Civil judgment of Chancheng District People's Court, Foshan City, Guangdong Province

    Chancheng District People's Court, Foshan City, Guangdong Province

    Written judgment of civil affairs

    (2017) Yue 0604, Early Republic of China No. 15195

    Plaintiff: Opai Furniture Group Co., LTD., domicile: No. 366, Guanghua Third Road, Baiyun District, Guangzhou City, Guangdong Province, unified social credit code ××97C.

    Legal representative: Yao Liangsong, chairman of the board.

    Attorney: Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Agent AD litem: Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Foshan Yachao Electric Co., LTD., one of the two floor, No. 18, Huatian Road, Shunde High-tech Zone, Foshan (Ronggui), Shunde District, Foshan, Guangdong.

    Legal representative: Yang Xin.

    Plaintiff opie household group co., LTD., foshan city, and the defendant and the super electric co., LTD. (hereinafter referred to as the company) dispute case of unfair competition, our college in October 2017, Hitachi after 24, in accordance with the applicable ordinary procedure, on January 8, 2018 in open trial, plaintiffs entrust agents AD litem wang ning to appear in court to participate in litigation, the defendant and the super company through our college summons, refuses to appear in court without justified reasons to participate in the litigation. The case is now closed.

    The plaintiff filed a lawsuit to the court: 1. The defendant Yachao company was ordered to immediately stop unfair competition and stop marking the words "Guangdong Oupai Technology Co., LTD" on the range hood and gas stove products it produced and sold; 2. 2. Order the defendant to compensate the plaintiff for the economic loss and reasonable expenses of safeguarding the rights in this case, a total of RMB 300,000 only; 3. Order the defendant to bear the costs of the case.

    Facts and Reasons: Founded in 1994, the plaintiff is a leading brand in the whole cabinet industry. Its products cover the whole wardrobe, kitchen appliances, bathroom and commercial kitchen utensils and other fields. The series trademarks of "" and" OPPEIN "owned by the plaintiff, after decades of careful creation and huge investment in advertising, have been molded into household, kitchen, bathroom brands that are well known throughout the country. This brand has successively won the reputation of" China famous brand products ", "China well-known trademark" and so on. At the same time, in February 2017, the plaintiff was successfully listed in Shanghai with stock code 603208, which further laid the leading brand advantage of the plaintiff in the industry. Nowadays, in the public mind, "Opai" series of trademarks is not only a representative symbol of the plaintiff's products and enterprise names, but also a significant identification mark indicating the market subject and commodity source of the plaintiff and the plaintiff's affiliated enterprises. In June 2017, sail xiang electric appliance co., LTD., shunde district, foshan city, the plaintiff discovered the shop in its extensive use in "European" text sales indicate "guangdong opie technology co., LTD." on the oil absorption, kitchen burning gas, on the product and its packaging, manuals and other carrier with a word "guangdong opie technology co., LTD.", on the manual annotation is "manufacturer: foshan and super electric co., LTD.", the plaintiffs entrust notary office has carried on the preservation of evidence to the infringement. To sum up, the plaintiff believes that the defendant violates the principle of good faith and recognized business ethics by producing and selling the range hood and gas stove marked with the words "Guangdong Opai Technology Co., LTD" without authorization, and its behavior constitutes unfair competition for the plaintiff. In order to safeguard the legitimate rights and interests of the plaintiff, in accordance with the Trademark Law of the People's Republic of China and the Law of the People's Republic of China against Unfair Competition and other relevant provisions, we hereby appeal to the court for a judgment as requested.

    No reply was made by the defendant.

    Lawsuit, the plaintiff to we submitted the following evidence: 1. The word no. 347 (2016) lai FengCheng card people, (2017) lai FengCheng people word notarial deed, (2016) no. 675 lai FengCheng word no. 350, (2017), the people FengCheng certificate notarial deed, (2016) no. 672 lai people word FengCheng word no. 346, (2017), the people FengCheng certificate notarial deed, (2016) no. 673 people word word no. 348 lai FengCheng card people notarial deed; 2. The word no. 352 (2016) lai FengCheng card people notarial deed, issued by the state administration for industry and commerce trademark office trademark chi word [2009] no. 7 on that "European" trademark for well-known trademark approval, (2016) lai FengCheng people word certificate notarial deed, (2017) no. 353 lai FengCheng people word certificate notarial deed, (2016) no. 260 lai FengCheng people word notarial deed, (2016) no. 357 lai FengCheng certificate notarial deed, (2016) no. 355 lai people word FengCheng certificate notarial deed no. 356, 2011 people word on April 21, 22, 25, 26, 28, 29 "Linchuan evening news published day, on August 26, 2011 issue of the" shenzhen special zone signs up for ", on September 20, 2011, published on September 30, anqing daily, published in September 2010 years of the ambry in Shanghai ", published in June 2011, the sales and marketing management edition, published in April 2011 "ruili household", published in April 2014, decorate world magazine (the newspapers are all copy); 3. (2017) Notarial Certificate Of Laifengcheng Certificate No. 754 and notarized sealed articles; 4. One copy of the notary fee bill; 5. Copy of the plaintiff's business license and the report of the defendant's enterprise credit information publicity.

