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. 135

    Plaintiff: Opai Home Furnishing Group Co., LTD., No. 366, Guanghua 3rd 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.

    Defendant: Honqiao Wife Electric Appliance Co., LTD., Shunde District, Foshan City, Domicile: 303, 3rd Floor, No. 3, Sports Road, Ronggui Rongxin Neighborhood Committee, Shunde District, Foshan City, Guangdong Province. Registration Number: 440681000675830.

    Legal representative: Deng Minqiong.

    Agent AD litem: Lin Qihua, lawyer of Guangdong Fengbang Law Firm.

    Defendant: Xiju Le Kitchen Electric Appliance Factory, Huangpu Town, Zhongshan City, No. 16, Chengye Avenue, Dacen Industrial Zone, Huangpu Town, Zhongshan City, Guangdong Province. Unified Social credit code ×××94E.

    Legal representative: Pan Guiren.

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

    Defendant: Deng Minqiong, male, Han Nationality, born on August 8, 1993, living in Huaiji County, Guangdong Province.

    Agent AD litem: Lin Qihua, lawyer of Guangdong Fengbang Law Firm.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the European group), shunde district, foshan city, v. the defendant clever wife electric appliance co., LTD. (hereinafter referred to as clever wife appliances), the defendant in zhongshan huangpu town xi ju le kitchen equipment factory (hereinafter referred to as the happy appliances), the defendant Deng Minqiong the infringement trademark rights and unfair competition disputes, in our hospital on January 4, 2017 to begin, the defendant xi ju le electrical appliances in our hospital to propose to the jurisdiction of the court, in our hospital in 2017 ruled on February 10, rejected the defendant xi ju le electrical appliances to the jurisdiction of the court. On June 12, 2017, the Intermediate People's Court of Foshan City, Guangdong Province made (2017) The Civil ruling no.678 of Yu06 People's Government final, rejecting the appeal of the defendant Xiju Le Electric Appliance. The court formed a collegial panel in accordance with the law, and held a hearing in public on September 14, 2017. Zhai Mingyue, the agent AD litem of the plaintiff Opai Group, Lin Qihua, the agent AD litem of the defendant, DengMinqiong, and Liang Zhengping, the agent AD litem of the defendant, attended the trial. The case is now closed.

    1. The plaintiff filed a lawsuit against the court: 1. The defendant Dengminqiong was ordered to stop the infringement of the plaintiff's trademark right by using the word "European" on its website; 2. 2. The defendant, Dengmin-Qiong, was ordered to immediately stop selling the range hood with the words "Guangdong Opai Technology Co., LTD", "OPAICN" and "OPAICN"; 3. The defendant Xi Ju Le Electric Appliance was ordered to immediately stop producing and selling the range hood with the words "Guangdong Opai Science and Technology Co., LTD", "Haocaiyou Aiyou OPAICN" and "OPAICN"; 4. Order the three defendants to compensate the plaintiff's economic losses and reasonable expenses for safeguarding their rights in this case, totaling RMB 200,000 only; 5. The costs of this case shall be borne by the defendant.

    Facts and reason: the plaintiff is 11 classes, "European" 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 November 2016, the plaintiff found that the defendant, Goodwife Electric Co., Ltd. used the word "Opai" in a large number in its online store to sell range hoods marked with the words "Guangdong Opai Technology Co., LTD.". On the outer packing and the instruction booklet of the product, it is marked with the words "Guangdong Opai Science and Technology Co., LTD", "OPAICN" and "OPAICN with a OPAICN". The plaintiff has entrusted the notary office to protect the evidence of the above-mentioned infringement. The defendant, Tang Min-chun, was the owner of the Alipay account of the defendant's wife, An electronics website.

    To sum up, the plaintiff think the three defendants without authorisation to use "European" words, production, sales, marked "guangdong opie technology co., LTD." on the oil absorption, not only the infringement of the right to exclusive use of a registered trademark of the plaintiff, and constitute the encroachment of right to enterprise name to the plaintiff, and violates the principle of good faith and recognized business ethics, whose behavior constitutes unfair competition to 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, the Law of the People's Republic of China against Unfair Competition and other relevant provisions, we hereby appeal 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) The Notarial Certificate of Lai Feng City Certificate No. 347 certifies that the plaintiff has the exclusive right to use the registered trademark No. 4378572.

    (2016) Laifengcheng Notarial Certificate No. 350 certifies that the plaintiff has the exclusive right to use the registered trademark No. 1128213.

