"The original meaning of the public domain cannot be monopolized."

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Hundreds of toilet water enterprises were sued for trademark infringement due to the production of "honeysuckle" toilet water, and recently welcomed the turning point.

In two related cases, the Intermediate People's Court of Zhongshan, Guangdong Province, reversed the original judgment, finding that the two Jiangxi companies did not constitute trademark infringement, and rejected the plaintiff Shanghai Bili Cosmetics Company's claim.

Zhongshan Intermediate People's Court rejected Bili company's claim of second instance judgment

The paper news reported at the beginning of this year, Jiangxi Province health and disinfection products industry Association 60 enterprises because of the production of "honeysuckle toilet water" and other products, and "Honeysuckle" trademark holder Shanghai Biili Cosmetics Co., Ltd. sued for claims, the vast majority of cases have been judged, the enterprise was found to constitute infringement and compensation. The "honeysuckle toilet water" sold by these enterprises was also forced to go offline from Taobao, 1688, Jingdong and other e-commerce platforms.

Subsequently, a number of enterprises in Jiangsu, Guangdong and other places also reflected that their toilet water products were also sued for trademark infringement because of the logo of the three words "honeysuckle", and the damages in each case reached 150,000 yuan. However, in the process of obtaining trademark files, the accused enterprise found that the trademark of "Honeysuckle" was revoked 27 years ago because it directly indicated the main raw materials of the goods and was improperly registered. Therefore, the trademark lawsuit of "Honeysuckle" is questioned as "protecting rights against China".

Surging news noted that in addition to the Zhongshan Intermediate Court's second trial to change the judgment of Bili company lost, the Supreme People's Court and the Sichuan High Court have all retried and arrained related cases previously supported by the court of Bili Company, and there has been no judgment result after the arrailing.

The trademark No. 603857 Honeysuckle held by Bili Company (Annex I) is the same as the body of the Huayu Tiger brand Honeysuckle toilet water bottle of Baitai Company

According to the surging news reported earlier, honeysuckle is a medicinal plant name, which has the effect of clearing heat and detoxifying and removing prickly miliary. The honeysuckle flower extract is added to the toilet water, which is called "honeysuckle flower water" in the industry. This kind of toilet water named according to a certain ingredient also snake gall toilet water, musk toilet water and so on.

The trademark of Bili Company (Annex I) and the body of the Chuangmei Company's Sonmison brand Honeysuckle toilet water bottle

Since 2020, Shanghai Biili Cosmetics Company has sued some enterprises that produce and sell "Honeysuckle" toilet water to the court on the grounds that it holds the "Honeysuckle" trademark, saying that the defendant violated the exclusive right of the "Honeysuckle" trademark. These enterprises in particular to the national disinfection products production base - Jiangxi Yichun Zhangshu City. According to Wu Standing Committee, Secretary General of Jiangxi Health and Disinfection Products Industry Association, from the beginning of 2020 to the end of 2021, the industry association has a total of 60 enterprises accused.

The "Tihua Show" brand Honeysuckle toilet water (middle) has been convicted of infringement and is still available on e-commerce platforms

Some of the cases that have been judged show that Bili's prosecution has basically been supported by the court, and the accused enterprises have been awarded damages ranging from tens of thousands to hundreds of thousands of yuan. In the court, the accused enterprises mentioned that their products themselves are registered with proprietary trademarks, and the prominent logo of "honeysuckle" on the body of the toilet water bottle is only to remind consumers that the product has added honeysuckle, a herbal ingredient of Chinese medicine, so it is only descriptive use, rather than trademark use of "honeysuckle". Many of the accused companies also said that they did not know that "honeysuckle" was a trademark of cosmetic products.

Surging news noted that the well-known daily chemical brand "Tihua show" is located in the Minchen company, its toilet water was also convicted of infringement due to the prominent logo of the product bottle "honeysuckle", and compensation Bili company 150,000 yuan.

