"Jiaozuo Roasted Chicken" and "Macun Roasted Chicken" dispute

Jinyan Law Firm Yan Quanxi

Case introduction:

Duan, the owner of the "Ma Village Roasted Chicken" head office, claimed: "The plaintiff (Duan Mou) used the original Ma Village Roasted Chicken Store in Shanyang District, Jiaozuo City (now the Ma Village Roasted Chicken Head Office in Jiaozuo City) on November 21, 1999. Registered the registered trademark of "Ma Cun" in the name of "Ma Cun" and operated the roast chicken business. On December 10, 2004, he signed a contract with the defendant (Lin) to use the registered trademark of Ma Cun Roast Chicken, agreeing to use the plaintiff’s registered trademark to join The operation period was one year (December 10, 2004-December 9, 2005). After the signing of the contract, the defendant operated under the name of Ma Village Roasted Chicken Second Shop at the west end of Student Road in the Jiefang District designated by the plaintiff. The defendant repeatedly violated the established internal rules and regulations, and on June 10, 2005, he changed its name to Jiaozuo Roasted Chicken Chain No. 1 Store without paying the trademark usage fee and left the Ma Village Roasted Chicken Main Store in Jiaozuo City. Therefore, the plaintiff specially issued a statement in the "Jiaozuo Daily-Life Morning Magazine" (June 14, 2005), reminding consumers that the second Ma Cun roast chicken store no longer exists and the main store will no longer provide special spices to the store. The Jiaozuo roast chicken chain store has nothing to do with the plaintiff. Since then, the defendant still uses the special packaging bag for the Jiaozuo roast chicken chain, and openly stamped the “Ma Cun roast chicken store” on the card of the Jiaozuo roast chicken chain store. The official seal with the words', openly declared that it is the same company as Ma Cun Roast Chicken, misleading consumers." Duan believes that "the defendant's actions not only deceived consumers, but also seriously infringed the plaintiff's trademark exclusive rights. The defendant changed its name without authorization. Non-payment of trademark usage fees constitutes a breach of contract. The breach of contract is in compliance with the provisions of the Contract Law to terminate the contract. The plaintiff canceled the trademark use contract with the defendant by means of a newspaper statement, and the defendant no longer enjoys the use of the registered trademark of the plaintiff The defendant continued to operate under the plaintiff’s registered trademark “Ma Cun” after the contract was terminated, and his behavior seriously violated the plaintiff’s trademark exclusive rights.” For this reason, Duan Mou told the intermediate people of Jiaozuo City on August 8, 2005. The court filed a lawsuit.

First instance verdict:

After 11 months of trial in the first instance, the Civil Judgment (2005) Jiao Min Chu Zi No. 54 was finally made on July 9, 2006. The first-instance judgment found that “the plaintiff and the defendant had conflicts due to various reasons during the performance of the contract. The defendant no longer used the special spices for the Ma Cun roast chicken made by the plaintiff, and at the same time, he no longer paid the plaintiff for the use of the Ma Cun trademark. It was an act of unilateral breach of contract and the termination of the contract. The plaintiff published a statement in the newspaper that its behavior was an approval of the defendant’s unilateral breach of contract to terminate the contract. The plaintiff and the defendant had in fact terminated the performance of the contract for the use of the registered trademark of Ma Cun Rooster. The defendant’s various actions constituted trademark infringement. Therefore, he ordered the defendant Lin to immediately stop the infringement of the plaintiff’s Duan Ma Village roast chicken trademark; compensate the plaintiff for economic losses of 5,000 yuan; and ordered the defendant to apologize to the plaintiff Duan."

File an appeal:

After losing the trial, the defendant Lin went to the Jinyan Law Group for consultation. After reading the relevant materials, the reception lawyer Yan Quanxi explained his views and opinions on the case. Then the defendant entrusted him to the Henan Higher People’s Court. File an appeal. After accepting the entrustment, the attorney was not eager to draft an appeal, but went to the Shanyang, Jiefang, and Macun industrial and commercial departments to obtain relevant information and collected evidence related to the case. On the basis of a large amount of evidence, the attorney put forward the following appeal opinions: 1. The facts of the original trial were unclear. In fact, as early as February 27, 1995, the appellant’s father, Lin Fu, opened a shop in Xuezuo Road, Jiefang District, Jiaozuo City to operate a roast chicken business. At that time, the name of the shop was "Ma Village Roast Chicken Shop" and it was located in the Jiefang District of Jiaozuo City. The Bureau of Industry and Commerce registered according to law; this shop is the first Macun roast chicken shop in Jiaozuo city. The Ma Village Roasted Chicken run by Lin's father was awarded the special prize for snacks in the city's snack appraisal in 1998. In order to make the business bigger, Lin's father discussed with the appellee Duan, who was also in the roast chicken business, and decided to make Ma Cun roast chicken into a brand, so they jointly started trademark registration. When he formally applied for trademark registration in 1999, Mr. Lin considered that he was older and from the perspective of facilitating career development. Under the persuasion of the appellee, he agreed to use the appellee’s Ma Village Roast Chicken Restaurant in Shanyang District, Jiaozuo City. The registered trademark of "Ma Cun" was registered under the name. After the trademark "Ma Cun" was registered, the appellant Duan agreed that Lin Fu (Jiaozuo Jiefang District Student Road Ma Village Roasted Chicken Shop) signed the "Registered Trademark Use Contract" with the State Administration for Industry and Commerce, which stipulated that Lin Xiaoju started from April 2000. From 1st to November 19th, 2009, the registered trademark of "Ma Cun" was used free of charge. In order to develop a common cause, the appellee appointed himself as the manager and Lin Fu as the deputy manager. With joint efforts, the popularity of "Macun" roasted chicken has been expanding, and franchise stores have also increased, and the economic benefits of registered trademarks have gradually become apparent. Due to years of exhaustion and running around, Lin's health was not good, and he had to go to the 160 Hospital of Jiaozuo for treatment in May 2002. Lin's father handed his roast chicken shop to the appellant Lin. During the appellant’s business process, the appellee maliciously interfered with the normal operating activities of the roast chicken restaurant on many occasions, and made malicious attempts to make things difficult. After obtaining the consent of the appellee, the appellant issued a "concession card" to consumers when buying roast chicken, promising to accumulate a number of "discount cards" to receive a certain amount of cooked food. In early 2005, the appellee ordered the appellant without reason To stop this activity, the appellant rejected the unreasonable request of the appellee for the sake of the existing goodwill and in order not to lose faith in the consumers. The appellee took the opportunity to stop providing spices to the appellant under the excuse of the dispute. Since the appellant obtained the "Business License for Individual Industrial and Commercial Households", he has not formally determined his own "brand name". Only in June 2005, the appellant named the "Jiaozuo Roast Chicken". However, the appellee, with ulterior motives, filed a lawsuit with the Jiaozuo Intermediate People's Court on the grounds of trademark infringement disputes without rescinding the trademark use contract between the two parties. 2. The original trial confuses the trade name and trademark concept. Individual industrial and commercial households shall have the right to their own name in accordance with the law and have the right to determine their own name. The Ma Cun Roasted Chicken Restaurant is different from the Ma Cun Roasted Chicken. The appellee enjoys the legal rights of the registered trademark "Ma Cun" and does not enjoy the exclusive right to use the "Ma Cun Roasted Chicken" brand. The registered trademark use contract does not restrict or restrict the appellant’s exercise of his own trademark right. It is legal for the appellant to exercise his own trademark right and has nothing to do with the appellee, let alone the infringement of the registered trademark of "Ma Cun". 3. Incorrect application of the law in the original trial. According to the contract law, the termination of a contract should be notified to the other party, and the contract shall be terminated when the notification reaches the other party. The appellee advocated the termination of the contract, but failed to perform the notification obligation. Moreover, the dispute between the two parties was provoked by the appellee in bad faith. There is no fundamental breach of contract by the appellant, and the appellee must not unilaterally terminate the contract. Therefore, it is requested to revoke the Civil Judgment (2005) Jiao Min Chu Zi No. 54 issued by the Jiaozuo Intermediate People’s Court; the appellee’s claims against the appellant shall be rejected in accordance with the law; the litigation costs of the first and second instance of this case shall be borne by the appellee.

