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Gudongchun Company v. Yiqingyuan Company, et al (Case of Dispute over Unfair Competition)
古洞春公司诉怡清源公司等不正当竞争纠纷案
【法宝引证码】
  • Type of Dispute: IPR-->Others
  • Legal document: Judgment
  • Judgment date: 12-23-2004
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 9,2006

Gudongchun Company v. Yiqingyuan Company, et al (Case of Dispute over Unfair Competition)
(Case of Dispute over Unfair Competition)
古洞春公司诉怡清源公司等不正当竞争纠纷案

Gudongchun Company v. Yiqingyuan Company, et al
(Case of Dispute over Unfair Competition)

 

古洞春公司诉怡清源公司等不正当竞争纠纷案

 【裁判摘要】
 民法通则九十七条规定:“公民对自己的发现享有发现权。发现人有权申请领取发现证书、奖金或者其他奖励。”根据该规定,发现权只是对发现者个人或集体给予的一种荣誉权和被奖励权,不能转让也不能继受取得。
 植物新品种保护条例三条规定:“国务院农业、林业行政部门(以下统称审批机关)按照职责分工共同负责植物新品种权申请的受理和审查并对符合本条例规定的植物新品种授予植物新品种权。”该条例第三十一条规定:“对经实质审查符合本条例规定的品种权申请,审批机关应当作出授予品种权的决定,颁发品种权证书,并予以登记和公告。”根据上述规定,植物新品种权的取得,必须依法定程序进行,非经法定程序,任何个人或单位不能以任何其他方式原始取得品种权。
BASIC FACTS 
Plaintiff: Gudongchun Tea Co., Ltd. of Taoyuan County, Hunan Province, located at Taipingpu Village, Taipingpu Township, Taoyuan County. 原告:湖南省桃源县古洞春茶业有限责任公司,住所地:桃源县太平铺乡太平铺村。
Legal Representative: Lu Wanjun, president of this company. 法定代表人:卢万俊,该公司董事长。
Defendant: Hunan Yiqingyuan Tea Co., Ltd., located at Fengquan Building, South Cai'e Road, Changsha City. 被告:湖南省怡清源茶业有限公司,住所地:长沙市蔡锷南路丰泉大厦。
Legal Representative: Jian Bohua, president of this company. 法定代表人:简伯华,该公司董事长。
Defendant: Zhang Guohua, male, of the Han nationality ethnicity, 54 years old, owner of Guangyuan Tea House of Wuling District, Changde City, resides at the central section of Dongting Avenue, Changde City. 被告:张国华,男,汉族,54岁,常德市武陵区广源茶行业主,住常德市洞庭大道中段。
Defendant: Zhang Zhi, male, of the Han nationality ethnicity, 27 years old, owner of Yiqingyuan Tea House of Wuling District, Changde City, resides at Dongjiang Village, Dongjiang Township, Changde City. 被告:张智,男,汉族,27岁,常德市武陵区怡清源茶行业主,住常德市东江乡东江村。
Defendant: Hunan Jiarunduo Supermarket Co., Ltd. Changde Branch, located at Central Renmin Road, Changde City. 被告:湖南家润多超市有限公司常德店,住所地:常德市人民中路。
Legal Representative: Young David Colin, president of this company. 法定代表人:Young David Colin,该公司董事长。
Defendant: Hunan Jiarunduo Supermarket Co., Ltd. Chenzhou Branch, located at North Guoqing Road, Chenzhou City. 被告:湖南家润多超市有限公司郴州店,住所地:郴州市国庆北路。
Legal Representative: Young David Colin, president of this company. 法定代表人:Young David Colin,该公司董事长。
Defendant: Hunan Jiarunduo Supermarket Co., Ltd. Chaoyang Branch, located at Renmin Road, Changsha City. 被告:湖南家润多超市有限公司朝阳店,住所地:长沙市人民路。
Legal Representative: Young David Colin, president of this company. 法定代表人:Young David Colin,该公司董事长。
Defendant: Changsha Tongcheng Holdings Co., Ltd. Dongtang Branch, located at West Laodong Road, Changsha City. 被告:长沙通程控股股份有限公司东塘店,住所地:长沙市劳动西路。
Legal Representative: Zhou Zhaoda, president of the company. 法定代表人:周兆达,该公司董事长。
Defendant: Hunan Huayin Wanghe Supermarket Co., Ltd. Xinzhonglu Branch, located at Xinzhong Crossing, South Shaoshan Road, Changsha City. 被告:湖南华银旺和超市有限公司新中路店,住所地:长沙市韶山南路新中路口。
Legal Representative: Zhang Yawu, president of this company. 法定代表人:张亚武,该公司董事长。
Defendant: Hunan Huayin Wanghe Dongfeng Supermarket Co., Ltd., located at Dongfeng Road, Changsha City. 被告:湖南华银旺和东风超市有限公司,住所地:长沙市东风路。
Legal Representative: Zhou Jie, general manager of this company. 法定代表人:周杰,该公司总经理。
Defendant: Hunan Huayin Wanghe Supermarket Co., Ltd. Jiefang Road Branch, located at Jiefang Road, Hengyang City. 被告:衡阳华银旺和超市有限公司解放路店,住所地:衡阳市解放路。
Legal Representative: Hu Ganjun, president of this company. 法定代表人:胡干军,该公司董事长。
Defendant: Hunan Xinlianxin Supermarket Co., Ltd. Xiangtan Grain Trade Branch, located at Chezhan Road, Xiangtan City. 被告:湖南心连心超市有限公司湘潭粮贸店,住所地:湘潭市车站路。
Legal Representative: Huang Tengqi, president of this company. 法定代表人:黄腾其,该公司董事长。
The plaintiff Gudongchun Tea Co., Ltd. of Taoyuan County, Hunan Province (hereinafter referred to as Gudongchun Company) brought a lawsuit to the Intermediate People's Court of Changde City, Hunan Province for its dispute over unfair competition with Hunan Yiqingyuan Tea Co., Ltd. (hereinafter referred to as Yiqingyuan Company), Zhang Guohua, Zhang Zhi, Hunan Jiarunduo Supermarket Co., Ltd. Changde Branch (hereinafter referred to as Jiarunduo Changde Branch), Hunan Jiarunduo Supermarket Co., Ltd. Chenzhou Branch (hereinafter referred to as Jiarunduo Chenzhou Branch), Hunan Jiarunduo Supermarket Co., Ltd. Chaoyang Branch (hereinafter referred to as Jiarunduo Chaoyang Branch), Changsha Tongcheng Holdings Co., Ltd. Dongtang Branch (hereinafter referred to Tongcheng Dongtang Branch), Hunan Huayin Wanghe Supermarket Co., Ltd. Xinzhonglu Branch (hereinafter referred to as Huayin Wanghe Xinzhonglu Branch), Hunan Huayin Wanghe Dongfeng Supermarket Co., Ltd. (hereinafter referred to as Huayin Wanghe Dongfeng Company), Hengyang Huayin Wanghe Supermarket Co., Ltd. Jiefang Road Branch (hereinafter referred to as Huayin Wanghe Jiefang Road Branch), and Hunan Xinlianxin Supermarket Co., Ltd. Xiangtan Grain Trade Branch (hereinafter referred to as Xinlianxin Supermarket Grain Trade Branch). 原告湖南省桃源县古洞春茶业有限责任公司(以下简称古洞春公司)因与被告湖南省怡清源茶业有限公司(以下简称怡清源公司)、张国华、张智、湖南家润多超市有限公司常德店(以下简称家润多常德店)、湖南家润多超市有限公司郴州店(以下简称家润多郴州店)、湖南家润多超市有限公司朝阳店(以下简称家润多朝阳店)、长沙通程控股股份有限公司东塘店(以下简称通程控股东塘店)、湖南华银旺和超市有限公司新中路店(以下简称华银旺和新中路店)、湖南华银旺和东风超市有限公司(以下简称华银旺和东风公司)、衡阳华银旺和超市有限公司解放路店(以下简称华银旺和解放路店)、湖南心连心超市有限公司湘潭粮贸店(以下简称心连心超市粮贸店)发生不正当竞争纠纷,向湖南省常德市中级人民法院提起诉讼。
Gudongchun Company claimed that: “Taoyuan Big Leaf” tea plant was discovered by Lu Wanjun, the legal representative of Gudongchun Company, this variety was systematically bred and promoted upon the research and cultivation by Lu Wanjun and the research and development personnel, and passed the crop variety certification. This research finding had been won awardsed for many times in Hunan. The serial products of “Wild Tea King (yecha wang)” and “Wild Tea (yecha)” produced by Gudongchun Company with “Taoyuan Big Leaf (taoyuan daye)” as the raw material sold well throughout the country, had gradually become a specialty of Taoyuan, and received good comments compliments from consumers. Yiqingyuan Company forged the place of origin on the packages of its products for the purpose of fraudulently copying the serial top bands of “Wild Tea King” and “Wild Tea” of Gudongchun Company, and conducted false publicity in the book - Introduction of Tea and Tea Culture compiled by it and on its web pages, these behaviors had actually constituted unfair competition. Thus the plaintiff pleaded the court to adjudicate Yiqingyuan Company to cease its behavior of unfair competition, make public apology and compensate 300,000 yuan for the economic loss suffered by Gudongchun Company from its unfair competition, and adjudicate other defendants to stop selling the serial infringing products of Yiqingyuan Company. 原告古洞春公司诉称:“桃源大叶”茶树系古洞春公司法定代表人卢万俊发现,经卢万俊与科研人员研究、培育,该品种开始系统繁育、推广,并通过了农作物品种审定,该研究成果多次在湖南省内获奖。古洞春公司以“桃源大叶”茶为原料生产的“野茶王”、“野茶”系列产品行销全国,并逐渐成为桃源特产,受到消费者的好评。被告怡清源公司在其产品包装上伪造产地,仿冒古洞春公司的“野茶王”、“野茶”系列名牌,并在其编写的《茶与茶文化概论》一书以及网页上进行虚假宣传,属于不正当竞争。请求判令怡清源公司停止不正当竞争行为,公开致歉并赔偿因其不正当竞争给古洞春公司造成的经济损失30万元,判令其他被告停止销售怡清源公司系列侵权产品。
The evidences submitted by Gudongchun Company are as follows: 原告古洞春公司提交以下证据:
1. The photo of the female parent tea plant of “Taoyuan Big Leaf” and Taoyuan County Annals·: Agriculture Annals, which prove the fact that it is Lu Wanjun who discovered, bred and promoted the tea variety of “Taoyuan Big Leaf”. 1.“桃源大叶”母本茶树照片及《桃源县志·农业志》,用以证明卢万俊发现、繁育、推广“桃源大叶”茶品种的事实。
