A few days ago, the Beijing No. 1 Intermediate People’s Court confirmed to the media that it has received a complaint from Hangzhou Wahaha Food Co., Ltd. against the Trademark Office of the State Administration for Industry and Commerce. The complaint contains the name of Fan Yimou, the vice chairperson of Hangzhou Wahaha Food Co., Ltd. It is understood that the Beijing No. 1 Intermediate People’s Court has accepted the case.
The prosecution immediately attracted the attention of all parties and also attracted various controversies.
"We did not file a lawsuit against the Trademark Office of the State Administration for Industry and Commerce with the Beijing No. 1 Intermediate People’s Court, but asked the court who used our name to sue, and asked to withdraw the lawsuit, reserving the right to pursue the impostor’s legal responsibility," said Shan Qining, a Wahaha spokesperson, in a statement sent to this newspaper. The statement ended with the official seal of Hangzhou Wahaha Food Co., Ltd.
Who has the authority to represent the joint venture company?
Obviously, from the above situation, Fan Yimou represented the identity of the major shareholder of the Wahaha joint venture company and played the role of the legal representative of the joint venture company. The Chinese side of the Wahaha joint venture company was obviously unwilling to recognize Fan Yimou’s legal representative identity. For a time, the battle for control of the Wahaha joint venture started again.
A few days ago, some media reports said that Danone believes that it has the right to sue the Trademark Office on behalf of the Wahaha joint venture. However, Wahaha is unwilling to admit the facts and asks to withdraw the lawsuit. So does Fan Yimou really have the right to sue the State Trademark Office on behalf of the joint venture?
"We have no comment." Danone said the reports were false, as did Shan Qining, Wahaha spokesperson.
"Whether the vice-chairperson can exercise legal rights on behalf of the company can be debated." Yan Yiming, a well-known rights lawyer in Shanghai, said that there are three situations in which legal rights are generally exercised on behalf of a company. The first situation is the chairperson, who is the legal representative; the second is the official seal; and the third is that if the vice-chairperson wants to exercise legal rights on behalf of the company, it must be approved by the board of directors. In addition, the general manager of the company represents the company and exercises management power internally.
In response, Zhang Malin, a lawyer at Jiangsu Zhibang Law Firm, said that if Fan Yimou is an interested party, it should be possible to sue the State Trademark Office in the name of an individual, but if he is suing in the name of a company, it depends on whether he can have evidence to exercise his rights on behalf of the company. He said that the Beijing No. 1 Intermediate Court has now accepted the lawsuit, indicating that the court believes that the evidence is sufficient, so it is inferred that the complaint should have the official seal of Hangzhou Wahaha Food Co., Ltd.
However, it is strange that the statement sent by Wahaha spokesperson Shan Qining to this newspaper ended with the official seal of Hangzhou Wahaha Food Co., Ltd., which shows that the official seal should be on Wahaha’s side. So how did Fan Yimou put the official seal on the complaint, but Wahaha’s side was "unaware"?
Zong Qinghou’s resignation was not completed?
On June 7 this year, Zong Qinghou, the chairperson of the Wahaha joint venture, wrote his resignation letter to the headquarters of Danone in France because he was "intolerable". Danone said it accepted Zong Qinghou’s resignation and appointed Fan Yimou as the interim chairperson of the joint venture.
In late June, Fan Yimou convened the board of directors of Wahaha’s seven joint ventures, demanding that he be elected as the chairperson of the company and that Wahaha hand over its official seal and business license, but the meeting failed to reach any agreement and ended in a farce.
According to the joint venture articles of association between Danone and Wahaha, the two sides agreed that the chairperson should be elected by the board of directors. Since Wahaha’s Chinese side strongly resisted Fan Yimou and claimed that according to the articles of association, the chairperson of the joint venture company should be appointed by the Chinese side. From this point of view, Fan Yimou should not have been successfully elected as the new chairperson of the company.
"Zong Qinghou’s resignation application should be effective, but the final resignation process should not be completed." Yan Yiming said that resignation does not mean that the legal representative status is automatically lost. It must be approved by the board of directors and the registration of legal person change must be completed at the local industry and commerce bureau. The entire resignation procedure is considered to be completed.
Yan Yiming also said that from the current media reports, it is difficult to say who wins and who loses. It should be said that both sides have the opportunity to win the lawsuit, but it does not rule out the possibility of automatic settlement between the two sides when the lawsuit is halfway through.
Wu Dong, deputy director of the company law committee of the Shanghai Bar Association, said that one of the most important roots of the Danone-Wahaha dispute was related to China’s original approval system for Sino-foreign joint ventures, and the "administrative inaction" of the State Trademark Office was one of the reasons for the contradiction. This is also the reason why Danone began to sue the State Trademark Office.
Wu Dong said that Danone and Wahaha knew that the trademark transfer agreement could not be passed, so they signed a trademark license contract. It is ridiculous that now Danone and Wahaha both claim to solve the problem through legal means. Why did they circumvent Chinese law in the first place? If the Chinese law was strictly followed at that time, the two sides would not have such disputes.
According to media reports, the State Trademark Office will not comment until the final result comes out. (Fu Guangyun)
Editor in charge: Zhao Xuanxuan
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