Brief description of the case:

Wenzhou Yunfan culture media Co., Ltd. applied for the trademark of "Summer Festival" in category 35 advertising and category 41 Convention and exhibition services. It found that Shanghai youyaoqi Culture Development Co., Ltd. (hereinafter referred to as "Youyaoqi company") organized the activity of "Shanghai Summer Festival" in universal port, so it sued Youyaoqi company and universal port operation company to the court, demanding to stop trademark infringement and claim 500000 yuan.

In the first instance of this case, I represented youyaoqi company, made the following defense and submitted corresponding evidence:

The organizer of the event is Mr. Chen, a former employee of the company, who left before the event was held. Youyaoqi company is only the title of the event

Mr. Chen has been holding the "Shanghai Summer Festival" since 2012, which was earlier than the plaintiff's trademark application date.

Summer festival is a cultural activity similar to the market in Japan every summer. If the title of summer festival is used in the exhibition market, it constitutes a common name.

I have set up two lines of Defense:

The general name defense is based on the first paragraph of Article 59 of the Trademark Law: if the general name of the commodity contained in the registered trademark, the exclusive right holder of the registered trademark has no right to prohibit others from using it properly.

The defense of prior use is based on Paragraph 3 of Article 59 of the Trademark Law: if a trademark registrant has used a trademark that has certain influence before applying for trademark registration, the exclusive right holder of the registered trademark has no right to prohibit the user from continuing to use the trademark within the original scope of use.

In the trial of the case, in order to find out the facts, the court added Mr. Chen as a third person to participate in the lawsuit, and found that the defense of youyouyouqi company was true. The Shanghai summer festival was indeed organized by Mr. Chen, who began to hold this event as early as 2012. Therefore, according to paragraph 3 of Article 59 of the trademark law, the court rejected the plaintiff's lawsuit, and the court of second instance upheld the judgment of first instance.

Although the case won, in fact, if we didn't use this defense point first and only defend with the summer festival as a general name, we may lose the case, because the court's judgment did not determine that the summer festival constituted a general name. We have cited a lot of evidence in the case to prove that the "Shanghai Summer Festival" activity in Shanghai universal port is a market activity with Japanese cultural elements. Logically, the court should also hold that the name of the summer festival used in the exhibition is a general name, but this point was avoided in the judgment (Judgment link: https://www.qcc.com/wenshuDetail/13ae060359c25122191209642dd4bc40.html  ）.

In fact, in terms of legal basis, there is sufficient legal basis for using the general name of goods not to infringe the trademark right. In addition to the first paragraph of Article 59 of the Trademark Law mentioned above, the Supreme People's court has several judicial interpretations that stipulate this. However, in other words, in practice, the actual situation in judicial practice is that the vast majority of the defenses against the reasonable use of general names will be rejected by the court.

At present, the standard presented by Chinese courts in the trial of trademark infringement cases is to be lenient to the trademark owner and strict to the defendant: the court is very lenient in the identification of infringement in such cases. As long as you can get the trademark, I will protect it. The identification of the reasonable use of the defendant's common name is relatively strict. They often pick bones in their eggs and buckle the big hat of "prominent use" and "no active avoidance", To prove the rationality of the determination of infringement.

It is easy for the trademark owner to abuse intellectual property rights. Intellectual property is an artificially set right. If it is over protected, it will damage the interests of the public. For example, Tongguan roujiamo and Xiaoyao town hu la Tang are general terms for foods processed with similar cooking methods and ingredients. If their names are registered as trademarks, they are not allowed to be used by people without trademark permission, which will lead to confusion in the public's understanding of a certain food, not to mention affecting the livelihood of many small and medium-sized operators.

Although the news of Tongguan rougamo and Xiaoyao soup with pepper last year has attracted public attention, this year, we continue to see in the news that hot pot shops use green pepper on green pepper hot pot fish and Hericium erinaceus on Hericium erinaceus biscuits, which have been recognized as trademark infringement by courts in many places.

Finally, the ultimate purpose of trademark protection is to protect consumers, so that they can distinguish trustworthy products when shopping. However, if operators register the name of goods or raw materials as trademarks, and thus crack down on other people's use, it is actually the trademark owner who monopolizes the name that originally belongs to the public domain. If judicial guidance supports this, it is actually dissimilating the purpose of trademark protection and fair competition, It is detrimental to the protection of consumers' rights and interests.