"Nanjing" vs "Chaohu": Who will win the "Dapaidang" dispute?
[2] Compiled from: Red Star News, The Paper
Case review
[4] On April 28, in the third courtroom of the Hefei Intellectual Property Court, two catering companies brought a lawsuit over the ownership of the term "Dapaidang." The plaintiff, Nanjing Dahui Enterprise Development Co., Ltd. (hereinafter referred to as "Dahui Company"), argued that "Dapaidang" is its registered trademark and cannot be used by others. The defendants, the storefront and actual operators of Chaozhou Dapaidang Restaurant, contended that "Dapaidang" is a generic term and should not be registered as a trademark, thus its use does not constitute trademark infringement.
[5] The case number is "(2022) Wan 01 Min Chu No. 186." Dahui Company is seeking 2 million yuan in damages from the storefront and actual operators of Chaozhou Dapaidang Restaurant.
Chaozhou Dapaidang is not the only catering company being sued for compensation. In another case filing with case number 2022 Wan 01 Min Chu 496, Dahui Company sued Hefei Dapaidang and its operator, Hefei Jinlianhua Hotel Management Co., Ltd. (hereinafter referred to as "Jinlianhua Company"), demanding 3 million yuan in compensation. This case has not yet been heard in court.
On the day of the trial, April 28, the prosecution and defense did not proceed to the debate stage. The presiding judge announced that the court would reconvene on the morning of May 19.
Trademark Law of the People's Republic of China
Article 9
A trademark applied for registration shall have distinctive features for easy identification and shall not conflict with the legitimate rights obtained by others earlier. The trademark registrant is entitled to mark "registered trademark" or a registration symbol.
[1] The author's perspective
First, we can see that the trademark "Nanjing Dapaidang" can be split into "Nanjing" and "Dapaidang." "Nanjing," as an administrative division, has no secondary meaning. According to Article 4, Paragraph (2) of the "Guidelines for Trademark Registration Applications and Use in the Catering Industry (Trial)" issued by the China National Intellectual Property Administration in April this year, signs such as "restaurant," "Chinese restaurant," "dapaidang," and "small eatery" are only generic names for catering services and fall under the "lack of distinctive features" stipulated in Article 11 of the Trademark Law. Although there is a one-character difference between "Dapaidang" and "Dapaidang," tracing the origin of the term "Dapaidang" shows that they have the same meaning. Therefore, "Dapaidang" falls under the circumstances in Article 11 of the Trademark Law where it cannot be registered as a trademark. For catering trademarks that have already been obtained, the rights holder shall adhere to the principles of good faith and non-abuse of rights, use them in accordance with regulations, and exercise rights reasonably. Otherwise, they may face the risk of the trademark being declared invalid by the Trademark Office or the Trademark Review and Adjudication Board.
Furthermore, the disputed trademark lacks distinctiveness, violating Article 9 of the Trademark Law. Thus, it is unreasonable for Dahui Company to sue multiple companies based on the term "Dapaidang." Currently, over 200 catering companies use "Dapaidang." If Dahui Company wins this case, all these 200-plus "Dapaidang" companies could potentially be infringing, which would essentially monopolize the term "Dapaidang." This is not only detrimental to the development of China's catering industry but also harmful to the protection of trademark rights.