On April 28, 2021, the second instance of the Jiangsu High Court held that, compared with the registered trademark of Bili Company, although the font used in the "flower Show" logo was slightly different, the pronunciation, text and meaning were the same, and the two could be identified as similar in composition. The font of "Honeysuckle" marked on the front of the goods accused of infringement is eye-catching and prominent, and the font is obviously larger than the trademark of "Tihua Show" of Mingchen Company, which has exceeded the boundary of proper use of description or objective description of the goods, and constitutes trademark use. Subjectively, it is difficult to call it good faith, and objectively, it is easy to cause confusion or misidentification among the relevant public.

From the national jurisprudence, the majority of the judgment that constitutes infringement is that "the product accused of infringement needs to express that it contains honeysuckle components, and it should be marked in a good faith manner within a reasonable range." Highlighting the words' honeysuckle 'in a prominent position on the front and back of the bottle is improper use."

Wu said that in the face of the losing judgment and the pressure of Bili's claim, "a large number of enterprises in the association signed the so-called trademark understanding agreement ranging from 50,000 to 150,000 yuan, and paid compensation; Many of the damages were paid to Bili shareholders, private bank card numbers of outsiders, or account numbers of law firms involved in the lawsuit. The documented compensation has reached several million yuan."

According to the statistics of lawyers representing relevant cases, Bili's "Honeysuckle" trademark held by it has been infringed, and there have been about 200 lawsuits launched in batches since 2019, with each claim of about 100,000 yuan, and the total claim amount or more than 10 million yuan.

In addition to the recognition of compensation, settlement, there are also many enterprises resolutely do not accept the judgment of infringement. Jiangsu Suzhou Siyan Biological daily Chemical Co., LTD. (hereinafter referred to as Siyan Company) is such.

In December 2019, Shiyan Company's "Qingren" brand Honeysuckle toilet water was sued for infringement, and a trial plaintiff compensated Bili Company 100,000 yuan. Neither party appealed. In December 2020, the Jiangsu High Court of second Instance upheld the infringement determination and ruled that Shiyan Company compensated Bili Company 120,000 yuan.

Shiyan company believes that Bili company intends to use the trademark as a claim tool to obtain improper benefits through malicious litigation, so it decided to apply to the Supreme Court for a retrial.

In the lawsuit, the lawyer Zhao Zhiqing obtained the "Honeysuckle" trademark related files from the State Intellectual Property Office, showing that on January 27, 1994, the 603857 "Honeysuckle" trademark involved was revoked by the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce, and was required to return the Registered Trademark Certificate. The reasons for cancellation include that the trademark directly indicates the main raw material of the product when used in cosmetics, which violates the Trademark Law and has been improperly registered. The time of cancellation of the announcement was 1995, and according to the law at that time, the ruling was final and could not be reviewed.

Strangely, the revoked trademark, without showing the restoration of rights, was "resurrected" and transferred twice, and was finally acquired by Bili around 2010. Since 2019, Bili Company began to batch "Honeysuckle" trademark rights litigation.

Shiyan Company based on two reasons to the Supreme Court to apply for a retrial: first, has been revoked trademark does not have legal effect, Honeysuckle trademark rights basis there are major defects. The court of first instance and second instance did not find out, Bili Company concealed the fact that the trademark was revoked, leading to the important facts of the case were unclear; Second, Bili company did not create a significant relationship through the use of the "Honeysuckle" trademark, that is, "Honeysuckle" and Bili company in the market is not the only or the main corresponding relationship. The court should reserve the space for other relevant market operators and the public to rationally use the raw materials or trade names of "Honeysuckle" to avoid Bili Company monopolizing the "honeysuckle toilet water" market and destroying the order of fair competition.

On March 24, 2022, the Supreme Court issued a ruling, deciding to arraignment the Honeysuckle case applied for retrial by Shiyan Company, and during the retrial, the execution of the original judgment was suspended.

Surging news found that the direct arraignment of the Supreme Court also affected the trial process of a number of related cases.

The Nanjing Intermediate Court suspended the proceedings because of the Supreme Court's arraignment

For example, on April 1, the Nanjing People's Court of Jiangsu Province decided to suspend the trial of the appellant Nanjing Sandong Pharmaceutical Co., LTD., Qingdao Hainovi Disinfection Technology Co., LTD., and the appellant Shanghai Biili Cosmetics Co., LTD., based on the case of "Honeydew" related case, which has been arraignment by the Supreme Court. "The outcome of the Supreme People's Court's handling of the arraignment case has a substantial impact on the trial of this case. At present, the relevant litigation case has not been concluded, and the case has been suspended according to law." The ruling said.

