85 degrees C and Bright Milk Bar! The reason is the words of trademark advertisement.

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 85 degrees C and Bright Milk Bar! The reason is the words of trademark advertisement.


When you go to the supermarket to buy milk, you will see several bright milk labeled 85 degrees Celsius, and the result is 85 degrees C brand face-to-face, and the defendant goes to court. Recently, the Shanghai Intellectual Property Court made a second judgment in this case, reversing the judgment and rejecting all the first instance litigation requests of Gourmet Daren Company.

85 Celsius involves infringement

Gourmet Daren Company established 85 degree C brand in 2003. It has obtained four registered trademarks of 85 C successively and all of them have been in effective period. After years of publicity and use, its registered trademarks in category 43 cafes, cafes and other cafes have been recognized as well-known trademarks by the China Trademark Office.

In May 2016, Gourmet Daren found a prominent position in the packaging of Youdou Series fresh milk products sold by Guangming Company in another plaintiff defendants old Simon store of Shanghai Yibuyer Supermarket Co., Ltd. and used 85 C which is the same or similar to its registered trademark. Guangming Company also highlighted the use of 85 C in advertising.

Gourmet Daren considers that the use of Guangming Company is likely to cause confusion among the consumers concerned. It sues the court for infringement of trademark rights and requests that Guangming Company and Yibuyable Company immediately stop infringing upon their exclusive right to use registered trademarks. Guangming Company compensates for its economic loss of 5 million yuan and reasonable expenditure of 59,500,000 yuan. Easy-to-buy Company compensates for its reasonable expenditure for stopping infringement. Expenditure is 69.20 yuan.

Guangming argues that pasteurization technology is used in the production and processing of Youbei series fresh milk. The technological parameters are 85 C and 15 seconds. Therefore, labeling 85 C on the packaging boxes of milk products is a kind and reasonable descriptive use. 85 is only a temperature value, which is the use of the original meaning of the text, describing the characteristics of commodity processing technology, not the use in the sense of trademark.

Guangming said that it is an old brand in the dairy industry with a history of more than 100 years. It enjoys a high reputation in China and has no need to hitchhike. It also used its own trademark in the infringed goods. Therefore, it did not infringe upon the exclusive right of the registered trademark of Gourmet Daren Company and requested the court to reject all the claims of Gourmet Daren Company.

First instance infringement

After the trial, the court of first instance held that the registered trademark of Gourmet Daren Company was first and well-known. The labeling of 85 C on related products by Guangming Company was not justified, and it belonged to the tort of using the same label as the registered trademark of Gourmet Daren Company in the same commodity, which infringed the exclusive right of Gourmet Daren Company to use the registered trademark. In foreign sales, both acts constitute an infringement on the exclusive right to use registered trademarks of Gourmet Daren Company.

Accordingly, the court of first instance ruled that Guangming Company immediately ceased infringing upon the exclusive right of registered trademark of Gourmet Daren Company, easily bought company immediately ceased selling commodities infringing upon the exclusive right of registered trademark of Gourmet Daren Company, Guangming Company compensated Gourmet Daren Company for economic losses of 400,000 yuan and reasonable expenditure of 59,500 yuan, and Easy to buy company compensated Gourmet Daren Company for reasonable expenditure of stopping inf 69.20 yuan.

After the first trial, Guangming refused and appealed to the Shanghai Intellectual Property Court. Guangming considers that the labeling of 85 C on the milk packaging boxes involved in the case belongs to descriptive use. It expresses the sterilization temperature of the products involved, does not constitute the use in the sense of trademark, does not infringe upon the exclusive right of registered trademark of Gourmet Daren Company, and requests the court to change its judgment and reject all the lawsuit requests of Gourmet Daren Company.

Conversion without infringement

After the trial, Shanghai Zhiyi Court held that Gourmet Daren Company applied different fonts to arrange the elements of 85 C, which constituted the standard expression of temperature, objectively enhanced the prominence of the logo and obtained registration, but also limited the scope of its protection.

According to the fact that Guangming Company used the label of 85 for the wrapping of the goods accused of infringement in the case, and matched with the words 85 pasteurized milk fresh and that is to drink 85 pasteurized fresh milk, the Shanghai Zhichang Court held that Guangming Companys action was only to explain to the relevant public the technological characteristics of pasteurization technology adopted by Guangming Company, which was still a reasonable description of its own operation. The scope of commodity characteristics is not the use of registered trademarks of Gourmet Daren Company, but the proper use of temperature expression.

Gourmet has never produced the alleged infringement commodity (milk) or used the trademark involved in the case of milk commodities, so there is little public awareness of Gourmet on milk commodities.

The bright trademark enjoyed by Guangming Company in milk and other dairy products is a well-known trademark. Therefore, even if the public who is familiar with the registered trademark of Gourmet Daren Company concerned pay general attention to the outer packaging of the goods accused of infringement by Guangming Company, it will naturally think that the 85 C marked on the outer packaging of the goods accused of infringement is the temperature of pasteurization technology adopted by Guangming Company, but not the temperature of pasteurization technology used by Guangming Company. The products accused of infringement originated from the confusion and misunderstanding of Gourmet Daren Company or related to Gourmet Daren Company.

Therefore, the second instance held that Guangming Companys use of the accused infringement mark on the goods involved in the case belonged to the proper and reasonable use of the temperature mark, which did not cause confusion and misunderstanding among the relevant public, and did not constitute an infringement on the exclusive right of the registered trademark of Gourmet Company.

_Saying Law

He Yuan, a judge of Shanghai Intellectual Property Court, introduced after the judgment that the essence of the case is a dispute about the scope of protection of registered trademarks and the reasonable use of temperature labels. The main focus of the case is to define the scope of protection of the exclusive right of registered trademarks reasonably and achieve the balance between the exclusive right of trademarks and the public interest.

As far as this case is concerned, the orderly arrangement of elements 8, 5 and C, fine arts font and C which are obviously smaller than the standard font adopted by Gourmet Daren Company in the registration of trademark marks in the case are significantly different from the standard expression of temperature at 85 C, which objectively enhances the prominence of the registered trademark mark in the case and limits the scope of its rights. When it comes to the expression of temperature, it also limits the scope of its rights Next, it may need to be limited.

In the trial process of this case, the court mainly considers the actual use of Guangming Company, whether it is the normal use of temperature labels, or the use of registered trademarks of Gourmet Daren Company, and whether the use of Guangming Company itself is good faith and reasonable use. In light of the case, Guangming Companys use behavior is a normal expression of temperature. The public concerned should pay attention to the general duty of care. Seeing this sign will only consider it as a pasteurization sterilization temperature, but will not understand that Gourmet Daren Company produced the product.

Source: Responsible Editor of Legal Daily: Shi Jianlei_NBJ11331