    (2016) Laifengcheng Notarial Certificate No. 346 certifies that the plaintiff has the exclusive right to use the registered trademark No. 1137521.

    (2016) The Notarial certificate no. 348 of Laifeng City Certificate certifies that the plaintiff has the exclusive right to use the registered trademark No. 7731876.

    (2016) The Legal notarial certificate no. 352 issued by Laofengcheng testifies that the plaintiff legally owns the copyright of "" fine art fonts. This work, created on August 10, 1996, is completely consistent with the contents of the registered trademarks No. 4378572, 1128213 and 1137521 of the plaintiff, and also proves that the plaintiff's" "brand has certain originality and a long history.

    The trademark [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce proves 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.

    (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 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. (2016) Notarial Certificate No. 357 of Laifeng City Certificate No. The part that proves the plaintiff's tax payment proves that the profit benefit of the "Opie" brand is huge and the brand value is very high. The specific content is as follows :(1) the tax payment certificate issued by the national tax bureau of baiyun district, guangzhou city, no. [2014]100014, certifying that the plaintiff paid tax to the bureau on January 1, 2013, solstice, December 31, 2013, at the rate of 140,000,000 forty-four thousand seven hundred and eighty-nine thousand five hundred and eighty-three yuan seventy-seven. (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 five hundred and ninety-nine thousand nine hundred and ninety-nine yuan 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 bureau of large enterprises of guangzhou local tax bureau certifies 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.

    9, (2016), lai FengCheng card people word no. 355 is notarial deed, prove that the plaintiff by CCTV, hunan TV's "European brand" for the continuous publicity, specific content as follows: (1), 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 TV advertisement release contract signed by the plaintiff and zhejiang zhimei auto advertising co., LTD., which stipulates that the plaintiff's brand shall be publicized on CCTV news channel on January 1, 2014 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 sponsorship and cooperation agreement 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.

    10. (2016) Notarization Certificate no. 356 issued by Laifeng City Certificate, which proves that the plaintiff spent a huge amount of money to hire the star Jiang Wenli to speak for "Europa" products, which further proves that the plaintiff spent a huge amount of money to promote Europa brand.

    April 11, 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 world magazine, prove that the plaintiff by the print media publicity, "European brand", It also proves that the plaintiff's original advertising slogan of "family, love and Europe" continues to use and publicize. The second group of evidence proves that the plaintiff's trademark has been widely known and well-known by the public.

    12. (2016) Notarial Certificate No. 3802, Zhilusi Certificate, certifying the defendant

    Facts of infringement.

    Notarization fee invoice, the amount of 25000 yuan, this case claims 500 yuan. Prove the plaintiff's reasonable expenses.

    Defendant clever wife electric equipment defense says, (1), defendant clever wife electric equipment has no production behavior. The defendant's wife electric appliances only sales behavior, but sales behavior does not constitute infringement. First of all, as for the products suspected of infringement in this case, the defendant's wife electric appliances purchased from the defendant's Xi Ju Le electric appliances had legitimate sources. Second, the defendant xi ju le electronics says it has authorized, the defendant clever wife appliances to replenish onr's stock, and the defendant in the happy appliances to note the brand on the delivery note as "guangdong", the defendant's legal representative is the defendant clever wife electrical Deng Minqiong, as a start-up after 90, have sufficient reason to believe that the defendant xi ju le appliances is legal clever wife appliances production and sales to the defendant, so, according to the law of the People's Republic of China trademark law, the provisions of the second paragraph of article 64 of "sales don't know is a registered trademark has been infringed, can prove that the goods are themselves legally acquired and providers, and does not assume liability to pay compensation." The defendant's wife electric appliances should not be liable for tort liability in this case. (2), as for the 1688 web site while writing "OPAICN/guangdong", but the marks and has the obvious difference of the plaintiff's trademark "European", to mislead consumers, and the picture from the defendant xi ju electrical appliances, the defendant xi ju le appliance is said by guangdong science and technology co., LTD., to provide quality goods, so, its actual propaganda is guangdong sent the products of the company, there is no any relationship with the plaintiff. (3), on the instruction for use "the home has love OPAICN" and "guangdong science and technology co., LTD." and the plaintiff's trademark is different also, first of all, guangdong European science and technology co., LTD., real, and second, "there's a love have OPAICN" does not use the plaintiff's trademark, and the logo only on the instruction for use, not for goods, not mislead consumers, and after the crime, the defendant clever wife also found that the defendant xi ju le electrical appliances on the products involved did not use the plaintiff's trademark, goods did not use the trademark, so the defendant clever wife appliances that involved in the product itself does not constitute infringement. At the same time, the specification is also provided by the defendant Ximile electric appliance, even if it constitutes infringement, it has nothing to do with the defendant's Lovely wife electric appliance. (iv) Back to ten thousand steps, even if the products involved in the case constitute infringement, the defendant Goodwife Electrical Appliances has proved that the products involved are legally obtained. Therefore, on the premise of determining the infringing products, the defendant Goodwife electrical appliances agrees to the plaintiff's claim items 1 and 2; However, defendant Goodwife Electrical Appliances does not agree with item 4, and the defendant Goodwife electrical appliances shall not be liable for any tort liability, which shall be borne by defendant Joy Electrical Appliances.

