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

    No. 76, Early Republic of China, Yue 0604

    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: Minmeng Electric Appliance Co., LTD., Shunde District, Foshan City, 2nd Floor, No. 20, 2nd Nandi Road, Ronggui Haiwei Neighborhood Committee, Shunde District, Foshan City, Guangdong Province, unified social credit code ××36U.

    Legal representative: Zhang Deqiang, manager.

    Defendant: Zhang Deqiang, male, Han Nationality, born on May 2, 1991, residing in Rongchang District, Chongqing.

    The above two defendants jointly entrust agent AD litem: Wei Jingjing, lawyer of Guangdong Yangsan Law Firm.

    The above two defendants jointly entrust agent AD litem: Bai Wei, lawyer of Guangdong Yangsan Law Firm.

    Defendant: Zhongshan Hanle Electric Appliance Co., LTD., Tongle Industrial Park, Dongfeng Town, Zhongshan City, Guangdong Province (one of the industrial plants of the Fourth Economic Cooperative of Anle Village), unified social credit code ××22N.

    Legal representative: Liang Xueyi.

    Defendant: ××294(the former Guangdong Opai Technology Co., LTD.), domicile: No.313, No.22, Liitang Road, Shangjia, Ronggui Street, Shunde District, Foshan City, Guangdong Province, Unified social credit code ××294.

    Legal representative: Li Xingwen.

    Agent AD litem: Liang Zhengping, lawyer of Guangdong Bodao Jujia Law Firm.

    Defendant: Li Xingwen, male, Han Nationality, born on November 8, 1952, residing in Zhongxian County, Chongqing.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the European group) v m, shunde district, foshan city, the defendant was electric appliance co., LTD. (hereinafter referred to as m kind appliances), the defendant zhang deqiang, the defendant in zhongshan Han Le electric appliance co., LTD. (hereinafter referred to as Han Le appliances), the 914406063039001294 European technology co., LTD. (formerly guangdong), the defendant xing-wen li the infringement trademark rights and unfair competition disputes, our hospital on January 2, 2018 to begin, we form a collegial panel in accordance with the law, on May 9, 2018 in open trial, Wang Ning, the appointed agent of the plaintiff Opai Group, Wei Jingjing, the jointly appointed agent AD litem of the defendant Memon Electric, Zhang Deqiang, and Liang Zhengping, the appointed agent AD litem of the defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) attended the lawsuit. The defendant Han Le electric appliance and the defendant Li Xingwen were legally summoned by the court and refused to attend the proceedings without justified reasons. The case is now closed.

    1. Judge the defendant Mimeng Electric Appliances to immediately stop using the words "Guangdong Opi" and "Opi" when selling gas stoves in its online store; 2. Order defendant Mimeng Electric Appliance to immediately stop selling gas stoves marked with the words "Guangdong Opai Technology Co., LTD"; 3. Defendant Han Le Electric Appliance and Defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) were ordered to immediately stop the production and sale of gas stoves marked with the words "Guangdong Opai Technology Co., LTD."; 4. The defendant Yimeng Electric Appliance, the defendant Han Le Electric Appliance and the defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) were ordered to compensate the plaintiff for the economic loss and the reasonable expense of rights protection in total RMB 200,000 yuan in this case; 5. The judge ordered defendant Zhang Deqiang to bear joint liability for the compensation of defendant Mimeng Electric Appliance, and defendant Li Xingwen to bear joint liability for the compensation of defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.); 6. The five defendants shall jointly bear the costs of the case.

    Facts and reasons: the plaintiff class 11 "" and" OPPEIN "registered trademark, the plaintiff since its inception, after decades of operation, has been" Europe "casting become household names, as is known to all of the country's household, electrical appliances, sanitary ware brand, the brand has won the" Chinese famous brand ", "China well-known trademark", such as reputation, in the public mind, "Europe" has become not only the plaintiff products and on behalf of the symbol of the enterprise name, also become the instructions of the plaintiff and the plaintiff associated enterprises significant recognition of market main body and the sources of identity. In March 2016, the plaintiff discovered the defendant m electrical appliances in the alibaba online using the "guangdong", "European" text, and a lot of sales marked "guangdong science and technology co., LTD." the kitchen burning gas, the above products on the defendants Han Le appliances, 914406063039001294 (formerly guangdong opie technology co., LTD.), the name of the of the tort, the plaintiff apply for notarization for the evidence preservation. After further investigation, the plaintiff found that the alipay account bound to the online store of the defendant Mimeng electric appliance is owned by the defendant Zhang Deqiang, and the defendant Mimeng electric appliance is a one-person limited liability company, and Zhang Deqiang is its sole shareholder. To sum up, the plaintiff that the defendant, Han Le electrical appliances, 914406063039001294 European technology co., LTD. (formerly guangdong) for clings to the plaintiff's enjoyment of the "European" brand reputation, deliberately in the online store, products, enterprise name the illegal use of "European" words, the behavior is not only the infringement of the right to exclusive use of a registered trademark of the plaintiff, and violate the principles of honesty and credit and recognized business ethics, to the plaintiff constitutes unfair competition, and caused great economic losses to the plaintiff, shall bear the corresponding legal responsibility. As the sole shareholder of defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.), the defendant, Zhang Deqiang, shall bear the corresponding legal liability for the company's debts. Therefore, the plaintiff, in accordance with the Trademark Law of the People's Republic of China, the Law of the People's Republic of China against Unfair Competition and other relevant provisions, appealed to the court to make a fair judgment in accordance with the law.

