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Red Bull Vitamin Beverage Co., LTD. (hereinafter referred to as "China Red Bull"), a Sino-foreign joint venture jointly established by China National Food Industry Corporation (hereinafter referred to as "China Food"), Shenzhen Zhonghao (Group) Co., LTD. (hereinafter referred to as "Zhonghao") and (Thailand) Tensi Medical & Healthcare Co., LTD. (hereinafter referred to as "Thai Tensi"), and Thailand Tensi shall have the right to the Red Bull trademark After a series of lawsuits caused by the use of the genus and the use of a number of courts, not only in the legal and practical circles caused continuous controversy, but also the negative social impact caused by the industry has caused great concern.

Such concerns come from the impact and harm the verdict may bring to the development of China's real economy. Red Bull is not a case. According to incomplete statistics, among the trademarks used by more than 4,000 listed companies in the country, more than 600 companies are in the same state of long-term separation of trademark use rights and ownership rights as China Red Bull. The trademark ownership of these listed companies is in the hands of major shareholder group companies or others, once the listed company becomes stronger and bigger, the trademark is well-known or well-known, it is inevitable that there will be a phenomenon of "the peach is big and the capital is jealous". The behavior of "picking peaches" is likely to become a hidden danger to destroy these listed companies.

As a functional drink containing water, sugar, caffeine, fiber alcohol and vitamin B, Red Bull beverage was originally founded in Bangkok by Thai businessman Xu Shubiao, and its trademark rights in Thailand belong to (Thailand) Tensi Medical Care Co., LTD., which is actually controlled by Xu Shubiao.Its development in China has generally gone through three stages:

The first stage was Xu Shubiao's intention to open the Chinese market by establishing Hainan Red Bull Beverage Co., LTD. (hereinafter referred to as "Hainan Red Bull") in 1993.However, due to two key obstacles: the established product production standards of Red Bull beverage have not been fully approved by the Chinese Ministry of Health, and therefore do not meet the production standards of Red Bull vitamin functional drinks suitable for market circulation; Jinhua Bullfighting Amusement Center has obtained the registered trademark of bullfighting in 1994, so the Red Bull graphic trademark containing the bullfighting pattern cannot be approved for registration in China.Therefore, since its establishment, Hainan Red Bull can only engage in the sale of imported Red Bull drinks, but can not really produce and sell Red Bull drinks.

The second stage was after the initial failure to explore the Chinese market,In the 1990s, with the opportunity of reform and opening up, Yan Bin and Xu Shubiao, the head of the Chinese market, established the Sino-foreign joint venture China Red Bull through the joint venture of China Food and Zhonghao, and the two key obstacles affecting the production and trademark registration of Red Bull beverage were removed by the cooperation of the Chinese side (China Food and Zhonghao) :The first is for China Food to apply to the Ministry of Health to obtain the production license of vitamin functional drinks (in line with the ingredient content of the effect of Red Bull drink), and the second is for Zhonghao to buy out the ownership of the bullfighting trademark from Jinhua Bullfighting amusement Center.

Since then, the Chinese side has cleared the obstacles for the production and operation of Red Bull beverages in China (that is, the products can be produced and sold, and the trademarks can be registered and used). China Red Bull has gradually opened up the Chinese market and established a nationwide production and sales network, and its market share has been rising. By 2020, China Red Bull has more than 4 million sales outlets in the country, with a cumulative sales of more than 30 billion cans, of which the annual sales revenue in 2020 exceeds 20 billion yuan, and the market value of Red Bull brand in China has increased from 551 million yuan in 1996 to 50.68 billion yuan in 2015.

The third stage is the stage of disputes between the two parties.In 2012, in the joint venture company China Red Bull sales of nearly 10 billion yuan, profits, taxes, profits have risen to the fifth in the beverage industry good situation,Mr. Xu Shubiao died, and his son Xu Xinxiong became the actual controller.The incident marked a watershed between joint venture Red Bull of China and Tensi of Thailand from close cooperation to constant disputes.

On July 24, 2012, Thai Tensi, together with some other Chinese investors, established a new company in Guangdong, Guangzhou Yao Energy Beverage Co., LTD. (hereinafter referred to as "Guangzhou Yao Energy"), which is engaged in the production of Red Bull beverages.

On September 7 of the same year,The Red Bull trademark, which has been used by China Red Bull for 18 years, was registered illegally.And on the day of approval of registration, that is, May 7, 2014, the trademark is licensed to Guangzhou Yao Energy; At the same time, some executives of the original joint venture company seize the sales channels, customers and employees of the joint venture company by setting up similar companies;Finally, by suing China Red Bull and its supporting production and sales manufacturers for trademark infringement, the production and business activities of China Red Bull are comprehensively blocked.