    The defendant's wife provided the court with the following evidence:

    1. Business registration information of Guangdong Opai Technology Co., LTD. To prove the real existence of Guangdong Opai Technology Co., LTD. In this case, publicity refers to the genuine products produced by Guangdong Opai Technology Co., Ltd. rather than the trademark of the plaintiff, which are different in nature.

    2. Statement of account, payment voucher (check stub) and delivery note between defendant's wife electric and Defendant's Joy Electric. Prove the defendant in the happy to defendants clever wife electrical appliances for delivery (the delivery note by the defendant xi ju le electrical marked as "guangdong", the defendant or the electrical appliances with defendant clever wife reconciliation, the clever wife to defendants xi ju le electrical appliances the fact of payment, to prove that the defendant clever wife appliances sales of the product is legal to use. The products involved were not delivered directly to the plaintiff by the defendant's wife, but by the defendant's Joy. The plaintiff bought through the network, and after placing an order, the defendant's wife electric appliance explained to the defendant's Joy electric appliance, which was delivered by the defendant's Joy electric appliance. Therefore, the whole process was carried out by the defendant Xi Ju Lok Electric. In addition, it can be seen from the delivery note that the main products of the defendant's wife electric appliance were not those of Guangdong Opai Technology Co., LTD., so the defendant's wife electric appliance did not sell a large number of products involved.

