Recently, the controversy over the trademark of Red Bull series has a new trend. As the applicant, Red Bull Vitamin Beverage Co., Ltd. filed a request for invalidation of No. 11460102 "Red Bull" (stereoscopic trademark) owned by Tianshi medical and health care Co., Ltd. finally, the State Intellectual Property Office ruled that the reason for invalidation was not tenable, and the trademark was maintained.

Summer heat, and to drink sales peak season. In addition to the competition between brands, there are three kinds of "Red Bull" coexisting because of the pending trademark dispute.

Recently, the controversy over the trademark of Red Bull series has a new trend. As the applicant, Red Bull Vitamin Beverage Co., Ltd. (hereinafter referred to as "Beijing Red Bull") filed a request for invalidation of No. 11460102 "Red Bull" (stereoscopic trademark) owned by Tianshi medical health care Co., Ltd. (hereinafter referred to as "Tianshi medicine"), and the State Intellectual Property Office finally ruled that the reason for invalidation was not tenable, and the trademark was maintained.

According to China Trademark website, the disputed trademark was applied for by Tencel on September 7, 2012 and approved for registration on May 7, 2014. The exclusive period of trademark is until May 6, 2024. From the display of the trademark map, the three-dimensional trademark is the gold can packaging of Red Bull.

The order of invalidation is clear

The trademark right of red bull can belongs to Tencel

The main reasons why Beijing Red Bull filed the invalidation declaration are as follows: 1. The applicant is the manufacturer and distributor of "Red Bull" vitamin functional beverage in China. After a lot of use and promotion, the product has a high visibility and influence. The trademark in dispute damages the applicant's prior right to special packaging and decoration of well-known goods. 2、 The trademark in dispute is the preemptive registration of the trademark used by the applicant and has certain influence. 3、 The applicant has a contract and business relationship with the respondent. He knows that the applicant has used the three-dimensional trademark first and has a certain degree of popularity. His act of registering the disputed trademark has subjective malice. 4、 The respondent has the subjective malice of "free riding" and "near famous brand", which disturbs the normal order of trademark registration.

In view of the focus issue of "whether the disputed trademark violates the provisions of Article 32 of the trademark law that" the existing prior rights of others shall not be damaged (the special packaging and decoration rights of well-known goods) ", the ruling issued by the State Intellectual Property Office indicates that:

The design patent certificate submitted by the applicant does not generate the unique packaging and decoration rights of well-known goods. The evidence on the publicity and use of Red Bull products submitted by the applicant is the evidence of its use as a trademark Licensee. Although the applicant has made contributions to the improvement of the awareness of Red Bull Vitamin functional beverage, the goodwill generated therefrom is still attached to red bull, a well-known commodity Vitamin functional beverage shall be enjoyed by Tianshi medical health care Co., Ltd., the owner of the well-known commodity.

According to the applicant, a court judgment has been made to confirm that the applicant has legal rights and interests in the packaging and decoration involved, and on this basis, it has been determined that others have infringed on the applicant's unique packaging and decoration rights of well-known goods (the ruling of the State Intellectual Property Bureau states that the applicant said it was a judgment of the Guangdong High Court in 2008, and the trademark authorization of Tencel to the applicant expired in October 2016). In our opinion, the reason why the court held that the applicant has legal rights in the decoration of the well-known commodity is based on the fact that the applicant has been legally authorized to use the trademark "Red Bull and map" of the respondent, as well as the right of the respondent to handle all litigation matters concerning the infringement of the legitimate rights and interests of "Red Bull" in China. Therefore, we will not support the applicant's claim that the disputed trademark has damaged the unique packaging and decoration rights of its well-known goods. "

In other words, Tencel is the owner of Red Bull's trademark and gold can packaging, while Beijing Red Bull can use red bull's packaging, decoration and three-dimensional trademark during the trademark license period, which are based on the previous authorization of Tencel. However, Tencel's trademark license agreement for Beijing Red Bull expired in 2016 and has not been renewed. After the expiration of the trademark license agreement, Tencel, as the brand owner and obligee, has the right to use or authorize the use of Red Bull trademark and gold can packaging.

