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) No. 134, Yue 0604, Early Republic of China

    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: Foshan Guangsheng Electric Appliance Co., LTD., F4-49, Minle North Road, Ronggui Bianjiao Residential Committee, Shunde District, Foshan City, Guangdong Province. Unified social credit code ×××56D.

    Legal representative: Lin Sheng.

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

    Defendant: Shuangtehui Electric Appliance Co., LTD., Shunde District, Foshan City, Domicile place: No.2, First Floor, No. 3, Siheng Road, Huaxin Road, Ronggui Huaguo Neighborhood Committee, Shunde District, Guangdong Province, Registration Number: 91440606MA4ULTXQ83.

    Legal representative: Li Xianghua.

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

    Plaintiff opie household group co., LTD. (hereinafter referred to as the European group) v. the defendant foshan city guangsheng electric appliance co., LTD. (hereinafter referred to as guangsheng appliances), double preferential, shunde district, foshan city, the defendant electric appliance co., LTD. (hereinafter referred to as dual preferential appliances) the infringement trademark rights and unfair competition disputes, in our hospital on January 4, 2017 to begin, form a collegial panel in accordance with the law, on June 8, 2017 in open trial, plaintiffs opie group of entrusted agent ZhaiMingYue Liang Zhengping and two defendants to entrust agents AD litem to appear in court to participate in the litigation. The case is now closed.

    1. Order the defendant Foshan Guangsheng Electric Appliance Co., Ltd. to stop infringing the plaintiff's trademark right by using the word "Opai" on its website; 2. Order the defendant Foshan Guangsheng Electric Appliance Co., Ltd. to immediately stop selling gas stoves with the words "Guangdong Opai Technology Co., LTD" and "OPAICN"; 3. The defendant was ordered to immediately stop the production and sale of the range hood with the words "Guangdong Opai Science and Technology Co., LTD" and "OPAICN" of Foshan City Shunde Shuangtaihui Electric Appliance Co., LTD. 4. Order the two 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 Guangsheng Electric Appliance used the word "Opai" in its online store to sell gas stoves labeled as "Guangdong Opai Technology Co., LTD". The products are marked with the words "Guangdong Opai Science and Technology Co., LTD", "OPAICN" and "Foshan Shunde Shuanghui Electric Appliance Co., LTD" on the packaging and instructions of the products. The plaintiff has entrusted the notary office to protect the evidence of the above-mentioned infringement.

    To sum up, the plaintiff think the second defendant unauthorized unauthorized use of "European" words, production, sales, marked "guangdong opie technology co., LTD." on the kitchen burning gas, 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 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.

    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.

    (2016) laifengcheng certificate no. 353 notarial certificate :(1) "China famous brand product certificate" issued by the general administration of quality supervision, inspection and quarantine on July 9, 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.

    (2016) laifengcheng certificate no. 357 notarial certificate :(1) the tax payment certificate issued by the national bureau of taxation in baiyun district, guangzhou no. 100014, certifying that the plaintiff paid taxes to the bureau on January 1, 2013 solstice on December 31, 2013, which was fourteen hundred thousand four hundred and seventy-nine thousand five hundred and thirty-three point 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. 3809, 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.

14. (2017) Notarial Certificate No. 372 of Laifeng City Certificate. To certify the actual use of the plaintiff's trademark.

The defendant Guangsheng Electric Appliances pleaded that the taobao shop involved was set up and operated by the defendant Guangsheng Electric Appliances, and the description of Guangdong Opai was used on its online store, but the words of OpAI were not highlighted. At the same time, the word guangdongopai is the abbreviation of Guangdong Opai Technology Co., LTD., an outsider, which has nothing to do with the plaintiff. Therefore, the defendant Guangsheng Electric Did not infringe the trademark right of the plaintiff. 2, the plaintiff's trademark "Europe" is registered on the 11 kinds of kitchen burning gas involved, but no evidence to prove that the plaintiff in the notarization of evidence involved when the plaintiff actually used in the last three years, "European" trademark, plenty of evidence can prove the plaintiff's trademark of the plaintiff used on 20th class hutch ark, etc, can only prove on ark of hutch of awareness; The defendant guangsheng appliances sales of the product is "guangdong science and technology co., LTD." and the words "OPAICN", but the guangdong science and technology co., LTD. Is an outsider legally registered enterprises, and products "OPAICN" is a trademark of an outsider legally registered trademark, so it caused no damage to the plaintiff and the defendant guangsheng appliances has not violate the trademark of the plaintiff and does not constitute a competition, the defendant guangsheng appliances do not bear any legal responsibility.

The defendant double preferential appliances plea, according to product is the double preferential electrical appliance manufacturing, products are "guangdong science and technology co., LTD." and the words "OPAICN", but the guangdong science and technology co., LTD. Is an outsider and legally registered enterprises, and products "OPAICN" is a trademark of legal registered trademark, an outsider to the plaintiff does not constitute any rights abuse, and other trademarks are specifications of the products involved in the use, so the defendant double preferential electrical did not violate the trademark of the plaintiff and competition, the double preferential appliances do not bear any legal responsibility.