    The defendant Xi Ju Le Electric Appliance answers that: 1. The defendant Xi Ju Le Electric Appliance has no subjective fault liability for unfair competition and has reasonable reliance on the legality of the enterprise name of "Guangdong Opai Technology Co., LTD.". Guangdong Opai Technology Co., Ltd. and the approval and registration departments of the plaintiff's enterprise name belong to The Guangdong Provincial Administration for Industry and Commerce. Guangdong Opai Technology Co., Ltd. is a registered enterprise name approved by the Guangdong Provincial Administration for Industry and Commerce. The defendant, Joy Electric, had reasonable trust in Guangdong Opai Technology Co., LTD., which was legally registered and publicly used. The defendant, Xi Ju Le Electric Appliance is not guangdong Opai Technology Co., LTD., and the registration of the enterprise name is unknown. No matter whether the registration of the enterprise name has the purpose to attach the goodwill of the plaintiff, it has nothing to do with the defendant Xi Ju Le Electric Appliance, and the defendant Xi Ju Le Electric Appliance does not participate in the registration of the enterprise name. The name of the enterprise obtained through the legal procedures such as industrial and commercial registration was only known by the defendant, which was legal and recognized by the government departments. The use of the accused Was not illegal. Defendant xi ju le appliances not legal professionals, of European technology co., LTD. Of guangdong legitimacy, whether an enterprise name has no ability to judge, the law should not be too strict requirements, with the common sense of ordinary people and cognitive level, is approved by the government departments of enterprise name, it has legitimacy is the common sense of ordinary people, therefore, the defendant in the happy appliances shall have no illegal subjectivity. Ii. The defendant Xi Ju Le Electric Appliances obtains the license for use of the trademark "OPAICN" from Guangdong Opai Technology Co., LTD. It has the legal source and right to use the trademark "OPAICN", and has the right to reasonably use the enterprise name of Guangdong Opai Technology Co., LTD. On September 14, 2015, the defendant Xi Ju Le Electric Appliance obtained the right to use the "OPAICN" trademark on specific products with the authorization of Guangdong Opai Technology Co., LTD. The OPAICN trademark is a legally registered trademark with the National Trademark Office. The defendant Hilo Electric Appliances has a legal use source and has a legal right to use the "OPAICN" trademark. The OPAICN trademark is an important way to distinguish the origin of the product. The use of the OPAICN trademark can help consumers clearly distinguish the origin of the product from that of the plaintiff without causing confusion. Iii. The plaintiff and the defendant, Xi Ju Le Electric Appliance, belong to two different industries. The two enterprises have no competitive relationship at all and have not caused any damage, let alone constituted unfair competition. The primary factor that constitutes unfair competition is that both parties are engaged in the same industry with competitive relations, while the unfair competition causes damage to the other party due to its unfair competition behavior. If both parties are engaged in different industries, there is no competition at all. In this case, according to the plaintiff's evidence, the plaintiff is engaged in trademark classification class 20 furniture industry, production and sales of the product is cabinet, wardrobe, and xi ju le electrical appliances are in science and technology industry, the electric equipment product that the product is class 11, both sides of the industry and the products are completely different, there is no peer competition, also not because of the industry and the production and sales of behavior to the plaintiff to the case production sales caused any damage or loss, therefore does not constitute a competitive relationship, nothing more proper or improper. The word "Europa" was not invented by the plaintiff, and the plaintiff has no exclusive right to use it. The word "Eurofaction" means "European faction, western faction", which is often referred to as the product style of European faction or European and American technology in the industry. As a result, the word "Europe" is not an original and unique, from the start and at the same time in the market now is there are a number of different industries "European brand", "European" word registered trademark and more than to "Europe" as the size of the business enterprise size, and popularity is quite high, therefore, the plaintiff's "European" and real "European" brand on the market and text completely did not reach one-to-one high uniqueness and high visibility, more have not reached "anti-unfair competition law" regulation can prohibit the defendant in completely different industries and products using the word as a condition of font size, the plaintiff suing for there completely irrational. Whether does bilateral management industry have competition concern, from the structure of lampblack machine and kitchen product only, install the relevance such as the external form such as use way, insufficient reveal the relation in illicit competition law concern and nature. Although lampblack machine is installed in the kitchen, with ambry have certain union and use, but cannot because this affirmatory have competitive relation. If ever, according to the above analysis, oil absorption Mosaic and so on, by not only combine with ambry form, there are many such as nails, faucet, wash basin, water pipes, chopsticks, dishes, POTS, lamps, smallpox, ceramic tile, rice cooker and other products, has combined with cabinet, so that the products compete with ambry, are not run by others, is the protection of the "European" ambry product range is too wide. The investigation to determine whether there is a competitive relationship should not be limited to the combination of product forms, but should be analyzed from the essential aspects such as whether the rights and interests of operators are damaged, consumers' consumption interests, and product management approaches. Obviously, because plaintiff did not have actual management to absorb lampblack machine product, and what management is ambry, chest, the ambry chest that does not exist to affect plaintiff sells profit to decline, both river water does not make well water, do not have actual interest conflict. According to the Opinions on the Implementation of The Judicial Responsibility System of the Supreme People's Court (Trial), the retrieval mechanism for category cases and related cases is stipulated. The proposed judgment results will form a new judgment criterion, which will be decided or recommended by the President of the court to be submitted to the conference of professional judges for discussion by the judicial committee. If the judgment result to be made will change the yardage of similar effective cases of the court, it shall be submitted to the conference of professional judges for discussion by the judicial committee in accordance with the procedure. If it is found that there are significant differences in the yardage of similar effective cases of the court, it shall be reported to the judicial committee for discussion and decision. In this case, the determination criterion of the above competition relationship is the key focus of this case, and also the unique case of this case. Other cases cannot be given for reference. In order to be prudent and grasp the unified judgment standard, it should be submitted to the relevant professional judges' conference or judicial committee for discussion. All the external publicity and shop decoration of the plaintiff indicate that they are operating cabinets, wardrobes and other products, excluding kitchen appliances. The consumer groups of the two are different. Therefore, the enterprise being sued does not violate the provisions of Article 5, Paragraph 3, of the Law against Unfair competition. The trademark used on the products involved in this case and the name of the enterprise being sued are both legally obtained, and the standardized use mode is enough to enable the relevant public to clearly distinguish the source of the products, without causing any confusion, misidentification or unfair competition. 4. The plaintiff's claim is too high even if it is determined that the case constitutes unfair competition. In accordance with the law, the compensation for unfair competition shall take into account such factors as subjective intent, the circumstances of infringement, the scale of business operation, the sales volume of the products accused of infringement, etc. If it is impossible to determine the amount of compensation, the compensation shall be made at discretion. Suppose your school must think this case constitute infringement, you should consider the following factors: in 2014, the plaintiff and the "European" font size although have in ambry industry with high visibility, but when the smoke lampblack machine product industry did not form any popularity, the other, although no. 4378572 registered trademark of the plaintiff registered contains 11 goods, but didn't actually use the registered trademark, of which consumers have no knowledge. Opie technology co., LTD., guangdong legally registered enterprise name is a industrial and commercial bureau, the defendant xi ju le electrical appliances can't distinguish the enterprise name may be whether there is infringement, the defendant in the happy only general operator, is not a legal professionals, and the legal registration in the bureau of industry and enterprise has showed the legitimacy, the defendant in the happy the legitimacy of the electrical appliances have enough trust, so use. Qinfeng costs the Supreme People's Court of Beijing and shandong qinfeng catering management co., LTD., infringement of trademark and unfair competition case, case number: (2016) for the 238, the case under the condition of operating in both food and beverage industry, the best court just think constitutes unfair competition, and consider the shandong qinfeng catering management co., LTD. Is a legally registered enterprise name of the key factors, the final amount is 50000 verdict. Therefore, the plaintiff in this case claims that the compensation standard is obviously too high.

