文|罗雨 导 语 Recently, with the announcement of the verdict in a lawsuit that resembled a farce, the Red Bull trademark case has once again drawn public attention. Previously, Global Market Company, controlled by Yan Bin, filed a lawsuit seeking to confirm the invalidity of the arbitration clause stipulated in the "Red Bull Vitamin Beverage Co., Ltd. Contract" (referred to as the "Joint Venture Contract"). Ultimately, the court rejected Global Market Holding Company's claim, stating that it was "hard to imagine" that they were unaware of the existence of the arbitration clause. The verdict proves that Global Market Holding Company's attempt to delay through litigation did not succeed, and Yan Bin's side has to face the issues of the joint venture contract and the expiration of the trademark license. The red-green dispute between Wanglaoji and JDB has not yet fully subsided, and the trademark dispute over "Red Bull," the dominant player in the domestic functional beverage market, is escalating. Both are leaders in the beverage industry, both involve disputes between partners, and both have attracted widespread attention, so it is natural for people to compare the two cases and consider them similar. Many are speculating whether Red Bull will become the next JDB. Although the two cases appear similar, a careful comparison reveals fundamental differences. 1. Different Scope of Dispute: Trademark Ownership vs. Packaging Design As is well known, in the "Wanglaoji and JDB case," the Supreme Court ruled that both parties, on the premise of not harming the legitimate interests of others, jointly enjoy the rights to the packaging and decoration of "Red Can Wanglaoji Herbal Tea." This case seems similar to the Red Bull trademark case, both being issues of intellectual property ownership, but upon closer examination, the most significant and core difference lies in the scope of the dispute, which is also easily overlooked by most people. According to official information from Thai Tiansi Pharmaceutical Company, the founder and owner of the global Red Bull brand and the "Red Bull" trademark, the Xu family established Red Bull Vitamin Beverage Co., Ltd. (hereinafter referred to as the joint venture) in 1995 with other shareholders including Yan Bin. At that time, trusting Yan Bin, the Xu family appointed him as chairman of the joint venture and manager of Red Bull's business operations in the Chinese market. The Xu family has been the controlling shareholder of the joint venture since its establishment. Equity structure chart of Red Bull Vitamin Beverage Co., Ltd. In October 2016, Tiansi Pharmaceutical's trademark license agreement for the joint venture expired and was not renewed. In fact, during the period before this, Yan Bin's series of actions outside the operation of China Red Bull had already attracted the attention of the Xu family. It turned out that Yan Bin had established several companies wholly owned by him personally, which, without obtaining trademark licenses or the consent of the joint venture partners, had been illegally producing and selling Red Bull products. As the founder and owner of the global Red Bull brand and the "Red Bull" trademark, on August 18, 2017, Tiansi Pharmaceutical and the Xu family announced that they had filed legal lawsuits against Yan Bin and several companies he owns or controls, on grounds including trademark infringement, unfair competition, and other behaviors related to the unauthorized production and sale of Red Bull products. Clearly, the "Red Bull trademark case" is a series of trademark infringement lawsuits centered on the exclusive right to use the Red Bull trademark. In contrast, the JDB and Wanglaoji case focused on the packaging and decoration of beverages, which from a legal perspective falls under product appearance design. Thus, the core points and scope of the disputes in these two cases are not the same. So what exactly is the difference between the trademark and the appearance design, which are the focus of the two cases? Generally speaking, a trademark is part of the packaging and decoration of a product, and both are used simultaneously on product packaging. Therefore, appearance design inevitably uses trademarks, and trademarks constitute an important part of appearance design. Appearance design patents focus on aesthetics, with creativity, novelty, and practicality, while trademarks serve to identify products. As an important identifier of a product, a trademark has commercial value that appearance design cannot match. Asa Candler, the founder of Coca-Cola, once publicly stated, "As long as I have the Coca-Cola trademark in hand, even if Coca-Cola's tangible assets were to vanish overnight, the Coca-Cola Company could immediately rely on the trademark to obtain new funds and start new production." This shows the importance of trademarks to enterprises. As an important intellectual property, a trademark is not only an intangible asset of an enterprise, generating huge profits, but also, to a certain extent, represents the development level, economic strength, and overall image of a region or even a country. How to use and protect trademarks to maximize their value has become an important issue for both enterprises and countries. Undoubtedly, how to protect the Red Bull trademark is an urgent issue for Tiansi Pharmaceutical. 2. Different Legal Bases Lead to Different Verdicts Compared with the Wanglaoji and JDB case, the Red Bull trademark case has a clearer legal basis, which also determines the high likelihood of vastly different verdicts. 1. Whether an Agreement Was Signed Makes a Big Difference In the Wanglaoji and JDB case, the Supreme Court ruled that both Guangzhou Pharmaceutical Group and JDB Company made significant contributions to the formation of the packaging and decoration rights of the herbal tea, so the two companies jointly enjoy the rights to the packaging and decoration. Prior to this, Wanglaoji and JDB had not reached a clear agreement on the ownership of the red can packaging, nor had they applied for a patent for the packaging and decoration of "Red Can Wanglaoji Herbal Tea." Without an agreement or patent protection, both parties had sufficient reasons to claim their contribution to the packaging and decoration, which created a dilemma for the Supreme Court, and the conclusion of "shared packaging" undoubtedly verified this. In contrast, in the Red Bull trademark case, the parties signed multiple agreements to ensure that Tiansi Pharmaceutical is the sole owner of the Red Bull trademark, patents, and all forms of intellectual property. In litigation, whether an agreement has been signed becomes the basis for the court's judgment, and the agreement itself has legal effect, which means that the Red Bull trademark case will not produce a verdict of "shared packaging." 