Nanjing Dapai has won two trademark cases against it in Anhui.
On July 11 and August 31, 2022, the Hefei Intermediate People's Court successively ruled in two judgments that Nanjing Dahui Enterprise Development Co., LTD. (referred to as Nanjing Dahui), the owner of Nanjing Dahui File, won the case.
The court required the defendants to change the name of the enterprise, not to use the words "big name file", and compensate Dahui company for economic losses and reasonable expenses of 200,000 yuan and 300,000 yuan respectively, and bear the corresponding legal costs and maintenance costs.
Deep credible from the surging news learned that nationwide, the department of industry and commerce registered with the words "big name file" catering enterprises have more than 400, including the birthplace of "big name file" Cantonese-speaking area. The outcome of the case could affect whether the companies are guilty of trademark infringement and unfair competition.
The judgment held that the defendant's use of "big name file" constituted trademark infringement.But the ruling did not directly address the dispute over whether "Da Da file" is a generic name.
After the judgment was issued, the Surging news learned that one of the defendants has appealed, and the other has also said that it will appeal.
Court: The defendant's use of the "big name file" trademark constitutes infringement
(2022) Wan01 Minchu verdict No. 186 defendant for Chaozhou big file hotel stores and actual operators, (2022) Wan01 Minchu verdict No. 496 defendant for Hefei big file stores and actual operators, hereinafter collectively referred to as the defendant.
In addition to paying a total of 500,000 yuan in compensation, the court ordered the defendants to stop infringing on the exclusive right to use the registered trademarks of the plaintiff Dahui Company, and ordered the defendants to stop using the words "Da Da file" in their business name.
On the issue of trademark infringement, the court's basis isTrademark Law of the People's Republic of ChinaArticle 3 (1) and Article 57 (2) stipulate that the right to exclusive use of a registered trademark is protected by law. Any use of a trademark identical with its registered trademark on the same kind of goods or a trademark similar to its registered trademark on the same kind of goods without the permission of the trademark owner, which may easily lead to confusion, shall be an act of infringement of the right to exclusive use of a registered trademark.
At the same time, according to the relevant judicial interpretation, the judgment explains the same or similar standards of trademarks.
The Court held that a trademark is a mark used by a provider of goods or services in order to distinguish their goods or services from the same or similar goods or services provided by others. The primary function of trademarks is the identification function, which is used to distinguish the source and provider of goods and services. Therefore, distinctiveness is the essential attribute of trademark.
The distinctiveness of trademark comes from two aspects, one is inherent distinctiveness. In the process of creating a trademark, due to the difference between the pronunciation, graphics and text combination, the identification of other goods or service providers. The second is to obtain the significance of the trademark after long-term use and publicity to form visibility. Consumers thus refer to a trademark as a specific good or service. Therefore, in the judgment of the infringement of the exclusive right to use a registered trademark, it is not only necessary to compare the similarity of the relevant trademark in the glyphic pronunciation, meaning and other components, but also to consider the significance of the relevant trademark, the operating conditions of the two parties, the actual use of the trademark and other factors to determine whether it is enough to cause consumers to confuse the goods or services.
The court held that in this case, the evidence provided by Nanjing Dahui could prove that trademark No. 3008805, trademark No. 10887721 and trademark No. 17276085, which it claimed to protect, had gained certain significance and influence after its long-term use and publicity, and had the function of trademark identification.
The logic of the court is that the plaintiff has obtained the "big name file" series of trademarks, and the use of "big name file" by others is an infringement. The court also held that the identification function of Nanjing Dahui "big name file" series trademarks is the result of its long-term use and publicity.
The court held that the business scope of the defendants was the same as that approved by the trademarks involved, and the "big name file" used by them in offline stores and online platforms can play a role in identifying the source of goods or services, which is a trademark use. By comparison, the similarity between the alleged infringing marks and the trademarks involved is likely to cause confusion among consumers about the source of goods or services. The use of the above accused infringing marks by the defendants without the permission of the plaintiff is an infringement of the exclusive right to use the registered trademark of the trademark involved.
"Chaozhou big name file" two stores have changed their names
In Judgment No. 186 of (2022) Wan 01 Minchu,The court believed that the three stores of Chaozhou Mansion Restaurant, Xiwei Fang Restaurant and Chaozhou Big name file were chargedTrademark infringement and unfair competition,In accordance with the provisions of the first paragraph of Article 179 of the Civil Code of the People's Republic of China, it shall bear the civil liability to stop the infringement and compensate for the loss. Anhui Xiwei Fang Company, as the operator of the brand, actually participates in the operation and management of Chaozhou Fu Restaurant, Xiwei Fang Restaurant and Chaozhou big name file store. In accordance with Article 1168 of the Civil Code of the People's Republic of China, it shall also bear the civil liability to stop the infringement and compensate for the loss.
According to the judgment, in view of the fact that Chaozhoufu Restaurant and Xiweifang Restaurant have changed the original enterprise name during the litigation process, the two defendants do not need to bear the responsibility for changing the enterprise name.
Surging news reporter learned that Chao Zhou big name file original 3 stores, there are currently 2 stores are still operating. The original "Chaozhou Daipai File Main Store" was renamed "Chaozhou Fu Restaurant", and the original "Chaozhou Daipai File 2 Store" was renamed "Xiwei Fang Restaurant".
In the judgment No. 496 of (2022) Wan01 Minchu, the court also required each defendant to change the name of the enterprise and not to contain the words "big name file".
For more than 400 companies with "big name files" in their names, whether they need to change their corporate names in the future depends on Nanjing Dahui's willingness to defend their rights to a certain extent. As of press time, the company did not accept the surging news reporter interview. (Source: Thepaper.cn)
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