    The defendant, Joy Electronics, provided the court with the following evidence:

    1. Power of Attorney. To certify that the defendant has obtained the license of registered trade mark No. 12124262.

    2. Trademark Registration Certificate. It demonstrates that the "OPAICN" trademark is legally registered and used without prejudice to the plaintiff's rights.

    3. Business license of Guangdong Opai Technology Co., LTD. Guangdong Opai Technology Co., Ltd. is legally registered by the Industrial and commercial bureau.

    The defendant, Deng Minqiong, pleaded that (I) Deng Minqiong is not the eligible subject of the lawsuit in this case, and deng Minqiong is only the legal representative of the defendant's wife Electric Appliance, and her business activities are the performance of her duties, and any legal consequences arising therefrom shall be borne by the defendant's wife Electric Appliance. According to Article 43 of the General Principles of the Civil Law, an enterprise as a legal person shall bear civil liability for the business activities of its legal representatives and other staff members. Therefore, the defendant deng Minqiong only performed her duties, and the relevant civil liabilities arising therefrom shall be borne by the company. (II) In this case, the online store suspected of infringement is actually owned by the defendant Dengwenqiong. If all the sales behaviors of the defendant dengWenqiong are illegal, the illegal consequences shall also be borne by the defendant DengMinqiong. Therefore, the defendant Deng Minqiong requests the court to reject all the lawsuit claims of the plaintiff against the defendant DengMinqiong. Three, finally, the case even if that involved products constitute infringement, in fact, the defendant in the happy appliances have not mass production, the clever wife electrical didn't buy in large quantities, not the defendant clever wife electrical products, so relatively speaking, the infringement of time is short, the scope is small, small number, the defendant's profits were very small, the impact is not big, and does not create the actual economic loss to the plaintiff, so the plaintiff claims 200000 is obviously not reasonable, and once deemed infringement, is only the defendant xi in the legal responsibility of the electrical appliances, Deng Minqiong with defendant clever wife no correlation.

    Defendant Deng Min-kwong did not provide evidence to the court during the proceedings.

    The court recognizes the authenticity of the original and defendant's evidence as the basis for ascertaining the facts of the case.

    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 is valid from June 7, 2007 to June 6, 2017. Then the name of the registrant of the trademark is changed to Opai Home Furnishing Group Co., LTD.

    On December 21, 1997, guangzhou kang jie kitchen equipment co., LTD., approved by the trademark office registered no. 1137521, "European" trademark, shall use commodities for 11 class kitchen stove, gas stove, electric cooker, cooker, refrigeration equipment, drying equipment, hot and cold drinking water filter, drink cooling equipment, electric water bottles, refrigeration container, since December 21, 1997, valid until December 20, 2007. Then the trademark was approved by the Industrial and Commercial Bureau and extended to December 20, 2017, and the name of the trademark registrant 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.