    For the above evidence, the court recognizes as follows: For evidence 1, the group of evidence is a notarized document issued by the notary office according to law, the content is the trademark registration document of the plaintiff, etc., which is related to this case, the court accepts and accepts; Evidence for 2 evidence, the group in addition to the newspapers, both for the notarial documents issued by the notary public in accordance with the relevant documents issued by the administrative organ of legal sources, is associated with the case, we shall be disbelieved newspapers did not provide the original check, but with (2016), we have believed FengCheng certificate no. 355, 356 people notarial deed content can support each other, so we be trusted; For evidence 3, this group of evidence is the notarized document issued by the notarial office according to law, which is matched with the attached notarized sealed articles and is related to the facts to be proved in this case, which is accepted and accepted by the court. For evidence 4, this group of evidence is confirmed with evidence 3, so the court accepts it. For evidence 5, this group of evidence is the information issued or publicized by the administrative authority according to law, and the source is legal, and the court will accept it.

    On the basis of the admissible evidence and the parties' statements, the following facts may be ascertained:

    The plaintiff and his claim

    The plaintiff Opai Household Group Co., Ltd. was founded on July 1, 1994. Its business scope is furniture manufacturing industry, and its main businesses are integral kitchen (including kitchen stove, electrical appliances), cabinets and wardrobes, integral bathroom (including water heater and other bath equipment).

    On November 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. was approved to register trademark No. 1128213 "", and approved to use goods in category 20, including furniture, sideboards, counters, etc. The registration was renewed and valid until November 20, 2027. On December 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. approved and registered the trademark "" no. 1137521, and approved the use of goods in category 11, including kitchen stoves, gas stoves, electric cookers, etc. The registration was renewed and valid until December 20, 2027. On June 7, 2007, Guangzhou Opai Cabinet Enterprise Co., Ltd. registered the trademark no. 4378572 "", approved the use of goods for the 11th category, including gas stoves, bathroom fixtures, bath equipment, kitchen range hoods, etc., and renewed the registration valid until June 6, 2027. On March 14, 2011, Guangdong Opai Group Co., Ltd. approved and registered the trademark "OPPEIN" No. 7731876, which was approved to be used in category 11, including cooking utensils, gas stoves, water heaters, kitchen range hoods, bathroom fixtures, bath appliances, etc. The registration is valid until March 13, 2021. The four registered trademarks above changed the name of the registrant to be the plaintiff on March 24, 2014.

    From March 2005 to February 2011, the trademark "" of Guangzhou Opai Cabinet Enterprise Co., Ltd. was recognized as a famous trademark of Guangdong Province on the sideboard and other commodities. From September 2007 to September 2010, Opai household cabinets produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. were identified as China's famous brand products by the General Administration of Quality Supervision, Inspection and Quarantine. From October 2008 to September 2011, Opai cabinets produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. were identified as guangdong famous brand products by Guangdong Provincial Bureau of Quality and Technical Supervision. On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized guangzhou Oupai Cabinet Enterprise Co., Ltd. as a well-known trademark. From December 2012 to December 2013, Guangdong Opai Home Furnishing Group Co., Ltd. was named "2012 China's top 100 kitchens overall kitchen leading enterprises". From January 2016 to December 2018, the trademarks "OPPEIN" and "" used by the plaintiff on sideboards, furniture (wardrobes), kitchen range hoods and bathing equipment were recognized as famous trademarks of Guangzhou by The Administration for Industry and Commerce of Guangzhou municipality.

    From 2011 to 2016, the plaintiff continued to publicize its "Opai" brand through advertisements in many newspapers such as Linchuan Evening News, Ruili Home Furnishing, Decorate the World, CCTV, Hunan SATELLITE TV and other media, and carried out publicity together with the slogan "There is a family, there is love, there is Opai". From 2013 to 2015, the plaintiff continued to employ jiang Wenli, a film and television star, as the spokesperson of "Opai" brand cabinet, wardrobe, bathroom and other products.

