Civil judgment of Baiyun District People's Court, Guangzhou City, Guangdong Province

    People's Court of Baiyun District, Guangzhou City, Guangdong Province

    Written judgment of civil affairs

    (2017) No.317, Yue 0111, Early Republic of China

    Plaintiff: Opai Home Furnishing Group Co., LTD., located in Baiyun District, Guangzhou City, Guangdong Province.

    Legal representative: Yao Liangsong.

    Agent: Zhai Mingyue, Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Gaocheng Huppai Electric appliance Factory, domicile place: Gaocheng, Shijiazhuang city, Hebei Province, registration number: XX2600257XX.

    Manager: Gao Junying, female, Han Nationality, born on February 10, 1969, living in Gaocheng District, Shijiazhuang City, Hebei Province,

    Defendant: Huiyuan Electric Appliance Factory, Dongfeng Town, Zhongshan City, Guangdong Province, registered at XX0001150XX.

    Investor: Liu Yuanli.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the company) and the defendant chaff opie hutch defends electric city (hereinafter referred to as "opie hutch defends electric), dongfeng town, zhongshan city hui yuan electrical appliance factory (hereinafter referred to as the hui yuan electrical appliance factory) the infringement trademark rights and unfair competition disputes, we accept, form a collegial panel in accordance with the law, public hearing on the trial. The plaintiff Ou pai company entrusted agent Zhai Mingyue to the court to attend the lawsuit. The defendant Ou Pai huichen electric appliance factory and Hui Yuan electric appliance factory were subpoenaed by the court, but refused to attend the lawsuit without justified reasons, and the court was absent from trial according to law. The case is now closed.

    The plaintiff Opai Company claims that the plaintiff is the exclusive owner of the 11th "OPPEIN" and "OPPEIN" series of trademarks. Since its establishment, the plaintiff has cast "OPPEIN" and "OPPEIN" series of trademarks into household, electrical and sanitary brands that are well-known throughout the country. The plaintiff's products and brands have won the reputation of "China famous brand products" and "China well-known trademark" successively. "Opai" has not only become the representative symbol of the plaintiff's products and enterprise names, but also become the significant identification mark indicating the market subject and commodity source of the plaintiff and its affiliated enterprises. In November 2016, the plaintiff discovered the defendant opie hutch defends electric open online shop in the shop names, nicknames, and extensive use of "European" text on web sales marked "guangdong opie technology co., LTD." on the oil absorption, on the product packaging, manuals and other carrier was labeled "guangdong science and technology co., LTD." "OPAICN" words "dongfeng town, zhongshan city hui yuan electrical appliance factory", the plaintiffs entrust notary office to evidence the defendant's act preservation. The plaintiff think the second defendant unauthorized unauthorized use of "European" words, production, sales, with a "guangdong opie technology co., LTD." on the oil absorption, not only violated the trademark rights of the plaintiff, also constitute the encroachment of right to enterprise name to the plaintiff, in violation of the principle of honesty and credit and recognized business ethics, the behavior constitutes unfair competition to the plaintiff. To sum up, the court is requested to order: 1. The defendant, Oupai kitchen & Bathroom Electric Appliance Factory, immediately stopped the infringement of the plaintiff's trademark right by using the words "Oupai" in its online store name, shopkeeper nickname and online store; 2. 2. The defendant, Oupai kitchen & Sanitary Appliance factory, immediately stopped selling range hoods with the words "Guangdong Oupai Technology Co., LTD"; 3. The defendant Huiyuan electric appliance factory immediately stopped producing and selling range hoods with the words "Guangdong Opai Technology Co., LTD"; 4. The two defendants shall compensate the plaintiff a total of 1 million yuan for economic losses and reasonable expenses for safeguarding their rights; The costs of this case shall be borne by the two defendants.

    The defendant, Ou Pai Huichen electric appliance Factory and Hui Yuan electric appliance Factory, made no reply and did not submit any evidential materials to the court within the time limit of proof production.

    Trial found: no. 4378572 "Europe", the trademark registrant is a European hutch ark enterprise co., LTD., shall be used for class 11 goods, including gas furnace, microwave oven (kitchenware), electric cooker, kitchen smoke lampblack machine, etc., registration is valid from June 7, 2007 to 2017 on June 6, after the renewal of registration is valid until June 6, 2027. On January 6, 2011, the registered name of the trademark change was approved to be Guangdong Opai Group Co., LTD., which changed to Opai Company on March 24, 2014.