    (II) On November 12, 2016, wang Shouzhen, the authorized agent of the plaintiff, applied for evidence preservation to Luxi Notary Office of Liaocheng City, Shandong Province. On November 14, 2016 in the notarial personnel, under the supervision of 13 shou-zhen wang in guangzhou baiyun district and the town and street "7 days inn" notarization to connect the Internet computer operation, in alibaba website clever wife electric appliance co., LTD., shunde district, foshan city, "" within the store to open on see a" wholesale authentic European side suction type oil absorption ", "manufacturers, wholesale European OEM machine", "opie authentic side suction type oil absorption" content, such as shou-zhen wang to place an order within the store to buy the oil absorption. On November 16, 2016, in the notarial personnel, under the supervision of 13 shou-zhen wang in guangzhou baiyun district and the town and street "7 days inn" signed "Ann can ane" lobby Courier delivered the outer packing in good condition, marked "side type oil absorption" of a goods, single number is "220005739863", shou-zhen wang will be open for the above goods, there is a range hood, a labeled "guangdong science and technology co., LTD." a specification, and shou-zhen wang photos of these items, then notarial personnel with notarization seals to seal of the above items, Deliver sealed items and logistics documents to Wang Shouzhen for safekeeping. On November 19, 2016, Wang Shouzhen confirmed the receipt of the order no. 2680721480254885 on alibaba while operating the Internet computer connected to the Notary office at "7 Days Chain Hotel", No. 13, Renhe Town, Renhe Street, Baiyun District, Guangzhou. Shandong Liaocheng Luxi Notary Office supervised the whole process and issued the notary Certificate no. 3802 (2016).

    In trial, accuser opened the product that afore-mentioned notarization bought in court, accuser charges the tort product of this case is lampblack machine. Product packaging without any product label, is three products, including range hood and manual. The outer packing does not have any product identification or any information about the manufacturer. There is a logistics slip on the side of the package. The slip number is 220005739863. The OPAICN OPAICN, Guangdong Opai Science and Technology Co., LTD. Are marked with the words "OPAICN", "You Have aiyou OPAICN" and "Guangdong Opai Science and Technology Co., LTD." On the back of the instructions, there is the production base: Xiju Le Kitchen Appliance Factory, Huangpu Town, Zhongshan City, with its production address and telephone. In the trial, the plaintiff made it clear that the words "Opi" and "authentic Opi" were widely used in the online store of the defendant's wife's electronic device, which constituted trademark infringement. The plaintiff thinks "Europe" is the plaintiff's company name and the plaintiff's first "4378572" brand, the plaintiff thinks "the home has love OPPEIN" is the plaintiff's slogan, involved in products on the manual use "OPAICN", "the home has love OPAICN", "guangdong science and technology co., LTD." the words cause mistake, consumers make consumers mistaken for the plaintiff, constitute the unfair competition.

    (III) On July 20, 2013, the plaintiff Opai Group signed the Advertising Contract Renewal with Jiang Wenli, agreeing to invite Jiang Wenli to perform for the advertising production of cabinets, wardrobes and bathroom products produced by the plaintiff Opai Group. Subsequently, the plaintiff Opai Group used the advertisement containing Jiang Wenli's image in some magazines and newspapers in China, and also used the propaganda words of "There is a family, there is love and there is Opai".

    It is also found that the defendant Goodwife Electric Co., Ltd. was registered on April 1, 2015 as a limited liability company with a registered capital of RMB 1,000,000 and shareholders of Deng Minqiong and Chen Hua. Its business scope covers household appliances, domestic commerce, material supply and marketing, etc. The defendant, Xi Ju Le Electric Appliance, was a sole proprietorship registered on March 12, 2013. Its business scope covers the production, processing and sales of household appliances and accessories, gas cooking appliances, etc.

    The court holds that this case is a case of infringement of the right to exclusive use of trademarks and unfair competition disputes. Combined with the plaintiff's allegations, the court makes the following comments on the disputes between the two parties:

    Whether the defendant Goodwife Electric appliances has violated the exclusive right to use the plaintiff's registered trademark No.4378572. The defendant clever wife appliances on its web site to use the "European", "authentic European", "opie quality goods" and other words, according to the "trademark law of the People's Republic of China" (hereinafter referred to as the trademark law) article 48 states: "the use of trademark referred to in this law refers to the trademarks to commodities, commodity packaging or containers and trading documents, or the trademarks used in advertising, exhibitions and other commercial activities, behavior" is used to identify the sources of. (1) Using a trademark identical with a registered trademark on the same kind of goods without the permission of the registered trademark owner; (2) using, without the permission of the trademark registrant, a trademark similar to its registered trademark on the same good s or a trademark identical with or similar to its registered trademark on similar good s, which is liable to cause confusion... ." According to the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation of article 9, the provisions of article 10, in trademark infringement cases that advocate for the rights of accused of infringement identification and whether the registered trademark constitutes approximation, should regard trademark or its constituent elements involved significant degree, market popularity, such as the specific circumstances, in the consideration and comparison form, pronunciation and meaning of the text, graphic composition and color, or on the basis of the combination of elements of the structure, the whole or the major part is the possibility of market confusion to comprehensive analysis and judgment. According to the facts identified in this case, the plaintiff no. 4378572 registered trademark in the 11th category of goods is approved use scope including kitchen smoke hoods, and this case is accused of infringement products for smoke hoods, both belong to the same kind of goods, accused of infringement products by the defendant clever wife electric appliances opened online shop sales. The clever wife appliances in its stores in alibaba web site with words such as "European" product introduction, is accused of infringement of identity "European" and advocate for the rights of the plaintiff compared to no. 4378572 "European" registered trademark, the pronunciation and meaning are the same, although 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 use of the "European" logo on the website of the defendant Goodwife electric appliance is similar to the trademark at issue of the plaintiff's claim. According to the above legal provisions, without the permission of the trademark registrant, the defendant goodwife electric appliances in the product promised to sell, sales and use the plaintiff's registered trademark identical, similar trademark, has constituted trademark infringement.