The defendant Guangsheng Electric Co., Ltd. and the defendant Shuanghui Electric Co., Ltd. did not provide evidence to the court in the lawsuit.

The court recognizes the authenticity of the evidence provided by the plaintiff 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, basin of wash one's hands and sanitary equipment (components), steam bath, sitz bath tub and shower equipment, in the rain compartment, wash tub, sit implement, kitchen smoke lampblack machine 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 water filter, cold material 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, near the site "foshan city guangsheng electric appliance co., LTD." open "guangsheng hutch ark is special shop" online stores in order to buy kitchen burning gas, oil absorption of each one. On November 19, 2016 in notarial personnel, under the supervision of 13 shou-zhen wang in guangzhou baiyun district and the town and street "7 days inn" signed "zhongtong express Courier delivered the lobby of the outer packing in good condition, marked" household range hood ", "gas cookers" each a goods, single number is "778853760883", "778853760885", shou-zhen wang will be open for the above goods, there is a range hood a, a specification; With a gas stove and a manual, Wang Shouzhen took photos of the above articles. Then the notary staff sealed the above articles with notary seal, and delivered the sealed articles and logistics order to Wang Shouzhen for safekeeping. On November 19, 2016, Wang Shouzhen confirmed the receipt of the order no. 44818941503 on Taobao.com 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. 3809 (2016).

In trial, plaintiff opened the product that afore-mentioned notarization bought in court, plaintiff charges the tort product of this case is gas stove. The gas cooker packing box is marked with the words "OPAICN" and "Guangdong Opai Technology Co., LTD. (Supervisor)", and it is printed with the manufacturer: Shuanteui Electric Appliance Co., LTD., Shunde District, Foshan City. Address: Guangzhu Roadside (one of the first floor), Ronggui Xijiao Industrial Zone, Shunde District, Foshan City, Guangdong Province. Inside the packing case, there is a OPAICN book and a gas cooker with the words "OPAICN" and "Guangdong Opai Technology Co., LTD." OPAICN and the OPAICN picture of "Jiang Wenli" on the front. In addition, the manual also has printed manufacturer, address and telephone number. The defendant, Guangsheng Electric, used the word "Guangdong Opai" on its website. Trial of the plaintiff is clear, the accused two defendants on the product and the defendant guangsheng appliances highlighted on the website using the "European" two words, the plaintiffs believe "Europe" is the plaintiff's company name and the plaintiff's 4378572th of a registered trademark, so both the defendant infringes the trademark rights, both of the defendant's act constitutes 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 ascertained that the defendant Guangsheng Electric Co., Ltd. was registered on May 26, 2014 as a limited liability company with a registered capital of 900,000 YUAN. Its business scope is sales of household appliances and kitchen and bathroom appliances. The defendant, Shuanghui Electric Co., LTD., was registered on January 27, 2016 as a limited liability company with a registered capital of 100,000 RMB. Its business scope is manufacturing: household appliances and accessories, hardware products, gas cookware, kitchen sanitary ware, etc.

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

Whether the defendant Guangsheng Electric Co., Ltd. and shuanghui Electric Co., Ltd. violated the exclusive right of the plaintiff's registered trademark No. 4378572. The plaintiff accused the defendant Of using the words "OPAICN" and "Guangdong Opo Science and Technology Co., LTD." in the production and sale of the packaging and instructions of the alleged infringing products. However, after examination by the Court, "OPAICN" cannot be recognized as the same or similar trademark with the registered trademark of "Opo" No. 4378572 claimed by the plaintiff. And used on the outer packing, specification and so on in guangdong opie technology co., LTD. "Europe" is not prominent use, it is not a trademark, so the defendant double preferential electrical production, the sale is accused of infringement product packaging and instructions on using the "OPAICN" and "guangdong science and technology co., LTD.", does not constitute infringement of trademark of the plaintiff's claim. The defendant Guangsheng Electric Appliances co., Ltd. used the words "OPAICN" and "Guangdong Opai Technology Co., LTD." in the packaging and instructions of the products accused of infringement, which does not constitute the trademark infringement claimed by the plaintiff.

But the defendant guangsheng appliances on its web site to use the word "guangdong", "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 business 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 found in this case, the plaintiff's registered trademark No. 4378572 in the 11th category of goods is approved to use the scope of gas stove, and the product accused of infringement in this case is gas stove, both of which belong to the same kind of goods, the product accused of infringement is sold by the taobao store established by the defendant Guangsheng Electric Appliance. The defendant guangsheng appliances shop at taobao station use words such as "guangdong" in terms of 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, 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 use of "Europa" logo on the website by the defendant Guangsheng Electric Appliance is similar to the trademark involved in the plaintiff's claim of rights. According to the above legal provisions, without the permission of the trademark registrant, the defendant Guangsheng Electric Appliances used the same and similar trademarks as the plaintiff's registered trademarks in the promised product sales and sales, which has constituted trademark infringement.

