"Golden Crown Garden" questioned the plaintiff's "malicious litigation" and bad motives

□Su Yanbo

The "Jinguanyuan Well-known Trademark Case" has attracted the attention of many people in the industry. Regarding the behavior of the plaintiff He, people from all walks of life have expressed their opinions, some condemned it, some appealed for it, and everyone put forward different opinions on the issues in the case. We interviewed several industry insiders regarding the various issues reflected in the case and the behavior of the plaintiff He.

Some people say that this is a "farce" by He, so where is his "farce"? Some people also say that this is a "prank" by He, so how did he "prank" it? Let’s listen to professional analysis.

Keyword "malicious"

Luo Xuxu, lecturer at Huaqiao University Law School and Ph.D. at Xiamen University Law School

What is "fraud"?

The plaintiff He accused Jinguanyuan Company and Qilong Company of defrauding him in both the first and second instances. In this regard, both the first and second instance courts ruled that the plaintiff’s reason for “fraud” was not established. So, what is "fraud"? On this issue, we interviewed Luo Xuxu, a Ph.D. from Xiamen University Law School and a lecturer at Huaqiao University Law School.

Luo Xuxu: The so-called fraud, Article 67 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of Civil Law" stipulates that "one party intentionally informs the other party of false information, or deliberately conceals the true situation, to induce the other party to make a wrong expression of intention can be deemed as fraudulent behavior." According to this provision, fraud should have the following elements at the same time. First of all, the subjective mental state of the perpetrator of the fraudulent act can only be intentional. Compared with the general fault liability, the fraudulent act is more strict and narrow, which excludes the negligent act from constituting the fraudulent act. Secondly, the means of fraud means that one party intentionally informs false information or deliberately conceals the true situation; finally, the purpose of fraud is to induce the other party to make a wrong expression of intention. In this case, the well-known trademarks of Jinguanyuan Company and Qilong Company were only factual statements, and they did not intentionally inform He of false information. At the same time, He could truly understand the name, raw materials and other information of Jinguanyuan's products from the product labels of Jinguanyuan. Jinguanyuan Company did not deliberately conceal the true condition of the product to induce He to purchase "Jinguanyuan" products. The first and second instance courts ruled that Jinguanyuan Company and Qilong Company did not constitute fraud against He, and had sufficient factual and legal basis.

Does marking “China’s Well-known Trademark” on product labels violate the Advertising Law?

In the first and second instances, He believed that Jinguanyuan Company violated the Advertising Law by labeling its products as "well-known Chinese trademarks" without indicating the source. In this regard, Luo Xuxu believes that the Advertising Law does not stipulate that well-known trademark holders must indicate the source when labeling "China's well-known trademarks". At present, Chinese laws do not prohibit well-known trademark holders from labeling their products as “well-known trademarks in China” or “well-known trademarks.” As long as the well-known trademark is found to be true, the well-known trademark holder's behavior of marking "China's well-known trademark" on its products does not violate the mandatory provisions of laws and regulations.

If a malicious lawsuit causes harm to others, you will be held legally responsible

Luo Xuxu told us that malicious litigation refers to a behavior in which the parties know or should know that the purpose of the lawsuit is unfair, but still appeal for protection, resulting in unfair litigation and infringement of the other party's legitimate rights and interests. At present, the law does not specifically stipulate the legal liability for "malicious litigation". However, from a legal perspective, malicious litigation is a special tort. If there is sufficient evidence to prove that malicious litigation causes harm to others, , then you must bear corresponding legal responsibilities.

Keywords "well-known trademark"

Liu Fengxiang, General Manager of Quanzhou Shangzheng Trademark Agency Co., Ltd.

"Well-known trademark" is a case-by-case determination and fact-finding

　　He once asked the court to recognize the "Jinguanyuan" trademark as a non-well-known trademark. To this end, we visited Liu Fengxiang, general manager of Quanzhou Shangzheng Trademark Agency Co., Ltd. According to Mr. Liu, well-known trademarks recognized by the judiciary are "case-by-case determinations." That is to say, only in cases involving trademark rights and interests, the court shall, based on the request of the parties, the factual evidence of whether the trademark involved is well-known, and the needs of the case trial, in accordance with the " According to the provisions of the Trademark Law, whether the trademark involved in the case is a "well-known trademark" shall be determined in the factual part of the "Ruling" and "Judgment". Cases that do not involve trademark rights will not encounter the problem of identifying well-known trademarks. This case is just an ordinary civil case and naturally does not involve the determination of whether the trademark is well-known. He requested to revoke the recognition of the "Jinguanyuan" well-known trademark and should apply to the court of first instance for a retrial.

