The validity of the memorandum is questioned.
Accused of horizontal competition
At the beginning of the trial, the Quartet exchanged supplementary evidence for this trial. It is understood that this trial still focuses on the validity of the memorandum and supplementary memorandum.
According to Shantou Lulu's evidence, the Memorandum and Supplementary Memorandum allow Shantou Lulu to use Lulu's trademark and patent permanently, and prohibit Chengde Lulu from operating the markets in eight southern provinces permanently, and prohibit Chengde Lulu from producing and operating Tetra Pak-packed almond dew permanently.
However, according to the attorney of Chengde Lulu, Chengde Lulu didn't know about the existence of the above contract until February 20 15, and it took 14 years for this "invisible contract" to discover the existence of the memorandum and supplementary memorandum in the financing due diligence of Chengde Lulu.
At the same time, the attorney of Chengde Lulu said in the trial: "Exclusive operation of Lulu Almond Dew and exclusive use of' Lulu' trademarks and patents are the basic listing conditions of Chengde Lulu."
"The signing date of the memorandum was 200165438+February 27th. At that time, Chengde Lulu had just been listed for four years, and the signing of the contract represented that Shantou Lulu could compete with the industry." Lawyer Lulu of Chengde said that the memorandum violated the public promise in the prospectus, fundamentally changed the listing conditions of listed companies and seriously harmed the interests of listed companies and minority shareholders.
It is understood that Chengde Lulu is listed on 1997. As a sponsor institution, the former Lulu Group publicly promised in the prospectus that it and its affiliated companies could not compete with listed companies in the same industry, and signed a special trademark and patent licensing agreement with listed companies.
Dispute over "True and False" Contract
The authenticity remains to be verified.
It is reported that in the third trial of the first instance, the evidence submitted by Chengde Lulu was not adopted by the court. In this second trial, Chengde Lulu resubmitted supplementary evidence.
For this supplementary evidence, the attorney of Chengde Lulu believes that according to the available evidence, the supplementary memorandum is likely to be forged after 2006, and the signing date is not March 28, 2002.
"The supplementary memorandum has substantially changed the memorandum, and the content is false, so the validity of the contract shall be reviewed separately. The company seal used in the memorandum is not coded, but the seal used in the supplementary memorandum is coded, which shows that the company seal used by the original Lulu Group in the two agreements is different. According to the contents submitted by the original Lulu Group Company in the industrial and commercial archives, the earliest opening time of the coded seal was in early 2005, so we applied for the identification of the true formation time of the Supplementary Memorandum. " The attorney of Chengde Lulu said in court.
In the face of Chengde Lulu's query, the former Lulu Group temporarily stated at the trial site that it would add a new evidence. The former lawyer of Lulu Group said that Lulu Group had just sent a picture of an internal document with the date of signing in 2002 through WeChat, which indicated that the seal used on the document was coded.
In this regard, Chengde Lulu's attorney said that since the document was issued by the original Lulu Group itself, it was impossible to confirm its real issuance time, so he expressed doubts about the authenticity of the evidence.
However, Shantou Lulu's attorney responded in court: "The contract has the signature of the company's chairman and the company seal, and Chengde Lulu should perform the contract."
After a round of fierce defense, the presiding judge of the court said that the court will make arrangements after the trial whether the supplementary memorandum needs to be appraised.
The memorandum involves related party transactions.
Only four people decide Lulu's fate?
In addition to questioning the authenticity of the contract, Chengde Lulu believes that the memorandum and supplementary memorandum also involve violations of relevant laws and regulations on related party transactions of listed companies.
It is worth noting that on 200 1 day (representing the former Lulu Group), Wang (representing Chengde Lulu), Lin (representing Shantou Lulu) and Hong Kong Feida) signed a memorandum. Among them, Wang Baolin is also the chairman and legal representative of Chengde Lulu, Lulu Group and Shantou Lulu; Wang also serves as a director of three companies; The former Lulu Group is the shareholder of Chengde Lulu and Shantou Lulu.