    Ii. Whether the three defendants conduct unfair competition.

    First of all, the plaintiff claims that the OPAICN product OPAICN, Guangdong Opai Technology Co., Ltd. and OPAICN with a OPAICN OPAICN and the OPAICN image used by the defendant, which was sold by the defendant Xiju Electric Co., LTD., constitutes unfair competition with false propaganda. Article 2, Paragraph 1, of the Law against Unfair competition stipulates that in market transactions, operators shall follow the principles of voluntariness, equality, fairness, good faith and abide by generally recognized business ethics. Article 9 The first paragraph stipulates that an operator shall not, by advertising or other means, falsely publicize the quality, sufficiency, performance, use, producer, term of validity or place of origin of the commodity, which is misleading.

    The business scope of the plaintiff opie group for furniture manufacturing, in September 2007, European brand of ambry of products by the state administration of quality supervision, inspection and quarantine rated as China famous brand product, in October 2008, European brand ambry products by quality supervision bureau of guangdong province famous brand products of guangdong province, in February 2008, the plaintiff's 1128213th "European" trademark in the sideboard, is x x x x for famous trademarks of guangdong province, on April 24, 2009, the plaintiff on the sideboard commodity 20 "European" brand were identified as the famous trademark, the trademark office so we decided that after many years of product sales and advertising, The cabinet products produced and sold by the plaintiff have higher popularity in the relevant public. 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 find out the fact that the plaintiff is used in the advertisement "have family love the pie", and hired star "jiang wenli" as a propaganda image spokesperson, the plaintiff's "European" series of products as well as the "European" font size across the country has a higher visibility, "OPAICN" similar to the plaintiff's "European" pronunciation, and the plaintiff has the plaintiff has no. 7731876 "" the right to exclusive use of a registered trademark in accordance with the law, the defendant clever wife appliances sales by the defendant xi ju le electrical production, the sale is accused of infringement product manuals were used in the" guangdong science and technology co., LTD. ", And use the image of the star "jiang wenli" and similar slogan, easy to make the relevant public mistakenly assume that its sales of oil absorption exist some connection with the plaintiff opie group, easy to make the relevant public source for products cause confusion and mistakes, which violate the principle of fair and honest credit and fair competition has constituted unfair competition. The court finds that the defendant wife electric Co., Ltd. and the defendant Joy Electric Co., Ltd. have committed infringement, and also finds that they have engaged in unfair competition.

    The fact that the plaintiff accuses the defendant Deng Min-qiong of infringement lies in the fact that when the plaintiff shopped in the online store of the defendant deng-Qiong, the Alipay account that the defendant deng-Qiong received payment from was owned by the defendant. According to article 43 of the General Principles of the Civil Law, "An enterprise as a legal person shall bear civil liability for the business activities of its legal representative and other staff members". Therefore, the defendant Deng Minqiong only performed her duties in this case, and the relevant civil liability arising therefrom shall be borne by the defendant Goodwife Electric Co., LTD. In other words, on the basis of the available evidence, it cannot be concluded that defendant Deng Min-chun committed the alleged infringement.

    The civil liability of the defendant.

    According to Article 118 of the General Principles of the Civil Law of the People's Republic of China, a citizen or legal person whose right to exclusive use of a registered trademark has been infringed upon shall have the right to demand that the infringement be stopped and that the loss be compensated for. The Court supports the plaintiff's appeal and orders the defendant Goodwife Electric Appliance to immediately stop the sales and the defendant Hil Electric Appliance to stop the production and sale of the oil suction hoods with the words "Guangdong Opai Technology Co., LTD" and "OPAICN". The Court supports the plaintiff's request to order the defendant Goodwife Electric Co., LTD to immediately stop using the word "European" on its website to infringe the plaintiff's trademark rights.

