In trademark licensing, there will be new intellectual property rights, such as product design right, packaging design copyright, affiliated brands other than licensed trademarks (such as sub-trademarks, unique names of goods, etc.). ), well-known packaging and decoration, product advertising language (trademark or copyright) and so on. The ownership of these rights depends on the free agreement between the two parties. However, in any case, there is a basic principle: after the expiration of the trademark license period, the use of objects with intellectual property rights such as design, packaging, trademark and advertising language in the future shall not cause contradictions and disputes between the two parties.
After the trademark license is terminated, the licensee can no longer produce and sell goods containing the trademark. If there may be rights such as design, packaging and decoration, advertising language, etc. At the same time, under the ideal agreement, the trademark owner should enjoy these rights at the same time (of course, there may be other considerations). Otherwise, if the rights existing in a commodity will be enjoyed by different legal subjects, there will be many legal obstacles for any party to continue to produce and sell the commodity, which will lead to constant disputes and controversies.
And such unfortunate things appeared in Wang Laoji's trademark license. In the trademark license contract signed by GPHL and Jiaduobao's parent company Hongdao Group in 1995, it was clearly agreed that Hongdao Group was authorized to produce and sell red cans and red bottles of Wang Laoji herbal tea. During the license period, GPHL did not produce red cans of herbal tea, but only green boxes of herbal tea. Because the packaging of Wang Laoji, a red can, was designed by Hongdao (Jiaduobao), although the design patent has expired, who belongs to the packaging as a well-known and unique commercial logo, because there is no clear agreement in the prior contract, it can be said that it is fair and reasonable.
Some people think that the civil judgments of Foshan Intermediate People's Court (2003)No. 19 and Guangdong Higher People's Court (2003) No.2 12 clearly identify that Jiaduobao has production. Wang Lao Ji herbal tea? The red can packaging of products is a well-known unique commodity packaging, so the right of this unique packaging obviously belongs to Duobao Company.
It should be pointed out that Article 5 of the Anti-Unfair Competition Law protects well-known commercial marks (red cans of herbal tea), not the well-known goods themselves (herbal tea produced by Jiaduobao). It cannot be said that Wang Laoji herbal tea was produced by Jiaduobao at that time, so the unique packaging of this herbal tea must belong to Jiaduobao.
Because Jiaduobao was produced and sold as a trademark licensee at that time. Wang Laoji? Brand herbal tea, no roll call? Jiaduobao? Brand herbal tea, from the common sense of consumers to identify goods, what should you think of when you see herbal tea packaged in red cans? Wang Laoji? Brand herbal tea, regardless of whether this herbal tea is produced by Jiaduobao or who produced it. So, for the public, at that time? Red pot herbal tea packaging? What should this corporate logo point to? Wang Laoji? Instead of. Jiaduobao? . Even if many consumers already know? Is the original red pot Wang Laoji herbal tea produced by Jiaduobao? However, this fact is undeniable: a wider range of consumers may not know what this relationship is at all, at least for now, there are still consumers who often put? Red jar Jiaduobao? What is the name of herbal tea? Wang Laoji? herbal tea
There is also a view that the licensee may also enhance the popularity and commercial value of his trademark by using his own commercial marks on goods at the same time, and the rights and interests related to these commercial marks should belong to the licensee unless otherwise agreed.
I don't deny that a commodity can have multiple business logos of different owners (for example? Lenovo? Stick it on the computer? The window? Operating system and? Intel? Trademark of CPU); The licensee may also use its own unique business logo (for example, the seller affixes its own sales trademark to the goods it sells) under the conditions stipulated in the trademark license contract or not prohibited. However, the premise of the coexistence of trademarks of different subjects on a commodity is that the public should clearly know that the business logo belongs to? Licensee? Unique business signs, such as? Lenovo? Buyers of computers won't post them on it? The window? Trademark, you will mistakenly think this is? Microsoft? Products; ? Carrefour? For sale? Jiaduobao herbal tea? Although I added one to the list? Carrefour? Logo, but consumers won't think this is? Carrefour? Herbal tea produced; Buy? BMW Brilliance? Consumers clearly understand this. Brilliant? Produced? BMW? .
The red pot herbal tea produced by Jiaduobao obviously does not belong to the above situation: because during the trademark licensing period, the red pot herbal tea produced by Jiaduobao has always been called? Wang Laoji? Herbal tea instead? Jiaduobao+Wang Laoji? Herbal tea Although Jiaduobao also tried to quietly change consumers' cognition: Let the public put? Wang Laoji? And then what? Jiaduobao? They are even equivalent, but at least until the trademark license is terminated, most people still only know red cans. Wang Laoji? , and don't know the red pot? Jiaduobao? .
Therefore, when a commodity (Wang Lao Ji Herbal Tea) has two distinct commercial signs (product specific name or trademark Wang Lao Ji+product specific red can packaging and decoration), in principle, in order to avoid public confusion, we should try our best to keep the identification functions of the two commercial signs unified; At least in the absence of clear agreement in the contract, when will Guangzhou Pharmaceutical be recovered? Wang Laoji? In the case of trademark use rights, is Wang Laoji herbal tea unique? Red can packaging? The right must belong to Jiaduobao, and Jiaduobao can ban the production of Guangzhou Pharmaceutical? Red can packaging? The viewpoint of herbal tea is debatable.
However, we should also acknowledge the fact that Guangzhou Pharmaceutical is terminating? Wang Laoji? After the trademark was licensed, although it has started to produce and sell its own red cans of Wang Laoji herbal tea, it is not much different because Jiaduobao uses its own advantageous commercial channels and fruitful advertising, and soon puts the red cans with outer packaging on the market. Jiaduobao? Herbal tea and Guangyao can't afford it for a while. Although Jiaduobao can no longer be used for red pot herbal tea? Wang Laoji? Although consumers are used to calling red cans of herbal tea? Wang Laoji? But what do consumers buy to drink? Jiaduobao? Herbal tea is completely calm, and even consumers are slowly accepting it: there are two kinds of red canned herbal tea on the market, one is called Wang Laoji and the other is called Jiaduobao.
So, if consumers can clearly distinguish between two different brands of red canned herbal tea, is this red canned packaging still so-called Unique? Packaging? Do the red cans of Wang Laoji herbal tea and Jiaduobao herbal tea have to compete?