Why did Guangzhou Pharmaceutical prevail in the previous legal game?
As an intellectual property lawyer, I am still a little disappointed with the judgment of this case, because in the previous litigation, it was not too much to describe Jiaduobao as "losing pants": the trademark licensing contract was invalid and the trademark licensing right was lost; Trademark infringement litigation was awarded huge compensation; The slogan of "fear of getting angry" was awarded to Guangyao; Advertising slogans such as "The leading red pot herbal tea in China is renamed as Jiaduobao" and "For every 10 pot herbal tea sold in China, 7 cans of Jiaduobao" were sentenced to false propaganda and unfair competition, and so on.
According to the previous trend, it may be reasonable for Jiaduobao to lose the second trial of this case, because Guangyao is the authorized party. In the intellectual property game, common sense is that the licensor will be more dominant. Because the right belongs to the licensor, in order to obtain authorization, the user must accept the cooperation conditions of the licensor, and the authorization of intellectual property rights has a time limit. Considering that Licensor may not renew the contract when it expires, users will generally be more accommodating to Licensor.
Three core reasons that may be involved in the revision of the Supreme Court's judgment
1, the taste is closer to the essence of herbal tea products than the brand.
According to the provisions of the Anti-Unfair Competition Law, the packaging and decoration right of red canned herbal tea involved in this case is actually divided into two concepts, the right of red canned herbal tea as a well-known commodity and the packaging and decoration right of well-known commodities.
The core issue of the case dispute is, what is the ownership of the famous commodity right of red canned herbal tea? Guangyao believes that the well-known commodity rights should be owned by Guangzhou Pharmaceutical Group, the trademark licensor of Wang Laoji, while Jiaduobao believes that consumers come for the taste of herbal tea, and Jiaduobao holds the formula of "Red Canned Wang Laoji Herbal Tea" (at present, Guangzhou Pharmaceutical Group still has not mastered the formula), and the well-known commodity rights of red canned herbal tea should be owned by Jiaduobao. This issue is not clearly defined by law.
In all fairness, Jiaduobao's reason is dominant, because the taste of goods is closer to the essence of products than brands. Intellectual property rights are not like property rights, but rights created to encourage innovation. From the perspective of social interests, give a piece of cake to intellectual property rights holders. Therefore, public awareness and consumers' rights and interests should be the most important criteria for judging intellectual property cases with unclear legal provisions.
The original red pot Wang Laoji herbal tea produced by Jiaduobao is the mainstream product in the market, which shows that consumers have higher acceptance of its taste. Consumer acceptance is of course one of the reasons why the product is well-known. Now the trademark owner has withdrawn his authorization. If he is not allowed to produce red pot herbal tea, consumers may not be able to obtain products that are more in line with their tastes, which is obviously not in line with public awareness and consumer interests.
2. Wang Laoji products of dividend jar and green box in Jiaduobao success zone before.
All users of intellectual property rights are weak in the face of licensors. Their most painful moment is not the moment when the authorization expires, but the moment when the licensee raises the asking price when negotiating the renewal of the authorization. Therefore, some users will make a similar product with their own intellectual property rights. If the license expires and is not renewed, they will put their original business resources into their own products. Others will find many ways to bind themselves with the intellectual property rights of the licensor in their operations. If the licensor does not renew their contracts, they will pay a high cost.
One of Jiaduobao's most successful moves is to bind the packaging and decoration of red cans with Wang Laoji. Before, there were two kinds of Wang Laoji herbal tea on the market, the red jar of Jiaduobao and the green box of Guangyao. This may be the best business model design that Jiaduobao has ever done, and it may even be better than only red cans without green boxes. Because this can distinguish the products with their own tastes from the tastes of Guangzhou Pharmaceutical. This design is obviously successful. Although the Supreme Court ruled that both parties enjoy the packaging and decoration of red cans, as an operator who lost his brand, he should have nothing, but now he can use the packaging and decoration of Wang Laoji, which is undoubtedly a great victory for Jiaduobao.
3. Pay attention to the new judicial policy of equality of market participants.
The new judicial policy of protecting all kinds of market subjects equally is obviously one of the reasons for the change of sentence. On the same day that the Jiaduobao case was pronounced, the Supreme People's Court also issued "Several Opinions of the Supreme People's Court on Providing Judicial Protection for Improving the Business Environment", which stipulated that all kinds of market entities should be equally protected according to law, fully implementing the work requirements of equally protecting different ownership entities, market entities in different regions and interest entities in different industries, adhering to the principle of equal legal status, providing equal rights protection and equal development opportunities for all kinds of market entities, and promoting the formation of an equal, orderly and dynamic business environment ruled by law. In other words, the Jiaduobao case may become a typical case of equal protection of different ownership subjects.
Finally, talk about the impact of the case on the licensor and user of intellectual property rights. Unlike trademark rights, which are very legal, the right of packaging and decoration of well-known goods is more similar to rights and interests, and will generally be confirmed after the court finds infringement. When trademark infringement is found, the obligee can complain to the industrial and commercial bureau to quickly crack down on the infringement. At the same time, in parallel with the right of well-known commodity packaging and decoration, there are the copyright of commodity packaging and decoration design in copyright law, the patent right of appearance design in patent law and the three-dimensional trademark right in trademark law.
Therefore, this case may not have much impact on the industry authorized by intellectual property rights. As far as Licensor is concerned, it should ask a lawyer to amend the standard license contract as soon as possible, and stipulate that the well-known commodity rights and corresponding packaging and decoration rights arising from the license contract belong to Licensor. For users, they should apply for parallel intellectual property rights of packaging and decoration as far as possible, including but not limited to design copyright registration, design patents, three-dimensional trademarks, etc., so as to facilitate the game with the licensor.