2. Project Assignment Paper of Three Science and Technology Plans, Seed Selection of New Varieties of Big Leaf Tea of Taoyuan County, Scientific and Technological Achievements Appraisal Certificate No.127 (1989) of Hunan Science and Technology Department, tea plant variety approval materials, Application for Crop Variety Certification of Hunan Province, and award certificates, which prove that the right of discovery of the tea variety of “Taoyuan Big Leaf” shall be owned by the Improved Variety of Tea Leaves Station of Taoyuan County, Hunan Province (hereinafter referred to as Taoyuan Tea Variety Station), the former of Gudongchun Company. 2.《科技三项计划项目计划任务书》、《桃源县大叶茶新品种选育》、(1989)湘科鉴字第127号《科学技术成果鉴定书》、茶树品种审定材料、《湖南省农作物品种审定申请书》、获奖证书,用以证明“桃源大叶”茶的品种发现权属于古洞春公司的前身湖南省桃源县茶叶良种站(以下简称桃源茶种站)。
3. The packing boxes of “Wild Tea King” and “Wild Tea” under the brand of Gudongchun, which prove that Gudongchun Company has the priority right of prior to use of the names of “Wild Tea King” and “Wild Tea”. 3.古洞春牌“野茶王”、“野茶”包装盒,用以证明古洞春公司对“野茶王”、“野茶”名称有先用权。
4. The product packing boxes, sales invoices, web page materials, and publicity advertisement of Yiqingyuan Company and the Introduction of Tea and Tea Culture compiled by it, which prove that Yiqingyuan Company has constituted unfair competition and the fact that it has set up a tea plant of “Taoyuan Big Leaf” within Taoyuan County. 4.被告怡清源公司的产品包装盒、销售发票、怡清源公司的网页资料、宣传广告及其组编的《茶与茶文化概论》,用以证明怡清源公司不正当竞争的事实以及其在桃源县境内没有“桃源大叶”茶场的事实。
5. The relevant reports of Xiaoxiang Morning and Hunan Daily, which prove the amount of the proceeds obtained by Yiqingyuan Company from its unfair competition. 5.《潇湘晨报》、《湖南日报》相关报道,用以证明怡清源公司因不正当竞争所获得的利润金额。
6. The industrial and commercial registration information of Taoyuan Tea Variety Station and Gudongchun Company, which prove the succession relationship between the two and the fact that Gudongchun Company is a proper subject to bring this lawsuit. 6.桃源茶种站、古洞春公司的工商登记资料,用以证明二者的承继关系以及古洞春公司是本案诉讼的适格主体。
7. The invoices and container bags of “Wild Tea King”, “Wild Tea Maojian” and “Wild Needle Green Tea (yezhen lücha)” sold by Zhang Guohua and other defendants, which prove the fact that Zhang Guohua and other defendants have sold committed the sale of the infringing products of Yiqingyuan Company. 7.被告张国华等销售“野茶王”、“野茶毛尖”、“野针绿茶”的发票及包装袋,用以证明张国华等销售了怡清源公司侵权产品的事实。
Yiqingyuan Company argued that: Gudongchun Company had no right of discovery over the variety “Taoyuan Big Leaf”; the “Wild Tea King”, “Wild Tea Maojian”, “Wild Needle Green Tea” and “Wild Needle Maojian” produced by Yiqingyuan Company did not constitute an infringement upon the right of name of the products of Gudongchun Company; Yiqingyuan Company did not forge the place of origin of “Taoyuan Big Leaf”, thus did not constitute unfair competition. This defendant It pleaded the court to reject the claim of Gudongchun Company. 被告怡清源公司辩称:原告古洞春公司对“桃源大叶”没有品种发现权;怡清源公司生产的“野针王”、“野茶毛尖”、“野针绿茶”、“野针毛尖”不构成对古洞春公司产品名称权的侵犯;怡清源公司未伪造“桃源大叶”的产地,不构成不正当竞争。请求驳回古洞春公司的诉讼请求。
The evidences submitted by Yiqingyuan Company are as follows: 被告怡清源公司提交以下证据:
1. Document No.16 (1992) of the Agricultural Department of Hunan, which proves that Taoyuan Tea Variety Station and the Tea Leaves Research Institute of Hunan Agricultural College (hereinafter referred to as Agricultural Research Institute) are the discoverers of the tea plant variety “Taoyuan Big Leaf”. 1.湘农业(1992)种字16号文件,用以证明桃源茶种站和湖南农学院茶叶研究所 (以下简称农学院研究所)是“桃源大叶”茶树品种的发现者。
2. The Shareholders Agreement of Gudongchun Company, which proves that there is no succession relationship between Gudongchun Company and Taoyuan Tea Variety Station. 2.原告古洞春公司的《股东协议书》,用以证明古洞春公司与桃源茶种站没有继受关系。
3. An agreement signed on August 10th, 2001, which proves that Yiqingyuan Company is entitled to use the brand of “Taoyuan Big Leaf” tea. 3.2001年8月10日的协议书一份,用以证明怡清源公司有权使用“桃源大叶”茶这一品牌。
4. The notice of the acceptance of trade mark registration, which proves that Yiqingyuan Company has applied to register the trademarks of “Wild Needle King” and “Wild Jian King”. 4.注册商标受理通知书,用以证明怡清源公司已将“野针王”、“野尖王”申请商标注册。
Zhang Guohua defended that: he did not sell no longer sold the tea leaves of Yiqingyuan Company any more, thus he pleaded the court to reject Gudongchun's claim against him. 被告张国华辩称:本人已经不再销售被告怡清源公司的茶叶,请求驳回原告古洞春公司对其的诉讼请求。
Zhang Guohua did not submit any evidence within the time limit of producing evidence. 被告张国华在举证期限内没有提交任何证据。
The defendants Jiarunduo Changde Branch, Jiarunduo Chenzhou Branch, Huayin Wanghe Xinzhonglu Branch, Tongcheng Holdings Dongtang Branch, Huayin Wanghe Dongfeng Company, Huayin Wanghe Jiefang Road Branch and Xinlianxin Supermarket Grain Trade Branch defended that: it was a business site lease relationship between Yiqingyuan Company and them, and the distribution was organized by Yiqingyuan Company itself, thus they pleaded the court to reject Gudongchun's claims against them. 被告家润多常德店、家润多郴州店、家润多朝阳店、华银旺和新中路店、通城控股东塘店、华银旺和东风公司、华银旺和解放路店、心连心超市粮贸店辩称:被告怡清源公司与其仅是场地租赁关系,销售由怡清源公司自行组织,故请求驳回原告古洞春公司对其的诉讼请求。
All the defendants – Jiarunduo Changde Branch, Jiarunduo Chenzhou Branch, Huayin Wanghe Xinzhonglu Branch, Tongcheng Holdings Dongtang Branch, Huayin Wanghe Dongfeng Company, Huayin Wanghe Jiefang Road Branch and Xinlianxin Supermarket Grain Trade Branch – submitted the Special Counter Using Agreement and the Counter Leasing Agreement concluded by them respectively with Yiqingyuan Company to prove their defending opinions. 被告家润多常德店、家润多郴州店、家润多朝阳店、华银旺和新中路店、通城控股东塘店、华银旺和东风公司、华银旺和解放路店、心连心超市粮贸店均提交其与被告怡清源公司签订的《专柜使用协议》、《柜台租赁协议》等,用以证明其答辩意见。
Zhangzhi did not make any defense. 被告张智未进行答辩。
Upon trial, the Intermediate People's Court of Changde City verified that: 经审理,常德市中级人民法院查明:
During the autumn of 1969, Lu Wanjun and other employees of the tea plant of Taipingpu Community of Taoyuan County discovered a trunk of wild female parent tea plant “Taoyuan Big Leaf”. Lu and other persons conducted researches under the guidance of Zhu Xianming, former associate professor of Hunan Agricultural College. The experiment of seedling-raising by short cuttings on the tea plant “Taoyuan Big Leaf” was successful, so they started to systematically breed and promote “Taoyuan Big Leaf”. On December 12th, 1989, the Agricultural Research Institute and Taoyuan Tea Variety Station jointly accomplished the scientific research project of Research on the Seed Selection of the Improved Variety of No.1 and No.2 Taoyuan Tea Plant, the major research personnel were Lu Wanjun, Tang Mingde, Li Juan and Yuan Chunhua. Hunan Scientific and Technical Committee conducted an expert examination on this scientific and technological achievement, and reached a conclusion that this variety had such features as high yield, superior quality and strong stress resistance. In January 1992, Hunan Farm Crops Variety Certification Committee issued No.107 (1) Conformity Quality Certificate of Crop Variety Approval and determined that “Taoyuan Big Leaf” was a new variety of tea plant bred by Taoyuan Tea Variety Station and Agricultural Research Institute, and publicized this fact. In May 1994, the “Taoyuan Big Leaf” tea bred by Taoyuan Tea Variety Station was awarded conferred of the golden award of for scientific and technological award innovation of Hunan New Technologies and New Products Trade Fair. In April 1995, it was awarded of conferred the golden award of 1995 International Food and Processing Technologies Exposition. 1969年秋,桃源县太平铺公社茶场职工卢万俊等人在当地发现一株“桃源大叶”母本野生茶树。卢万俊等人在原湖南农学院副教授朱先明的指导下进行研究,“桃源大叶”茶树的短穗扦插育苗实验获得成功,并开始系统繁育、推广。1989年12月12日,农学院研究所、桃源茶种站共同完成《桃源一、二号茶树良种选育研究》科研项目,主要研究人员为卢万俊、唐明德、李娟、袁春华。湖南省科学技术委员会对该科技成果进行鉴定,认定该品种具有高产、优质、抗逆性强等特点。1992年1月,湖南省农作物品种审定委员会核发了品审证字第 107号(1)《农作物品种审定合格证书》,审定“桃源大叶”是桃源茶种站与农学院研究所选育的茶树新品种并予以公布。1994年 5月,桃源茶种站的“桃源大叶”茶荣获湖南省新技术新产品交易会科技创新金奖。 1995年4月获1995国际食品及加工技术博览会金奖。
