In May 21, Yantai Changyu Group Co., Ltd. filed an application for the registration of the trademark "Jiebaina" with the Trademark Office of the State Administration for Industry and Commerce. After the preliminary examination and approval by the Trademark Office, it was announced. No objection was raised within the statutory objection period. The Trademark Office approved the registration in April 22, with the trademark registration certificate No.1748888. The designated protected commodities include wine, brandy, shochu, etc., and the exclusive use period is until April 212.
This move caused opposition from wine manufacturers such as COFCO Great Wall. On July 1th, 22, the Trademark Office made the Decision on Revoking the Registered Trademark No.1748888 of Cabernet Sauvignon (22) No.187, considering Cabernet Sauvignon as the name of the raw material variety of red wine, and revoked the registered trademark. At the same time, several wine producers, such as Great Wall, Veyron, Dynasty, etc., also jointly submitted an application for cancellation of registration to the Trademark Review and Adjudication Board on the grounds that Cabernet is the common name of wine and the main raw material for brewing wine, demanding the cancellation of the trademark Cabernet.
Changyu Company filed a request for reexamination with the Trademark Review and Adjudication Board in response to the revocation decision made by the Trademark Office. At the same time, the dispute applications filed by Great Wall and other companies are also being heard by the Trademark Review and Adjudication Board. On May 26th, 28, after repeated argumentation and several rounds of review, the Trademark Review and Adjudication Board made the decision of Shangpingzi (28) No.5143 to revoke the decision of the Trademark Office No.187, and rejected the revocation request of Shangpingzi (28) No.5115 by Great Wall and other units, maintaining the No.17488 registered by Changyu Company on the 33rd category of wine (beverage) and other commodities. Among them, decision 5143 has taken legal effect. "Jiebaina" trademark is still a valid registered trademark.
In June 28, COFCO Liquor Company, Weilong Company (which withdrew its lawsuit during the trial), Dynasty Company and Great Wall Company filed an administrative lawsuit with Beijing No.1 Intermediate People's Court because they refused to accept the ruling of the Trademark Review and Adjudication Board. In October 28, the court heard the case twice in public, and after more than a year, it made a first-instance judgment a few days ago.
1. Is "Cabernet" a generic name
Obviously, the focus of the contradiction between the two sides is the dispute over the brand and variety of Cabernet.
according to the provisions of China's trademark law, a generic name refers to a commodity name that is standardized or established by national standards and industry standards.
firstly, "cabernet" is a brand name originally created by Changyu in 193s, not a translation of "cabernet". What's more, there are many translations of the French word "cabernet", such as "Jia Ben Li", "Jia Bennerdt" and "cabernet", and there is no fixed correspondence between "Cabernet" and "Cabernet".
second, in all the standards related to grape varieties issued at home and abroad, there is no saying that "cabernet" and "Cabernet" are grape varieties and strains.
Thirdly, in the regulations of the International Grape Wine Organization (OIV) and the national standards for wine, dry red wine and sweet white wine are all common names of wine, and no wine is classified as Cabernet Sauvignon.
2. Expert opinions from authoritative departments
The Grape Branch of China Agricultural Society has reached the same conclusion on this dispute. They think: "Cabernet has not been published in the list of nearly a thousand grape varieties in China, and the name Cabernet has not been applied in the national grape academic circles and production." "Regarding the strain, there has never been a name of Cabernet Sauvignon or strain in all the Chinese and foreign wine grape varieties."
"GB1537-26 wine national standard, which is consistent with the regulations of OIV, stipulates that the names of wines are classified into white wine, pink wine and red wine according to color; According to the sugar content, it is divided into dry type, semi-dry type, semi-sweet type and sweet type. Therefore, dry red wine, sweet white wine, etc. are all common names of wines, and no wine is classified as Cabernet Sauvignon, so Cabernet Sauvignon is not a common name of products, "china alcoholic drinks industry association affirmed to reporters." Defining Cabernet Sauvignon as a common name is not in line with internationally accepted norms and guidelines. "
Legal experts believe: "Four or five years ago, the Supreme Court made a judgment, which raised the question of how to distinguish proper names from common names. A proper name refers to a commodity name that is not commonly used by related commodities, has distinctive characteristics, and enables consumers to distinguish the commodity from similar commodities of other operators through its use on commodities. Changyu Jiebaina has been used in such a state since the founding of the People's Republic of China, although it has not been registered as a trademark. Changyu Jiebaina's use has distinctive features, which can be distinguished from other similar products. It already has the attributes of a trademark and does not belong to a common name. "
Grape and Wine Branch of China Horticultural Society: "Cabernet" is not the name of grape variety. According to the grape variety names and recognized standards named by crop and horticulture circles in China, there is no grape variety named "Cabernet". Secondly, "Cabernet" is not a general term for grape strains (or variety series). In China, Cabernet Sauvignon, Cabernet Franc and Cabernet Sauvignon are three completely independent grape varieties. Therefore, "Cabernet Sauvignon" does not conform to the concept of grape strain, and it is incorrect to classify the above three varieties into one strain.
Wang Qi, secretary general of china alcoholic drinks industry association, believes that "Cabernet Sauvignon" has gone through such a course in 7 years. If we completely deny Changyu's efforts to Cabernet Sauvignon, it will not only hurt an enterprise, but also cause greater losses to the wine industry in China. Wang Qi also believes that encouraging innovation, protecting innovation and respecting individual corporate brands are protecting the wine industry in China.