    The facts of an alleged infringement

    In order to safeguard their legitimate rights and interests, the plaintiff authorized The Jindun Intellectual Property Service Center in Laicheng District of Laiwu City to notarize the preservation evidence on behalf of the Center, and filed the application for the preservation evidence notarization to Fengcheng Notary Office of Laiwu City, Shandong Province on June 17, 2017. On June 20, 2017, under the supervision of notaries and notaries of the notary office, Wang Shouzhen, the entrusted agent of The Jindun Intellectual Property Service Center in Laicheng District, Lawucheng District, Guangzhou, used the computer connected to the Internet by the notary office in Room 801, No. 11, Lane 1, East Street, Dagang Village, Shijing Street, Baiyun District, Guangzhou. In alibaba website "sail xiang electric appliance co., LTD., shunde district, foshan city," the shop opened in bought called "guangdong smoke lampblack machine special offer sent two motor side suction type touch household smoke exhaust machine automatic cleaning" of oil absorption one, called "opie kitchen burning gas gas burner gas stove of guangdong environmental protection platform embedded dual timing fierce fire kitchen burning gas" of kitchen burning gas, a price of 468 yuan and 550 yuan respectively, after the payment, to generate an order number for 30276508338074885 order. On June 23, 2017, under the supervision of notaries and notaries of the notary office, Wang Shouzhen signed at the Deppon Logistics Business Department of Shijing Avenue, Baiyun District, Guangzhou city (opposite to the Wanji freight market) for one of the goods with the orders no. 6631731752 and 6631708175, each of which was labeled as "household gas stove" and "range hood". Shou-zhen wang will open, the aforesaid goods packing boxes marked "household kitchen burning gas in a kitchen burning gas a, directions, anti-counterfeiting a certificate of approval, marked" oil absorption of the boxes of oil absorption a, one copy of instruction manual, security a certificate of approval, the product security guarantee card a, number is 0004442 sails xiang, shunde district, foshan city, the electric appliance co., LTD. Machine to play ticket ". The notary sealed the above items with the notary office seal and took photos before giving them to Wang Shouzhen for safekeeping. Shou-zhen wang on June 24, 2017 in the notaries and notarial personnel, under the supervision of baiyun district in guangzhou city ishii, big gang village tung street lane 11 801 room, the use of the notary office computer connected to the Internet, on "alibaba" web site on the order number to confirm the delivery of the order of 30276508338074885, and browse the with "sail xiang electronics" ali wangwang chats. On July 18, 2017, the notary office issued a (2017) Certificate of Laifengcheng Certificate No. 754 to certify the above process. The plaintiff paid 900 yuan for the notary fee.

    During the trial, the sealed items attached to the notarial certificate were opened in court. The items marked with the words "Household gas stove" contain one gas stove, one operation instruction book, and one anti-counterfeiting certificate. The gas stove product, the outer packing box, the operation instruction book, and the anti-counterfeiting certificate are all marked with "OPAICN? (Another line above) Guangdong Opai Technology Co., LTD., the operation manual is also marked with "Manufacturer: Foshan Yachao Electric Co., LTD." and the address, telephone number, fax and other information. The production date on the anti-counterfeiting certificate is June 20, 2017; Items marked "oil absorption" inside the oil absorption a, one copy of instruction manual, security a certificate of approval, the product security guarantee card a, number is 0004442 sails xiang, shunde district, foshan city, the electric appliance co., LTD. Machine to play ticket ", a product of oil absorption of labeling, packing, specification, security certification, product security are marked on the warranty card "OPAICN? (Another line above) Guangdong Opai Technology Co., LTD. ", the operation manual is also marked with "Manufacturer: Foshan Yachao Electric Co., LTD." and address, telephone number, fax and other information. The production date on the anti-counterfeiting certificate is June 20, 2017.

    According to the plaintiff, the words "Guangdong Opai Technology Co., LTD" marked above are unfair competition ACTS that infringe the plaintiff's right of enterprise name.

    Other ascertained facts

    The defendant Yachao Company, established on April 4, 2014, is a limited liability company with a registered capital of 500,000 yuan. Its business scope covers research, development, manufacturing and sales of electrical equipment, range hood, gas water heater and gas stove.

    Guangdong Opai Technology Co., Ltd. was established on April 30, 2004, located in Ronggui Street, Shunde District, Foshan City, Guangdong Province. Its business scope covers the research, development, processing, manufacturing and sales of household appliances, hardware products, air energy water heaters and sanitary products.

