Controversy Red Bull Trademark: Trademark Registration Mechanical Protection becomes a hidden concern

Text | Zhao Chao Su Zhi Meng

The China Food Industry Corporation (hereinafter referred to as "Chinese Food"), Shenzhen Zhonghao (Group) Co., Ltd. (hereinafter referred to as "Zhonghao") and (Thailand) Tiansi Medical Health Co., Ltd. (hereinafter referred to as "Thailand Tiansi" ) The jointly established Chinese -foreign joint venture Red Bull Weishi Life Beverage Co., Ltd. (hereinafter referred to as "Chinese Red Bull") and a series of lawsuits caused by the ownership of Red Bull trademarks and use in Thailand. Continuous controversy with the practical community, and the social impact on this has also aroused concerns in the industry.

This kind of concern comes from the impact and harm that the judgment may have on the development of China's real economy. Because Red Bull trademark rights are not a case. According to incomplete statistics, more than 600 companies used by more than 4,000 listed companies nationwide are like Chinese Red Bulls in the state of long -term separation of trademark use and ownership of ownership. The trademark ownership of these listed companies is among the major shareholders' group companies or others. Once the listed company is bigger and stronger, the trademark is well -known or famous, and there will be a phenomenon of "peaches greater to provoke capital." The behavior of "picking peaches" is likely to become a hidden danger of destroying these listed companies.

Trace of Chinese Red Bull and Thai Silk Trademark Rights Tracing

Red Bull beverages, as a functional drink containing ingredients such as water, sugar, caffeine, fibolol, and vitamin B. The earliest was founded by Thai businessman Xu Shubiao in Bangkok. Thailand) Tiansi Medical Health Co., Ltd. owned. Its development in China has gone through three stages:

The first stage was that in 1993, Xu Shujiao intended to open the Chinese market through the establishment of Hainan Red Bull Beverage Co., Ltd. (hereinafter referred to as "Hainan Red Bull"), but due to the two key obstacles in the encounter: the established product production standards of Red Bull beverages failed to pass China at that time in China at that time. The approval of the Ministry of Health, so it does not meet the standard of production standards for Red Bull vitamin functional beverages suitable for the market; the Jinhua Bulls Center has obtained a registered trademark of bullfighting in 1994. Therefore, the Red Bull graphic trademark containing bullfighting patterns cannot be approved in China. Therefore, Hainan Red Bull can only engage in the sales of imported Red Bull beverages since its establishment, and cannot truly produce Red Bull beverages and sell it.

The second stage was that after the first experience in the development of the Chinese market, the person in charge of the Chinese market Yan Bin and Xu Shubiao took the opportunity of reform and opening up in the 1990s, and established a Chinese -foreign joint venture Chinese Red Bull through the joint venture between China Food and Zhonghao. China (Chinese Food, Zhonghao) cooperation eliminates two key obstacles affecting the production and trademark registration of Red Bull beverages: First, the Chinese Ministry of Health applies to the Ministry of Health to obtain vitamin functional beverages (the ingredient content that conforms to the efficacy of Red Bull beverages) For production permits, the second is to buy the ownership of the bullfighting trademark from the Jinhua Bullet Bulls Center. Since then, China has been able to produce and operate in China (that is, the production and sales of goods, and the registered and used trademarks). The Chinese Red Bull has gradually opened up the Chinese market and established a nationwide production and sales network. The festival rises. As of 2020, China Red Bull has more than 4 million sales outlets across the country, with a cumulative sales of more than 30 billion can, of which the sales revenue of 2020 exceeded 20 billion yuan. By 50.68 billion yuan in 2015.

The third stage is the stage of disputed between the two parties. In 2012, under the sales of the joint venture China Red Bull sales of nearly 10 billion yuan, the profit tax and profit had jumped to the fifth good situation of the beverage industry. Mr. Xu Shubiao died, and his son Xu Xinxiong became the actual controller. This incident has become a joint venture China Red Bull and Thai Tiansi shifted from close cooperation to the watershed.

On July 24, 2012, Tiaisi Tiansi and some other Chinese investors set up a new company that produced Red Bull beverages as its operating content -Guangzhou Energy Beverage Co., Ltd. (hereinafter referred to as "Guangzhou Energy") in Guangdong. On September 7 of the same year, the Red Bull trademark of Chinese Red Bull has been used for 18 years of removal, and the trademark permit was used for the use of the trademark on May 7, 2014, on the day of approval. Some executives of the company seize the sales channels, customers, and employees of the joint venture by setting up the same type of company; finally, the Chinese Red Bull's production and operation activities were comprehensively blocked by suing the Chinese Red Bull and its supporting production and sales manufacturers' trademark infringement.

