether the monkey head mushroom was used up, etc. During this period, the food company paid the money to the Yourun Food Company many times, and the Yourun Food Company issued an invoice to it, and the invoice amount was more than 500,000 yuan. In the trial, both parties recognized the fact that the hericium mushrooms used in the production of the products involved were provided by Shanzhai Food Company.
【 Focus of dispute 】
One of the focal points of the dispute in this case is whether Yourun Food Company, as the contractor, should bear the liability for compensation.
【The court held that
The Court holds that where the contractor processes goods bearing another person's registered trademark, the contractor shall examine whether the ordering party enjoys the exclusive right to use the registered trademark. Where the contractor and the ordering party fail to fulfill their duty of care in processing the goods that infringe upon the exclusive right to use a registered trademark, the contractor and the ordering party constitute a joint infringement and shall be jointly liable for damages and other liabilities. Where the contractor does not know that the goods infringe the exclusive right to use a registered trademark and is able to provide proof of the ordering party and its trademark rights, it shall not be liable for damages.
Specifically in this case, the key to consider whether Yourun Food Company should bear the liability for compensation lies in: first, whether it has fulfilled the examination obligation; (2) Whether it should know or know that the goods contracted for processing infringe the plaintiff's trademark rights. On the one hand, the documented evidence can prove that there is a contractual relationship between the two parties for the purpose of commissioning the production of cookies, and the two parties have actually performed the contract. Shanzhai Food Company provides heritake mushrooms and commodity packaging, determines the commodity standards, and Yourun Food Company produces the products and charges processing fees. In the process of contract performance, both parties have made it clear that the products produced are "Shantian" and "Shantian Mushroom Mushroom" brand cookies, and the two trademarks are within the validity period, in this case, it should be considered that Yourun Food Company has fulfilled the obligation of review. On the other hand, the two parties expressly agreed to produce cookies with hericius mushroom as the raw material, and in fact, Shanzhai Food Company did provide hericius mushroom to Yourun Food Company for the production of cookies, in this case, Yourun Food Company entrusted with the production of goods marked "Hericius mushroom", it should not subjectively know or know that it may infringe on the trademark rights of others. Therefore, Yourun Food Company should only bear the civil liability of stopping the infringement and compensating the plaintiff's reasonable expenses, and does not bear the responsibility of compensating for economic losses.
【 Situation of Second trial 】
The food company refused to accept the civil judgment (2019) Beijing 0102 No. 5293 at the beginning of the Republic of China, and appealed to the Beijing Intellectual Property Court. The second instance of the Beijing intellectual Property Court rejected the appeal request of the food company and upheld the original judgment.
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