With today’s headlines, can there be "today’s fried dough sticks" and "today’s noodles"? Recently, this issue has caused netizens to watch. Today’s fried dough sticks company in Henan has designed a storefront that is highly similar to today’s headline LOGO and its APP interface, and a slogan similar to today’s headline "You care about the headline": "You care about you is a good fried dough sticks", and the business looks good.
However, the announcement of Guangzhou Intellectual Property Court recently showed that Beijing ByteDance Technology Co., Ltd., to which today’s headline belongs, took "Today’s fried dough sticks" to court.
Does today’s fried dough sticks constitute infringement? What is trademark infringement? What punishment will "today’s fried dough sticks" face once they are convicted of infringement? Please see the lawyer for a detailed explanation.
Can "Today’s Headline" Trademark be Cross-protected?
According to the enterprise survey data, today’s fried dough sticks catering management Co., Ltd. was established on May 13 this year with a registered capital of 1 million yuan. In addition to the "Today’s fried dough sticks" signboard, today’s fried dough sticks company applied for 16 trademarks such as today’s noodles, many cakes, instant cakes and tomorrow’s fried dough sticks in the categories of food, catering accommodation and convenience food. However, the above trademark applications are in a state of "waiting for substantive examination" and have not been successfully registered at present.
China’s trademark law stipulates that using a trademark similar to its registered trademark on the same commodity or using a trademark identical to or similar to its registered trademark on similar commodities without the permission of the trademark registrant is likely to lead to confusion, which is an infringement of the exclusive right to use a registered trademark.
The reporter noted that although ByteDance Company also registered the "Today’s Headline" trademark in the international classification "Class 43", the sub-item is "Day Nursery (babysitting); Animal foster care; Blankets for rent. " The trademark "Today’s Headline" registered in such sub-projects as "restaurants, teahouses and cafes" has passed the preliminary examination under the name of "Xia Rong (Shanghai) Catering Management Co., Ltd.". Therefore, "Today’s Headline" does not actually have the prior right of the trademark of the restaurant category, and whether the "Today’s Headline" trademark of the information technology category can be protected to the catering category will become the key.
Huang Hui, an intellectual property partner of Wanhuida, believes that now is the era of attention economy, and today’s deep-fried dough-strips company is still applying for quick cakes and lots of cakes. In fact, they all want to take a shortcut and hitchhike and should not be encouraged. "This is obviously a free ride by taking advantage of other people’s market reputation." Huang Hui believes that the word "today’s headline" itself is relatively weak, because "today" and "headline" are the daily language of news media, but combined with the special graphic expression, according to the judicial interpretation of protecting well-known trademarks in China, today’s headlines may still be protected by well-known trademarks.
Wu Xinhua, a senior partner of Beijing Weiheng Law Firm and director of the intellectual property department, also said that "Today’s Headline" itself is a word combination with weak distinctiveness, but it has gained high popularity and is well known by the relevant public after being widely used and publicized by ByteDance Company in recent years. However, whether it can be protected as a well-known trademark depends on the trial of Guangzhou Intellectual Property Court.
Main identification elements of trademark infringement
The cross-border imitation of "today’s fried dough sticks" is not unusual. Around well-known enterprises, "trademark imitation show" is often staged. Then, in judicial practice, how to identify trademark infringement? As long as the names are close, is it infringement?
The reporter noticed that there is a ready-made case that is very close to today’s fried dough sticks, which can be used to illustrate.
Pinduoduo, a well-known e-commerce platform, has been ridiculed by many people as "fighting for the evening". In November 2017, Shanghai Shita Information Technology Co., Ltd. registered the trademark "Pinxixi", and launched the website "Pinxixi Mall", WeChat WeChat official account and the mobile phone software "Pinxixi". On the "Pinxi Shopping Mall", there are also columns such as time-limited spike, quality fruit, half-day arrival, spelling love, 9 yuan and 9 special sales, and even imitating Pinduoduo’s advertising slogan: "Shopping APP that 100 million people are fighting for".