    To prove the claim, the plaintiff provides the court with the following evidence:

    1. (2016) Notarial Certificate No. 347 of Laifeng City Certificate No. 675 of Laifeng City Certificate No. 675 of Laifeng City Certificate No. 647 of Laifeng City Certificate No. That the plaintiff has the exclusive right to the registered trademark No. 4378572 within the validity period;

    2. (2016) Notarial Certificate No. 350, (2017) Notarial Certificate No. 672, To prove that the plaintiff has the exclusive right to the registered trademark No. 1128213 and is within the period of validity;

    3. (2016) Notarial Certificate No. 346 of Laifeng City Certificate No. 673 of Laifeng City Certificate No. 673 of Laifeng City Certificate No. To prove that the plaintiff has the exclusive right to the registered trademark No. 1137521 within the period of validity;

    4. (2016) Notarial Certificate No. 348 of Laifeng City Certificate. That the plaintiff has the exclusive right to use the registered trademark No. 7731876;

    5. (2016) Notarial Certificate No. 352 of Lifeng City Certificate. It proves that the plaintiff legally owns the copyright of "" fine art fonts. The work was created on August 10, 1996, which is completely consistent with the contents of the registered trademarks no. 4378572, 1128213 and 1137521 of the plaintiff. It also proves that the plaintiff's" "brand has certain originality and a long history.

    6. Reply no. 7 [2009] of the Trademark Office of the State Administration for Industry and Commerce. To certify that the registered trademark no. 1128213 "" enjoyed by the plaintiff had been recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on April 24, 2009;

    7. (2016) Notarial Certificate No. 353 of Laifeng City Certificate. (1) "China Famous Brand Product Certificate" issued by the General Administration of Quality Supervision, Inspection and Quarantine in September 2007; (2) "Guangdong Famous Brand Product" certificate issued by Guangdong Bureau of Quality and Technical Supervision in October 2008; (3) The "Guangdong Famous Trademark Certificate" issued by Guangdong Famous Trademark Recognition Committee in February 2008 proves that the registered trademark "Opai" No. 1128213 was recognized as a Famous trademark of Guangdong Province in March 2005 and February 2008 respectively; (4) In December 2012, China building decoration Association kitchen and sanitation engineering committee issued by the plaintiff in 2012 was named "2012 Chinese kitchen and sanitation 100", "overall kitchen leading enterprises top 10" certificate; (5) The Certificate of Honor issued by guangzhou Municipal People's Government in September 2013; (6) Certificate issued by Brand Watch magazine on December 28, 2014; (7) In January 2015, the plaintiff issued by Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce was awarded the honor certificate of "Top 10 Most Valuable Brands" in 2014; (8) Certificate of honor issued by Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce in January 2015.

    8. (2017) Notarial Certificate No. 260 of Laifeng City Certificate. (1) Guangzhou Famous Trademark certificate granted by Guangzhou Municipal Administration for Industry and Commerce, valid from January 2016 to December 2012; (2) In May 2016, the Trademark Brand Certificate of China industry awarded to the plaintiff by China Industry Trademark Brand Review Committee; (3) In May 2016, the Review Committee of China Top 500 Brand Value granted the plaintiff the Certificate of China Top 500 Brand Value;

    9. (2016) Notarial Certificate No. 357 of Laifeng City Certificate No. Prove that the plaintiff part of pay taxes, "European" brand benefit huge profits, the brand value is extremely high, specific content as follows: (1) the guangzhou baiyun district issued by the state administration of taxation ear cloud duty five [2014] no. 100014 tax certificate, prove that the plaintiff on January 1, 2013 to December 31, 2013 to the bureau to pay taxes next billion boss thousand hundred suhuang spreading Wan Jiu us $3 and pure Angle and pure. (2) the tax payment certificate no. [2014]100579 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2014 solstice on June 30, 2014 to the tax bureau seven thousand and five hundred and ninety-nine thousand and nine hundred and ninety-nine yuan and ninety nine cents. (3) the tax payment certificate no. [2015] no. 100174 issued by the national bureau of taxation in baiyun district, guangzhou, certifying that the plaintiff paid tax at nine thousand five hundred and nine thousand one hundred and twenty-two yuan sixty-eight cents to the bureau on July 1, 2014 and December 31, 2014. (4) the tax payment certificate no. [2015] no. 101552 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2015 solstice on June 30, 2015 to the tax bureau seven thousand five hundred and twenty-two thousand six hundred and sixty-seven point four. (5) the tax payment certificate no. [2016]100274 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid a tax of twelve million two hundred and thirty-six hundred sixty-seven yuan nine cents to the tax bureau on July 1, 2015. (6) notice no. 00000724 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax of four thousand two hundred and two hundred and ninety nine thousand two hundred and seventy-eight yuan eighty six cents to the bureau on January 1, 2014. (7) notice no. 00001248 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax on July 1, 2014 and December 31, 2014 to the bureau, i.e., 36,558,999 yuan and seventy-two cents. (8) notice no. 00003448 issued by the tax administration of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax of four thousand two million four hundred and twenty-seven thousand one hundred and forty cents to the bureau on June 30, 2015 on January 1, 2015. (9) notice no. 00004591 issued by the tax administration of large enterprises of guangzhou local tax bureau, certifying that the plaintiff paid tax twenty thousand nine hundred and eighty-one thousand nine hundred and thirty-three yuan forty seven to the bureau on July 1, 2015;