The judicial identification and administrative identification of "well-known trademarks" are equivalent

Mr. Liu also told us that many people still look at judicially recognized well-known trademarks with colored glasses and believe that judicially recognized well-known trademarks are "civilian" trademarks, while administratively recognized trademarks are "noble" trademarks. This is actually wrong. . Judicially recognized and administratively recognized well-known trademarks should be equivalent, and the effects of the two recognitions are the same. From a legal point of view, the well-known trademarks recognized by the industrial and commercial administration and the judicial recognition are essentially the same. They are both recognized based on the five elements that a well-known trademark should have in Article 14 of the Trademark Law. They refer to a product or product. Legal recognition of reputation for service quality. In foreign countries, judicial determination is the most common, while administrative determination is rarely mentioned.

Especially with China's "entry into the WTO" and its integration with the international market, according to some international agreements currently signed by our country, such as the Paris Convention, the protection of well-known trademarks is international, and all relevant countries must provide special protection to well-known trademarks. my country’s Trademark Law also provides special protection to well-known trademarks that have been registered or unregistered in China.

Experts call for joint efforts to maintain a harmonious market environment

Since there are still irregularities in the laws, regulations and management of trademarks in Quanzhou, Mr. Liu called on consumers to strengthen their understanding, government departments to improve management standards, and enterprises to have a sense of self-protection to jointly build a harmonious society. market environment.

Keyword "consumer" identity

Wu Wenfu, Chairman of Golden Crown Food (Fujian) Co., Ltd.

He is not an ordinary consumer and has bad motives for purchasing “Jinguanyuan” products.

After the case, He's identity as a "consumer" and his motivations for his behavior were questioned by many people.

Regarding the issue of He’s identity as a “consumer”, Wu Wenfu, chairman of Jinguanyuan Company, said in an interview: Jinguanyuan questioned He as a “pseudo-consumer” because there were many doubts about He’s behavior.

First of all, He claimed to be from "Hubei" and came to Quanquan to work. In fact, according to his ID card number, He was from Wuping County, Longyan City, Fujian Province. Moreover, the temporary residence address in Quanzhou provided by He is also false. Secondly, He’s purpose of purchasing “Jinguanyuan” products was not for “life consumption needs”. If He does not approve of "Jinguanyuan" products, or only buys condiments with well-known trademarks, it is common sense that he will not buy Jinguanyuan products at all. What is incredible is that He bought it. It is doubtful whether the purpose of purchasing is for the use value of the goods. Moreover, he filed the lawsuit when Jinguanyuan's products did not have any quality or other product defect issues, which was not the behavior of ordinary consumers. According to the court, the Jinguanyuan condiments purchased by He had not been used until the second instance trial.

Third, the general behavior of ordinary consumers in safeguarding their rights is as follows: they first purchase a product, find that their rights have been damaged, and complain to the relevant departments. If they cannot solve the problem, they will go to the Industrial and Commercial Bureau to inquire about the registration status of the defendant before resorting to litigation. . But what about He? He's behavior was exactly the opposite. On November 14, he first went to the Industrial and Commercial Bureau to inquire about the industrial and commercial registration information of our company and Qilong Company. After fully understanding the "Jinguanyuan" company and its products, the next day, that is, 15 On the 16th, he went to "Qilong Huada Supermarket" to buy Jinguanyuan Company's products. On the 16th, he filed a lawsuit with the Quanzhou Intermediate People's Court (from the date of stamping of the enterprise registration information issued by the Industrial and Commercial Bureau submitted by He to the court, the shopping receipt, and the lawsuit The date on the book can be verified).

Golden Crown Garden reserves the right to file a lawsuit for infringement damages against He

Chairman Wu also said that in court, Jinguanyuan and its attorneys had clearly pointed out that the lawsuit was not an ordinary consumer rights dispute. It was completely premeditated by the appellant, fully prepared and planned, and deliberately created of a malicious lawsuit. Jinguanyuan Company will reserve the right to file a lawsuit for infringement damages against the appellant at any time.