The serial products of “Wild Tea King” and “Wild Tea” produced by Taoyuan Tea Variety Station and Gudongchun Company with “Taoyuan Big Leaf” as the raw material were awarded on many occasions since 1982, had gradually become a specialty of Taoyuan, and received good comments compliments from consumers. In November 1996, Taoyuan Tea Variety Station applied to deregister itself, and the personnel of the Station became shareholders of the newly established Gudongchun Company, which shall still engage in the research of the planting of tea leaves and be responsible for the workshops and facilities and liabilities of the Station. 桃源茶种站及原告古洞春公司以“桃源大叶”茶为原料生产的“野茶王”、“野茶”等系列产品,自1982年以来先后多次获奖,逐渐成为桃源特产并受到消费者的好评。1996年11月,桃源茶种站申请注销登记,原桃源茶种站人员组成股东,另创建古洞春公司,仍从事茶叶种植研究,原厂房设备及其债务由古洞春公司负责。
Since 1996, Yiqingyuan Company indicated on the packages of its products “Wild Needle Maojian” and “Wild Needle Green Tea” that “Yiqingyuan Wild Needle Maojian is produced at the superior quality Wild Needle tea base of Hunan Yiqingyuan, which is located at Wuling Mountains, where it is mountainous with layers of mountains and covered by clouds and mists wreathing for four all seasons a throughout the year. The tea plant variety of Wild Needle King is an improved variety formed by systematically breeding the wild big leaf tea plant resource discovered at Taoyuan…” for the purpose of making public advertisement. It was also indicated on the package of its product “Wild Tea Maojian” that “ This product takes the big leaves of Taoyuan wild tea as raw material.” Yiqingyuan once produced “Wild Tea King”, with the same name with the product produced by Gudongchun Company. 自1996年以来,被告怡清源公司在其产品“野针毛尖”、“野针绿茶”包装袋上标明“怡清源野针毛尖产于层峦叠嶂、四季云雾缭绕的武陵山脉湖南怡清源优质野针茶基地。野针王茶树品种是在桃源发现的野生大叶茶树资源,通过系统选育而成的优良品种……”,籍此进行广告宣传。其产品“野茶毛尖”的包装袋上也注明“本品以桃源野茶大叶为原料”。怡清源公司还曾生产过与原告古洞春公司产品名称相同的“野茶王”。
In the Introduction of Tea and Tea Culture compiled by Yiqingyuan Company, it introduced “Taoyuan Big Leaf” as that: “On April 5th, 1976, in surveying the ecological environment of tea gardens around the mountain chain of Hunan Wuling Mountain, Zhu Xianming, tea expert of Hunan Agricultural University, and his accompanies colleagues found a trunk of wild tea at a hillside of Lujiachong Village, Taipingpu Township, Taoyuan County, Changde City of Hunan Province…. Afterwards, Hunan Science and Technology Office organized experts to identify its variety and analyze its inclusion, and Liu Gengling, academician of Chinese Academe of Engineering, and Long Xinping, director of Hunan Township Enterprises Bureau conducted special research on this wild tea…. In December 1986, Prof. Zhu Xianming, Changde Agricultural Bureau and Taoyuan Tea Leaves Group decided to name this variety “Taoyuan Big Leave”. Yiqingyuan Company also introduced “Wild Needle King” as that: “…it is bred through vegetative propagation of the variety of wild ‘Taoyuan Big Leaf' by the experts group of Yiqingyuan Company. This variety is an superior excellent variety of local big leaf green tea of China…”. It introduced “Taoyuan Tea” as that: “…this area is a famous major producing area of the varieties of ‘Taoyuan Big Leaf' and Yiqingyuan Wild Needle King…”. Yiqingyuan Company made the same publicity on the internet it operated runs. 被告怡清源公司在其组编的《茶与茶文化概论》中,将“桃源大叶”介绍为:“1976年4月5日,湖南农业大学茶学专家朱先明教授一行在考察湖南武陵山脉一带茶园生态环境时,在湖南常德桃源县太平铺乡陆家冲村的一个山坡上,发现了一株野茶。……之后,湖南省科学技术厅组织专家进行品种鉴定和内含物分析,中国工程院院士刘更另、湖南省乡镇企业局局长龙新平对该野茶品种进行了专项研究。……1986年12月,朱先明教授和常德市农业局、桃源县茶叶集团决定将该品种取名为‘桃源大叶'。”将“野针王”介绍为:“……由怡清源公司专家组从野生‘桃源大叶'品种中经无性繁殖选育出,该品种是我国优良的地方大叶绿茶品种……”将“桃源茶”介绍为:“……该地区是有名的‘桃源大叶'品种、怡清源野针王品种的主产区……”怡清源公司在其开办的互联网站上亦进行了同样的宣传。
Gudongchun Company purchased the “Wild Needle Maojian”, “Wild Tea Maojian”, “Wild Needle Green Tea” or “Wild Tea King” produced by Yiqingyuan Company at the tea houses operated by Zhang Guohua and Zhang Zhi, Jiarunduo Changde Branch, Jiarunduo Chenzhou Branch, Tongcheng Holdings Dongtang Branch, Huayin Wanghe Xinzhonglu Branch, Huayin Wanghe Dongfeng Company, Huayin Wanghe Jiefang Road Branch and Xinlianxin Supermarket Grain Trade Branch, and obtained sales invoices from all these entities. 原告古洞春公司在被告张国华、张智开办的茶行,在被告家润多常德店、家润多郴州店、通程控股东塘店、华银旺和新中路店、华银旺和东风公司、华银旺和解放路店、心连心超市粮贸店均购买有被告怡清源公司生产的“野针毛尖”、“野茶毛尖”、“野针绿茶”或“野茶王”茶叶,并由上述销售单位开具了销售发票。
PROCEDURAL POSTURE 
The Intermediate People's Court of Changde City held that: 常德市中级人民法院认为:
As determined by the relevant functionary departments, “Taoyuan Big Leaf” tea was a new variety of tea plant discovered by Taoyuan Tea Variety Station, while the Agricultural Research Institute provided assistance to a certain extent in the breeding and promotion of this variety, therefore, Taoyuan Tea Variety Station and the Agricultural Research Institute jointly owns the right of discovery of the variety “Taoyuan Big Leaf”. 经相关职能部门确认,“桃源大叶”茶属于桃源茶种站发现的茶树新品种,农学院研究所对该品种的繁育、推广有一定的协助作用,因此,桃源茶种站和农学院研究所共同对“桃源大叶”茶享有品种发现权。
In November 1996, under the premise of accepting both the properties and liabilities of Taoyuan Tea Variety Station, Gudongchun Company was established. So there existed a succession relationship between Gudongchun Company and Taoyuan Tea Variety Station in terms of property. Gudongchun Company did not specify the ascription ownership of the variety right of “Taoyuan Big Leaf” tea when it was established, but Lu Wanjun, the discoverer of “Taoyuan Big Leaf” tea was the legal representative of Gudongchun Company, the relevant functional departments of Taoyuan Count also held that the variety right of “Taoyuan Big Leaf” tea shall belong to owned by Gudongchun Company, in addition, the development and promotion of “Taoyuan Big Leaf” tea from then on were conducted by Gudongchun Company. Therefore, Gudongchun Company actually succeeded to the right of discovery of the variety “Taoyuan Big Leaf” tea owned by Taoyuan Tea Variety Station. Yiqingyuan Company, under the circumstances that it did not own t the right of discovery of the variety “Taoyuan Big Leaf” tea and did not obtain the right to use the variety “Taoyuan Big Leaf” tea through agreement, made false publicity which misled the consumers to believe that the composition of the tea products of Yiqingyuan Company was “Taoyuan Big Leaf” and that the place of origin of its raw material was within Taoyuan County. According to Paragraph 4 of Article 5 of the Anti-Unfair Competition Law of the People's Republic of China, which stipulates that: “where anyone who forgesing or pretendsing the certificate of attestation, mark of famous brands and quality products, forgesing the place of origin and making misleading false representations on commodity quality in their business transactions to damage other competitors.” and Article 9 of this Law which stipulates that: “Operators shall not use advertisement or other methods to make a false propaganda on the quality, composition, function, use, producer, valid period and place of origin of commodities.”, Yiyuanqing Company's acts had constituted an infringement over the variety discovery right of the tea plant “Taoyuan Big Leaf” owned by Gudongchun Company. 1996年11月,在接受桃源茶种站的财产和债务的前提下,原告古洞春公司成立。因此,古洞春公司与桃源茶种站有财产上的继受关系。古洞春公司成立时虽未明确“桃源大叶”茶的品种权归属,但“桃源大叶”茶的发现者卢万俊为古洞春公司的法定代表人,桃源县的相关职能部门也认可“桃源大叶”的品种权归属古洞春公司,且此后“桃源大叶”茶的开发、推广均由古洞春公司继续进行。因此,古洞春公司实际上继受了桃源茶种站享有的“桃源大叶”茶树的品种发现权。被告怡清源公司不具有“桃源大叶”茶的品种发现权,也未通过协议取得“桃源大叶”品种的使用权,其虚假宣传行为使消费者误认为怡清源公司茶叶产品的制作成分就是“桃源大叶”,其茶叶原料的产地就在桃源县境内,依照《中华人民共和国反不正当竞争法》(以下简称反不正当竞争法)第五条第四项关于“在商品上伪造或者冒用认证标志、名优标志等质量标志,伪造产地,对商品质量作引人误解的虚假表示”及第九条第一款“经营者不得利用广告或者其他方法,对商品的质量、制作成分、性能、用途、生产者、有效期限、产地等作引人误解的虚假宣传”的规定,该行为构成对古洞春公司“桃源大叶”茶树品种发现权的侵犯。