    10. (2016) Notarial Certificate No. 355 of Lifeng City Certificate. Prove that the plaintiff by CCTV, hunan TV's "European brand" for the continuous publicity, prove that "European" brand has been widely known by the public, the brand value is extremely high, specific content as follows: (1) on October 30, 2012, the plaintiff and the Beijing international advertising co., LTD. Signed on time boiling "swap space" domestic outfit funded 2013 cooperation agreement, this agreement is agreed on January 5, 2013 to December 28, 2013, 2 sets in CCTV's "exchange space" brand publicity the plaintiff, advertising is wubai suhuang ten thousand yuan. (2) in July 2014, the plaintiff with hunan, hunan radio and television advertising corporation downwind media television project advertising co., LTD. Signed a contract, the contract on September 28, 2014 to October 12, 2014, in hunan TV's 10th golden eagle festival closing ceremony and awards section is relevant to the plaintiff, brand advertising for above ten thousand yuan. (3) on November 6, 2013, the plaintiff signed a television advertising release contract with zhejiang zhimei auto advertising co., LTD., which stipulates that on January 1, 2014, solstice, December 31, 2014, the plaintiff's brand shall be publicized on CCTV news channel, and the advertising fee shall be four thousand four hundred and sixty-three thousand nine hundred and seventy yuan. (4) on November 27, 2014, the agreement on sponsorship and cooperation of 2015 "exchange space" home decoration fund signed by the plaintiff and Beijing ontime boiling international advertising co., LTD. The agreement agreed that on April 4, 2015 solstice on March 26, 2016, the plaintiff's brand would be promoted in the second set of "exchange space" column of CCTV, and the advertising fee would be six million yuan. (5) on October 22, 2014, the advertising agency contract signed by the plaintiff and kashgar yinsong culture media co., LTD., the agreement provides that on January 1, 2015, solstice, December 31, 2015, the advertising fee of the plaintiff shall be twenty-three million nine hundred and seventy thousand yuan for promoting the plaintiff's brand on the CCTV news channel;

    11. (2016) Notarial Certificate No. 356 of Laifeng City Certificate. It proves that the plaintiff spent a lot of money to hire the star Jiang Wenli to speak for the "European Group" products, which further proves that the plaintiff spent a lot of money to promote the European group brand.

    April 12, 2011, 21, 22, 25, 26, 28, 29, "linchuan evening news", published 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 the world magazine. It proves that the plaintiff continuously propagates the brand of "Opi" through print media, and also proves that the original advertising slogan of "Family, love and Opi" is continuously used and promoted by the plaintiff;

    13. (2016) Notarial Certificate No. 440, Certificate of Laifeng City. Prove the facts of the defendant's infringement.

    The defendants, Han Le Electric And Li Xingwen, did not enter a plea and did not present evidence in court.

    Defendant Memon Electric Appliance and Defendant Zhang Deqiang pleaded that the two defendants have the authorization of defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) to use the company names of "OPAICN" and "Guangdong Opai Technology Co., LTD.", which is a lawful authorization and does not constitute an infringement. Even if the court finds that the two defendants constitute infringement, but the two defendants only engaged in sales, and the sales volume is not large, no subjective malice. In addition, the plaintiff has sued the two defendants for using the Logo of Opie. The defendant Mimeng Electric Appliance has paid 140,000 yuan to the plaintiff. Therefore, the defendant Mimeng electric Appliance shall not compensate the plaintiff any more. The defendant Zhang Deqiang is only the legal representative, the defendant Mimeng electric appliance is neither a self-employed person, nor a sole proprietorship enterprise, so the defendant Zhang Deqiang should not assume joint and several liability.