    On March 24, 2015, Opai, as the copyright owner, applied to Guangdong Copyright Bureau for the copyright registration of "Opai" fine art works. The registration number was Yuezuo-2015-F-00001907. The author was Liang Zhaotang.

    The company submitted a "about that," European "trademark for well-known trademark", China famous brand product certificate, certificate of famous trademarks of guangdong province, 2012 China hutch defends top certificate of integral kitchen top ten leading enterprises, guangzhou mayor award honorary certificate in 2012, 2014, guangdong household field top ten most valuable brands, innovation ability of ten strong enterprise honorary certificate and other evidence, to prove that "European" brand has a high market reputation; The tax payment certificate issued by the State Administration of Taxation in Baiyun District, Guangzhou City from 2013 to 2015, and the notification issued by the tax Administration of large enterprises in Guangzhou City Local Taxation Bureau in 2014 and 2015 were submitted to prove that the brand "Opai" has generated huge profits and benefits, and its brand value is extremely high. Submitted on time boiling with Beijing international advertising co., LTD. Signed the 2013 < space > home outfit funded cooperation agreement ", "2015 < space > home outfit funded cooperation agreement", and hunan radio and television advertising company, hunan downwind media co., LTD. The television advertising contracts signed, and zhejiang wisdom beauty car advertising co., LTD., the television advertising contracts signed, and kashi silver pine culture media co., LTD. Signed advertising agency contract and other evidence, intends to prove that the company "European brand" for the continuous publicity, and has been widely known; Submitted since 2011 "linchuan evening news", "newspaper zhuhai dc anqing daily Shanghai hutch ark" sales and marketing management version "" ruili household magazines such as decorating the world on the publicity of evidence, to prove that the company continues to promote in the print media," European brand ", its original "have a home, there is love, there are" slogan and promote the continuous use.

    On November 12, 2016, Wang, the entrusted agent of Shandong Zhixiang Law Firm, applied for notarization of evidence preservation to Luxi Notary Office of Liaocheng City, Shandong Province. Under the supervision of the notary staff, on November 14 of the same year, Wang mou in Guangzhou Baiyun District and town of XX Street XX "7 days chain hotel", using the notary office to connect the Internet computer, in taobao shopkeeper named "European pai kitchen appliances outlet" "China European appliances outlet" online shop to buy a range hood. On November 15 of the same year, under the supervision of the notary staff, Wang mou signed for the delivery of a package labeled "Guangdong Opai Technology Co., LTD" by the Courier of "Deppon Express" at the gate of "7 Days Chain Hotel", XX Street, Renhe Town, Baiyun District, Guangzhou. The package number was "63XX435". Wang will open the above goods box, which contains a range hood, a manual. On November 19, the same year, under the supervision of the notary staff, Wang mou in Guangzhou Baiyun District and town of XX Street XX "7 days chain hotel", using the notary office to connect the Internet computer, on "Taobao" for the order number 2796XXX829 confirmed receipt. On December 26, 2016, Shandong Liaocheng Luxi Notary Office issued a notarial certificate no. 3816, proving that the work record attached to the notarial certificate is consistent with the content of the original filed by the notary office, and the signature of Wang xx on the original is true; The attached photos are taken by Wang at the scene and are consistent with the actual situation; The attached page screenshot is obtained by Wang, which is consistent with the actual situation; The attached CD is wang Mou above video after burning and become, and the actual situation is consistent; The material objects sealed by the notary office are obtained as described above and conform to the actual situation.

    Notarial deed accessories: shops, for the enterprise involved the shopkeeper nickname is shown as "opie hutch defends electric appliance stores, web page store name is shown as" opie electrical outlets in China ", the title bar above shows "opie electrical kitchen life", below the "Europe to send smoke lampblack machine kitchen water heater alexipharmic ark" "opie brand festival" and so on; Among them, the title is "special price suction domestic lampblack machine side suction type lampblack machine special price off exhaust household smoke hood" the commodity price is 198 yuan, display "trade success 3411" "cumulative comments 3903" "inventory 80026"; The "seller information" in the order information section shows that the operator of the shop involved is A European kitchen and sanitary appliance factory. After being opened and sealed in court, there is a range hood inside. The words "Guangdong Opai Technology Co., LTD. (supervision)" are printed on the outer package, instructions and products, and the words "Zhongshan Dongfeng Town Huiyuan Electric Appliance Factory" are printed on the side of the outer package. The company said in court, opie hutch defends electric sales, hui yuan electrical appliance factory production is accused of infringement on product packaging with a word "guangdong opie technology co., LTD.", constitute an infringement of European company enterprise name right of ACTS of unfair competition, opie hutch defends electric within its business online store name and shop extensive use of the word "Europe", constitute a trademark infringement.