Huang Yibiao, a senior lawyer of Beijing Wanhuida Law Firm, believes that since "Cabernet" is not a grape variety and strain, it cannot be used as a common name for grape raw materials.
Feng Xiaoqing, deputy director of the Intellectual Property Research Center of China University of Political Science and Law, believes that social public interest and individual interest are in a corresponding relationship, and social public interest is a kind of public resource that can be shared by unspecified majority, and they should be protected in a balanced way: individual interests cannot be harmed in the name of public interest.
Dong Baolin, director of the Expert Committee of China Trademark Association of the State Administration for Industry and Commerce and vice president of Beijing Intellectual Property Research Association, believes that if the dispute of "Xiebaina" continues and is not handled properly, it will not only damage the trademark rights of Changyu Company. If "Cabernet Sauvignon" is commonly named, foreign wine manufacturers can also use it, so that a national brand cultivated by Chinese enterprises will disappear, which will affect the competitiveness of Chinese national brands in the international market.
3. The source of Xie Baina's misunderstanding
The root cause can be traced back to 1956.
After the founding of New China, Changyu actually took on the heavy responsibility of the national wine training base. At that time, according to the instructions of the Ministry of Light Industry, Changyu Company was responsible for hosting the University of Wine Making, training professionals for brewing wine for the whole country, and taking Changyu Company as a teaching base.
For the convenience of lectures and on-site teaching, teachers and technicians used to refer to the original wine brewed by grape varieties such as Cabernet Sauvignon, Cabernet Sauvignon and Cabernet Sauvignon as "Cabernet Sauvignon" wine. Therefore, some students mistakenly thought that the above grape varieties were called "Cabernet Sauvignon", which left a hidden danger for the later erroneous statement about Cabernet Sauvignon.
According to reports, from 193s to 198s, there was no statement that "Cabernet Sauvignon" was a variety in various national books and periodicals. It was not until the 198s that this statement appeared in some books and periodicals. Cabernet Sauvignon was called Cabernet Sauvignon, while Cabernet Franc was called Cabernet Sauvignon and Carmen Knight. This was because there was not much information about wine in China at that time, and the translation was biased, which misled some authors to some extent. Therefore, the later statements about Cabernet were so confusing that there was a gap in the dispute over Cabernet.
4. The essence of the dispute over Jiebaina
For more than p>7 years, Changyu Company has always used Jiebaina as a brand and a registered trademark, which has undeniable continuity. The vitality of the' Jiebaina' trademark is also one of the few in the history of national industrial trademarks in China. A few other enterprises copied and imitated Changyu Cabernet dry red wine in the late 199s. Just because a few enterprises copied and imitated Cabernet in recent years, we can't assume that it is the common name of grape varieties or strains or commodities, but we can't deny a trademark with 7 years of vitality.
however, I'm afraid the dispute over Cabernet is no longer limited to the dispute over trademark registration! In a larger sense, the essence of this debate is whether the fundamental interests of consumers can be guaranteed.
"In fact, the biggest loss is consumers!" An industry expert hit the nail on the head and pointed out that "more than 3 cabernets swarmed, dazzling from 1 yuan to 8 yuan, and consumers will not be able to distinguish their authenticity."
An industry veteran thinks that if Changyu successfully registers Cabernet Sauvignon, it will be a heavy blow to the wine industry!
In this way, the interests of consumers and industries seem to be the focus of debate!
However, an industry expert's view is quite different. He believes that in essence, the real interests are only the interests of some small groups in the industry who fake Cabernet dry red, and they cannot represent the interests of the whole industry. In the long run, the interests of the industry should be the same as those of consumers.
In fact, Changyu Cabernet Sauvignon has a long history, a strong market and various awards because it is the real Cabernet Sauvignon image in the eyes of consumers.
5. Overview of the process of Zhang Yu's trademark solution of Baina
In May p>21, Zhang Yu applied to the Trademark Review and Adjudication Board for trademark registration of Baina; In April 22, the State Trademark Office issued a registration certificate, but it was jointly opposed by enterprises in the industry. After a lapse of three months, the State Trademark Office revoked the registered trademark. Zhang Yu refused to accept it, and the case entered a long administrative review.
in June, 28, the Trademark Review and Adjudication Board ruled that Cabernet Sauvignon is not a generic name for grape varieties or products used in the industry, but a wine trademark owned by Changyu Group.
In the same month, more than a dozen wine producers, such as Great Wall, Veyron and Dynasty, rose up against it. They believe that Cabernet is the common name of wine, the main raw material for brewing wine, and the public resources of the industry, and no enterprise has the right to possess it privately, and then they jointly filed a lawsuit with the Beijing No.1 Intermediate People's Court.
On December 3th, 29, Beijing No.1 Intermediate People's Court made a first-instance judgment on the case. The court held that because the plaintiff and the third party submitted a large amount of evidence that might affect the outcome of the substantive ruling of the case, if they were not considered, it would not be conducive to the protection of the legitimate rights and interests of both parties, especially the interests of the public. Therefore, the court decided to revoke the ruling No.5115 of the defendant Trademark Review and Adjudication Board and make a new ruling on the basis of considering the new evidence submitted by the parties.
Feng Xiaoqing, deputy director of the Intellectual Property Research Center of China University of Political Science and Law, said in an interview with China Intellectual Property News: The first-instance judgment only requires the Trademark Review and Adjudication Board to make a new ruling on "the trademark dispute request filed by COFCO Great Wall", and it does not directly determine who wins or loses the trademark dispute. The legal procedure of this case has not been completed, so the legal effect of the trademark registration of "Jiebaina" will not change.