This has led to a cumulative tax of 32 billion yuan in Chinese Red Bull, which solves more than 20,000 employees' employment opportunities. The livelihoods of millions of employees involved will pay for the benefit of capital.

The trademark right system not only protects the possessor, but also protects the use of the type of use

In the dispute over the right of red bull beverage trademark rights, how should we judge the ownership of Red Bull trademark rights? Is the criteria for judging the objective basis of administrative registration (registration and change registration) as an objective basis? In the author's opinion, in terms of its essence, determination of simply judging according to objective standards not only violates basic law, but also violates the original intention of the establishment of an intellectual property system. The main reason is:

First, the legitimacy foundation of the trademark intellectual property system is to protect the effective and legitimate use of trademarks. Registration is not the only way to obtain trademark rights. The purpose of the creation of the intellectual property system is to provide monopoly privileges to the achievements of intangible labor. The reason why this privilege can be obey is that this protection must be converted to the subject who truly creates the value of labor. The protection of copyright or patent rights in the copyright law and patent law is obtained or registered because they are truly protected. Application does not affect the existence of its legal rights. However, trademarks are different. Simple trademark registration does not create any value for society. Trademarks can only be presented by the use of its value. In this sense, the subject that is worthy of protection for trademarks should not be limited to the subject of trademark registration (ie, the person who possess the trademark), and other trademarks should also be protected by law reasonably. Typical examples are: According to the provisions of my country's trademark law, even for registered trademarks, the same or similar trademarks that are used in the same product or similar product can continue to be used as the same or similar trademark as the registered trademark. Of course, this is not to say that the labor paid by the designer of the trademark is not worthy of protection, but for a well -known trademark brand with a well -known and high gold content, the initial inspiration and related legal confirmation procedures of trademark designers are important. But compared to its contribution to the formation of trademark value, it is very limited. In other words, the registration of trademarks only gives trademark applicants rights, but it cannot give trademark value. Labor is the true source of trademark value, and the legitimacy foundation for the protection of trademark rights. The value of trademarks is not simply generated through registration. More importantly, it also depends on the creative operation of trademark brands, carefully maintenance and active promotion. Therefore, when the trademark right is disputed, perhaps the main body of the trademark is the true worker of the trademark right system that is more worthy of protection. This is the trademark right system not only to protect the possessor, but also to protect the acquisitioner. It is in this sense that if a registered trademark designed by the design is high after registering and fails to really put into the market for effective use, operation, and promotion, the value and use value of the trademark can almost ignore it. Although my country's trademark law adopts a model of registered trademark rights, it also has the conditions to recognize the right to confront the trademark rights of the trademark rights, and clearly stipulate that it is not recognized for registration of malicious trademarks that do not use it.

According to this principle, the brand value of the Red Bull beverage trademark currently circulating in the Chinese market does not come from the registration of Red Bull trademarks, but from the hard work of Chinese Red Bull for decades and effective marketing. According to statistics, during the period of legal use of the Red Bull trademark, the total advertising fee and brand promotion fee of Chinese Red Bull spent have exceeded 18 billion yuan. It can be said that without the continuous operation and promotion behavior of the Red Bull's Red Bull trademark, there is no position in the Chinese beverage industry today in the Chinese beverage industry.

Second, the definition of trademark ownership should comprehensively consider the various formation factors of trademarks. The original creation of trademarks should not be the only consideration for trademark rights. At present, the main reasons that Chinese Red Bull trademark belongs to Thailand's Tiansi: First, the Red Bull trademark is the trademark registered in Thailand in Thailand. The Red Bull trademark applied in China in China has been registered with the National Trademark Office. This understanding seems to be sufficient, but it actually misunderstands the nature of the trademark system and has bad legal consequences. It can be seen by querying relevant information that the Chinese Red Bull trademark is not the simple continuation of the Red Bull trademark registered in Thailand in Thailand in the Chinese market. The trademark is the results of the Chinese shareholders in the joint venture using their identity advantages and policy advantages to cooperate with Thailand. The Red Bull trademark owned by Thai Tiansi has undoubtedly contributed a significant contribution to the registration of Chinese Red Bull trademarks, but only the Thai Tiansi's registration application for Red Bull trademarks will not directly produce the effect of registering the Chinese Red Bull trademark. Because before the Red Bulls in Thailand entered China, there were registered trademarks identified by bullfighting in the Chinese market. With the legal existence of the trademark, the Thai Red Bull could not obtain legal trademark rights in China. This is also the Thai Red Bull entering the Chinese market. Later, the main reasons for obtaining trademark registration were not obtained.