The serial series of products of “Wild Tea King” and “Wild Tea” produced by Gudongchun Company with “Taoyuan Big Leaf” as raw material had already enjoyed some popularity on the tea leaves market of China, the commodity name was to certain extent a description of the quality, raw material, functions and purposes of the commodity, it was not a general name of the commodity, so these products may be deemed as brand commodities. According to Paragraph 2, Article 5 of the Anti-Unfair Competition Law, which stipulates that: “anyone who usesing the name, package and decoration specially owned by brand commodities or the name, package and decoration similar to those of the brand commodities without authority, which may cause the confusion with the brand commodities owned by others and mislead the consumers to believe the commodities are the brand commodities”, and on the basis of the industrial habit that “needle” and “tea” had the same meaning in China's tea circle, it may be determined that the “Wild Needle King” produced by Yiqingyuan Company was similar with the name of the tea leaves products produced by Gudongchun Company, which may mislead consumers, thus it has constituted an infringement upon the name specially owned by the “Wild Tea King” products of Gudongchun Company. 原告古洞春公司以“桃源大叶”为原料制作的“野茶王”、“野茶”系列产品在我国茶叶市场上已经有了一定的知名度,其商品名称对商品的质量、原料、功能、用途等特点有一定的叙述性,不是商品的通用名称,故该产品可以认定为知名商品。根据反不正当竞争法五条

我不休息我还能学

第二项关于“擅自使用知名商品特有的名称、包装、装潢,或者使用与知名商品近似的名称、包装、装潢,造成和他人的知名商品相混淆,使购买者误认为是该知名商品”的规定,结合我国茶叶界“针”与“茶”含义相同的行业习惯,可以认定被告怡清源公司生产的“野针王”与古洞春公司茶叶产品的名称相近似,易造成消费者的误认,因而构成对古洞春公司“野茶王”茶叶产品特有名称的侵犯。
The description of “Taoyuan Big Leaf” in the Introduction of Tea and Tea Culture compiled by Yiqingyuan Company was inconsistent with the objective fact, and may mislead people to believe that Yiqingyuan Company owned holds the right to use the new variety of tea plant “Taoyuan Big Leaf”, so Yiqingyuan Company had subjective fault. The book Introduction of Tea and Tea Culture compiled by Yiqingyuan Company denied Gudongchun Company's variety discovery right over “Taoyuan Big Leaf”, which damaged the interests of Gudongchun Company. At the same time, Yiqingyuan Company's act of making false publicity of the tea leaves products produced by it by compiling the book shall be deemed as an act of unfair competition according to as provided by Article 14 of the Anti-Unfair Competition Law, which stipulates that: “Operators shall not fabricate, spread false facts to damage the business reputation or commodity fame of the other competitors”. 被告怡清源公司组编的《茶与茶文化概论》对“桃源大叶”作出了与客观事实不符的叙述,易使他人误认为怡清源公司享有“桃源大叶”茶树新品种的使用权,因此怡清源公司存在主观过错。怡清源公司组编的《茶与茶文化概论》一书否认原告古洞春公司对“桃源大叶”享有品种发现权,损害了古洞春公司的利益,同时利用组编书藉对其生产的茶叶产品进行虚假广告宣传,根据反不正当竞争法十四条关于“经营者不得捏造、散布虚伪事实,损害竞争对手的商业信誉、商品声誉”的规定,属于不正当竞争行为。
Gudongchun Company purchased the “Wild Needle Maojian”, “Wild Tea Maojian”, “Wild Needle Green Tea” or “Wild Tea King” produced by Yiqingyuan Company at the tea houses operated by Zhang Guohua and Zhang Zhi, Jiarunduo Changde Branch, Jiarunduo Chenzhou Branch, Tongcheng Holdings Dongtang Branch, Huayin Wanghe Xinzhonglu Branch, Huayin Wanghe Dongfeng Company, Huayin Wanghe Jiefang Road Branch and Xinlianxin Supermarket Grain Trade Branch, and obtained sales invoices from all these entities. The It is a clear facts that the above-mentioned defendants sold the infringing products produced by Yiqingyuan Company were clear, and their defending ground that they only had site or counter leasing agreement with Yiqingyuan Company and that they did not sell the tea leaves products of Yiqingyuan Company shall not be tenable. 原告古洞春公司在被告张国华、张智开办的茶行以及被告家润多常德店,家润多郴州店、通程控股东塘店、华银旺和新中路店、华银旺和东风公司、华银旺和解放路店、心连心超市粮贸店均购买有被告怡清源公司生产的“野针毛尖”、“野茶毛尖”、“野针绿茶”或“野茶王”茶叶商品,并由上述销售单位开具销售发票,上述被告销售怡清源公司生产的侵权产品的事实清楚,其关于仅与怡清源公司有场地或柜台租赁协议,未经销怡清源公司茶叶产品的答辩理由不能成立。
On November 21st, 2003, Hunan Daily reported that the value of the orders of Yiqingyuan at the fifth agricultural exposition exceeded 10 million yuan. Based on the characteristics of news, this report should be real. Yiqingyuan Company's defending ground that that was just a news report and its actual profits did not reach that figure shall not be tenable. But Gudongchun Company did not provide evidence to prove the amount of the profits gained by Yiqingyuan Company from producing the infringing tea leaves products of “Wild Tea King” and “Wild Needle King”, and what sold by Yiqingyuan Company at the fifth agricultural exposition were a serial series of tea leaves products, so in determining the specific amount of compensation, it was necessary to comprehensively consider the above-mentioned elements, the sales cost of Yiqingyuan Company and other uncertain market elements. Therefore, the 300,000 compensation as required by Gudongchun Company shall be decreased to 100,000 yuan. 2003年11月21日《湖南日报》报道被告怡清源公司在第五届农业博览会上的订单已超过1000多万元。根据新闻报道的特点,应当是真实的。怡清源公司辩称只是新闻报道,实际未获得所报道的利润的理由不能成立。但原告古洞春公司未能提供证据证实怡清源公司在生产“野茶王”、“野针王”等侵权茶叶产品中获得利润的金额,且怡清源公司在参加第五届农业博览会时销售的是系列茶叶产品,因此在确定具体赔偿金额时应当综合考虑上述因素、怡清源公司的销售成本及其他不可预测的市场因素,故对于古洞春公司提出的30万元的赔偿数额应当予以减少,酌定为10万元。
Therefore, in accordance with Article 130 of the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the Civil Procedure Law), Article 2, Paragraph 2 and 4 of Article 5

北大法宝,版权所有

, Paragraph 1 of Article 9, Article 14 and Article 20 of the Anti-Unfair Competition Law, and Item 1, 9,10, Paragraph 1 of Article 134 of the General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the General Principles of the Civil Law), the Intermediate People's Court of Changde City adjudicated on September 22nd, 2004 that:
 据此,常德市中级人民法院依照《中华人民共和国民事诉讼法》(以下简称民事诉讼法)第一百三十条,反不正当竞争法二条、第五条第二、四项、第九条第一款、第十四条、第二十条,《中华人民共和国民法通则》(以下简称民法通则)第一百三十四条第一款第(一)、(九)、(十)项之规定,于2004年9月22日判决:
1. Yiqingyuan Company shall, upon the effectiveness of this judgment, immediately stop its act of making false publicity at the packages of its tea leaves products and the relevant web pages of its internet website by taking advantage of the tea plant variety “Taoyuan Big Leaf”, and stop its act of making false publicity of the place of origin and the composition of its tea leaves products; 一、被告怡清源公司于本判决生效后立即停止在其茶叶产品包装袋及其互联网站相关网页中利用“桃源大叶”茶树品种进行虚假广告宣传的行为,停止对其茶叶产品产地及茶叶产品制作成分做虚假宣传的广告行为;
2. Yiqingyuan Company shall, within 5 days as of the date of effectiveness of this judgment, take back and destroy the book Introduction of Tea and Tea Culture it compiled by it according to the volumes it issued; 二、被告怡清源公司于本判决生效后五日内按其组编的《茶与茶文化概论》的发行数收回该书并销毁;
3. Yiqingyuan Company shall, within 5 days as of the date of effectiveness of this judgment, compensate 100,000 yuan for the economic loss suffered by Gudongchun Company; 三、被告怡清源公司于本判决生效后五日内赔偿原告古洞春公司经济损失10万元;