Second instance:

Two court hearings were held on October 10 and December 4, 2006. The second instance examined the evidence in the court trial (the appellant Duan agreed to cross-examine the nine pieces of evidence provided by the appellant): “The evidence provided by Lin in the second instance is objective and true, and the source is legal, and can prove the basic facts of the case. Adopted." After the trial, the attorney submitted the following agency opinions to the court:

1. The facts of the following cases can be determined by the collegial panel.

① The appellant’s father, Lin Fu, had already opened a roast chicken business on Student Road in the Jiefang District of Jiaozuo City at the beginning of 1995. At that time, the name of the shop was "Ma Cun Roast Chicken Restaurant" and it was registered by the Industrial and Commercial Bureau; Legally qualified to operate and became the first "Macun Roasted Chicken Restaurant" in the urban area at that time (see evidence 1 provided by the appellant). Since then, several so-called "Macun Roasted Chicken Shops" have sprung up in the urban area of Jiaozuo City, including the Macun Roasted Chicken Shop in Shanyang District, Jiaozuo City, opened by the appellee Duan (later in 2001. It was renamed "Jiaozuo Macun Roasted Chicken Main Store" on August 20) and it was opened after that.

② Out of common professionalism, let Lin's father and Duan, who were originally friends, come together. Duan named himself the general manager, and Lin's father served as the deputy manager (see evidence 3). The two imagined bigger and better Qiangma Village Roasted Chicken Business. After some planning and operation, Ma Cun Roasted Chicken first won the "Special Award" in the city-wide (Jiaozuo) snack competition in 1998 (see evidence 2), and then in 1999 it was awarded as "Macun Roasted Chicken Restaurant, Shanyang District, Jiaozuo City". "Ma Cun" is registered as a graphic trademark. At the beginning of 2000, the packaging bag of Ma Cun Roasted Chicken won the design patent. In October of the same year, Ma Cun Roasted Chicken won the "Gold Award" at the second "International (Tianjin) Invention Patent, New Technology and New Product Expo" (see Evidence 4). After "Ma Cun" became a registered trademark, Lin Fu, one of the co-owners of the actual registered trademark, obtained the right to use the trademark for ten years without compensation (see evidence 5).

③Due to years of exhaustion, Father Lin was in poor health and needed to be admitted to the hospital for treatment. Since May 2002, he has opened his own "Student Luma Village Roast Chicken Shop in the Jiefang District of Jiaozuo City" to the appellant Lin. Operating. By March 2004, the appellant had registered an individual business owner with himself as the person in charge on the original site of the shop, but had not applied for a business name (see the appellant’s business license provided by the appellant and the appellant’s second instance submission A copy of the business license); continue to operate without compensation, continue to use the "Ma Cun" trademark for free, the appellee should know and know this, and the appellant's inheritance of his father, Lin's father's right to use the trademark free of charge is also recognized (See Evidence VI).

④In early 2004, in order to repay customers, the appellant, within the scope of the right to operate independently, and with the consent of the appellee, began to issue "Preferential Cumulative Cards" (see Evidence 6) to chicken buyers in our store, stipulating ten "Preferential Cumulative Cards" 》A roasted chicken (worth 15 yuan) in exchange. On December 10 of the same year, the appellant, upon repeated requests from the appellee, the two parties signed the Contract for the Use of the Registered Trademark of Ma Cun Roasted Chicken. At the beginning of 2005, the appellee ordered the appellant to stop the activity without reason; the appellant rejected the unreasonable request of the appellant for the goodwill he had and in order not to break the trust of consumers, and the appellee took the opportunity to unilaterally stop providing the appellant Special spices. Since the appellant obtained the "Business License for Individual Industrial and Commercial Households," he has not formally determined his "commercial name", and only officially set the company name as "Jiaozuo Roast Chicken" on June 10, 2005. The appellant neither received a written (oral) reminder to perform the contract obligations, nor received a written (oral) notice to terminate the contract, and did not know of being sued until he received the "Complaint".

2. The original judgment shall be revoked in accordance with the law; and shall be ordered to dismiss all claims of the appellee against the appellant.

① The appellant did not have any breach of contract within the time limit of the "Registered Trademark Use Contract", and the appellee was the de facto breacher and infringer.