The red bull trademark in the Chinese market as a trademark type with a special significance is a graphic and related signs of the Chinese and English Red Bull trademark jointly designed by Thailand Tiansi and Chinese cooperation. Although the early Red Bull graphics and the later Red Bull trademark were provided by Thailand's Silk, during the operation process, it continued to give them new ideas and add new elements, so that the Chinese Red Bull transformed from a simple trademark to a one The complex combined trademark, and finally gradually upgraded from a simple trademark to a brand that integrates trademarks, goodwill, reputation, channels, and many factors. Although the Red Bull brand is attached to the Red Bull trademark, its brand value is not completely provided by the Red Bull trademark. The more important contributor should be the goodwill value of the Chinese Red Bull based on the consumer's market recognition. Even as a trademark, based on the public's awareness of the Red Bull trademark, the duration of the trademark, the promotion duration, degree and geographical scope of the trademark, it can be inferred that the Chinese Red Bull trademark is already a kind of in China in China. It can be protected by a well -known trademark based on the trademark law, and the protection of the well -known trademarks is based on use rather than registration as the basis for protection. If you adhere to the concept of a single registration in a specific judicial jurisprudence, it seems to clarify the ownership of the monopoly privilege of the monopoly privilege of trademarks and the equivalent of his value, but it deprives the legitimate rights and interests of the actual brand value creator. Not only did it fundamentally violate the basic principles of Marxist political economy, but also seriously curb the enthusiasm of trademark users to expand the value of trademark value. It not only violates the original intention of the establishment of the trademark system, but also is not conducive to the healthy development of the trademark system. It is the mechanical protection of trademark registration in the flaws of the Chinese trademark system itself and judicial practice, which leads to the prevalence of malicious recovery behavior in reality. All kinds of abnormal phenomena such as flooding are repeatedly banned. The false prosperity of registered trademarks caused not only cannot create more wealth for society, but has created information difficulty and increase the cost of social management for trademark review. Therefore, a reasonable system correction goal should be based on the protection of trademarks based on registration and use. Based on this, the author believes that when judging the trademark right of Chinese Red Bull, it is not possible to simply pay attention to the comprehensive factors of trademark rights and trademarks when registering for trademark registration. Because only the results of the application link of the Red Bull trademark and the results of the red bull trademark right based on the pure technical path are not only too simple and rude, but also the adverse consequences of substantial injustice.

Revelation of the Red Bull Trademark: Intellectual Property Protection is closely related to the protection of national industry

To this day, the Red Bull brand is not only a simple trademark, but a mark of the times and social significance at the spiritual level. It has witnessed the glorious journey of China's reform and opening up and carried the dream and pursuit of reform and opening up.

First of all, since the 1980s, China has entered a joint venture era that promotes local development with the help of investment promotion. Among the many foreign brands, it has been rare that it can be retained by the big waves. Some of the secrets of its success are to use the powerful radiation effects of well -known foreign brands, and some of which are transformed by ingenious Sinicization, that is, more Chinese elements are implanted after entering the Chinese market. The Red Bull trademark is not only a typical representative of foreign trademark Sinicization, but also the product of organic synthesis for foreign brands and traditional Chinese culture. In a general sense, one of the key factor in other countries is to succeed in other countries. The cultural meaning of the photographed behind the trademark is highly consistent with the national characteristics of the country.

Well -known trademark brands in any country are closely related to their national spirit and national culture. The reason why Wahaha's trademark is successful is because it fits the optimistic view of life and family harmony of the Chinese nation. Chinese Red Bull trademarks are also no exception. Although the Red Bull trademark is inspired by the Chinese and Thai businessmen Xu Shubiao originated in Thailand, whether in Thailand or other countries, because it fails to give it sufficient cultural connotation, it is difficult for the Red Bull trademark to produce such a powerful brand value and effect. When it entered China, because it fits down the Chinese spirit of down -to -earth, it is a Chinese spirit, which caters to the cultural artistic conception of the Chinese nation since the agricultural civilization, which has worked hard to work hard. The people's pursuit of redness and bullishness, so it quickly won the recognition of the public, coupled with the continuous brand promotion of the Chinese Red Bull, has not only increased rapidly from the early more than 100 million yuan to today's 200 200 days. 100 million yuan, and its brand awareness and brand influence have also risen rapidly. Just as Coca -Cola and McDonald's are not only the necessities of many Americans, but also represent the spirit, culture and values ​​of the United States to some extent. Red bull beverages also laid a deep Chinese culture.