    Defendants Mimeng Electric And Zhang Deqiang submitted the following evidence:

    1. Authorization letter. It is proved that the two defendants have the legal authorization of defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) and have the right to use the word "Guangdong Opai Technology", which does not constitute infringement. Even if the two defendants are found to be torts, they have no subjective malice;

    2. Settlement agreement. It is proved that the defendant Mimeng Electric appliance compensated the plaintiff RMB 140,000 for using the word "Opi", which is enough to make up the plaintiff's loss. Should no longer be liable for compensation;

    3. Ruling in writing. It is proved that the defendant Mimeng Electric appliance compensated the plaintiff RMB 140,000 for using the word "Opi", which is enough to make up the plaintiff's loss. No longer liable for compensation.

    The 914406063039001294 European technology co., LTD. (formerly guangdong) argues that: product manufacturer in accordance with the notarial deed logo as shown above, is the defendant Han Le appliances production and manufacturing, the defendant without supervision relationship, not involved in production, even if the court decided that the product is associated with the defendant Han Le electric appliance, the defendant also need not liable related production sales. If the product itself has the related infringement, also should be borne by other related parties. The defendant did not participate in the operation of the online shop involved in the case. Although the defendant Mimo Appliances has submitted the trademark authorization of "OPAICN", the defendant needs to verify it with Mimo Appliances. Even the authorization of the real, but the defendant m electric appliance is a seller, selling product through the network, is a sales responsibility, the defendant is only authorized "OPAICN" brand the defendant to electrical appliances, and "OPAICN" is legally registered, legitimacy, and the defendant did not put the defendant in the authorized authorized the defendant to receive electrical appliances enterprise name, so the website about the identity of the involved, if constitute infringement, the defendant is not agree to use, does not assume liability to pay compensation.

    Defendant 914406063039001294 (former Guangdong Opai Technology Co., LTD.) failed to submit evidence to the court.

    The court recognizes the authenticity of the evidence provided by the plaintiff as the basis for ascertaining the facts of the case. The court confirmed the authenticity of the evidence submitted by defendant Mimeng Electric Appliance and defendant Zhang Deqiang, and made a comprehensive comment on the relevance of the evidence.

    On the basis of admissible evidence and the parties' statements, the Court ascertained and confirmed the following facts:

    (I) Opie Group, founded on July 1, 1994, is a joint-stock company engaged in furniture manufacturing.

    On June 7, 2007, guangzhou opie ambry enterprise co., LTD., by the state administration for industry and commerce trademark office (hereinafter referred to as the trademark bureau) for approval the registration no. 4378572 "European" registered trademark, shall use commodities for 11 class gas furnace, microwave oven (kitchenware), electric cooker, baking equipment, cooking utensils, faucets, bathroom equipment, disinfect cupboard, water filter, wash one's hands basin (sanitary equipment parts), sauna, sitz bath tub and shower equipment, in the rain compartment, wash tub, sit implement, kitchen smoke lampblack machine, lamp (as), Registration shall be valid from June 7, 2007 to June 6, 2017 and upon renewal shall be valid until June 6, 2027. On January 6, 2011, the name of the registrant of the trademark was changed to Guangdong Opai Group Co., LTD., and on March 24, 2014, it was changed to Opai Home Furnishing Group Co., LTD.

    In September 2007, Opai cabinet products were rated as China's famous brand by the General Administration of Quality Supervision, Inspection and Quarantine. In October 2008, Opai cabinet products were rated as guangdong famous brand products by Guangdong Quality Supervision Bureau. In February 2008, the plaintiff's trademark no. 1128213 "Opai" was a famous trademark of Guangdong Province on the sideboard and was ×× ×. On April 24, 2009, the trademark "Opai" on the category 20 sideboard goods of the plaintiff was identified as a well-known trademark by the Trademark Office.

    (2) on March 28, 2016, the plaintiff's attorney shou-zhen wang FengCheng notarization in laiwu city in shandong province to apply for evidence preservation, and the notarial personnel, under the supervision of the king kept the chastity notary office computer, on the "alibaba" store bought rice covered electric appliance co., LTD., shunde district, foshan city, "" online sales of oil absorption, kitchen burning gas, in the process of operation related to the relevant page for screenshots, and video to the whole process. On the promised sales page of the aforementioned online store of Foshan Shunde Mimeng Electric Appliance Co., LTD., there are the words "Guangdong Opai" and the introduction of such products as range hoods and gas stoves "Guangdong Opai high-end style". The plaintiff has purchased two range hood machines and a gas stove. In the order information of the above products, the seller is Minmeng Electric Appliance Co., LTD., Shunde District, Foshan City, and the Alipay account is 960××× @qq.com. On April 8, 2016, under the supervision of a notary, Wang Shouzhen signed for two range hoods and a gas stove at the sales department of "An Logistics" in the southeast Corner alley of Huaguanqiao, Laicheng District, Laiwu city, Shandong Province. Wang Shouzhen opened the two items respectively and took pictures. The carton marked with the words "Household gas cooker" contains a OPAICN Guangdong Opai Technology ", a OPAICN Quality guarantee card, and a gas cooker. Then the notary staff sealed the above articles with the seal of the notary office, and delivered the sealed articles and logistics documents to Wang Shouzhen for safekeeping. Fengcheng Notary Office of Laiwu City, Shandong Province supervised the above purchase and receiving process, and issued the Notary Certificate of Laifeng City Certificate No. 440 (2016).