    On the issue of the determination of the amount of compensation in this case. According to the provisions of The first and third paragraphs of Article 63 of the Trademark Law, "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual losses 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 profits of 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 compensate the obligee not more than THREE million yuan ". At the same time, article 20 of the Anti-Unfair Competition Law 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. The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in article 17 of the regulation:" determined in article 5 of the anti-unfair competition law, article 9, article 14 of the regulation of damage compensation of ACTS of unfair competition, can consult to determine the use of a registered trademark infringement damage compensation method ". This case finds that the defendant's wife electric appliance infringes the exclusive right of registered trademark and constitutes unfair competition, and the defendant's Joy electric appliance constitutes unfair competition. The actual loss the plaintiff to the case and the defendant clever wife electrical appliances, the defendant xi ju le electrical appliances of the illegal income derived therefrom are not sure, we consider the reputation of the plaintiff's popularity, the defendants clever wife appliances, xi in the subjective intent of electrical appliances, infringement plot, business scale, is accused of infringement product sales, and other factors, has decided the defendant clever wife electronics compensate the plaintiff for the economic loss of 30000 yuan, the defendant xi ju le electrical appliances from the plaintiff compensation for the economic loss of 70000 yuan, the compensation has been including reasonable expense for the rights to the case. The defendant clever wife electric deliberately puts forward the legal source and no infringement, should not assume liability to pay compensation, although the submit evidence to prove that their products come from the defendant xi in electrical appliances, but as a household products distributor, whether its for its products infringe the plaintiff's trademark right and unfair competition, with a reasonable duty of care, in our opinion of the no infringement deliberately not be adopted.

    Because the defendant Deng Min-qiong could not be found to have committed the alleged tort, the court rejected the plaintiff's claim against the defendant Deng Min-qiong.

    In conclusion, according to paragraph 1 of article 3 of the "trademark law of the People's Republic of China", article 57, paragraph 1 of article sixty-three, paragraph 3, the anti-unfair competition law of the People's Republic of China, the first paragraph of article 2, article 9, article 20, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation articles 9, 10 and 16, the civil procedure law of the People's Republic of China article sixty-four the provisions of the first paragraph, the sentence is as follows:

    The defendant, Foshan Shunde Gouqiao Electric Appliance Co., LTD., as of the effective date of this judgment, immediately stopped infringing the plaintiff's trademark right by using the word "Opai" on its website;

    Ii. The defendant, Foshan Shunde Gouqiao Electric Appliance Co., LTD., immediately stopped selling the range hood with the words "Guangdong Opai Technology Co., LTD" and "OPAICN" marked in the product manual as of the effective date of this judgment;

    Iii. As of the effective date of this judgment, the defendant, Zhongshan Huangpu Town Xinjile Kitchen Appliance Factory, immediately stopped selling the lampblack with the words "Guangdong Opai Technology Co., LTD" and "OPAICN" marked in the product manual;

    Iv. Within 10 days from the effective date of this judgment, the defendant, Foshan Shunde Wenqiao Electric Appliance Co., Ltd. shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of RMB 30,000 (including the reasonable expenses paid by the plaintiff, Opai Home Furnishing Group Co., LTD., to stop the infringement in this case);

    V. Within 10 days from the effective date of this judgment, the defendant, Zhongshan Huangpu Town Xinjile Kitchen Electric appliance Factory, shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for an economic loss of 70,000 yuan (including the reasonable expenses paid by the plaintiff, Opai Home Furnishing Group Co., LTD., to stop the infringement in this case);

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

    If the defendant, Foshan Shunde Cunqiao Electric Appliance Co., LTD., and The defendant, Zhongshan Huangpu Town Xizhule Kitchen Electric Appliance Factory, fail to perform their pecunial obligations within the period specified in this judgment, they shall pay double interest on the debt for the delayed period in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China.

    The receiving fee of this case is 4,300 yuan, 700 yuan borne by the defendant, Foshan Shunde Cunqiao Electric Appliance Co., LTD.; 1,500 yuan borne by the defendant, Zhongshan Huangpu Town Xizhule Kitchen Electric Appliance Factory; 2,100 yuan borne by the plaintiff, Oupai 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 Wing Chun

    People's Juror Ho Shao-li

    December 1, 2017

    Clerk Yan Yongyu