4. Yiqingyuan Company shall publish the an Apology Announcement which has been examined and approved by the court on the magazine China Tea Leaves and the internet website it opened launched, and shall bear the relevant expenses; 四、被告怡清源公司在《中国茶叶》杂志及其开办的互联网站上刊登经法院审核的致歉声明,并承担刊登致歉声明的相关费用;
5. Zhang Guohua, Zhang Zhi, Jiarunduo Changde Branch, Jiarunduo Chenzhou Branch, Huayin Wanghe Xinzhonglu Branch, Tongcheng Holdings Dongtang Branch, Huayin Wanghe Dongfeng Company, Huayin Wanghe Jiefang Road Branch and Xinlianxin Supermarket Grain Trade Branch shall stop selling the tea leaves products of “Wild Needle King” and “Wild Tea King” and the serial tea leaves product series of Yiqingyuan “Wild Needle Maojian”, “Wild Tea Maojian” and “Wild Needle Green Tea”, on the packages of which false publicity was made by taking advantage of “Taoyuan Big Leaf”. 五、被告张国华、张智、家润多常德店、家润多郴州店、家润多朝阳店、通程控股东塘店、华银旺和新中路店、华银旺和东风公司、华银旺和解放路店、心连心超市粮贸店停止销售被告怡清源公司生产的怡清源牌“野针王”、“野茶王”茶叶产品及在包装袋上利用“桃源大叶”进行虚假广告宣传的怡清源牌“野针毛尖”、“野茶毛尖”及“野针绿茶”系列茶叶产品。
Yiqingyuan Company was dissatisfied and appealed to the Higher People's Court of Hunan Province with the appealing grounds as follows: 1. the facts concerning the variety right of “Taoyuan Big Leaf” verified by the original instance were unclear, which not only failed to find out the fact that the variety right of “Taoyuan Big Leaf” did not exist at all, but confused the concept of variety right with the concept of franchise of new varieties of plants and agricultural products (including teas leaves). 2. it was wrong to ascertain that the appellant forged the place of origin of the commodities and made false publicity on the composition of its products. The Agreement on Commissioned Processing and the Agreement on Producing and Processing at Designated Place concluded by the appellant with Taoyuan Tengqiong Health Care Tea Plant were sufficient to prove that the raw materials used to produce the products of Wild Needle King, Wild Needle Maojian and Wild Needle Green Tea produced and distributed by the appellant were originated from within Taoyuan County. 3. the fact that the “Wild Needle King” produced by the appellant infringed the right of name specially owned by brand commodities of “Wild Tea King” produced by Gudongchun Company as verified by the original judgment lacked evidences, as the appellee did not prove that the “Wild Tea King” it produced was a brand commodity and that the “Wild Tea King” was a commodity name specially owned by belonging to it. 4. the application of law in the original instance was wrong, the provisions of the Anti-Unfair Competition Law it cited quoted were not related to had little to do with the infringement upon the variety right of plant. The legal basis in determining whether there was an infringement upon variety right shall be the Regulation of the People's Republic of China on Protection of New Plant Varieties (hereinafter referred to as New Plant Varieties Protection Regulation) and the Detailed Rules for the Implementation of the Regulation of the People's Republic of China on Protection of New Plant Varieties卡在了奇怪的地方. Therefore, the appellant pleaded the court to cancel the original judgment and revise the judgment according to law. 怡清源公司不服,向湖南省高级人民法院提起上诉。理由是:1.原判对“桃源大叶”品种权认定事实不清,既未查明“桃源大叶”品种权根本不存在的事实,又混淆了品种权与植物新品种、农产品(含茶叶)经销权的概念。2.对上诉人“伪造商品原产地和对产品制作成分作虚假宣传”的认定是错误的。上诉人与桃源县腾琼保健茶厂签订的《委托加工协议》和《定点生产加工协议》均足以证明上诉人所生产、销售的野针王、野针毛尖、野针绿茶产品的原材料产自桃源境内。3.原判认定上诉人生产的“野针王”侵犯被上诉人古洞春公司生产的“野茶王”知名商品特有名称权这一事实的证据不足,被上诉人未证明其生产的“野茶王”为知名商品,也未证明“野茶王”为其特有商品名称。4.原判适用法律错误,引用的反不正当竞争法条文没有任何关于侵犯植物品种权的规定,认定是否侵犯品种权的法律依据是《中华人民共和国植物新品种保护条例》(以下简称植物新品种保护条例)及《中华人民共和国植物新品种保护条例实施细则》。请求撤销原判,依法改判。
In order to support its appealing grounds, Yiqingyuan Company submitted another six groups of evidences. 上诉人怡清源公司为支持自己的上诉理由,补充提交了六组证据。
1. The Notice of Hunan Agricultural Office on Publicizing the Crop Varieties that Pass the Examination and Appraisal in January 1992 (hereinafter referred to as the Notice), which prove that: (1) “Taoyuan Big Leaf” was once had been examined and determined as a new variety of tea plant by Hunan Agricultural Office on January 31st, 1992; (2) the “Taoyuan Big Leaf” publicized in the Notice was a new variety bred by Taoyuan Tea Variety Station and the Agricultural Research Institute, while Gudongchun Company was not one of them as listed in the Notice; (3) what the Notice determined were new varieties and their sources instead of the variety rights. 一、湖南省农业厅《关于公布1992年 1月审(认)定合格农作物品种的通知》(以下简称《通知》),用以证明:1.“桃源大叶”于1992年1月31日曾被湖南省农业厅审定为茶树新品种;2.《通知》中公布“桃源大叶”是桃源茶种站与农学院研究所选育的新品种,被上诉人古洞春公司不在此《通知》之列;3.《通知》是对新品种及其来源的确认,不是对品种权的确认。
2. The evidence of Peng Xinde and the Protection Directory of New Varieties of Agricultural Plants of the People's Republic of China, which prove that: (1) so far, the Ministry of Agriculture had never accepted any application for variety right of tea plant so far, “Taoyuan Big Leaf” had not been granted with variety right; (2) Gudongchun Company did not own the variety plant of “Taoyuan Big Leaf”. 二、彭新德的证明及《中华人民共和国农业植物新品种保护名录》,用以证明:1.迄今为止,农业部尚未受理任何有关茶树品种权的申请,“桃源大叶”未被授予品种权;2.被上诉人古洞春公司对“桃源大叶”不具有品种权。
3. A letter of commitment and a public announcement, which prove that “Taoyuan Big Leaf Tea” was a variety of origin protection, and that Yiqingyuan Company was entitled to invest, develop, produce, process, publicize and promote the tea variety “Taoyuan Big Leaf” upon the consent of the government of Taoyuan County. 三、承诺书一份及公告一份,用以证明“桃源大叶茶”属原产地保护品种,经桃源县政府同意,上诉人怡清源公司享有投资开发、生产;加工、宣传推广“桃源大叶”茶品种的权利。
4. Photos, certificates and the agreement on processing “Taoyuan Big Leaf Tea”, which prove that: (1) Yiqingyuan Company was an enterprise member of Taohuayuan Tea Leaves Group; (2) Yiqingyuan Company had a production base of tea leaves of 12,000 mu within Taoyuan County; (3) Yiqingyuan Company only processed and purchased within Taoyuan County the tea leaves products produced by tea farmers, namely it only distributed agricultural and sideline products, but did not directly produce or distribute tea plant varieties, namely it did not engage in the seeds business; (4) the “Wild Needle King”, “Wild Needle Maojian” and “Wild Needle Green Tea” produced by Yiqingyuan were really from within Taoyuan County. 四、照片、证明及加工“桃源大叶茶”的协议,用以证明:1.上诉人怡清源公司系桃花源茶叶集团的成员企业;2.怡清源公司在桃源县内有1.2万亩茶叶生产基地;3.怡清源公司只从桃源县境内加工、收购茶农所生产的茶叶产品即销售农副产品,而未直接生产和销售茶树品种即未经营种苗;4.怡清源公司生产的“野针王”、“野针毛尖”、“野针绿茶”确系来自桃源县境内。
5. Business License for Enterprise as Legal Person, Report on Capital Assessment, the real objects and photos of the packages of tea leaves, which prove that: (1) Yiqingyuan Company was established before Gudongchun Company, and the latter could not prove that it used “Wild Tea King” first; (2) “Wild Tea King” was a general name of tea leaf instead of a commodity name originally created by Gudongchun Company; 3. by comparison, the differences between “Wild Needle King” of Yiqingyuan and “Wild Tea King” of Gudongchun were clear, the consumers would not be misled. 五、《企业法人营业执照》、《验资报告书》、茶叶包装实物及照片,用以证明:1.上诉人怡清源公司成立在先,被上诉人古洞春公司成立在后,古洞春公司不能证明“野茶王”使用在先;2.“野茶王”是茶叶的通用名称,并非是古洞春公司“独创”的商品名称;3.怡清源“野针王”和古洞春“野茶王”两种产品对比区别明显,不会引起消费者误认。
6. Honor certificates, award certificates and news reports, which prove that the serial tea product series of Yiqingyuan were real brand commodities. 六、荣誉证书、获奖证书及新闻报道,用以证明怡清源系列茶才真正属知名商品。