This has led to China Red Bull, which has paid a total of 32 billion yuan in taxes and solved the employment opportunities of more than 20,000 employees, will face the dilemma of stopping production, and its closely related 600,000 core terminals, more than 4 million sales outlets and the livelihoods of millions of employees involved in the whole industry chain will pay for the capital's pursuit of profits.

How to determine the ownership of the Red Bull beverage trademark right in the dispute?Are the criteria based solely on administrative registration (registration and change registration) just and reasonable? In my opinion, in essence,Such judgment not only violates the basic jurisprudence, but also goes against the original intention of the establishment of intellectual property system. The main reasons are:

First, the legitimate basis of the existence of the trademark intellectual property system is to protect the effective and fair use of trademarks, and registration is not the only way to obtain trademark rights.

First, the legitimate basis of the existence of the trademark intellectual property system is to protect the effective and fair use of trademarks, and registration is not the only way to obtain trademark rights.

Copyright Law and Patent law protection of copyright or patent rights is set in the public or registered acquisition because they are really worth protecting the subject is the intellectual subject who has worked hard to create the result, so whether it is recognized in the commercial market or not, whether it is applied, does not affect the existence of its legal rights. But trademarks are different,Simple trademark registration will not create any value for the society, the value of the trademark can only be presented after the use of its value.

In this sense, the subject of trademark rights worth protecting should not be limited to the subject of trademark registration (that is, the person who owns the trademark).Other trademark fair use subjects should also be protected by law.Typical examples are:According to the provisions of China's trademark Law, even in the case of a registered trademark, a trademark that is identical or similar to the registered trademark and has been used before the trademark registrant on the same kind of goods or similar goods may still be used.

Of course, this does not mean that the labor paid by the trademark designer is not worthy of protection, but that for a well-known trademark brand with a high gold content, the initial inspiration of the trademark designer and the relevant legal confirmation process is important, but its contribution to the formation of the value of the trademark is very limited.

In other words, the registration of a trademark only gives rights to the trademark applicant, but it does not give value to the trademark. Labor is the real source of trademark value and the legitimate basis of trademark rights protection. The value of a trademark is not simply generated through registration, but more importantly depends on the creative management of the trademark brand, careful maintenance and active promotion.

Therefore, when there is a dispute over the acquisition of trademark rights, perhaps the trademark operator is the real worker who is more worthy of protection in the trademark right system.This means that the trademark right system is not only to protect the possessive-type acquirer, but also to protect the use-type acquirer. It is in this sense that if a registered trademark that has been designed is put on the shelf after registration and fails to really be put into the market for effective use, operation and promotion, then the value and use value of the trademark can be almost ignored.

Although China's trademark law adopts the mode of obtaining trademark rights by registration, it also conditionally recognizes the antagonistic rights of trademark users to trademark owners.It is clearly stipulated that malicious trademark registration not for the purpose of use is not recognized.

According to this principle, the brand value of the Red Bull beverage trademark currently circulating in the Chinese market does not come from the registration of the Red Bull trademark, butFrom the Chinese Red Bull company decades of painstaking management and effective marketing.According to statistics, during the legal use of Red Bull trademarks, China Red Bull has spent a total of more than 18 billion yuan in advertising and brand promotion fees.It can be said that without China Red Bull's continuous operation and promotion of the Red Bull trademark, there would be no Red Bull brand in China's beverage industry today.

Secondly, the definition of trademark ownership should take into account the various forming factors of the trademark, and the original creation of the trademark should not be the only factor to determine the right of the trademark.

There are two main reasons to advocate that the Chinese Red Bull trademark belongs to Thai Tensi: First, the Red Bull trademark is the trademark registered by Thai Tensi in Thailand, so Thai Tensi is the original right subject of Red Bull trademark; Second, during the period of joint venture, the Red Bull trademark applied by Thai Tensi in China was registered by the National Trademark Office.

This kind of understanding seems to be justified, but in fact, it misunderstands the essence of the trademark system, and will have adverse legal consequences.Through the inquiry of relevant information, it can be seen that the Chinese Red Bull trademark is not a simple continuation of the Red Bull trademark registered by Thai Tensi in Thailand in the Chinese market.Instead, the Thai Red Bull trademark, the Chinese bullfighting trademark and a collection of various trademark elements produced a brand new trademark,It is the result that the Chinese shareholders in the joint venture company make use of their identity advantages and policy advantages to cooperate with Thailand Tensi. The Red Bull trademark owned by Thai Tensi has undoubtedly contributed significantly to the successful registration of the Red Bull trademark in China.However, only Thailand Tensi's application for the registration of the Red Bull trademark will not directly produce the effect of China's Red Bull trademark approval.Because before Thai Red Bull entered China, there was already a registered trademark marked by bullfighting in the Chinese market, and in the case of the legal existence of the trademark, Thai Red Bull could not obtain legal trademark rights in China, which is also the main reason why Thai Red Bull did not obtain trademark registration after entering the Chinese market.