    Lawsuit, the plaintiff's claims that the compensation for the economic losses and reasonable expenses 300000 yuan to protect their rights is based on the plaintiff's "European" trademark and enterprise name has a very high reputation and market value, the defendant infringement if the circumstances are serious, specific for the infringement of long, large scale, sales, more factors such as subjective malice obviously, and the plaintiff to stop the defendant infringement spending to buy is accused of infringement product cost 1018 yuan, notarial cost 900 yuan and attorney fees 15000 yuan to 3000 yuan, travel, request the court has decided.

    In the opinion of the court, this case is a dispute of unfair competition. As for the disputes, the analysis is as follows:

    Whether the alleged infringing product was produced by the defendant.

    In this case, the plaintiff submitted to our hospital by FengCheng notarization in laiwu city in shandong province (2017) lai FengCheng certificate issued by the people of the word no. 754 is notarial deed and notary seal items, confirm the plaintiff authorized agent in sail xiang electric appliance co., LTD., shunde district, foshan city, business involved in alibaba online store to buy the accused infringing products, and is accused of infringing products more marked the words "guangdong opie technology co., LTD.", is accused of infringement product operating instructions on the "manufacturer and super electric co., LTD., foshan city," the information such as name and address. The above information is consistent with the enterprise name, industrial and commercial registration address, business scope and enterprise name and business scope of Guangdong Opai Technology Co., LTD of the defendant. Therefore, when the defendant did not answer the lawsuit and submit the contrary evidence, the court decided that the alleged infringing products were produced by Guangdong Opai Technology Co., Ltd. and the defendant Aichao Co., LTD.

    2. Whether the defendant's conduct constitutes unfair competition.

    Article 5 of the Anti-Unfair Competition Law of the People's Republic of China (effective December 1, 1993) states: "Business operators shall not engage in market transactions by the following improper means to the detriment of competitors:... (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods; ..." . The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the first paragraph of article 6 of regulation:" the enterprise registration authority in accordance with the registered enterprise name, and for commercial use within the territory of China, foreign (regional) enterprise name shall be identified as (3) of article 5 of the anti-unfair competition law "enterprise name" prescribed in item. The shop name of an enterprise that has a certain market popularity and is known to the relevant public may be identified as the "enterprise name" as stipulated in item (3) of Article 5 of the Anti-Unfair Competition Law. This case, the plaintiff opie household group co., LTD., founded in 1994, on July 1, the main overall kitchen, the overall cabinets, wardrobe, bathroom, early in 1997, has 20 class furniture, kitchen cabinets, counters and 11 class kitchen stove, gas stove, electric cooker etc. Register the "" trademark on goods, also in 2011 in 11 kind of gas stove, water heater, kitchen smoke lampblack machine and other commodities to register the trademark" OPPEIN ", its registered to use on the sideboard goods "" trademark in 2005 to 2011 was identified as famous trademarks of guangdong province, In 2009, it was recognized as a well-known trademark. From 2007 to 2011, it was recognized as a Famous brand product in China. The trademarks "OPPEIN" and "" used in sideboards, furniture (wardrobes), kitchen range hoods and bath equipment were recognized as famous trademarks in Guangzhou in 2016. At the same time, from 2011 to 2016, the plaintiff put advertisements on many newspapers and magazines, CCTV, Hunan SATELLITE TV and other media to continuously promote its "Eurovision" brand, and hired jiang Wenli, a famous film and television star, as the spokesperson. Therefore, the plaintiff's "Opai" is both the name and the trademark. After continuous use and publicity, it has gained a certain market popularity nationwide and is known by the relevant public. It belongs to the "enterprise name" stipulated by the above laws.

    The defendant and the company on the accused of infringement product labeling of "guangdong science and technology co., LTD." of the enterprise name font size same as the plaintiff's "European" font size, and guangdong opie technology co., LTD. With the plaintiff in guangdong area, scope of business include home appliances, consumer easy to the defendant and the super company is accused of infringement product mistaken for the plaintiff's products or that there is a certain correlation. And the respondent Inferior company serves as the production enterprise of household appliance such as kitchen of a gas stove, the household appliance brand such as kitchen of the industry should be familiar with more general public, and with the management place distance of plaintiff, business scope part is same, reason already had certain market popularity to plaintiff "Europe group" size ought to know. Therefore, the defendant is accused of infringement of super company in its production products labeled "guangdong science and technology co., LTD." of the enterprise name, belongs to the unauthorized use of the plaintiff "European" font size, easy to confuse the relevant public behavior, violating the principle of fairness, honesty and credit market competition, in violation of the recognized business ethics, the behavior constitutes unfair competition.