Sichuan High Court decided to bring the honeysuckle case to trial

On June 13, the Sichuan High Court decided to arrault the case of Jiangxi Zhangshu Zhengkang Pharmaceutical Biotechnology Co., Ltd. and the respondent Shanghai Biili Cosmetics Co., LTD., and ruled to suspend the execution of the original judgment during the retrial.

On June 24 and 30, the Zhongshan People's Court of Guangdong Province directly revised the judgment of two Honeysuckle trademark cases in the second instance, revoked the original first-instance judgment in support of Bili Company, and revised the judgment that the accused enterprise did not constitute trademark infringement.

The two enterprises that won the second trial were Jiangxi Chuangmei Industrial Co., Ltd. and Jiangxi Baitai Pharmaceutical Co., LTD., which respectively produced "Congmeichen" brand and "Yaodu Tiger" brand honeysuckle toilet water. Bili company in the e-commerce platform to buy products after the lawsuit, the first instance, the two companies were sentenced to pay 60,000 yuan.

Zhongshan Intermediate People's Court of second instance held that the first paragraph of Article 59 of the Trademark Law: "The generic name, figure, model of the commodity contained in the registered trademark, or directly indicates the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the commodity, or contains the place name, the exclusive right holder of the registered trademark has no right to prohibit others from using it properly." In this case, the trademark No. 603857 "Honeysuckle" involved in the case belongs to the characteristics of directly expressing the main raw materials of the goods, and the trademark owner cannot monopolize those initial meanings of the trademark logo that originally belong to the public domain.

While the two accused enterprises used the words "honeysuckle toilet water" on the accused infringing toilet water products, they also marked their own registered trademarks above the words. "Honeysuckle" usually refers to the name of the plant, which has the effect of clearing heat and detoxification, and toilet water is a generic name, and the main component of the accused infringement of toilet water is honeysuckle extract. In this case, the words "Honeysuckle flower water" marked by the two companies on the accused infringing products are not used as trademarks of their own products, but only to explain or describe the characteristics of their own products. In the description or description, the two companies did not directly apply the trademark "Honeysuckle" No. 603857, nor did they prominently use the words "honeysuckle". It is an act of legitimate use of trademark logo. Therefore, the second instance revoked the original wrong judgment of the first instance, and rejected the lawsuit request of Bili company.

Gong Dawei, a lawyer representing Baitai, said that although his argument was accepted by the court, there was nothing new in reality. He studied more than 80 successful cases against Bili in which defense lawyers made similar arguments, only to be rejected. He will now submit the Zhongshan Intermediate Court's ruling as evidence to the Shandong High Court, where he represented another Honeysuckle case. He believes the Zhongshan Court's decision "has bellwether significance".

During the trial, Mr. Gong said, he made a key argument that Honeysuckle's trademark had been revoked in 1995, but the court sidestepped the issue.

"This case should be based on the results of the trial on whether the trademarks involved in Bili's case are valid, and there is no need to suspend the case after review," the Zhongshan People's Court said in its ruling against Baitai.

The relevant person in charge of Bai Tai company said, "We were originally in a good business, 'Huadu Tiger' brand Honeysuckle toilet water has sold well in the market in recent years, because we were sued by Bili company for so-called infringement, resulting in us having to spend money to pay lawyers to respond, forced to recall consumers and agents of products, compensate agents for liquidated damages, and waste a lot of products and packaging." The total loss is 180,000 yuan."

Surging news noted that Chuangmei company also asked Bili company in the second instance to compensate for its lawsuit loss of 60,000 yuan, but because it is a counterclaim in the second instance procedure, the court did not hear this.

Public judgment documents show that some of the judgments previously won by Bili have been implemented or applied for enforcement. At the same time, since the Honeysuckle trademark case was exposed, in some courts, Bili company applied to the court for withdrawal of the new lawsuit.

Source: Thepaper.cn

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