Gudongchun Company defended orally that: “Wild Tea King” and “Wild Tea” were brand commodities and the commodity names were owned by the appellee. The acts of Yiqingyuan Company and the defendants of the original instance, such as Zhang Guohua, constituted an infringement, they shall bear the corresponding liabilities according to law. The original judgment was fair and reasonable, the legal nature was right, thus the appellee pleaded the court to sustain the original judgment. 被上诉人古洞春公司口头答辩称:“野茶王”、“野茶”是知名商品,并且是被上诉人特有的商品名称。上诉人怡清源公司以及原审被告张国华等的行为构成侵权,应当依法承担相应责任。原判公平合理,法律定性正确,请求维持一审判决。
Gudongchun Company submitted another evidence, the publicity report of Hunan Daily, to prove the fact that Yiqingyuan had continued its infringement. 被上诉人古洞春公司补充提交了一份证据,即《湖南日报》的宣传报道,用以证明上诉人怡清源公司继续侵权的事实。
Upon trial, the Higher People's Court of Hunan Province verified that: on July 25th, 1996, Yiqingyuan Company was established, which set up a tea leaves production base at Taoyuan County through cooperating with the local government and farmer households to breed and purchase the raw material “Taoyuan Big Leaf”, the products it produced and distributed included Yiqingyuan “Wild Needle King”, “Wild Tea King”, “Wild Needle Green Tea”, “Wild Needle Maojian” and “Wild Tea Maojian”, etc. The registered trade mark of “Yiqingyuan” had been awarded of the “Famous Trade Mark of Hunan Province”, the series tea products of Yiqingyuan had been awarded a the title of famous-brand products by Hunan Famous-Brand Examination and Approval Committee, and Yiqingyuan “Wild Needle King” had been awarded the golden award of tea leaves appraisal through comparison at the Chinese Excellent Famous Tea Exposition of Shanghai International Culture Festival and many other awards of the province and the whole nation. Yiqingyuan Company was determined rated as a leading enterprise of Hunan Province in terms of the industrialization of agriculture and enjoyed a relatively high popularity within the industry. The defendants of the original instance Zhang Guohua, Zhang Zhi, Jiarunduo Changde Branch, Jiarunduo Chenzhou Branch, Huayin Wanghe Xinzhonglu Branch, Tongcheng Holdings Dongtang Branch, Huayin Wanghe Dongfeng Company, Huayin Wanghe Jiefang Road Branch and Xinlianxin Supermarket Grain Trade Branch all sold the “Wild Needle Maojian”, “Wild Tea Maojian”, “Wild Needle Green Tea”, “Wild Needle King”, “Wild Tea King” and other tea leaves products produced by Yiqingyuan Company. On November 8th, 1996, upon approval, Taoyuan Tea Variety Station was deregistered upon approval. The rural work office of Taoyuan County Government agreed that “the personnel of the original enterprise may become the shareholders of the newly established company, which may still engage in the research on the planting of tea leaves and shall be responsible for the workshop facilities and liabilities of the original enterprise”, but did not specify whether Taoyuan Tea Variety Station had any intangible asset and the dispose of the assets (if any), which were also not indicated in the Register Book of Applying for Deregistration by Enterprises. On November 11th, 1996, as the shareholders, Lu Wanjun, Lu Honggao, Lu Liqun, Tang Chunxian and Lu Shaoping made joint contributions and established Gudongchun Company, which produced and distributed Gudongchun (registered trade mark) “Wild Tea King”, “Wild Tea” and other tea leaves products with “Taoyuan Big Leaf” as the raw material. Another fact verified was that such tea leaves products as Taohuayuan “Wild Tea King”, Lingya “Wild Tea King” and Xinglong “Wild Tea” were also produced and distributed within Taoyuan County. On October 19th, 2004, Taoyuan County government applied for the protection of appellations of origin for “Taoyuan Big Leaf” tea, which was publicized as competent upon the formal examination by the General Administration of Quality Supervision, Inspection and Quarantine. As all parties presented no objection against the other facts determined by the first and second instances, these facts shall be ascertained in the second instance. 湖南省高级人民法院经审理查明: 1996年7月25日,上诉人怡清源公司成立,该公司通过与当地政府、农户合作,在桃源县建立了茶叶生产基地,选育、收购“桃源大叶”原料,其生产、销售的产品有怡清源“野针王”、“野茶王”、“野针绿茶”、“野针毛尖”、“野茶毛尖”等。“怡清源”注册商标被授予“湖南省著名商标”,怡清源系列茶产品被湖南省名牌审定委员会授予名牌产品称号,怡清源“野针王”茶获上海国际文化节暨中国精品名茶博览会茶叶评比金奖等多项省内、国内大奖,怡清源公司被认定为湖南省农业产业化龙头企业,在同行业中享有较高知名度。原审被告张国华、张智开办的茶行,以及原审被告家润多常德店、家润多郴州店、通程控股东塘店、华银旺和新中路店、华银旺和东风公司、华银旺和解放路店、心连心超市粮贸店均销售怡清源公司生产的“野针毛尖”、“野茶毛尖”、“野针绿茶”、“野针王”、“野茶王”等茶叶产品。1996年11月8日,经批准,桃源茶种站被注销。桃源县人民政府农村工作办公室同意“原企业人员组成股东,仍从事茶叶种植研究。原厂房设备及其债务由新建公司负责”,但对桃源茶种站是否存在无形资产及其处理未予明确,《企业申请注销登记注册书》中亦没有体现。1996年11月11日,卢万俊、卢宏高、卢立群、唐春先、卢绍平作为股东,共同出资组建被上诉人古洞春公司。该公司以“桃源大叶”为原料,生产、销售古洞春(注册商标)“野茶王”、“野茶”等茶叶产品。另查明,在桃源县境内还生产、销售有桃花源牌“野茶王”、灵芽牌“野茶王”以及湘龙牌“野茶”等茶叶产品。 2004年10月19日,桃源县政府对“桃源大叶”茶申请原产地域产品保护,已经国家质量监督检验检疫总局形式审查合格并予公告。除此以外,由于各方当事人对一、二审认定的其他事实均无异议,二审予以确认。
DISPUTED ISSUES 
The focuses of this case shall be: No.1. whether Gudongchun Company owned the discovery right of the female parent wild tea plant “Taoyuan Big Leaf” and whether it obtained the variety right of the tea plant “Taoyuan Big Leaf”. No.2. whether Yiqingyuan Company had conducted the act of using the specific names or similar names of brand commodities which led to the confusion with the brand commodities of other companies and misled the consumers; whether it exercised the act of making false publicity on the quality of its commodities by means of advertisement or other means; and whether it conducted the act of feigning and spreading false facts to impair the business reputation and commodity fame of its competitors. 本案的争议焦点是:一、被上诉人古洞春公司是否享有“桃源大叶”母本野生茶树的发现权,是否取得“桃源大叶”茶树品种权。二、上诉人怡清源公司是否实施了擅自使用他人知名商品特有名称或者与之近似的名称,造成和他人的知名商品相混淆,使购买者产生误认的行为;是否实施了利用广告或者其他方法,对商品质量进行虚假宣传的行为;是否实施了捏造、散布虚伪事实,损害竞争对手商业信誉、商品声誉的行为。
JUDGMENT'S REASONING 
The Higher People's Court of Hunan Province held that: 湖南省高级人民法院认为:
As for the focus No.1, the right of discovery and the variety right are two different concepts. Article 97 of the General Principles of the Civil Law stipulates that: “Citizens who make discoveries shall be entitled to the right of discovery. A discoverer shall have the right to apply for and receive a certificate of discovery, bonus or other awards.” The provision specifies that the right of discovery is just a right of honor and a right of being rewarded owned by the discoverer, the object of the right of discovery is a natural fact already existed, the discoverer does not own exclusive right of control over the object discovered. At the same time, discovery itself is also a fact, so the right of discovery may not be transferred, be to or used by any other person or be succeeded. The owner of the right of discovery may enjoy spiritual benefits, such as being awarded of a certificate, indicating the identity and receiving honors, or receiving bonuses or other rewards. According to the verified facts of this case, the right of discovery of the wild female parent tea plant “Taoyuan Big Leaf” shall be owned by the local masses and the employees of Taipingpu Tea Plant of Taoyuan County, Lu Wanjun and Huang Hanyuan, etc, who discovered this wild tea plant, Gudongchun Company did not own the right of discovery of the wild female parent tea plant “Taoyuan Big Leaf”. 关于第一个问题。发现权和品种权是两个不同的概念。民法通则九十七条规定:“公民对自己的发现享有发现权。发现人有权申请领取发现证书、奖金或者其他奖励。”该规定明确了发现权只是发现者享有的一种荣誉权和被奖励权,发现权的客体是已存在的自然事实,发现人对其发现的客体并不享有排他的支配权。同时,发现本身也是一种事实,故发现权不能转让,不能许可他人使用,也不能继受取得。发现权人可以享有精神上的利益,如获得证书、表明身份、受领荣誉等,也可以获得奖金或者其他奖励。根据本案已查明的事实,“桃源大叶”母本野生茶树的发现权应当由发现该株野生茶树的当地群众和原桃源县太平铺茶场职工卢万俊、黄汉元等享有,被上诉人古洞春公司不享有“桃源大叶”母本野生茶树的发现权。