    Opai claims that the two defendants should jointly compensate for their economic losses and reasonable expenses totaling 1 million yuan, and has submitted an invoice of notary fees with the amount of 25,000 yuan.

    Opai co., LTD., established on July 1, 1994, is a joint stock limited company. Oupai kitchen and Sanitary Appliance Factory is an individual industrial and commercial enterprise, established on April 29, 2014. Its business scope covers processing and sales of range hoods, stoves, water heaters, disinfection cabinets, household appliances and kitchen supplies. Huiyuan Electric Appliance Factory is a sole proprietorship, founded on April 7, 2015. Its business scope covers the production, processing and sales of household appliances, kitchen appliances, hardware accessories, electrical accessories, plastic accessories, range hoods and kitchen appliances.

    The above facts are supported by the trademark registration certificate, the change certificate of the registered trademark, the notarization certificate, the sealed object, the invoice, the industrial and commercial registration information and the statement of the parties.

    The court holds that Opai is the exclusive owner of the registered trademark "Opai" no. 4378572. Until the time of the lawsuit, the registered trademark is still under effective protection, and the exclusive right of opai to use the trademark involved should be protected.

    On whether the actions of each defendant constitute trademark infringement and unfair competition and their respective liability for tort. First of all, according to the notarial certificate of evidence, the online store involved in the case was operated by Opai kitchen and sanitary appliance Factory. The nickname of the shopkeeper, the name of the store and the website of the shop involved in the case were all marked with the word "Opai", which was similar to the registered trademark of Opai Company No. 4378572. The approved scope of the registered trademark of "Opi" no. 4378572 is category 11, including gas stoves, microwave ovens (kitchen utensils), electric cookers, kitchen range hoods, etc., which are the same as the range hoods of the alleged infringing products. Within the time limit of proof, opie hutch defends electric did not proof prove when the shop shopkeeper nicknames, shop name and use the wording "European" highlights on the web has the holder of the legal license, so we decided that ou sent hutch defends electric involved in online stores the shopkeeper nickname, shop name and web site use word "European" behavior, the infringement of the no. 4378572 of European companies enjoy "European" use of a registered trademark, shall bear tort liability. Now Opai requires that Opai kitchen and sanitary appliance factory stop highlighting "Opai" in the owner's nickname, store name and web page of the online shop involved and compensate for the loss of the lawsuit. Based on the law, the court supports this claim.

    Second, is accused of infringement product packaging, instruction manual and the products are labeled "opie technology co., LTD. (producer) of guangdong province", the product of the outer side was labeled "dongfeng town, zhongshan city hui yuan electrical appliance factory", in the case of no other contrary evidence, can maintain is accused of infringing products are hui yuan electrical appliance factory production. Oupai company and Huiyuan electric appliance factory are enterprises that produce and sell household appliances, kitchen appliances, range hoods, etc., which belong to the same trade competition. European company was founded in July 1, 1994, and has been used since the "European" font size, combined with the company submitted the honorary certificate, certificate of tax payment, newspaper and magazine reports, advertising contract, media reports and other evidence of actual use and popularity, can maintain "European" font size has certain market popularity and is known by the relevant public enterprise name of the font size. Hui yuan electrical appliance factory was founded in 2015, on April 7, far later than European company set up time, hui yuan electrical appliance factory as a production and sales of kitchen appliances, smoke lampblack machine, such as enterprise, should know the company already has a certain reputation of "European" font size and in the case of a registered trademark, it will "opie technology co., LTD. (producer) of guangdong province" the words marked on the product packaging, manuals and product's behavior, has the "free-rider" subjective malice, violated the civil activities shall follow the principle of fairness, honesty and credit, and constitutes unfair competition. Now Oupai company requests Huiyuan electric appliance factory to stop producing and selling the lampblack machine with the word "Guangdong Oupai Technology Co., LTD" and compensate for the loss of the lawsuit, which has the legal basis and the court supports. For opie hutch defends electric only is accused of infringement product sellers, not accused of infringement product producer, to relevant general public attention is hard to distinguish whether the sales related products infringe on the others' right to enterprise name, so the opie hutch defends electric act doesn't constitute unfair competition, the only need to stop selling with the wording "guangdong opie technology co., LTD." the oil absorption.

