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

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

    Written judgment of civil affairs

    (2016) No. 2166, Yue 0606, Early Republic of China

    Plaintiff Guangdong Midea Living Electric Appliance Manufacturing Co., LTD., domicile place: Shunde District, Foshan City, Guangdong Province.

    Legal representative Fang Hongbo, the company's chairman.

    Entrusted agent Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Defendant Wu Zhiqiang, male, Han Nationality, living in Lianjiang city, Guangdong Province, citizenship number ××1054.

    The plaintiff guangdong Midea Household Electrical Appliances Manufacturing Co., LTD. (hereinafter referred to as Midea Household Electrical Appliances Co., LTD.) sued the defendant Wu Zhiqiang for trademark infringement dispute. After the court accepted the case, it formed a collegial panel according to law and held a trial in public on April 7, 2016. The plaintiff midea electric appliances company entrusted agent Zhai Mingyue to court to participate in the lawsuit. Defendant Wu Zhiqiang by the court summons, without a justifiable reason refused to attend the court proceedings. The case is now closed.

    The plaintiff, Midea Living Electric Co., alleges that the plaintiff is class 11.

    ","

    ","

    "And the relevant right holder of a registered trademark. After years of publicity and use in the market operation, "Midea" series of trademarks has become a household name and well-known brand in China. This brand has won the reputation of "China famous trademark" and "Guangdong famous trademark" successively, and "Midea" series products are deeply loved by consumers.

    In December 2015, the plaintiff found that the defendant had sold electric kettles infringing the plaintiff's trademark right in the shop on taobao.com. The plaintiff entrusts a notary office to preserve evidence for the above infringement.

    To sum up, the plaintiff believes that the defendant infringes the plaintiff's exclusive right to use the registered trademark of the plaintiff by selling the electric kettle that infringes the plaintiff's trademark right and using the registered trademark of the plaintiff on the online store, which has caused huge economic loss to the plaintiff and shall bear the corresponding legal liability. Therefore, the plaintiff filed a lawsuit to the court in accordance with the Trademark Law of the People's Republic of China and other relevant provisions, and requested to order the defendant to: 1. Immediately stop selling the electric kettle that infringes the plaintiff's right to exclusive use of the registered trademark and destroy the inventory; 2. 2. Immediately stop using the plaintiff's registered trademark on its online store page; 3. Compensation for the plaintiff's economic losses and reasonable expenses for safeguarding their rights is RMB 300,000 only; Iv. Bear the costs of the case.

    The plaintiff provided the following evidence in the lawsuit:

    1. (2015) Nonotarial Certificate no. 15060, No. 15054 and No. 15055 (Trademark Registration Certificate and Trademark Transfer Certificate) of Yuefu Shunde, proving that Guangdong Midea Electric Appliance Co.,Ltd. and Midea Group Co.,Ltd. Are no. 6765872 successively.

    ", No. 5478887"

    ", No. 5478888"

    An exclusive right to use a registered trademark.

    2. The trademark power of attorney shall be in three copies, certifying that the plaintiff has the right to use the registered trademark No. 6765872, No. 5478887 and No. 5478888 and that he has the right to Sue for infringement of the said trademark rights.

    3. (2015) Yufo Shunde Notarization No. 15044 (Notice on The Recognition of "Midea" trademark as well-known Trademark by The Trademark Office of the State Administration for Industry and Commerce), which proves that the Trademark of The United States was recognized as well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on January 5, 1999, and the Midea brand has enjoyed high market visibility since the 1990s.

    4. (2013) Yufo Shunde Notary No. 17480 (Guangdong Famous Trademark Certificate in December 2010), proving that the registered trademark No. 1523735 was recognized as a famous trademark of Guangdong Province by Guangdong Administration for Industry and Commerce on January 16, 2002 and December 24, 2010.

5. Certificate of Famous Trademark of Guangdong Province and certificate of alteration of Famous Trademark of Guangdong Province, proving that registered trademark No. 1523735 was recognized as famous trademark of Guangdong Province by Guangdong Administration for Industry and Commerce in April 2014.

6. (2013) Yuefu Shunde Notarization No. 17821 (2012 Brand Value Certificate) and (2015) Yuefu Shunde Notarization No. 15045 (2014 Brand Value Certificate) prove that the brand value of Midea has been evaluated by the evaluation institutions to be 61.122 billion yuan and 68.315 billion yuan respectively, with very high brand value.