    In trial, plaintiff opened the product that afore-mentioned notarization place buys in court, plaintiff charges the tort product of this case is gas stove. Accused of infringing products with embedded kitchen burning gas, a packaging marked with "guangdong science and technology co., LTD. Producer", manufacturers are Han Le electric appliance co., LTD., zhongshan city, the product name is guangdong sent home embedded kitchen burning gas, security certificate, certificate of approval marked "guangdong science and technology co., LTD.", the panels marked "guangdong science and technology", manual, warranty card marked with "guangdong science and technology co., LTD.", "manufacturers zhongshan Han Le electric appliance co., LTD.".

    After comparison, the plaintiff thinks, above all, the defendant Mimeng electric appliance is in its management "Alibaba" net shop (Foshan Shunde District Mimeng electric appliance Co., LTD.) in, use "Guangdong Opai" word in large quantities, sell lampblack machine, gas stove and other products. Secondly, the outer package of the "household gas cooker" product is marked with the words "Produced by Guangdong Oupai Technology Co., LTD" on all four sides, the words "Guangdong Oupai Technology Co., LTD" on the product panel, and the words "Guangdong Oupai Technology Co., LTD" on the product manual and warranty card. The words "Guangdong Opai" used on the website and products by the defendant Mimeng Electric Appliance are similar to the trademark "Opai" of the plaintiff, No. 4378572. The name "Opai" in "Guangdong Opai Technology Co., Ltd." used by the defendant on the products is the same as the enterprise name "Opai" of the plaintiff. The defendant Mimeng Electric Appliance and Zhang Deqiang believe that the defendant Mimeng Electric Appliance was legally authorized by guangdong Opai Technology Company, so the sale of the products involved does not constitute an infringement of the trademark right of the plaintiff, nor does it intentionally infringe the trademark right of the plaintiff. Defendant 914406063039001294 European technology co., LTD. (formerly guangdong) that is accused of infringement product is in the packaging and product manual annotation "guangdong science and technology co., LTD.", but the defendant has not authorized anyone to use its enterprise name, also there is no evidence to prove that the defendant with anyone product producer and authorized the use of enterprise name, the defendant's right to enterprise name is used, is accused of infringing products identified "zhongshan Han Le electric appliance co., LTD." and the business address and contact phone number, This information proves that defendant 914406063039001294 (former Guangdong Opai Technology Co., LTD.) is not a producer. The online store involved in the case was not set up by defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.), nor did defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.), and the promotion information of the online store was not authorized by the defendant and had nothing to do with defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.).

    In addition, the plaintiff has filed a lawsuit against the defendant Mimeng Electric Co., Ltd. on June 2, 2016 for infringing its trademark and unfair competition behaviors by selling range hood. The case No. Is (2016) Yue 0604, No. 5367 in the early Republic of China.

    (3) other ascertained facts

    The defendant han Le Electric Appliance was established on November 22, 2011 with a registered capital of RMB 2 million. Its business scope covers production, manufacturing, processing, research and development, sales and online sales: gas cookware, range hood, electric water heater, induction cooker, etc.

    The defendant, 914406063039001294 (former Guangdong Opai Technology Co., LTD.), was established on April 30, 2014 as a limited liability company solely owned by natural persons and its shareholder was Li Xingwen, the defendant of the case. With a registered capital of RMB 10 million, our business scope covers the research, development, processing, manufacturing and sales of biotechnology products, household appliances, hardware products, electrical accessories, water purification equipment, air water heater, sanitary ware, daily necessities, household products, electrical materials and electronic products. Biotechnology research, development and consultation; Enterprise investment consultation; Domestic trade. The defendant, 914406063039001294 (formerly Guangdong Opai Technology Co., LTD.), has been ordered by the court to change its enterprise name registration because of other cases that infringed the plaintiff's right of enterprise name. The original enterprise registration authority now replaces its original enterprise name "Guangdong Opai Technology Co., LTD." with its unified social credit code 914406063039001294.

    The defendant Mimeng Electric Appliance was established on December 11, 2013 with a registered capital of RMB 1 million. The shareholders are Zhang Deqiang and Wu Zhongyang. Scope of business for the production, sales: kitchen appliances, household appliances, electrical electronic components, accessories, sanitary ware, water heaters, kitchen.