The Red Bull trademark that has been circulating in the Chinese market for a long time is a type of trademark with special significance.Thai Tensi and the Chinese side jointly designed the graphic and related logo of the Red Bull trademark in both English and Chinese.Although the early Red Bull graphics and the later Red Bull trademark were provided by Thailand Tensi, in the process of operation, China Red Bull changed from a simple trademark to a complex combination trademark by constantly giving it new ideas and constantly adding new elements.And eventually from a simple trademark gradually promoted to a brand integrating trademark, goodwill, reputation, channels and many other factors in one.

Although the Red Bull brand is dependent on the Red Bull trademark, its brand value is not entirely provided by the Red Bull trademark, and the more important contributor should be the goodwill value of Chinese Red Bull based on the market recognition of consumers.Even if it is only a trademark, it can be inferred based on factors such as the degree of public awareness of the Red Bull trademark, the duration of use of the trademark, the duration, extent and geographical scope of the publicity of the trademark China's Red Bull trademark is already a well-known trademark that can request protection according to trademark law in China, and the legal protection of well-known trademarks is based on use rather than registration.

If the concept of obtaining trademark rights through single registration is upheld in specific judicial cases, it seems to clarify the attribution of exclusive, exclusive and other values generated by the monopoly privilege based on trademark registration,But depriving the actual creators of brand value of their legitimate rights,It not only fundamentally violates the basic principle of Marxist political economy that labor creates value, but also seriously inhibits the enthusiasm of trademark users to expand the value of trademarks. It not only violates the original intention of the establishment of the trademark system, but also goes against the healthy development of the trademark system.

It is the defects of China's trademark system itself and the mechanical protection of trademark registration in judicial practice that lead to the prevalence of malicious squatting in reality.Dragnet registration, defensive registration that does not use for purposes are favored, and various abnormal phenomena such as zombie trademarks and the proliferation of useless trademarks are repeatedly prohibited.The resulting false prosperity of registered trademarks can not only create more wealth for the society, but also create information difficulties for trademark examination and increase social management costs.

Therefore, the reasonable goal of system correction should be the trademark protection based on the acquisition of registration, supplemented by the acquisition of use. Based on this, the author believes,When judging the trademark ownership of China Red Bull, we should not simply rely on the trademark registration application, but pay attention to the comprehensive factors of the acquisition of trademark rights and the use of trademarks.Because only focusing on the application process of Red Bull trademark and judging the ownership of the results of Red Bull trademark rights based on pure technical path is not only too simple and rude, but also will have the adverse consequences of substantial injustice.

Today, the Red Bull brand is not only a simple trademark, but also a mark of The Times and social significance at the spiritual level. It bears witness to the glorious course of China's reform and opening up, and carries the dream and pursuit of reform and opening up.

First of all, since the 1980s, China has entered an era of joint ventures to promote local development by attracting investment. Among the many foreign brands, very few can survive the great waves. Some of the secrets of its success are the strong radiation effect of well-known foreign brands, and some are the clever Chinese transformation, that is, after entering the Chinese market, embedding more Chinese elements.The Red Bull trademark is not only a typical representative of foreign trademarks in China, but also a product of organic synthesis between foreign brands and Chinese traditional culture.

Generally speaking, if foreign brands want to succeed in other countries, one of the key factors is that the cultural connotation behind the trademark is highly compatible with the national characteristics of the host country.

On the other hand, the famous brand of any country is closely related to its national spirit and culture.The Wahaha trademark is successful because it fits the Chinese nation's optimistic outlook on life and the concept of family harmony. The Chinese Red Bull trademark is no exception. Although the inspiration of the Red Bull trademark was originated in Thailand by the Hainanese Chinese Thai businessman Xu Shubiao, it is difficult for the Red Bull trademark to generate such a strong brand value in Thailand or other countries because it fails to give it enough cultural connotation. When it entered China,Because it conforms to the Chinese spirit of being down to earth and bowing its head like a willing ox, caters to the cultural artistic conception of the Chinese nation since agricultural civilization to cattle as the representative of hard work, conforms to the high morale of Chinese society, and implies the spiritual pursuit of the social people, so it quickly won the recognition of the public. In addition, China Red Bull's continuous brand promotion has made its annual sales not only grow rapidly from more than 100 million yuan in the early days to 20 billion yuan today, but also its brand awareness and brand influence have also risen rapidly.

As time goes on, Red Bull is no longer just a drink, but an important part of the lifestyle of many Chinese people. Just as Coca-Cola and McDonald's are not only necessities of life for many Americans, but also represent the spirit, culture and values of the United States to some extent, Red Bull beverage has also laid a deep brand of Chinese culture.