7. (2015) Yuefu Shunde Nottrust No. 15046 (2012 Hurun Brand List), which proves that Midea brand is rated as the most valuable household appliance brand in China and the most valuable private brand in China by Hurun Brand List, with high brand value.

8. (2015) Jinteda Certificate Notarization No. 9228 and sealed material object to prove the infringement facts of the defendant.

9. A machine-printed invoice issued by tianjin Local Tax Bureau (the plaintiff's claim in this case is 900 yuan), which proves the reasonable expenses of the plaintiff's rights protection.

10. The reply letter of Zhejiang Taobao.com Co., Ltd. and the basic information of the defendant's permanent resident population each prove that the owner of a shop on Taobao.com is exactly the same as that of the defendant in this case, and prove that the defendant is the subject of the lawsuit.

Upon examination, the above items 1, 3, 4, 6, 7 and 8 evidence provided by the plaintiff are all documents issued by the notarial office and are related to the facts to be proved in this case, which the court accepts and accepts; The second evidence corroborates the first and is admissible by the Court; Item 5 is the document issued by the administrative authority for trademark administration, which shall be accepted and accepted by the court; The court admissible evidence 9 and 8, which mutually corroborate each other; The 10th item of evidence has the stamp of the issuing unit, and the issuing unit is the Internet service provider that carries out the online store of the accused infringement, so the court accepts it.

After trial, it is found that Guangdong Midea Electric Appliance Co., Ltd. is No. 6765872.

", No. 5478887"

", No. 5478888"

"The exclusive right owner of the trademark, approved the use of commodities including electric kettle, the above trademarks are within the period of validity of the registration. On January 5, 1999, the trademark "MD Midea and Map" registered by Guangdong Midea Group Co.,Ltd. was recognized as a well-known trademark by the State Trademark Office on the products of air conditioners and fans. Registration and use of No. 1523735 on air conditioners and electric fans merchandise

Since January 2002, the trademark has been awarded as "Famous trademark of Guangdong Province" by Guangdong Administration for Industry and Commerce. Beijing Famous Brand Asset Appraisal Co., LTD. (R&F Global Ranking) rated midea as the fifth most valuable brand in China in 2012 and 2014, with brand value of 61.122 billion yuan and 68.315 billion yuan respectively. "Midea" brand was rated by Hurun Brand List as "2012 China's most valuable home appliance brand, the most valuable private brand top ten".

    On January 1, 2013, guangdong midea electric appliances co., LTD issued by the trademark authorization letter, authorize the plaintiff beauty life electric appliance company in the production and sales of goods (the use of a registered trademark certificate approved scope shall prevail) on the use of all the company trademarks (including but not limited to no. 5478887, no. 5478888, no. 6765872 marks), and shall have the right in its own name is violated the company registered trademark and other illegal ACTS to the court alone, mandate since January 1, 2013 to 31 December 2015. On September 13, 2014, the aforesaid registered trademarks were transferred to the name of Midea Group Co.,Ltd., and Midea Group Co.,Ltd. issued the trademark authorization letters on the same day and December 15, 2015, respectively, to continue to authorize the plaintiff to use the above-mentioned trademarks and to protect rights in its own name. The authorization period begins from September 13, 2014 to December 31, 2016.