    Another found that defendant 914406063039001294 European technology co., LTD. (formerly guangdong) to the defendant on April 18, 2016 meters electrical accredit a power of attorney issued by the, content is: "we have the guangdong opie technology co., LTD., authorize m receive electric appliance co., LTD., shunde district, foshan city, using 12124262 trademark processing production range hood, cooker, water heater, disinfection cabinet products and printing packaging, production and sales. The licensee shall lawfully use the licensed trademark in accordance with relevant Chinese laws and ensure that there is no illegal phenomenon during the use. The Licensee shall ensure that the product quality of the licensed trademark complies with the quality standards stipulated by relevant laws and regulations. All claims and liabilities, torts and legal liabilities of the authorized person arising from the production and business operation activities shall be borne by the authorized person and have nothing to do with the authorized party. Licensee shall only produce licensed Trademark products at the site agreed by Licensor in writing, and licensee shall not sublicense others to use such products in any way. The printing plant where the Licensee USES the packaging marks of the licensed trademark shall report to the Licensor for filing. This license expires on April 18, 2016, solstice on October 18, 2017."

    It is further ascertained that the registered OPAICN trademark no. 12124262 is red brand electric appliance co., LTD., which "agrees to license guangdong opai technology co., ltd. to produce, manage and license the brand in the whole country, and the license period is July 21, 2014, solstice, July 20, 2024."

    The court holds that this case is a case of infringement of trademark rights and unfair competition disputes. The plaintiff is the holder of the exclusive right to use the registered trademark No. 4378572. Until the time of the lawsuit, the registered trademark is still in validity, and the exclusive right of the plaintiff to use the registered trademark involved in the case shall be protected.

    I. Whether the defendant Mimeng Electric Appliance and The defendant Zhang Deqiang have violated the exclusive right to use the registered trademark of the plaintiff's case No. 4378572 and No. 1137521. The plaintiff accuses the defendant Mimeng Electric Appliance of using the word "Guangdong European faction" on the website page, which constitutes trademark infringement; The defendant Mimeng Electric Appliance has no objection to the establishment of the online store on "Alibaba", but believes that the defendant Mimeng electric appliance USES the word "Guangdong Opie" on the website is authorized by defendant 914406063039001294 (the former Guangdong Opi Technology Co., LTD.), which does not constitute infringement. Article 48 of the Trademark Law of the People's Republic of China stipulates, "The use of a trademark referred to in this Law means the use of a trademark on commodities, commodity packaging or containers, and commodity trading documents, or the use of a trademark in advertising, publicity, exhibition and other commercial activities to identify the source of commodities." And at the same time, according to the supreme people's court on some issues of applicable law in trademark civil dispute cases to explain "the provisions of paragraph 1, article 1 (1), will be the same or similar registered trademark with others words as an enterprise name in use highlights on the same or similar goods, the relevant public could produce misidentification, belong to the provisions of the trademark law of the other damage to the exclusive use of a registered trademark of others' behavior. According to already found out fact, plaintiff no. 4378572, no. 1137521 registered trademark is in the check and approve of 11 kind of goods use limits to include gas kitchen, disinfect cupboard, kitchen to use lampblack machine, bathroom installation, bath to use equipment to wait, and this case is accused tort product is gas kitchen, both belong to congener commodity. The defendant meters of electrical appliances in its online sales page shows kitchen burning gas, oil absorption, etc. Product pictures at the bottom of the text notes using the word "guangdong", "guangdong" is the geographical position, the core of the phrase is "Europe", and advocate for the rights of the plaintiff no. 4378572, no. 1137521 "registered trademark" compared to the pronunciation and meaning are the same, while the former is simplified Chinese which is traditional Chinese characters, but for the use of Chinese characters, no substantial difference, the relevant public to general attention easily confused between the two. Therefore, the court finds that the defendant Mimeng electric Appliance used the word "Opai", which is similar to the trademark of plaintiff no. 4378572 and no. 1137521, as the name of the enterprise, to prominent use on the same kind of goods, which has constituted the infringement on the exclusive right of the registered trademark of plaintiff No. 4378572 and no. 1137521.

    On whether the defendant Zhang Deqiang constitutes trademark infringement to the plaintiff. According to find out the facts, the defendant zhang deqiang was the legal representative of the defendant m receive electrical, although the plaintiff claims online use pay treasure to account for the defendant zhang deqiang involved individuals to open accounts, but did not submit relevant evidence to prove it, and only by the opening of the pay treasure account status is not enough to prove the defendant zhang deqiang implemented a tort is based on his personal name, claims against the plaintiff's the reason we will not be supported.

    Ii. Whether the defendant Mimeng Electric Appliance and the defendant Han Le Electric Appliance have unfair competition behavior.

    Above all, the business scope of the plaintiff Opai group is furniture manufacturing industry. In September 2007, Opai brand cabinet products were rated as China's famous brand products by the General Administration of Quality supervision, Inspection and Quarantine. In October 2008, Opai brand cabinet products were rated as guangdong famous brand products by Guangdong Quality Supervision Bureau. In February 2008, the plaintiff's trademark No. 1128213 "Opai" was used as a famous trademark in Guangdong Province on the sideboard. On April 24, 2009, the trademark "Opai" on the category 20 sideboard goods of the plaintiff was identified as a well-known trademark by the Trademark Office. Therefore, the court affirmed, after many years of product sales and advertising, the plaintiff produced and sold cabinet products in the relevant public has a higher visibility. Although the plaintiff was once identified as a well-known trademark, it was not the trademark involved in this case, but because the name of the plaintiff was also "Europa", the good goodwill carried by the trademark of "Europa" was inseparable with the enterprise, and it was unquestionable that the logo of "Europa" had established a specific connection with the plaintiff. According to the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the provisions of article 6, has certain market popularity and is known by the relevant public enterprise name of the font size, can be regarded as the" anti-unfair competition law of the People's Republic of China for the first paragraph of article 5 of the third "enterprise name" prescribed in item. Therefore, the name of the "European faction" of the plaintiff can be identified as the "enterprise name" in paragraph 3, paragraph 1, Article 5 of the Law of the People's Republic of China against Unfair Competition.