    Civil liabilities of the defendant.

    According to article 15 of the Tort Liability Law of the People's Republic of China, the main ways to bear tort liability are to stop the infringement and compensate for the loss. Accordingly, the plaintiff requires the defendant to stop producing and selling the product accused of infringement and compensate for the loss. The court supports the reason. The compensation amount, the anti-unfair competition law of the People's Republic of China "(effective as of December 1, 1993) article 20 of the first paragraph:" the operator in violation of the provisions of this law, damage to the abused operators, shall be liable for damages, the infringement to operator's loss is hard to calculate, deductible for the infringer during the period of infringement for infringement profits; It shall also bear the reasonable expenses paid by the injured operator for investigating the ACTS of unfair competition committed by the operator that infringe its lawful rights and interests." In the first paragraph of Article 17 of the Supreme People's Court's Interpretation on Certain Issues concerning the Application of Laws in The Trial of Civil Cases of Unfair Competition, it is stipulated that: "The determination of the amount of damages for ACTS infringing trade secrets stipulated in Article 10 of the Law against Unfair Competition may be carried out by referring to the method of determining the amount of damages for patent rights infringement; The determination of the amount of damages for ACTS of unfair competition as provided for in Article 5, article 9 and Article 14 of the Anti-Unfair competition Law may be carried out with reference to the determination of the amount of damages for infringement of the right to exclusive use of a registered trademark." The damages for unfair competition in this case are brought in accordance with Article 5 of the Law of the People's Republic of China against Unfair Competition (effective from December 1, 1993), so the amount of damages can be determined by referring to the amount of damages for infringing the exclusive right to use a registered trademark.

    In this case, because the parties from the actual damage to the plaintiff because of the infringement, the defendant from the infringement profits have not proof such as confirmed that it is difficult to determine, so considering the defendant during the period of the nature of the infringement, the degree of subjective fault, and the consequences (the defendant and the super company production, sales, marked "guangdong opie technology co., LTD." is accused of infringement product constitutes unfair competition, involving the accused of infringement product of oil absorption, kitchen burning gas, two kinds of products during the infringement cannot be sure) of the plot, the plaintiff, "European" font size and brand awareness is higher, As well as the reasonable expenses for stopping the infringement (including 900 yuan for notarization fee, 1018 yuan for purchasing the accused infringing product, and attorney's fee and travel expenses claimed by the plaintiff without proof of evidence), the court decided that the defendant Yacao Company should compensate the economic loss of the plaintiff and reasonable expenses for safeguarding the rights, totaling 150,000 yuan. The Court does not support the part of the plaintiff's claim in excess of the said amount.

    To sum up, in accordance with the "anti-unfair competition law of the People's Republic of China" (effective as of December 1, 1993) in article 2, paragraph 3, article 20, article 5 of the first paragraph, the tort liability law of the People's Republic of China, article 15, the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law, the first paragraph of article 6 of paragraph 1 of article 17 and article sixty-four of the civil procedural law of the People's Republic of China, the provisions of article one hundred and forty-four of the first paragraph, judgment by default is as follows:

    I. The defendant, Foshan Yachao Electric Co., Ltd. immediately stopped the production and sale of range hood and gas stove products marked with the words "Guangdong Oupai Technology Co., LTD" as of the date of the legal effect of this judgment;

    2. The defendant, Foshan Yachao Electric Co., Ltd. shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., a total of RMB 150,000 for economic losses and reasonable expenses for safeguarding its rights within 10 days from the date of the legal effect of this judgment;

    3. Other claims of the plaintiff, Opai Home Furnishing Group Co., LTD., were rejected.

    If the defendant fails to perform his pecuniary obligation within the time limit specified in this judgment, he shall, in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China, pay the plaintiff double interest on the debt for the delay period.

    The receiving fee of this case is 5,800 yuan, which is borne by the plaintiff Opai Household Group Co., LTD., and 4,000 yuan by the defendant Foshan Yachao Electric Co., LTD.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal to this court, and make copies according to the number of the other party, and appeal to foshan Intermediate People's Court, Guangdong Province.

    Chief Judge Lin Yanping

    People's Juror Chen Huiyu

    People's Juror Ho Shao-li

    March 26, 2008

    Clerk Luo Jiadong