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Musang King Dessert Shop, which became popular on the streets of Nanjing a few years ago, focuses on durian desserts and has successfully opened its shop all over the country. “There are many popular people”, with the popularity of the “Musang King” brand, cottage stores have also come.

In order to protect the brand, Nanjing Musang King Catering Management Co., Ltd. (hereinafter referred to as Musang King Company) began to defend its rights, taking a dessert shop with the word “Musang King” in its name in Chongqing to court, claiming 100,000 yuan.

Musang King Company was established in December 2013, and after the brand became popular in Nanjing, Musang King Company opened dessert shops in Jiangsu, Beijing, Tianjin and other places.

It is also reported that Musang King Company has registered the graphic trademark “Uncle Mao”, the trademark “Musangking and Tu” and the trademark “Musangking”.

In 2018, Musang King obtained the right to use the No. 20035764 “Musang King” trademark from a food company through authorization, and Musang King has the right to claim infringement compensation from a third party if infringement is found within the validity period of the trademark registration.

In November 2020, Musang King discovered that a dessert shop in Chongqing was suspected of infringing its trademark rights by a dessert shop with Musang King’s signboard, so it decided to sue the merchant operating the dessert shop to the court.

Musang King held that the dessert shop in question prominently used its own trademark on its shop front and products, which constituted trademark infringement. Moreover, the dessert shop involved also used the word “Musang King” in the name of the enterprise, which constituted unfair competition.

Accordingly, Musang King filed a lawsuit with the Chongqing Free Trade Zone Court on the grounds of trademark infringement disputes, requesting the court to order the dessert shop involved in the case to stop using the trademark in question, stop using the “Musang King” enterprise name, and compensate 100,000 yuan.

The dessert shop in question argued that “Musang King” was a Malaysian durian variety that was a generic name, which was not distinctive and identifying, and that the use of “Musang King” was not a trademark use.

The court held that through actual use and extensive publicity, consumers had established a specific connection between “Musang King” and durian desserts. “Musang King” is not a generic name for providing durian dessert services and constitutes a trademark use.

After comparison in court, the dessert shop in question prominently used the word “Musang King” on the front of its store, which was similar to the No. 20035764 registered trademark “Musang King” enjoyed by Musang King.

The dessert shop involved in the case used a similar trademark on the same service without the permission of the right holder, infringing the corresponding rights enjoyed by Musang King Company in relation to the trademark in question, and should bear civil liability for stopping the infringement and compensating for losses.

Musang King’s claim that the dessert shop involved constituted unfair competition was also upheld by the court.

In the end, the Chongqing FTZ Court rendered a first-instance judgment; The defendant stopped infringing on the plaintiff’s exclusive right to use the registered trademark “Musang King”, changed the enterprise name within 3 months, and compensated the plaintiff 30,000 yuan.

After the first-instance judgment, neither Musang King Company nor the dessert shop involved accepted the verdict and appealed to the Chongqing First Intermediate Court.

Musang King Company believed that the amount of compensation was too low and requested that the compensation be changed to 100,000 yuan.

The dessert shop involved in the case said that it signed a franchise agreement with a third party outside the case, and after joining, it enjoyed the right to use the trademark “Durian Cat Uncle”, but the store’s products and decoration were uniformly required by the headquarters, so the main responsibility for trademark infringement should be the third party outside the case.

The Chongqing First Intermediate Court made its judgment based on the facts ascertained: it dismissed the appeal and upheld the original judgment.

The “Musang King” signboard is fragrant and fruitful, which has led to repeated trademark infringement cases encountered by Musang King, and Musang King has been involved in as many as 247 legal proceedings, and most of the causes of the cases are trademark infringement disputes.

In the current phenomenon of copycats and brand-name brands, if enterprises want to avoid the risk of damage to goodwill, they must not only do a good job in trademark layout in advance, including core trademarks and defensive trademarks, but also take up legal weapons in time to knock on the infringer when encountering brands being copycat and being hit. (Image source: China Trademark Network and Network)