First, the appellant’s issuance of the "Preferential Accumulative Card" is a manifestation of business autonomy, and others have no right to interfere; the appellant forcibly ordering the appellant to stop the preferential activity is neither statutory nor agreed, and it is actually for the appellant’s business rights Interference and violation. Secondly, the appellant insisted on continuing the activities, and there is no reason not to take special spices; on the other hand, after the appellee ordered the suspension of the activities to be invalid, he then forced the appellant to submit by suspending the supply of special spices. This is in line with the general law of things and mental development. Moreover, the article "Jiaozuo Ma Village Roasted Chicken Headquarters Remind Consumers" of Jiaozuo Daily on June 14, 2005 has indicated that the appellee first stopped supplying special spices to the appellant, which shows that the appellant is the real contract. The defaulter. Thirdly, the "Preferential Cumulative Card" was issued at the beginning of 2004 when the appellant actually operated the roast chicken shop in Student Road, Jiefang District, Jiaozuo City on behalf of his father Lin. At first, the front of the "Preferential Cumulative Card" was stamped "Student Road, Jiefang District, Jiaozuo City". The official seal of the "Macun Roasted Chicken Restaurant" is stamped with the special invoice stamp of the shop's company name "Macun Roasted Chicken Restaurant". It is a normal thing and is completely legal. After the appellant Lin Zhanjun set up his own roast chicken shop at the original location of the store and determined the "Jiaozuo roast chicken" business name, he continued to use the above two chapters on the "Preferential Accumulation Card". The purpose was not to confuse the audience and deceive customers. , But considering that the "Preferential Cumulative Card" has been issued for nearly a year, some regular customers have already accumulated a certain amount of preferential cards, and what follows must be the peak of free replacement of roast chicken. The reason why the appellant handled this way was obviously not for economic purposes (from a legal point of view, the appellant could not be held responsible for the previous card issuance), but for the sake of being responsible to consumers, which was in good faith. Furthermore, these two stamps belong to the appellant's father Lin Fu, and have nothing to do with the appellee, so there is no infringement. Secondly, the so-called "Ma Village Roasted Chicken Chain Stores" are all fake institutions that have not been registered and approved by the industrial and commercial department. The signing of the "Registered Trademark Use Contract" with the appellee was carried out in the personal capacity of "Lin Mou", and the "Registered Trademark Use Contract" "Neither does it limit the appellant’s business name rights. It can be seen that the appellant installed his own new business name at an appropriate time after the establishment of individual industrial and commercial households. It is not wrong. This behavior is the exercise of the appellant's own legitimate rights and interests. There is no breach of contract or infringement at all. Finally, because the appellee unilaterally stopped supplying materials, the appellant subsequently refused to pay the monthly management fee (the appellant called the trademark usage fee). This was obviously because the debtor (appellant) rejected the creditor based on the exercise of the right of defense ( It is not a breach of contract, not to mention the termination of the contract.

② The appellee’s failure to perform the obligation of urging and notification for the termination of the contract according to law does not produce the legal effect of dissolving the contract according to law.

According to the "Contract Law", the termination of a contract must first meet the conditions for termination. Otherwise, it will be a breach of contract. Not only will the legal effect of termination not occur, but a corresponding liability for breach of contract will occur. The cancellation of the contract must be followed by the act of rescission. Since the law of our country does not adopt the mandatory rescission, the contract is not necessarily rescinded even when the conditions for rescission are met. If the contract is to be rescinded, a rescission act is required. Specifically in this case, when the appellee wants to terminate the "registered trademark use contract" between the two parties, the appellant must first have the premise that the appellant has breached the contract, and the appellee is also required to make a performance reminder and the obligation to notify the contract termination according to law; , The appellant did not have any breach of contract within the time limit of the "Registered Trademark Use Contract", and the appellee did not make any performance claims or notice of contract termination to the appellant in accordance with the law. It can be seen that the unlawful act of the appellee not only fails to have the legal effect of rescinding the "Registered Trademark Use Contract" between the two parties, but instead violates the lawful rights and interests of the appellant. Since the contract has not been terminated, what is wrong with the appellant's exercise of powers in accordance with the contract?

③ Wrong application of law in the original judgment

The original judgment first wrongly identified the appellant's unilateral breach of contract, and equated "unilateral breach of contract" with "termination of contract", and held that unilateral breach of contract meant to terminate the contract. Confused the two legal concepts of "the cessation of contract effectiveness" and "the termination of contract", and confused the nature of right and wrong of "exercising the right of defense and breach of contract". At the same time, when it was found that the appellee had not made a performance reminder and the obligation to notify the termination of the contract, it violated the provisions and spirit of the contract law, absurdly in three categories: consensual termination, termination of the exercise of the right of cancellation, and court ruling (only due to changes in circumstances). In addition to the statutory method, the model of "unilateral breach of contract termination" was created. It also mistakenly regarded the appellee’s statement to consumers in the newspaper as the post-recognition and ratification of the termination of the contract, and then absurdly used this "recognition" and "ratification" to replace (exempt) the act of reminding and notification, As a result, it was wrongly determined that the contract between the two parties had been terminated.