Then, since the trademark originally belongs to Tencel, and Beijing Red Bull is only licensed to use, the so-called "rush registration", "malicious application" and "near famous brand" and other reasons advocated by it for invalidation are even less tenable.

Why did Beijing Red Bull bring up the invalidation declaration?

Recently, Huabin FMCG announced its sales performance in the first half of 2020, of which red bull's sales decreased by about 3.6%, which is also related to red bull's trademark dispute and Tencel group's efforts in the Chinese market. Although Huabin group has been producing and selling red bull products, the ownership of Red Bull series trademarks has been firmly in the hands of Tencel. Although Huabin has been trying to file a lawsuit through Beijing Red Bull, which is under its actual control, Huabin tries to seize or share the "Red Bull" series trademark to achieve the purpose of continuing to use the Red Bull series trademark, such as the judgment of Red Bull at the end of last year In the case of cattle series trademark ownership, Beijing Red Bull asked the Beijing Higher People's court to confirm that it has the owner's legitimate rights and interests in the "Red Bull series trademark" and asked Tencel to pay its advertising and publicity expenses. However, the result was counterproductive. The Beijing High Court rejected all the claims of Beijing Red Bull and confirmed that the ownership status of "Red Bull series trademarks" was clear and belonged to Tencel. In addition to paying 18.8 million in litigation fees, Huabin is facing more and more serious trademark crisis of Red Bull, which also leads to the instability of its internal team and the dare not make large investment and promotion in the external market competition.

On the other hand, Tencel group has been increasing its market share in China. Since June 2019, Tencel group, together with its partners in China, Guangzhou Yao energy beverage Co., Ltd. and Pusheng Food Sales Co., Ltd., has successively launched Red Bull & amp; anagee beverage and Red Bull & amp; vitamin flavor beverage in the Chinese market. As the trademark owner of Red Bull, tence group also said in a recent statement that "at present, there are only two kinds of Red Bull products legally authorized in the Chinese market, namely, Red Bull & amp; anagee beverage and Red Bull & amp; vitamin flavor beverage With a strong brand endorsement and a local trading team familiar with red bull, "in the past six months, the sales volume of new red bull in China exceeded 1 billion yuan, covering 227 cities in 24 provinces and municipalities directly under the central government, and is in rapid development." In May this year, as the "founder and owner of global Red Bull brand and" Red Bull "trademark, Tencel group announced that it would make a series of investments in China in the next three years, with a total investment of 1.06 billion yuan, including deepening the strategic partnership in China, establishing a new representative office in China, establishing a domestic team, expanding a new production base and launching the group More and more new products and a series of big moves, more and more dealers joined the group's camp, including many who had been operating red bull before.

Although red bull's sales decreased, in terms of sales proportion, in the first half of 2020, the total sales volume of Huabin FMCG was 14.326 billion yuan, including 13.393 billion yuan completed by red bull, accounting for 93.5%. Therefore, for Huabin group, it may be the best choice to strive for more time by constantly filing invalidation, litigation and appeal. After all, time is money.

Tianshi pharmaceutical enjoys the exclusive right of Red Bull series trademark. How can Huabin solve the trademark problem after the expiration of trademark authorization? In the above-mentioned case of Red Bull series trademark rights and interests which was rejected at the end of last year, Beijing Red Bull proposed that red bull series trademarks should be "jointly owned", and the three-dimensional trademark declared invalid is one of them. This "common ownership" may be inspired by the case of Jiaduo Bao and Wang Laoji, but there are essential differences between the Red Bull trademark case and the jiaduobao Wang Laoji case.

First of all, the most significant and core issue is the difference in the scope of their disputes. The "Red Bull trademark case" is a series of trademark infringement litigation centering on the exclusive right of Red Bull trademark. The cases of Jiaduo Bao and Wang Laoji focus on the packaging and decoration of drinks, which belong to the appearance design of products from the legal point of view.

Secondly, when the use right of Wang Laoji's trademark expired, jiaduobao stopped the use of Wang Laoji's trademark in accordance with the contract and legal provisions. In contrast, in the case of Red Bull trademark, red bull in Beijing and even factories under Huabin still use red bull trademark to produce and sell Red Bull drinks.