Article 2 of the New Plant Varieties Protection Regulation stipulates that: “A new plant variety refers to a plant variety formed by artificial cultivation or by developing the discovered wild plant, has such characteristics as novelty, specificity, consistency and stability and has a proper nomenclature.” Article 3 stipulates that: “The administrative departments of agriculture and forestry under the State Council (hereinafter collectively referred to as examining and approving organs) shall, according to the division of functions, be jointly responsible for the acceptance of the application for new plant variety and the examination and approval, and grant new plant variety right to the variety that complies with the provisions of the present Regulation.” Article 31 stipulates that: “As for an application for variety right that complies with the provisions of the present Regulation, the examining and approving organs shall make a decision to grant the variety right, issue the a certificate of variety right and register and make public announcement.” According to the above-mentioned provisions, to obtain the plant variety right, one must apply for it at the Ministry of Agriculture or the Ministry of Forestry, which shall conduct substantial examination on the application in accordance with the legal procedure, and make a decision to grant the variety right where an application complies with the relevant provisions, issue the a certificate of variety right to the applicant and register it and make a public announcement. Without going through the above-mentioned procedures, no one or entity may originally acquire the variety right by any other means. “Taoyuan Big Leaf” was is a new tea plant variety formed by breeding the wild big leaf tea plant jointly by the Agricultural Research Institute and Taoyuan Tea Variety Station, and it is impossible to create the new tea plant variety “Taoyuan Big Leaf” was impossible to be formed through discovery, so there existed no so-called right of discovery over the new tea plant variety. In this case, although the tea plant variety “Taoyuan Big Leaf” existed objectively, the variety right had not been granted by the examining and approving organs in accordance with the legal procedures. It was wrong for The court of the original instance was wrong to determine that Gudongchun Company owned the variety right of “Taoyuan Big Leaf”. 植物新品种保护条例二条规定:“植物新品种是指经过人工培育的或者对发现的野生植物加以开发,具备新颖性、特异性、一致性和稳定性并有适当命名的植物品种。”该条例第三条规定:“国务院农业、林业行政部门(以下统称审批机关)按照职责分工共同负责植物新品种权申请的受理和审查并对符合本条例规定的植物新品种授予植物新品种权。”该条例第三十一条规定:“对经实质审查符合本条例规定的品种权申请,审批机关应当作出授予品种权的决定,颁发品种权证书,并予以登记和公告。”根据上述规定,植物品种权的取得,必须向农业部或林业部提出品种权申请,由农业部或林业部依法定程序对该申请进行实质审查,对经审查符合相关规定的决定授予品种权并向申请人颁发品种权证书,同时予以登记和公告。非经上述程序,任何个人或单位不能以任何其他方式原始取得品种权。“桃源大叶”茶树新品种是由农学院研究所和桃源茶种站共同对野生大叶茶树进行选育而形成的茶树新品种,“桃源大叶”茶树新品种不可能通过“发现”产生,也不存在所谓茶树新品种的“发现权”。本案中,虽然“桃源大叶”茶树品种客观存在,但未经审批机关依法定程序授予品种权。原审法院认定被上诉人古洞春公司享有“桃源大叶”的品种权错误。
In addition, Taoyuan Tea Variety Station was deregistered according to law, while Gudongchun Company was a company with limited liabilities established with the capital contributions from of Lu Wanjun and other natural persons, there existed no legal relationship of succession between the two. Seeing from the process of the deregistration of Taoyuan Tea Variety Station and the establishment of Gudongchun Company, the rural work office of Taoyuan County Government agreed that “the personnel of the original enterprise may become the shareholders of the newly established company, which may still engage in the research on the planting of tea leaves and shall be responsible for the workshop facilities and liabilities of the original enterprise”, but there was no evidence to prove that the intangible assets of Taoyuan Tea Variety Station had been disposed of at that time, let alone the fact that the intangible assets had been transferred to Gudongchun Company., In addition, Taoyuan Tea Variety Station did not own the variety right of “Taoyuan Big Leaf”. In conclusion, Gudongchun Company owned neither the right of discovery nor the variety right of the wild female parent tea plant “Taoyuan Big Leaf”, thus the relevant appealing grounds of Yiqingyuan Company shall be tenable. 另外,桃源茶种站是被依法注销的,而被上诉人古洞春公司则是由卢万俊等自然人出资而成立的有限责任公司,两者不存在法律上的承继关系。从桃源茶种站被注销和古洞春公司成立的过程看,虽有桃源县人民政府农村办公室同意“原企业人员组成股东,仍从事茶叶种植研究。原厂房设备及其债务由新建公司负责”的意见,但并没有证据证明当时已对桃源茶种站存在的无形资产进行了处理,更不存在将无形资产转让给古洞春公司的事实,况且桃源茶种站也并不享有“桃源大叶”的品种权。综上,古洞春公司既不享有“桃源大叶”野生母本茶树的发现权,也不享有“桃源大叶”茶树品种权,上诉人怡清源公司相关上诉理由成立。
As for the focus No.2, according to the provisions of the Anti-Unfair Competition Law of China and the Some Provisions on Prohibiting the Sort of Unfair Competition Conduct of Fraudulently Copying the Name, Package and the Upholstery Specially Owned by Brand Commodity, a brand commodity refers to the a commodity that which enjoys certain popularity on the market and is acquainted by with which the relevant general public are quite familiar. The names specially owned by brand commodities refer to commodity names exclusively owned by the brand commodities and have notable differences with the general names. 关于第二个问题。根据我国反不正当竞争法和国家工商局《关于禁止仿冒知名商品特有的名称、包装、装潢的不正当竞争行为的若干规定》的规定,知名商品是指在市场上具有一定知名度,为相关公众所知悉的商品。知名商品的特有名称,是指知名商品独有的、与通用名称有显著区别的商品名称。
In To judgeing whether a specific commodity is a brand commodity, it is necessary to take such elements as the production and distribution record of this commodity on certain market, distribution regions, sales volume, market share, credit situation, input in advertisement and coverage into consideration so as to make a comprehensive judgment. In this case, Gudongchun Company claimed that the serial product series of “Wild Tea King” and “Wild Tea” produced and distributed by it were brand commodities, but it neither provided the evidences in terms of the production and distribution time of these products, distribution regions, sales volume, advertisement, publicity time and the comments from the relevant consumer group, nor provided the evidences on the award certificates and media reports of these products. The evidences on the awards of “Taoyuan Big Leaf” submitted by Gudongchun Company may only prove the generation, development and popularity of “Taoyuan Big Leaf” instead of proving the fact that the serial product series produced and distributed by Gudongchun Company were brand commodities. 判定一个具体商品是否为知名商品,应参照该商品在特定市场的生产销售历史、销售地域、销售量、市场占有率、信誉情况及广告投入和覆盖面等因素进行综合判断。本案中,被上诉人古洞春公司虽主张其生产、销售的“野茶王”、“野茶”系列产品为知名商品,但既没有提供该产品的生产销售时间、销售地域、销售量、广告及宣传时间以及相关消费群体的评价等方面的证据,也没有提供其产品的获奖证书、媒体报道等证据。古洞春公司提交的“桃源大叶”茶获奖的证据,只能证明“桃源大叶”的产生、发展历史及其知名度,不能认定古洞春公司生产、销售的系列产品为知名商品。