In 2018, Pinduoduo’s Shanghai Dream Search Technology Co., Ltd. sued Shanghai Shita Information Technology Co., Ltd. to the court on the grounds of trademark infringement and unfair competition.
The court’s first-instance judgment clearly stated that the central part of the two trademarks is Chinese "spelling". Observing the trademarks of the two brands with the general attention of the relevant public, the overall structure is similar, and it is easier for the relevant public to use Chinese "spelling" as the calling keyword when identifying the two brands. In addition, Pinduoduo’s trademarks are well-known and prominent. When the relevant public identifies the accused logo in isolation, it is easy to misunderstand the service source. Therefore, the court ruled that the two trademarks constitute similar trademarks, and the use of the accused logo by Shita Company infringed the exclusive right to use the trademark enjoyed by Dream Search Company.
It can be seen from the court’s judgment that the key to trademark infringement lies in whether the main identification elements will cause misidentification.
"Specific to this case, the design of the scarlet letter in today’s headline box is its unique logo, and its popularity is high. Today, the attempt to imitate the use of fritters is obvious." Huang Hui analyzed, "When the court identifies a well-known trademark, it should combine the specific pattern to identify it."
In other words, whether today’s fried dough sticks or today’s noodles are suspected of hitchhiking on today’s headlines, as for today’s fried dough sticks, highlighting the word "fried dough sticks" in the form of oblique red frame and white background in the trademark, highly imitating the trademark and propaganda slogan of today’s headlines, and the intention of creating associations is very obvious, which is likely to infringe on the exclusive right to use trademarks enjoyed by ByteDance.
"China’s trademark law stipulates that applying for trademark registration shall not damage the existing prior rights of others, nor shall it preemptively register trademarks that others have used and have certain influence by unfair means. In addition, for well-known trademarks registered by others, the trademark law gives cross-class protection under certain conditions. " Wu Xinhua said, "ByteDance can object to the trademark of today’s fried dough sticks in accordance with the law during the announcement period of preliminary examination. If it is a registered trademark, you can file an application for invalidation. "
"Bangda Brand" can be fined up to 5 million yuan.
Regarding his trademark registration, the person in charge of today’s fried dough sticks company explained: "I brush today’s headline APP every day, and I am a loyal user, ‘ Next to the big name ’ Just for fun. " The company also issued an "open letter", saying that it should take headlines as an example and be a favorite breakfast brand for ordinary people.
"If the report is true, the words of the person in charge of today’s fried dough sticks company just show his subjective intention, which will be unfavorable to the enterprise in determining the facts of the case." Wu Xinhua believes.
According to the trademark law, the infringer usually has to bear the responsibility of stopping the infringement, and the perpetrator who knows or should know that it is an infringement also has to bear the responsibility of compensation. If the circumstances are serious, they shall also bear criminal responsibility.
In recent years, China’s protection of intellectual property rights, including trademarks, has been increasing. In April 2019, the National People’s Congress Standing Committee (NPCSC) revised the Trademark Law to increase the punishment for infringement of the exclusive right to use a trademark. The revised terms increased the amount of compensation for malicious infringement of the exclusive right to use a trademark from more than one time to less than three times to more than one time to less than five times, and raised the upper limit of legal compensation from 3 million yuan to 5 million yuan. The revised terms came into effect on November 1, 2019.
"Operators must enhance their awareness of intellectual property rights and respect the prior trademark rights and interests of others, ‘ Next to the big name ’ It’ s cool for a while, and there are two lines of tears after the calculation. Malicious infringement of the exclusive right to use registered trademarks of others will be severely punished by law. " Wu Xinhua reminded, "In addition, the Anti-Unfair Competition Law stipulates that it is forbidden to use the same or similar marks such as commodity names, packaging and decoration that have certain influence on others without authorization. Today, the font pattern used by the fritters company on the storefront signboard is very similar to today’s headline trademark, and it is also suspected of violating the Anti-Unfair Competition Law. "