Secondly, in terms of the era of Chinese Red Bull beverage trademarks, it represented the forgotent determination of China to try and tolerate the world in the 1990s. Essence The reason why the Red Bull beverage trademark brand can achieve today's achievements is inseparable from the combination of the opportunity of China's reform and opening up, and it is inseparable from the nourishment of China's huge consumer market. The reason why Chinese Red Bull was able to clear up the market obstacles that Hainan Red Bull had encountered in great development was because relevant state -owned enterprises opened up the leaders for foreign capital markets. In the end, as far as the social significance of Chinese Red Bull beverage trademarks, it represents that Chinese trademarks gradually learn from brand reference to brand autonomy, and it also represents the development direction of the Chinese trademark system from institutional transplantation to institutional awakening. Since the development of Chinese Red Bull beverage trademarks, the Chinese Red Bull has transformed from a privately -based joint venture to a publicized joint venture company with public -oriented. The millions of employees involved in the entire industry chain are the honor and disgrace of the Communist Party of China, and the trademark value of Red Bull beverages is not just the issue of simple private belonging. Moreover, the trademark of Chinese Red Bull beverages as a combination of trademarks is not just the repetition and excerpts of the Thai Red Bull trademark. It has made adaptive self -commissioning and carefully cultivated local cultivation to integrate into the Chinese market. Based on the enlightenment of the Chinese Red Bull trademark war, the trademark will also laid the foundation for the evolution of China's future trademark law -related system. It reminds us that the protection of intellectual property rights should be closely related to the protection of the ethnic industry. The intellectual property system is closely linked to the public interests, national interests, and national interests of a specific society.

Red Bull trademark rights are judged by the construction of the integrity of the market economy and society

The history of human society's development is a process of seeking human civilization to some extent. However, human beings have not reached a consensus on how the civilizations they are pursuing. Fortunately, human beings are more clear about answering questions that should not pursue civilization. Because the civilization pursued by human beings has a certain benchmarking benchmark is that civilization and barbaric have the opposite value orientation and social consequences. The process of civilization is the process of human beings constantly getting rid of the barbaric process. The biggest function of civilization is honesty and trustworthiness. It can be seen that there are at least two points of civilized human society.

First, modern human society with civilized attributes must not allow the barbaric robbery to be carried out by the commercial war, and it is also difficult to indulge in the unfair competition of relying on the coat of litigation. In other words, the capital operation of a civilized society cannot destroy faith. Although it is difficult for capitalists to be conscience in the face of capital chase, the excellent business environment must be constructed at least to adhere to the capitalist's integrity as the cornerstone. The Chinese Trademark Law also announces that the registration and use of trademarks should be based on the principle of honesty. Therefore, in the Chinese Red Bull trademark war, justice should not be encouraged. If it is recognized and encouraged, then the future of the Chinese market will be more and more "Red Bull trademarks".

Second, the human civilized society needs not only order, but also not only to stay in order. It also needs to be based on the order of integrity. The civilized society is not only the rule of law, but the good rule of law. In other words, although the rule of law itself does not have subjective colors, the civilized society aims at the good rule of law, so the rule of law must be conducive to social progress, and this should be the supporting facilities of a civilized society. Therefore, the last line of defense of judicial trial, as a good law and good governance must protect and ensure the social effects, social influence and social orientation of the rule of law. Therefore, its application of the legal system should not be trapped in a shallow cycle of technology, otherwise the rigid application of mechanical terms may block people's hard work, hard work, and persistence. The construction of a socialist market economy with Chinese characteristics should not encourage the immorality of capital and the non -goodness of the rule of law. The operation of capital should be carried out in the business environment of socialist core values ​​such as integrity. Civilization adheres to the bottom line of fairness and justice.

Zhao Ren: Professor of Southwest University of Political Science and Law, Deputy Director of the Academic Committee of the Chinese Law Society's Civil Law Research Association, vice president of the Chinese Law Society of Law Society, Vice President of the Chinese Law Society Journal Research Association

Su Zhikeng: Doctoral students of civil and business law of Southwest University of Political Science and Law

(This article published in "China Economic Weekly", No. 14, 2022)

The cover of "China Economic Weekly" in the 14th of 2022

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