    Tianjin teda notarization in with (2015) on January 11, 2016 in tianjin teda certificate by the word notarial deed, no. 9228 on December 1, 2015, the plaintiff's attorney shou-zhen wang to the notary office to apply for evidence preservation notarization, on the day of the plaintiff's attorney shou-zhen wang in the notarization notaries cloud and notarial personnel under the supervision of XiaoHaiBin, Using notarization connected to the Internet computer in taobao "882244 people receiving" open "u" (2457793143) shop within the choose and buy the key word for "midea electric kettle/beauty stainless steel household power automatic hot water kettle 2.0 l special bag mail" of a electric kettle, after payment, taobao to generate the order of the order no. 1289446314744885 a (orders generated after display nickname: 882244 people receiving, real name: zhi-qiang wu). Wang Shouzhen recorded the entire operation process with the software "Screen video expert", took screenshots of some pages and printed them in triplics.She also burned the above-mentioned video files and Word files into triplicos. On December 7, 2015, under the supervision of notaries and notaries, Wang Shouzhen went to the sales department of zto Express in the yard of no. 100 Jianshan Road, Hexi District, Tianjin, and picked up a piece of goods (the order number is 528007632133) with good packaging, and took a photo of the outdoor scene of the sales department. Shou-zhen wang will bring the goods back hexi district of tianjin youyi road to add 5 a layer of conference rooms, hanting hotels on the outer packing pictures two goods, and then open the outer packing, there is a "beautiful midea" electric kettle, a specification, and a shou-zhen wang shooting scene five photos, then on the above goods packaging, labeled with public notary seal, seal by shou-zhen wang photographed a and the belongings. On December 14, 2015, in the notarization notaries and notarial personnel, under the supervision of shou-zhen wang used notarization computer connected to the Internet, in taobao, "I have to buy taobao baby" section, click on the order number 1289446314744885 "view logistics" and "order details", to buy the key word for "midea electric kettle/beauty stainless steel household power automatic hot water kettle 2.0 l special bag mail" electric kettle orders for browsing. Wang Shouzhen used the software "Screen video Expert" to record the whole operation process and took screenshots of some pages. Wang Shouzhen printed the above screenshots in triplish, and burned the above video files and Word files into triplish CDS. Nine photos, 30 web page screenshots and two CDS attached to the notarial certificate are obtained by Wang Shouzhen, which are consistent with the actual operation.

    The photos, web page screenshots and sealed items attached to the above (2015) Jinteda Certificate No. 9228 notary show that the taobao store named "U (2457793143)" has the seller (nickname) "882244 people receiving goods" and the real name is "Wu Zhiqiang". On the front page of the online store, there is a picture of the product titled "Midea/Midea Electric Kettle stainless steel household electric kettle with automatic power off and Special price of 2.0L for free". After opening the product title, the details of the product include the words "Electric Kettle Brand: Midea/Midea", and the transaction record is 6336. The outer package of the articles sealed in the notary Office is affixed with a zto Express details list (tracking Number: 528007632133), three packages of electric kettle (hereinafter referred to as the accused infringement product), a manual and special maintenance agent for electric appliances, among which the body of the electric kettle is marked with"

    Mark, the quality certificate at the bottom of the kettle, the 3C label under the base of the kettle and the instruction manual are all marked with"

    "Logo.

    During the trial, after comparison, the plaintiff believed that the"

    "Mark and Plaintiff No. 5478888"

    "The registered trademarks shall be the same; The quality certificate at the bottom of the kettle, the 3C label under the base of the kettle and the instruction manual are all marked with"

    "Mark and Plaintiff No. 6765872"

    "Similar to registered Trademark No. 5478887"

    The registered trademarks are the same. The word "Midea/Mei" used on the taobao store page, whose name is "U (2457793143)" and the seller (nickname) is "882244 people receiving goods", infringes upon the plaintiff's exclusive right to use the above three registered trademarks.

    According to the information disclosure letter issued by Zhejiang Taobao Network Co., LTD to the plaintiff, the registered name of taobao's member "882244 people receiving goods" is "Wu Zhiqiang" and the ID number is ××.

    In the trial, the plaintiff said that his claim of 300,000 yuan of economic losses and reasonable expenses for safeguarding rights was based on the plaintiff's reasonable expenses for safeguarding rights, including 900 yuan of notary fees and 48 yuan of expenses for purchasing infringing products. The economic losses refer to the 6,336 transaction records of the accused infringing products marked on the defendant's website, which shall be determined by the court.

    In addition, when the plaintiff applies for notarization of evidence preservation in this case, he also applies for notarization of evidence in 10 other cases at the same time. The notarization fee is 9,000 yuan in total, that is, the average notarization fee for each case is 900 yuan.

    The court holds that the plaintiff is the licensed user of the registered trademark No. 6765872, No. 5478887 and No. 5478888, and the trademark registrant specifies in the power of attorney that the plaintiff can bring a lawsuit against the infringement of the above registered trademark, so the plaintiff is the qualified subject of this case. The exclusive right of the above-mentioned registered trademark shall be protected by law during the effective period of registration.