Chengde lawyer Lu said in court that the above three companies are affiliated companies, and according to the articles of association at the time of signing, related transactions should be reviewed by the board of directors.
According to the Articles of Association of Chengde Lulu in 2000, the Securities Daily reporter found that the first paragraph of Article 86 stipulates that "when a director or other enterprise he works for has a direct or indirect relationship with the company's existing or planned contracts, transactions and arrangements, he shall disclose the nature and extent of the relationship to the board of directors as soon as possible, regardless of whether the related matters generally require the approval of the board of directors."
At the same time, according to the articles of association, the related directors shall explain the relevant information in detail at the board meeting, and make it clear that they voluntarily abstain from voting.
"Wang took advantage of his position as a company executive to control the seal of a listed company and secretly signed a memorandum with Lin and others. The memorandum was never publicly disclosed to the public without the approval of the board of directors and the shareholders' meeting, which violated the relevant provisions of the Articles of Association on related party transactions. "The attorney of Chengde Lulu said that the memorandum and supplementary memorandum, as related party transaction contracts, violated 65,438+65,438 in 2006 10.
However, the former lawyer of Lulu Group retorted that there were no legal rules for related party transactions when the transaction occurred.
Lawyer Lulu of Chengde pointed out that "Memo" and "Supplementary Memo" are contracts with no termination period, and they are permanently and continuously performed. Therefore, the existing laws should be applied, and their illegal acts cannot last forever because they are signed early. Moreover, the supplementary memorandum has not been authenticated, so it is impossible to confirm its true formation time.
In the second case, angry words and swords
The outcome of the trial is still uncertain.
In addition, Chengde Lulu also said that the memorandum and supplementary memorandum were signed by Wang Baolin beyond his authority.
The attorney of Chengde Lulu said: "Almond dew is the only core product of Chengde Lulu, and the intellectual property rights related to Lulu, such as trademarks and patents, are its core intellectual property rights. The signing of the above contract is an important event that determines the' business policy and business plan' of listed companies and fundamentally changes the basic conditions for listing companies. According to the Company Law and Articles of Association, the power to decide this matter can only be enjoyed by the company's authority' shareholders' meeting' and should be approved by the CSRC. Wang Baolin has no right to decide. " .
However, the former lawyer of Lulu Group believes that the signing of the memorandum is the daily business decision of Chengde Lulu and does not need the deliberation of the board of directors and the shareholders' meeting.
"Wang Baolin's signature on the memorandum is a representative behavior. From beginning to end, Lulu Group recognized Wang Baolin as the legal representative of the Group to sign the above memorandum. Therefore, Wang Baolin signed the above memorandum without exceeding its authority. " The above-mentioned former Lulu Group attorney said.
It is worth mentioning that lawyer Lulufang of Chengde added in the defense stage that the memorandum and supplementary memorandum not only seriously harmed the interests of Lulu of Chengde and the majority of minority shareholders, but also seriously harmed the national interests, because the original Lulu Group was a wholly state-owned company, and Wang Baolin, as the legal representative of the state-owned company, agreed in the memorandum to exempt the trademark and patent license fees that had not been approved by the state-owned department in the previous three years, and the license fee was about 50 million yuan, which would be owned by Lulu Group.
Shantou Lulu's attorney said that the memorandum and supplementary memorandum protected Chengde Lulu, because the sales volume of almond dew in the southern market was far less than that in the northern market, and the signing of the above contract did not harm the interests of Chengde Lulu.
The trial lasted for about 5 hours, and the lawyers of the Quartet argued for it, and the scene of the trial was filled with smoke. Finally, regarding the trial results, the presiding judge of the court said that the court needs to review the evidence presented in court and the trial results will be announced in the future.
Regarding this case, a person engaged in relevant legal work said in an interview with reporters: "The first trial of trademark licensing effectiveness has been completed, Shantou Lulu has increased litigation requests, and the Hebei Higher People's Court has accepted the related party transaction litigation of Chengde Lulu's major shareholder on the above documents. The second instance may wait for the results of the Supreme Court case before continuing the trial. "
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