    Finally, because the company did not proof to confirm the sent hutch defends electric in the online stores involved the shopkeeper nicknames, shop name and use the wording "European" highlights on the web and the behavior of the product sales is accused of infringement, and hui yuan electrical appliance factory production, the sale is accused of infringement product common infringement behavior intentionally, so the requirements for European companies two defendants jointly bear reasonable expenses and compensation for the economic loss of the claims, we shall support opie hutch defends electric and hui yuan electrical appliance factory to deal with their own specific tort bear tort liability to pay compensation.

    About the amount of compensation. The cost of purchasing the alleged infringing products claimed by Opie is certified by notarization and supported by the court. Although the invoice is provided, the notarization fee of the claim is not verified only for the expenses of this case, and the corresponding bills are not provided to prove the lawyer's fee and travel expense of the claim. However, considering the fact that Opai does notarize to obtain evidence and appoint a lawyer to appear in court to answer the lawsuit, the court supports the reasonable part of the above expenses as appropriate. Proof within the time limit, because the parties thereto have not been submitted to admissibility of evidence of the company's actual loss, the situation of profit or two defendants for infringement, so our comprehensive consideration of the registered trademark involved in the popularity, the infringer's subjective fault and error correction attitude, form, is accused of infringing copyright product types, price, sales volume, during the period of infringement, consequences, and the reasonable expenses of the rights in stopping the infringement behavior, etc., determined the opie hutch defends electric compensation for 180000 yuan (including the reasonable expenses), hui yuan electric compensation amount is RMB 350000 (including the reasonable expenses). Oupai huichen electric appliance Factory and Huiyuan electric appliance factory were subpoenaed by the court and refused to attend the lawsuit without justified reasons, which was deemed as the waiver of its right to defend itself, and the court made a judgment by default according to law.

    To sum up, in accordance with the "tort liability law of the People's Republic of China the first (a) (6) of article 15, article 57" trademark law of the People's Republic of China "in the first (2) (3), article sixty-three, the anti-unfair competition law of the People's Republic of China" (3) of article 5 of the, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "article 9, article 16 and article 17, article sixty-four of the civil procedural law of the People's Republic of China, the provisions of article one hundred and forty-four, decision is as follows:

    I. Defendant Gaocheng Oupai Kitchen & Bathroom Electrical Appliance Factory immediately stopped highlighting the word "Oupai" on the shopkeeper's nickname, store name and web page of its Taobao store on the effective date of this judgment;

    Ii. Defendant Gaocheng District Oupai Kitchen and sanitary appliances Factory immediately stopped the sale of range hood products with the words "Guangdong Oupai Technology Co., LTD" on the effective date of this judgment;

    3. As of the effective date of this judgment, the defendant, Zhongshan Dongfeng Town Huiyuan Electric Appliance Factory, immediately stopped producing and selling the range hood products with the words "Guangdong Opai Technology Co., LTD";

    Iv. The defendant gaocheng Oupai Kitchen & Bathroom Electrical Appliance Factory compensated the plaintiff Oupai Home FurnishGroup Co., Ltd. for economic loss of RMB 180,000 yuan (including reasonable expenses) within 10 days from the effective date of this judgment;

    V. Within 10 days from the effective date of this judgment, the defendant huiyuan Electric Appliance Factory of Dongfeng Town, Zhongshan City shall compensate the plaintiff Opai Home Furnishgroup Co., LTD for the economic loss of 350,000 yuan (including reasonable expenses);

    Vi. Rejecting other claims of the plaintiff Opai Furniture Group Co., LTD.

    If the pecuniary obligation is not performed within the time limit specified in this judgment, the interest on the debt for the delayed period shall be doubled in accordance with article 253 of the Civil Procedure Law of the People's Republic of China.

    13800 yuan, the fees for accepting the case shall be borne by the plaintiff opie household group co., LTD. 6486 yuan, the defendant chaff opie hutch defends electric burden 2484 yuan city, dongfeng town, zhongshan city of defendant hui yuan electrical appliance factory burden of 4830 yuan (the fee has been appointed by the plaintiff's household group co., LTD to prepay, we don't refund, the plaintiff agreed to each part of the burden of the defendant is its direct payments) within the time of performance.

    If the parties are not satisfied with this judgment, they may, within 15 days from the date of serving the judgment, file an appeal to the court and make copies of the appeal according to the number of the other party and appeal to the Guangzhou Intellectual Property Court.

    Chief Judge Gong Xiaoning

    People's Juror Huang Wencong

    People's Juror Yang Xianyuan

    August 21, 2017

    Clerk Wei Xiaoping