Thirdly, in this case, Red Bull gold can packaging was not initiated by Beijing Red Bull. As early as 1982, the first Red Bull beverage exported by Tencel to Singapore under the brand of "Red Bull" was its classic golden can packaging product. In 1993, Tencel imported red bull golden can packaging beverage into China through its Hainan Red Bull beverage Co., Ltd. This further shows that the shared trademark and packaging proposed by Beijing Red Bull previously are not feasible in the red bull case.

From the judgment of Beijing Higher People's Court on the case of Red Bull series trademark rights and interests, and the State Intellectual Property Office's rejection of Beijing Red Bull's request for invalidation of Red Bull's golden can trademark, all show that the ownership of Red Bull series trademark is clear and always belongs to Tencel. Beijing Red Bull, on the other hand, has made red bull a well-known brand by constantly emphasizing its contribution, that is, a lot of publicity and promotion, trying to obtain the right to use the trademark with its credit theory.

Can "contribution theory" be used as the basis for obtaining trademark right?

As we all know, the ownership of trademarks in China is generally divided into two ways: original acquisition and subsequent acquisition. Can Beijing Red Bull obtain joint ownership of Red Bull trademark owned and in effective status under the name of Tencel just because of "contribution"?

In October 2016, Tencel pharmaceutical's Red Bull trademark license agreement for the joint venture company expired and was not renewed.

In September 2018, the joint venture term of Beijing Red Bull will expire.

In September 2019, according to a judgment of Thai court, Yan Bin, chairman of Beijing Red Bull, lost the lawsuit again in Thailand. The court ruled that the resolution of the board of directors of Red Bull Vitamin beverage (Thailand) Co., Ltd. on the removal of Mr. Yan Bin's previous position as chairman and legal representative of Beijing Red Bull and the replacement of several board members including him were legal. His status as chairman and legal representative of Beijing Red Bull is no longer legal in Thailand.

In the Red Bull series trademark rights and interests case adjudicated in November 2019, the Beijing High Court also ruled that as the object of intangible assets, it is not suitable to acquire trademark ownership by adding, because goodwill is carried on the trademark and cannot exist independently without the trademark, so the two cannot be separated from reality. Because the ownership status of the "Red Bull series trademarks" involved in the case is clear and belongs to Tiansi Pharmaceutical Co., Ltd., Beijing Red Bull believes that it has obtained the trademark ownership based on the investment in advertising and publicity, which lacks legal basis.

At the same time, through the trademark license contract presented by tence, it can be proved that Beijing Red Bull, as the licensee, obtained the license to use the "Red Bull series trademarks" under the name of Tianshi only under the premise that Tianshi company is the sole owner of the trademark of Red Bull, and the license contract also stipulates that Beijing Red Bull will immediately stop using red bull when the license contract is terminated Trademarks. It can be seen that the licensee does not acquire the ownership of the trademark because of the advertisement and publicity of the licensed object, that is, the trademark in the process of performing the license contract; on the contrary, the licensee has no right to require the licensee to pay additional license fees because the licensee has obtained huge commercial profits beyond the provisions of the license contract.

Moreover, in the ruling of the State Intellectual Property Office on the No. 11460102 request for invalidation of "Red Bull" (stereoscopic trademark) trademark filed by Beijing Red Bull, it is also clear that although Beijing Red Bull has made contributions to the promotion of the popularity of Red Bull Vitamin functional beverage, the resulting goodwill is still attached to the well-known commodity Red Bull Vitamin functional beverage Tiansi medical and health care Co., Ltd.

Beijing Red Bull's contribution to the investment in promoting product popularity for commercial purposes has also created huge profits for Huabin group, which is actually controlled by Beijing Red Bull.

All the above judgments and facts show that there is no legal basis for Beijing Red Bull to obtain trademark ownership or share trademark rights and interests by "contribution theory" and "merit theory".

It's no wonder that some netizens commented on Huabin's operation before that "after renting the house for more than 20 years, they thought the house was their own, and they also wanted to ask the landlord to add their own name on the house property certificate".

Red Bull series trademark cases involve many cases, and more than 20 lawsuits between Tencel and Huabin group are complicated. With the trial of relevant cases one by one, the situation seems to be more and more clear, and the situation of three Red Bulls in the market is believed to be not too long. From now on, the investment of both sides in the market, perhaps the result has been predictable.

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