Secondly, in terms of the significance of the era of China's Red Bull beverage trademark, it represents China's enterprising determination to dare to try and tolerate the world in the 1990s.It not only witnessed the great achievements of China's reform and opening up, but also symbolized the achievements of China's reform and opening up. The success of Red Bull beverage brand is inseparable from the combination of opportunities in China's reform and opening up era and the nourishment of China's huge consumer market. The reason why China Red Bull was able to overcome the market obstacles encountered by Hainan Red Bull to achieve rapid development is because the relevant state-owned enterprises have taken the lead in opening up the market for foreign capital.

Finally, as far as the social significance of China's Red Bull beverage trademark is concerned, it represents the social public interest to a certain extent, also represents the gradual shift of Chinese trademarks from brand learning to brand autonomy, and also represents the development direction of China's trademark system from institutional transplantation to institutional awakening.The development of China Red Bull beverage trademark has long transformed China Red Bull from a privately-oriented joint venture company into a public joint venture company. Its huge scale of development has made 600,000 core terminals, more than 4 million sales outlets and millions of employees involved in the whole industry chain share weal and woe with it. So the value of the Red Bull drink trademark is not simply a matter of private ownership.

Moreover, the trademark of Chinese Red Bull beverage as a combination trademark is not only a copy and extract of the Thai Red Bull trademark, it has made adaptive self-adjustment and careful local training to integrate into the Chinese market.Based on the revelation of China's Red Bull trademark encounter, the trademark will also lay the foundation for the future evolution of China's trademark law related systems. It reminds us that the protection of intellectual property rights and the protection of national industry should be closely related, and the intellectual property system is closely related to the public interests, national interests and national interests of a particular society.

The history of the development of human society is, to some extent, a process of searching for human civilization. However, human beings have not reached a consensus on what civilization they pursue. Some people think that civilization is the cognition and adherence to freedom, equality and trustworthiness. Others believe that civilization is a conscious impulse and action to defend justice and fairness; There are also people who think that civilization is the scourge of evil and the aid of the weak and so on. It seems that mankind has a hard time answering the question of what civilization is, but fortunately it has a relatively clear answer to the question of what civilization should not pursue. Because the civilization pursued by mankind has a definite benchmark that civilization and barbarism have diametrically opposite value orientations and social consequences, the process of civilization is the process of mankind constantly getting rid of barbarism, and the greatest function of civilization is to be honest and trustworthy, sharing and win-win. Therefore, through the comparison of the Chinese Red Bull trademark encounter incident, we can know that civilized human society has at least two things that are beyond doubt.

First, the modern human society with civilized attributes must not rely on the barbaric plunder launched by commercial war, nor condone the unfair competition launched under the cloak of litigation, but must follow the gentleman's love of money in the right way, in other words, the capital operation of civilized society must not destroy the trust and morality.Although it is difficult to expect capitalists to have conscience and gratitude in the face of capital's pursuit of profits, the construction of a good business environment must at least be based on the integrity of capitalists. China's trademark law also declares in black and white that the registration and use of trademarks should be in good faith, so in the Chinese Red Bull trademark war, the judiciary should not encourage treachery. If it is recognized and encouraged, then the future of the Chinese market will surely have more and more "Red Bull trademark" fall.

Second, human civilized society needs not only order, and should not only stay in order, but also order based on good faith, and civilized society does not only need the rule of law, but also good law and good governance.换In other words, although the rule of law itself as a means does not have a subjective color, but the civilized society to good rule of law as the goal, so the rule of law must be conducive to social progress, which should be the support of civilized society. Therefore, as the last defense line of good law and good governance, judicial trial must protect and ensure the good implementation of the social effect, social influence and social orientation of the operation of the rule of law. Therefore, its application of the legal system should not only fall into the shallow cycle of technical implications, but should apply the law beyond the law, otherwise the rigid application of mechanical provisions may block human beings to work hard, work hard and persist with conscience. The construction of the socialist market economy with Chinese characteristics should not encourage the immorality of capital and the unkindness of the rule of law. The operation of capital should be carried out in a business environment with socialist values such as integrity, and the practice of the rule of law should also be based on the bottom line of human civilization's adherence to fairness and justice.

About the author

Zhao Wanfang：Professor of Southwest University of Political Science and Law, Deputy Director of Academic Committee of Civil Law Research Institute of China Law Society, Vice president of China Law Conference and Law Research Institute, Vice president of Law Journal Research Institute of China Law Society

Su Zhimeng：PhD candidate in Civil and Commercial Law, Southwest University of Political Science and Law

Source: Trademark Knowledge Circle, China Economic Weekly

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