    First of all, the registered trademarks no. 6765872, no. 5478887 and No. 5478888 in this case include electric kettles, and the products accused of infringement are electric kettles, both of which are the same goods. Alleged infringing product"

    "Logo and No. 5478888"

    "Same as registered Trademark No. 5478887"

    "The English part of the registered trademark is the same, and the two are similar; The quality certificate at the bottom of the kettle, the 3C label under the base of the kettle, and the"

    "Mark and Plaintiff No. 5478887"

    "The registered trademark is the same, and the above logo contains the whole number 6765872."

    ", No. 5478888"

    "Registered trademark, and the two trademarks constitute similar. In conclusion, the electric kettle of the accused infringing the plaintiff's right to exclusive use of a registered trademark is a commodity, and the sale of the commodities infringing the right to exclusive use of a registered trademark by the defendant in this case is an act infringing the plaintiff's right to exclusive use of a registered trademark.

    Second, the case involved shop called "u" (2457793143), the seller (nickname) is "882244 people receiving" taobao shop front page display of electric kettle commodity images under the title USES the word "midea/beauty", and mark in the baby the details of the goods of electric kettle brand as the "midea/beauty", is used as the name of commodity, but the defendant's products, sales is not the plaintiff and the defendant to use these words have no legal basis. By reason of plaintiff's right of use No. 6765872

    ", No. 5478887"

    ", No. 5478888"

    "The registered trademark approved the use of goods including electric kettles, and the words" Midea/Midea "used by the defendant on the website selling the goods of electric kettles, with the words" No. 5478887"

    "The registered trademark is the same, only the first letter of" Midea "is slightly different from the plaintiff's registered trademark, but there is no visual difference between the two, which can be identified as the same; In addition, the words "Midea/beauty" on the page of the alleged infringement fully contain plaintiff No. 6765872.

    ", No. 5478888"

    "Trademark, and the above two trademarks constitute similar. Therefore, the above-mentioned behavior of defendant Wu Zhiqiang conforms to the provisions of Article 76 of the "Regulations on the Implementation of the Trademark Law of the People's Republic of China", and belongs to the act of infringing the exclusive right to use a registered trademark as stipulated in paragraph 2.

    According to the provisions of Article 15 of the Tort Liability Law of the People's Republic of China, the forms of liability for tort include stopping the infringement, eliminating the influence, offering an apology, and compensating for the loss. The plaintiff therefore claims that the defendant Wu Zhiqiang stops the infringement and compensates for the loss, the reason is sufficient, the court supports. In terms of damage compensation, the plaintiff by the defendant zhi-qiang wu infringement by the actual loss of the amount of profit and the defendant zhi-qiang wu are difficult to determine, consider the defendant's tort nature zhi-qiang wu is selling infringing products through the Internet, tort area wide, the plaintiff's registered trademark has the high popularity, to stop the infringing act and the plaintiff spending notarization fees and other factors, our judgment against defendant zhi-qiang wu to compensate the plaintiff's loss of 120000 yuan.

    To sum up, according to the trademark law of the People's Republic of China the first (2) of article 57 of the third paragraph of article sixty-three (3), and the law of the People's Republic of China tort liability law article 15 and article seventy-six of the regulations on the implementation of the trademark law of the People's Republic of China, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "article 9, 10, the second paragraph of article 16 and article 17, the civil procedure law of the People's Republic of China, the provisions of article one hundred and forty-four of the sentence is as follows:

    A zhi-qiang wu, the defendant to stop selling immediately violate the plaintiff guangdong midea electrical appliance manufacturing co., LTD. Is a registered trademark of life of the electric kettle, stop at the store is called "u" (2457793143), the seller (nickname) is "882244 people receiving" taobao shop in web pages using the word "midea/beauty" logo, and destruction of inventory is accused of infringing products;

    2. Within ten days from the date of the legal effect of this judgment, the defendant Wu Zhiqiang shall compensate the plaintiff Guangdong Midea household Electrical Appliances Manufacturing Co., Ltd. for a loss of 120,000 yuan in a one-time amount;

    Third, rejects the plaintiff guangdong Midea life Appliance manufacturing Co., LTD. 's other lawsuit request.

    If the defendant fails to perform the pecuniary obligation within the time limit set in the above judgment, he 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 handling fee of this case is 5,800 yuan (the plaintiff has paid in advance), which shall be borne by the defendant.

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

    Chief Judge Li Jiefeng

    Judge Lin Yanping

    People's Juror Feng Wenjun

    May 9, 2016

    Clerk Qiu Suyan