In To judgeing whether a commodity name is a name specially owned by a brand commodity, it is necessary to firstly determine that a certain producer and operator of the commodity has already used the name in prior. Gudongchun Company was established after Yiqingyuan Company, Gudongchun Company only submitted the packing boxes indicated with “Wild Tea King” and “Wild Tea”, it was impossible to determine the production time of these products. Given the fact that such tea leaves products as Taohuayuan “Wild Tea King” and Lingya “Wild Tea King” were also produced and distributed within Taoyuan County, it may be concluded that the names of “Wild Tea King” and “Wild Tea” were generally used by many enterprises, thus were names generally used by on the relevant commodities. At the same time, the names specially owned by the brand commodities should have notable features, which may differentiate them from the other relevant products. In this case, “Wild Tea King” or “Wild Tea” was just a description of the composition of the commodity and could not define the source of the commodity when it was used independently. Therefore, what may differentiate the products of both sides shall be the registered trade marks of “Yiqingyuan” and “Gudongchun” instead of “Wild Tea King” or “Wild Tea”. Moreover, the packing and presentation of the products of Yiqingyuan Company were notably different from those of Gudongchun Company, thus would not mislead the relevant general public. Like aforesaid, the serial product series of “Wild Tea King” produced and distributed by Gudongchun Company could not be determined rated as brand commodities. In conclusion, it may not be determined that “Wild Tea King” and “Wild Tea” were commodity names specially owned by the tea leaves products produced and distributed by Gudongchun Company. Yiqingyuan Company's appealing ground that the tea leaves products of “Wild Tea King” and “Wild Tea” produced and distributed by it did not constitute an infringement upon the right of commodity name of Gudongchun Company and unfair competition shall be tenable. 判定商品的名称是否为知名商品的特有名称,首先应认定某一商品生产经营者在先使用。本案被上诉人古洞春公司成立于上诉人怡清源公司之后,古洞春公司仅向法院提交了其标有“野茶王”、“野茶”的茶叶包装盒,对该产品的生产时间无法作出判定,结合在桃源县境内还生产、销售有桃花源牌“野茶王”、灵芽牌“野茶王”等茶叶产品的事实,说明“野茶王”、“野茶”的名称已被多家企业普遍使用,为相关商品所通用。同时,知名商品的特有名称应具有显著性特征,能够与其他相关产品加以区别。本案中,“野茶王”、“野茶”只是对商品制作成分所作的描述,单独使用时并不能表明该商品的来源。因此,能够区分双方产品的是“怡清源”与“古洞春”注册商标,而不是“野茶王”、“野茶”。加之怡清源公司产品的包装装潢与古洞春公司产品的包装装潢存在明显区别,不会造成相关公众的误认,且如前所述,古洞春公司生产、销售的“野茶王”系列产品不能认定为知名商品。综上,不能认定“野茶王”、“野茶”为古洞春公司茶叶产品的特有名称。怡清源公司关于其生产、销售“野茶王”、“野针王”茶叶产品不构成对古洞春公司商品名称权的侵犯,不构成不正当竞争的上诉理由成立。
Item 4, Paragraph 1 of Article 5 of the Anti-Unfair Competition Law stipulates that operators should not adopt such illicit means as forging or pretending the certificate of attestation, mark of famous brands and quality products, forging the place of origin and making misleading false representations on commodity quality in their business transactions to damage other competitors. Article 9 of this Law stipulates that operators shall not use resort to advertisement or other methods to make a false propaganda on the quality, composition, function, use, producer, valid period and place of origin of commodities. Yiqingyuan Company submitted to the court a large quantity of evidences to prove the facts that it set up a tea leaves production and processing base within Taoyuan County, that it purchased the raw material “Taoyuan Big Leaves”, that it not only set up its own tea leaves base by cooperating with the local government and farmer households to breed superior quality of tea plant varieties, but also purchased large quantities of “Taoyuan Big Leaf” tea as the raw material to produce and process the serial tea products of Yiqingyuan by concluding agreements on purchasing and processing tea leaves products with the tea leaves companies and tea leaves processing plants within Taoyuan County. Gudongchun Company presented showed its objection, but it did not provide sufficient evidences to prove that the relevant evidences submitted by Yiqingyuan Company were not authentic. Therefore, Yiqingyuan Company's appealing ground that it neither forged the place of origin of its tea leaves products nor make false publicity on the composition of its products shall be tenable. 反不正当竞争法五条第一款第(四)项规定,经营者不得采用在商品上伪造或者冒用认证标志、名优标志等质量标志,伪造产地,对商品质量作引人误解的虚假表示等不正当手段从事市场交易,损害竞争对手。该法第九条规定,经营者不得利用广告或者其他方法,对商品的质量、制作成分、性能、用途、生产者、有效期限、产地等作引人误解的宣传。上诉人怡清源公司向法院提供了其在桃源境内建有茶叶生产加工基地和收购“桃源大叶”茶叶原料的大量证据,证明其不仅通过与当地政府、农户合作,在桃源县建立了自己的茶叶基地,选育优质茶树品种,而且还通过与桃源县境内的茶叶公司、茶叶加工厂及茶农签订收购、加工茶叶产品的协议,大量收购“桃源大叶”茶作为原料生产、加工怡清源牌系列茶产品。被上诉人古洞春公司虽然提出异议,但并未提供足够的证据证明怡清源公司的相关证据不具真实性。因此,怡清源公司关于其没有伪造茶叶产品产地、没有对其产品制作成分虚假宣传上诉理由成立。
Both Yiqingyuan Company and Gudongchun Company produced, processed and distributed the tea leaved products with “Taoyuan Big Leaf” as the raw material, the more popular “Taoyuan Big Leaf” was, the more beneficial it would be for the production and distribution of the tea leaves of the relevant enterprises. Yiqingyuan Company's act of introducing “Taoyuan Big Leaf” in the book Introduction of Tea and Tea Culture it compiled, on the website of the company and on the packages of its products to improve the popularity of “Taoyuan Big Leaf” did not dispraise defame its competitors and the business reputation and commodity fame of Gudongchun Company, instead it made helped all tea leaves production enterprises (including Gudongchun Company) which took “Taoyuan Big Leaf” as the raw material to benefited from it, and it was beneficial for the relevant enterprises to raise their market popularity and market share. The Introduction of Tea and Tea Culture introduced the wild female parent tea plant “Taoyuan Big Leaf” and the discovery, breed, denomination, identification and examination and approval of the tea plant variety, and some content may be inconsistent with the objective facts, but as Gudongchun Company owned neither the right of discovery nor the variety right of the wild female parent tea plant “Taoyuan Big Leaf”, therefore, even the book had errors was wrong in the above-mentioned aspects., Gudongchun Company was not the party being infringed upon. So the problem that whether the relevant introduction in the Introduction of Tea and Tea Culture was inaccurate fell beyond the trial scope of this case. 上诉人怡清源公司与被上诉人古洞春公司都生产、加工及销售以“桃源大叶”为原材料的茶叶产品,“桃源大叶”的知名度越高,对相关企业的茶叶生产和销售越有利。怡清源公司通过组编《茶与茶文化概论》一书以及在公司网站和产品包装上宣传、介绍“桃源大叶”,提高“桃源大叶”的知名度,不仅没有贬损竞争对手,损害古洞春公司的商业信誉和商品声誉,反而会使所有(包括古洞春公司在内)以“桃源大叶”为原料的茶叶生产企业受惠,有利于相关企业提高市场知名度和市场占有率。虽然《茶与茶文化概论》中对“桃源大叶”母本野生茶树和“桃源大叶”茶树品种的发现、选育、定名、鉴定和审定等情况的介绍,有些内容可能与客观事实不一致,但由于古洞春公司既不享有“桃源大叶”野生茶树的发现权,也不享有“桃源大叶”品种权,所以该书即使在上述方面存在差错,古洞春公司也不是被侵权人。故《茶与茶文化概论》中相关介绍是否存在叙述不准确的问题,不属本案审理范围。
In conclusion, the facts verified in the first instance were unclear and the application of law was wrong. The act of Yiqingyuan Company and the other defendants of the original instance of distributing Yiqingyuan “Wild Tea King”, “Wild Needle King”, “Wild Needle Green Tea”, “Wild Tea Maojian” and other tea leaves products of Yiqingyuan, and Yiqingyuan Company's act of publicizing its own products through the book Introduction of Tea and Tea Culture and the website of the company did not constitute unfair competition against Gudongchun Company, thus Yiqingyuan Company's appealing ground shall be established. 综上所述,一审认定事实不清,适用法律错误。上诉人怡清源公司及原审被告生产、销售怡清源“野茶王”、“野针王”、“野针绿茶”、“野茶毛尖”等茶叶产品,怡清源公司通过《茶与茶文化概论》及公司网站对“桃源大叶”及自身产品进行宣传的行为不构成对被上诉人古洞春公司的不正当竞争,怡清源公司的上诉理由成立。
JUDGMENT 
Therefore, in accordance with Item 2 and 4, Paragraph 1 of Article 5, Paragraph 1 of Article 9 and Article 14 of the Anti-Unfair Competition Law of the People's Republic of China, and Item 2 and 3, Paragraph 1 of Article 153 of the Civil Procedure Law of the People's Republic of China, the Higher People's Court of Hunan Province adjudicated on December 23rd, 2004 that: 据此,湖南省高级人民法院依照《中华人民共和国反不正当竞争法》第五条第一款(二)、(四)项,第九条第一款,第十四条和《中华人民共和国民事诉讼法》第一百五十三条第一款(二)、(三)项之规定,于 2004年12月23日判决:
1. The civil judgment No.3 (2004) of the third trib, unal of the Intermediate People's Court of Changde City shall be cancelled; 一、撤销常德市中级人民法院(2004)常民三初字第9号民事判决;
2. The claim of Gudongchun Company shall be rejected.

 二、驳回古洞春公司的诉讼请求。
 

     
     
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