    Ii. Whether the two defendants conduct unfair competition.

    First, the plaintiff claims that the two defendants used the words "OPAICN" and "Guangdong Opai Science and Technology Co., LTD" in the production and sale of the packaging and instructions of the alleged infringing products, which constitutes a false propaganda and unfair competition. 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. The product accused of infringement produced and sold by the defendant shuanghui Electric Appliance is a gas stove, which is generally used in the kitchen and usually embedded into the cabinet to form a whole. Therefore, the product accused of infringement has a certain correlation with the plaintiff's cabinet products, and the defendant Shuanghui electric appliance has a competitive relationship 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 double preferential appliances is also accused of infringement product packaging, instructions were used in the" OPAICN "and" guangdong opie technology co., LTD. (producer) ", And using the star "jiang wenli" image, easy to make the relevant public took its production and sales of kitchen burning gas and there is a link between the plaintiff opie group, easy to make the relevant public source for products cause confusion and mistakes, so its subjective malicious clings to the plaintiff's reputation is very obvious, also known as "fake", the defendant double preferential appliances to relevant consumer confusion and mistakes, improperly obtaining competitive advantage, in violation of fair and honest credit and the principle of fair competition, has constituted unfair competition. The plaintiff accused the defendant Guangsheng Electric Appliance of constituting unfair competition. Because the defendant Guangsheng Electric Appliance sold the products accused of infringement above, the court finds that the defendant Guangsheng Electric Appliance has committed infringement, and also finds that it has unfair competition.

    The civil liability of the two defendants.

    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 to the two defendants to stop ACTS of unfair competition.

    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 found that the defendant Guangsheng Electric appliance violated the exclusive right of registered trademark and constituted unfair competition, and the defendant Shuanghui electric Appliance constituted unfair competition. The actual loss the plaintiff to the case and the defendant guangsheng, the double preferential electrical appliances of the illegal income derived therefrom are not sure, we consider the reputation of the plaintiff's popularity, the defendants guangsheng appliances, double preferential electrical subjective, intentional torts of the plot, business scale, is accused of infringement product sales, and other factors, has decided the defendant guangsheng electronics compensate the plaintiff for the economic loss of 40000 yuan, the double preferential electronics compensate the plaintiff for the economic loss of 80000 yuan, the compensation has been including reasonable expense for the rights to the case.

    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, "Chinese anti-unfair competition law" in paragraph 1 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:

    On the effective date of this judgment, the defendant, Foshan Guangsheng Electric Appliance Co., Ltd. immediately stopped infringing the exclusive right to use the registered trademark "Opai" of the plaintiff, Opai Home Furnishing Group Co., LTD. No. 4378572, that is, stopped using the word "Opai" on the sales website involved;

    The defendant, Foshan Guangsheng Electric Appliance Co., Ltd. immediately stopped selling the gas stove's outer package and the instruction manual marked with the words "Guangdong Opai Technology Co., LTD. (supervision)";

    Ii. The defendant, Shunde Shuanghui Electric Appliance Co., Ltd. of Foshan City, immediately stopped the unfair competition behavior of the outer package of the gas stove products produced and sold by the defendant and the instruction manual marked with the words "Guangdong Opai Technology Co., LTD. (supervision)";

    Three, the defendant foshan city guangsheng electric appliance co., LTD., since within 10 days from the date of the decision takes effect to compensate the plaintiff opie household group co., LTD., economic loss of 40000 yuan (the plaintiff is included in the European furniture group co., LTD. To stop this case any reasonable expense incurred by the torts, including the notarial fees, legal fees, investigation expenses, etc., but not limited to);

    Four, double preferential electric appliance co., LTD., shunde district, foshan city, the defendant within 10 days from the date of this decision, compensate the plaintiff European household group co., LTD., economic loss of 80000 yuan (the plaintiff is included in the European furniture group co., LTD. To stop this case any reasonable expense incurred by the torts, including the notarial fees, legal fees, investigation expenses, etc., but not limited to);

    V. Rejecting other claims of the plaintiff opai Furniture Group Co., LTD.

    If the defendant, Foshan Guangsheng Electric Appliance Co., Ltd. and the defendant, Foshan Shunde Shuanghui Electric Appliance Co., Ltd. fail to perform their pecunial obligations within the period specified in this judgment, they 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.

    The receiving fee of this case is 4,300 yuan, 1,700 yuan borne by the defendant foshan Shunde Shuanghui Electric Appliance Co., LTD., 900 yuan borne by the defendant Foshan Guangsheng Electric Appliance Co., LTD., and 1,700 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

    August 3, 2017

    Clerk Yan Wing Yu