The appellee is the owner of "Jiaozuo Ma Village Roasted Chicken Main Store" (previously "Ma Village Roasted Chicken Store in Shanyang District, Jiaozuo City") and the owner of the registered trademark of "Ma Village". However, "Ma Cun" is only a general graphic registered trademark, not a "well-known trademark". Therefore, the appellee does not enjoy the exclusive right to use and exclusive use of such brand names as "Ma Cun Roasted Chicken" and "Ma Cun Roasted Chicken". right. However, the original trial decided to confuse the two legal concepts of trademark and business (zi) name, and unlimitedly expanded the protection of the appellee’s so-called registered trademark rights. Furthermore, it was mistakenly determined that the seals such as "Student Road Ma Village Roasted Chicken Shop in Jiaozuo City Jiefang District" and "Ma Village Roasted Chicken Shop" that had already existed and used were infringements on the appellee.

To sum up, the original judgment found that the facts of the case were unclear, confused legal concepts, improperly applied the law, and the judgment was wrong. Therefore, please take the facts as the basis and the law as the criterion, make a public judgment in accordance with the law, and support the appellant's various claims!

Attached to the "Catalogue of Appellant's Second Instance Evidence"

1. The registration materials of the industrial and commercial households stated: The father of the appellant, Lin Fu, opened the first "Macun Roasted Chicken Restaurant" on Student Road in the Jiefang District of Jiaozuo City as early as 1995.

2. The 3rd City (Jiaozuo) Snack Appraisal Gold Award, description: Lin Fu and Duan Moujing started a business together.

3. Patented packaging bag, description: Same as above.

4. Two photos, description: Same as above.

5. The notice of trademark use contract filing, stating: Lin Fu enjoys the right to use the "Ma Cun" trademark for free for 10 years.

6. Preferential accumulation card, explanation: Appellant Lin started to issue preferential accumulation cards in early 2004.

7. Retrieval card, explaining: the official seal of the appellee’s roast chicken shop and the special invoice seal are different from the appellant’s stamp of "Ma Village Roasted Chicken Shop, Student Road, Jiefang District, Jiaozuo City" and "Macun Roasted Chicken Shop" used on the accumulative discount card. Invoice stamp.

8. Two official seals, stating that: The chapter "Ma Village Roasted Chicken Shop, Student Road, Jiezuo City, Jiaozuo City" and the "Special Invoice Seal for Ma Village Roasted Chicken Shop" with the tax number: 410804771015352 have nothing to do with the appellee, and the right to use the two chapters belongs to Owned by Father Lin.

9. Zhang's household registration book, stating: The tax number of the invoice special stamp of the Ma Village Roast Chicken shop where the right to use belongs to Lin's father is Lin's father and daughter-in-law Zhang's ID number 410804771015352.

Results of the second instance:

After fully listening to the opinions and opinions of both parties, the Higher People's Court of Henan Province made a civil judgment (2006) Yufa Min San Zhong Zi No. 55 on December 19, 2006 on the basis of ascertaining the facts of the case. The judgment found that “Duan’s lawsuit against Lin’s trademark infringement was insufficient, and this court rejected it. Lin’s appeal had sufficient grounds and this court accepted it. The original judgment found that Lin’s infringement of Duan’s trademark right to'Macun’ lacked factual basis According to the legal basis, this court revoked it. Therefore, the court ordered the revocation of the civil judgment of Jiaozuo City Intermediate People’s Court (2005) Jiao Min Chu Zi No. 54; Duan Xiujing’s request was rejected; the second-instance case acceptance fee of 1,410 yuan shall be borne by Duan. This judgment For the final judgment."

Agent summary:

So far, the controversial cases of "Jiaozuo Roasted Chicken" and "Macun Roasted Chicken" that have been widely concerned by the citizens of our city in the past year have been settled. In the case of Lin lost in the first instance, he was able to completely reverse the case after the second instance. Not only did he revoke the original judgment and dismiss the other party's litigation request, the court also determined that he had the prior right to use the "Ma Cun Roast Chicken" brand. In the end, the dispute was resolved and the rights and interests of all parties were protected.