    Second, the defendant meters of appliances online highlights on the page using the wording "guangdong" behavior, the defendant in m receive appliance sales is accused of infringement product packaging, specification used in the word "guangdong opie technology co., LTD.", have significant others lift deliberately, enough to make the relevant public to mistake the source of goods, infringement of the rights and interests of the plaintiff "European" font size, and constitutes unfair competition. The defendant Han Le electric appliance produced and sold infringing products, which also constituted unfair competition.

    Whether the defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.), Mimeng Electric Appliance and Han Le Electric Appliance constitute joint infringement and the civil liability of each defendant.

    Defendant Han Le appliances business scope for the production, manufacturing, processing, research and development, sales, online sales: gas stoves, range hoods, water heaters, induction cooker, kitchen burning gas, oil absorption generally used in the kitchen, kitchen appliances and the machine is usually formed in the embedded ambry a whole, so the products with the ambry product has certain relevance of the plaintiff, the defendant Han Le electrical compete with the plaintiff. The defendant 914406063039001294 (the former guangdong opie technology co., LTD.) is defense think it has nothing to do with online stores and is accused of infringing products involved, but according to electrical appliances. The defendant meters, according to the power of attorney to submit it with the defendant meters electrical exists trademark licensing relationship, but its licensing the defendant meters of electrical appliances "OPAICN" trademark registrant is a red card no. 12124262 electric appliance co., LTD., so the defendant 914406063039001294 European technology co., LTD. (formerly guangdong) to the defendant meters trademark licensing of electrical behavior, Under the name of trademark license, the defendant Mimeng Electric Appliance was allowed to improperly use its business name on the website involved and the products accused of infringement. And sales of the products labeled "guangdong opie technology co., LTD.", so we decided that the case was accused of infringing products for the 914406063039001294 European technology co., LTD. (formerly guangdong) together with the defendant Han Le electrical production, our college to the defendant 914406063039001294 European technology co., LTD. (formerly guangdong) of defense products has nothing to do with its claims will not be involved. Article 8 of the Tort Liability Law of the People's Republic of China stipulates that if two or more persons jointly commit a tort and cause damage to another person, they shall bear joint liability. In this case, the defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.), the defendant Mimeng electric Appliance and the defendant Han Le electric Appliance have the joint intention to carry out the trademark infringement and unfair competition behavior respectively, which constitutes a joint infringement, and shall assume joint liability for the compensation of the defendant Mimeng electric Appliance and the defendant Han Le electric Appliance respectively. The defendant 914406063039001294 (formerly guangdong opie technology co., LTD.) is a natural person wholly-owned limited liability company, the shareholders for the case of the defendants xing-wen li, according to the provisions of article sixty-three of the "company law of the People's Republic of China, of a one-person limited liability company shareholders cannot prove the company property independent of his own property, shall be jointly and severally liable to the company's debts. The defendant Li Xingwen failed to provide evidence to prove that the property of the defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) is independent of his personal property and should bear the adverse consequences of failing to provide evidence. Therefore, the defendant Li Xingwen should bear joint liability for the above-mentioned debt of the defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.).

    In accordance with the provisions of Article 120 of the General Provisions of the Civil Law of the People's Republic of China, where a civil right is infringed, the infringed shall have the right to request the infringer to bear the liability for tort, to demand that the infringement be stopped and to compensate for the loss. The plaintiff asks the defendant Memon Electric Appliance to stop using the words "Guangdong Opai" on the page of its online store and stop selling the gas stoves marked with the words "Guangdong Opai Technology Co., LTD"; The Court supports the actions of defendant Han Le Electric Appliance and defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) in stopping the production and sale of gas stoves marked "Guangdong Opai Technology Co., LTD.".