2. Whether Trademark Authorization Was Obtained Is Key How Red Bull Vitamin Co., Ltd. (hereinafter referred to as the joint venture) can legally use the Red Bull trademark and the gold can packaging is also the focus of the Red Bull trademark case. As the only entity authorized to use the Red Bull trademark license and gold can packaging, it does not have the right to authorize other companies to use the Red Bull trademark and gold can packaging. In October 2016, the joint venture's Red Bull trademark license agreement expired and was not renewed. According to publicly released information from Tiansi Pharmaceutical, Hua Bin Group, under Yan Bin, established several companies wholly owned by him personally outside the joint venture system. These companies, from their establishment, used the Red Bull trademark without the permission of the Xu family and in violation of the agreed joint venture agreement, and have been producing and selling Red Bull products. Undoubtedly, the Red Bull factories under Hua Bin Group do not have the right to use the Red Bull trademark and gold can packaging. "From a legal perspective, from October to the present, the Red Bull products produced by Yan Bin should be considered infringing products," said Yao Huanqing, deputy director of the Civil and Commercial Law Research Center at Renmin University of China. It can be seen that without authorization to use the trademark, producing and selling Red Bull is not legal. 3. Different Responses After Trademark Authorization Expires When the authorization to use the Wanglaoji trademark expired, JDB stopped using the Wanglaoji trademark in accordance with the contract and legal provisions. In stark contrast, in the Red Bull trademark case, Yan Bin's side has still been illegally using the Red Bull trademark and producing and selling Red Bull beverages. According to a report by National Business Daily, a sales manager in Chengdu said, "The struggle is above; our production and operations continue as usual." As for whether the Red Bull authorization renewal will continue to fall on Hua Bin Group, he firmly believed, "If not us, who else?" It is clear that Yan Bin's side has not stopped infringing on the Red Bull trademark. With the acceleration of global economic integration, product trademarks are increasingly valued, and the related legal systems are becoming more complete, but there are still many trademark infringements. In the tug-of-war of the Red Bull trademark case, Yan Bin's actions have greatly infringed on the legitimate rights and interests of Tiansi Pharmaceutical. 3. Knowing It's Infringement but Crossing the Sea by Stealth When people talk about Red Bull, the most impressive thing is the slogan "Your energy, beyond your imagination," and the gold can image has become synonymous with functional beverages. On August 21, 2017, Hua Bin Group made its first official statement on the trademark renewal, emphasizing Yan Bin's outstanding contribution to China Red Bull products, saying it would not comment on the series of legal disputes, and did not give a direct response to the trademark infringement. There is no denying Yan Bin's contribution to the promotion and sale of Red Bull in China. However, unilaterally emphasizing the operation and promotion of China Red Bull while ignoring the established contract terms of the joint venture, and disregarding Tiansi Pharmaceutical's absolute ownership of the Red Bull trademark and its support and contributions to the joint venture rather than to Yan Bin personally, such as in formula and R&D, is undoubtedly putting the cart before the horse. In fact, as early as 1982, before entering the Chinese market, Tiansi Pharmaceutical had already adopted the gold can packaging for Red Bull products exported to Singapore. Knowing that the Red Bull trademark authorization was unstable, Hua Bin Group has taken a series of de-Red Bull measures in recent years. "Hua Bin Group's various arrangements are also preparing for the loss of trademark authorization," said Zhu Danpeng, a researcher at the China Brand Research Institute's food and beverage industry. In 2017, Hua Bin Group launched a new product, "War Horse," an energy vitamin beverage that might replace Red Bull, but this move was not very effective, which also indirectly proves that without the support of Tiansi Pharmaceutical's Red Bull brand advantages, trademark, and formula, the joint venture would not have achieved today's success so easily. According to information, in 1982, Tiansi Pharmaceutical had already adopted the gold can packaging for Red Bull products exported to Singapore. Referring to the Wanglaoji and JDB case, JDB was particularly outstanding in the patent protection of appearance design. During the trademark license period, JDB filed various lawsuits for infringement of the red can packaging and decoration to ensure that only JDB could use the red can packaging and decoration in the market. In contrast, the joint venture did not actively protect its status as the sole user of the gold can packaging in China through relevant legal means, which is why there are many similar gold can packaging products on the market. No matter how the situation changes, Yan Bin's infringement of the Red Bull trademark is beyond doubt, and the recent verdict undoubtedly proves this again. Based on the above factors, we can clearly see that although the Red Bull and Wanglaoji cases are both issues of intellectual property ownership, there are essential differences, and Red Bull will not become the next JDB. Source: Law Network App -END-