＂Ele.me＂ sued ＂Are you hungry＂ and won 10,000 yuan for counterfeit products infringement

According to the China Judgment Document Network, on December 30, 2020, Ele.me affiliate Lazars Network Technology (Shanghai) Co., Ltd. sued Ele.me Catering Management (Beijing) Co., Ltd. for trademark infringement. The first-instance civil court verdict was made public.

The court verdict showed that Ele.me should immediately change its business name, and the changed business name must not contain the same or similar words as "Ele.me", and compensate Ele.me 10,000 yuan.

Court verdict

The court ruled in accordance with Article 58 of the Trademark Law of the People’s Republic of China, Article 6 (4) of the Anti-Unfair Competition Law of the People’s Republic of China, and Article 17 (3) as follows:

First, Ele.me shall immediately change its business name on the effective date of the judgment, and the changed business name shall not contain the same or similar words as "Ele.me";

Second, Hungry will compensate Lazars 10,000 yuan for the reasonable expenses of network technology within ten days from the effective date of the judgment;

Lazars:

"Hungry" clings to goodwill, causing public confusion

According to the Tianyancha APP, Lazars Network Technology (Shanghai) Co., Ltd. (hereinafter referred to as "Lazars") is an operating company of Ele.me.

At the trial, Mr. Lazars said the company had founded Ele.me in 2008, a local lifestyle platform that specialises in online food delivery, new retail, instant delivery and the catering supply chain. Ele.me, the company’s core business, had grown over the years to reach 2,000 cities across the country by June 2017, with 1.30 million restaurants and 260 million users.

In order to protect the good reputation of its products and services and safeguard its legitimate rights and interests, the company has applied for the registration of numerous trademarks, covering categories of goods and services including Class 9, Class 35, Class 42, and Class 43.

The company said that after years of use and promotion, the "Ele.me" series of trademarks has gained a high reputation and influence in the food service field. "At the beginning of our company’s establishment, we chose the mobile client side application software as the platform for providing services. Our company’s’Ele.me ‘mobile application software was officially released as early as 2012, and as our company’s market share and scale continue to expand, the influence of our company’s trademark is also increasing."

However, the company found that "Hungry" used "Hungry", which is highly similar to the "Ele.me" trademark, as a business name registration, "with subjective malice to cling to our company’s goodwill. Their business name has caused confusion to the relevant public, and their behavior constitutes unfair competition."

Are you hungry?

The company name has been approved and registered according to law, but it has not actually operated

However, Ele.me argued in court that the company’s business name was approved and registered in accordance with the law, and that the company did not actually operate after registration. The company pointed out that the "do" of "Ele.me" is different from the "do" of "Ele.me". The pronunciation is also different, and the glyph is different, which does not constitute a similarity. Therefore, the company asked to dismiss all of Lazars’ claims.

Why is the company named "Hungry"? To this end, the Red Star Capital Bureau called the company today. However, when the other party knew the purpose of the visit, they hung up the phone.

Tianyancha APP shows that hungry was established in December 23, 2016, the registered capital is 1 million RMB, the registered address is Beijing Economic and Technological Development Zone, Beijing, its industry belongs to the business service industry, business license registration business scope includes catering management, sales of handicrafts, edible agricultural products, daily necessities, electronic products, machinery and equipment.

The court inquiry found that Shan Lijun, the legal representative of Ele.me, served as the legal representative of 100 companies, some of which contained high-profile logos such as "Citi", "Standard Chartered" and "Alibaba Cloud" in their corporate names.

In response to the above situation, Shan Lijun did not provide a reasonable explanation for this during the trial, only indicating that none of the above companies were actually operating and that they did not actually contribute capital.

Judgment:

Compensation for Zaras 10,000 yuan, "Are you hungry" has been changed twice

In this regard, the court held that the series of trademarks in this case were registered first, and the defendant’s font number "Hungry" was very similar in shape, pronunciation and meaning to the plaintiff’s registered trademark, so it should be recognized as a similar logo. The defendant registered "Hungry", which was very similar to the plaintiff’s registered trademark, as its registered corporate name, with obvious subjective malice, which was objectively prone to market confusion and constituted unfair competition.

Red Star Capital Bureau noted that the judgment was handed down on May 29 last year, and on September 8, 2020, Ele.me changed its name to "Ele.me Catering Management (Beijing) Co., Ltd." and on November 19, 2020, it was renamed "Beijing Yushanfang Staple Food Kitchen Co., Ltd.".