    According to the provisions of Paragraph 1 and Paragraph 3 of Article 63 of the Trademark Law of the People's Republic of China, "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual loss suffered by the right holder due to the infringement; Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; Where it is difficult to determine the losses of the right holder or the benefits obtained by the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests gained by the infringer as a result of the infringement, or the licensing fee of the registered trademark, the people's court shall, in light of the circumstances of the infringing act, make a judgment to pay compensation of not more than THREE million yuan ". At the same time, article 17 of the Law of the People's Republic of China against Unfair Competition stipulates that if a business operator violates the provisions of this Law and causes damage to the injured business operator, it shall be liable for damages. If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement or the benefits gained by the infringer as a result of the infringement, the people's court shall, in light of the circumstances of the infringing act, make a judgment to compensate the obligee not more than three million yuan. The actual loss the plaintiff to the case and the defendant of the illegal income derived therefrom are not sure, we consider the reputation of the plaintiff's popularity, integrated the infringement of the defendant's subjective intent, plot, business scale, is accused of infringement product sales, and other factors, has decided the defendant meters covered electronics compensate the plaintiff for the economic loss of 40000 yuan, the defendant Han Le electronics compensate the plaintiff for the economic loss of 80000 yuan, the 914406063039001294 European technology co., LTD. (formerly guangdong) to the defendant, the defendant xing-wen li meters of electric appliance, the defendant Han Le appliances shall bear the liability for compensation shall be jointly and severally liable. The above compensation amounts have included the reasonable expenses incurred in the case. The defendant Zhang Deqiang is not liable for compensation.

    In conclusion, in accordance with the law of the People's Republic of China on the general civil law "article one hundred and twenty, article 8 of the tort liability law of the People's Republic of China, the law of the People's Republic of China company law article sixty-three, article 56 of the" trademark law of the People's Republic of China, paragraph 2 of article 57 (1), paragraph 1 of article sixty-three, the anti-unfair competition law of the People's Republic of China, the first paragraph of article 2, paragraph 1, article 17, and the first paragraph of article 6 of the law of the People's Republic of China civil procedure law the provisions of article sixty-four, article sixty-four, judgment by default is as follows:

    I. The defendant, Foshan Shunde Mimeng Electric Appliance Co., Ltd. immediately stopped using the word "Guangdong Oupai" on the page of "Alibaba" online store as of the date of the legal effect of this judgment;

    2. The defendant, Foshan Shunde Minmeng Electric Appliance Co., Ltd. immediately stopped selling gas stoves labeled as "Guangdong Opai Technology Co., LTD." as of the date of the legal effect of this judgment;

    3. Defendant Zhongshan Hanle Electric Appliance Co., Ltd. and Defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) immediately stopped the production and sale of gas stoves marked "Guangdong Opai Technology Co., LTD." as of the date of the legal effect of this judgment;

    Iv. The defendant, Foshan Shunde Mimeng Electric Appliance Co., LTD., shall, within 10 days from the date of the legal effect of this judgment, compensate the plaintiff, Opai Household Products Group Co., LTD., for the economic loss of RMB 40,000 yuan (including the reasonable expenses paid by the plaintiff, Opai Household Products Group Co., LTD., to stop the infringement in this case);

    V. The defendant, Zhongshan Hanle Electric Appliance Co., LTD., shall compensate the plaintiff, Europa Home Furnishgroup Co., LTD., an economic loss of RMB 80,000 within ten days from the date of the legal effect of this judgment (including the reasonable expenses paid by the plaintiff, Europa Home Furnishgroup Co., LTD., to stop the infringement in this case);

    Six, the defendant 914406063039001294 European technology co., LTD. (formerly guangdong) in the above paragraph 4 to m receive electric appliance co., LTD., shunde district, foshan city, the defendant, the fifth sentence the defendant in zhongshan Han Le electric appliance co., LTD. Jointly and severally liable shall bear the liability to pay compensation, the defendant xing-wen li to the defendant 914406063039001294 European technology co., LTD. (formerly guangdong) the joint and several liability;

    Vii. Rejecting other claims of the plaintiff opai Home Furnishing Group Co., LTD.

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

    For European household group co., LTD will suit the plaintiff the underlying changes from 500000 yuan to 200000 yuan, according to the provisions of article 21 "litigation cost method", is actually a 4300 yuan, the fees for accepting the case shall be borne by the plaintiff opie household group co., LTD. 1700 yuan, m receive electric appliance co., LTD., shunde district, foshan city, by the defendant burden of 1000 yuan, 1600 yuan shall be borne by the defendant zhongshan Han Le electric appliance co., LTD., Defendant 914406063039001294 (the former Guangdong Opai Technology Co., LTD.) and defendant Li Xingwen shall assume joint and several liability for receiving fees payable by the defendant foshan Shunde Mimeng Electric Appliance Co., Ltd. and the defendant Zhongshan Hanle Electric Appliance Co., LTD. (The plaintiff, Opai Home Furnishing Group Co., LTD., has paid the receiving fee of 8,800 yuan in advance, and the extra receiving fee of 4,500 yuan. After the judgment becomes effective, the court will reject the application of the plaintiff, Opai Home Furnishing Group 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 the court, and make a copy according to the number of the other party, and appeal to the Intermediate People's Court of Foshan, Guangdong.

    Chief Judge Wu Zhanhong

    People's Juror Ho Shao-li

    People's Juror Li Ruifen

    September 8, 2008

    Clerk Pan Xiaomei

    Clerk Chen Yunyi