Civil judgment of Changshu People's Court, Jiangsu Province

    Changshu People's Court of Jiangsu Province

    Written judgment of civil affairs

    (2017) Su 0581 No. 8143 in the early Republic of China

    Plaintiff Opai Household Group Co., LTD., Unified social credit code: 91440101617404697C, No. 366, Guanghua Third Road, Baiyun District, Guangzhou city, Guangdong Province.

    Legal representative Yao Liangsong, chairman of the board.

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

    Attorney Du Zhongfu, lawyer of Shandong Changping Law Firm.

    The defendant is An Deli hardware and electrical appliance Firm, Yushan Town, Changshu City, No. 717, Building 7, Zone 1, Building Decoration Materials Market, Changshu City, Jiangsu Province, with unified social credit code: 320581600066020.

    The operator is Chen Linhua, male, Han Nationality, born on November 29, 1963, living in Wenzhou, Zhejiang Province, the owner of Andali hardware and electrical appliance firm in Yushan Town, Changshu City.

    Defendant suzhou Opai Electric Appliance Co., LTD., Unified social credit code: 9313205080586120691, No. 2-4, Xiatang, Xihuaqiao Lane, Suzhou city, Jiangsu Province.

    Legal representative Yu Weihu, general manager.

    Attorney Chen Hongxiang, lawyer of Jiangsu Fuyi Law Firm.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the company) v. the defendant ZhenAn advantage of changshu yushan mountain hardware appliances business (hereinafter referred to as Ann benefit firms), suzhou opie electric appliance co., LTD. (hereinafter referred to as the suzhou company) the infringement trademark rights, unfair competition disputes, in our hospital in 2017 to begin on July 25. During the period, the defendant Suzhou Oupai Company raised an objection to the jurisdiction, and the court, after reviewing according to law, ruled to reject the defendant Suzhou Oupai company's application for the jurisdiction. The court formed a collegial panel to hear the case in public on January 24, 2018. The plaintiff ou Pai company appointed agent Du Zhongfu, the defendant Chen Linhua, the owner of An Deli firm, and the defendant Chen Hongxiang, the agent of Suzhou Ou Pai Company, attended the lawsuit. The case is now closed.

    The plaintiff Opai Company claims that the plaintiff, founded in 1994, is a comprehensive domestic service provider of integrated modern household, whose products cover such fields as integral wardrobe, kitchen appliances, integral bathroom and commercial kitchenware. The plaintiff to register and hold "European" brand, after years of effort to operate the plaintiff, "European" awarded "China famous brand product", "China well-known trademark", such as honor, a household name across the country, well-known brand, the plaintiff's slogan "have family love opie" in the consumer has a high influence, "Europe" has become the plaintiff's products and the representative of the enterprise name symbol, is to distinguish between the plaintiff and its associated enterprises significant market main body and the sources of identity.

    In February 2017, after investigation, the plaintiff found that the range hood sold by The defendant, Andeli, had been marked with words "Suzhou Oupai Electric", "Suzhou Oupai Electric", "Youjia Youai Youomen" and "OPOMEN" on the boxes and operating instructions. And the relevant labels show that the range hood is produced and sold by the defendant Suzhou Opai Company. The plaintiff then applied for preservation of notarized evidence.

    The plaintiff believes that the defendant produced and sold the lampblack machine marked with the words "Suzhou Opai Electric Appliance" without permission, which caused the confusion of relevant consumers to the source of the goods and infringed the plaintiff's right to exclusive use of the registered trademark. At the same time, the commodities on the label on the involved have "family love OPOMEN", "suzhou opie electric appliance co., LTD.", and "o" type with traditional Chinese annotation highlight use, in violation of the principle of good faith with the universally accepted business ethics, has obvious clings to the plaintiff enterprise size and the purpose of the "European" trademark goodwill, lead to the relevant public confusion, constitutes unfair competition. 1. The defendant, An Deli, immediately ceased to sell any range hoods bearing the names "Suzhou Oupai Electric", "Suzhou Oupai Electric" and "You Are a good omen" which infringed upon the exclusive right to use the Trademark and constituted unfair competition. 2. The defendant, Suzhou Oupai co., Ltd. immediately stopped producing and selling products marked "Suzhou Oupai Electric Co., LTD.", "You Are the Omen" and "OPOMEN" which infringed upon the exclusive right to use the trademark and constituted unfair competition for the plaintiff's range hoods; 3. The defendant Suzhou Opai Company immediately changed its enterprise name, and the changed enterprise name shall not contain the word "Opai"; 4. The defendant shall compensate the plaintiff a total of RMB 200,000 yuan for economic losses and reasonable expenses for safeguarding rights; 5. The costs of the case shall be borne by the defendant.

    During the trial, the plaintiff made it clear that the trademark that the defendant is required to stop infringing in this case is the registered trademark No. 1128213, No. 1137521, No. 4378572 and No. 7731876; The reasonable expenses claimed by the plaintiff in this case are lawyer's fee 20000 yuan, notary fee 1000 yuan, purchase of infringing products 530 yuan, travel expenses 1000 yuan, investigation expenses 1000 yuan, total 23530 yuan; As for the liability between the defendants, the plaintiff believes that in this case, the defendant, Anddeli Firm, shall bear the liability for compensation of RMB 40,000 yuan, and the defendant, Suzhou Opai Company, shall bear the liability for compensation of RMB 160,000 yuan.

    The defendant, An Deli Firm, argued that the defendant, an Deli Firm, did not know that the range hood sold by it was an infringing product, and the defendant only showed samples in the store without advertising and did not cause any impact.

    The defendant Suzhou Opai company argued that, first of all, the defendant Suzhou Opai company did not tell the original production and sales behavior; Secondly, the defendant's enterprise name was approved and registered by the industry and Commerce Department, there is no infringement; Third, the plaintiff has claimed to change the name of the enterprise in other cases, this case is a duplicate lawsuit, should be rejected.

    In order to prove his claim, the plaintiff submitted to the court the following evidence:

    1. The industrial and commercial registration information of the original defendant, which proves the principal situation of the original defendant.

    2. (2016) Notarial Certificate No. 350 of Laifeng City Certificate no.

    3. (2016) The Trademark registration certificate, renewal certificate and change certificate of The Trademark No. 1137521 are attached.

    4. (2016) The Notarial Certificate of Laifeng City Certificate No. 347, which contains the trademark registration certificate No. 4378572 and the certificate of change.

    5. (2016) The Notarial Certificate of Laifeng City Certificate No. 348, which contains the trademark registration certificate no. 7731876 and the certificate of change.

    6. (2017) Laifeng City Certificate no. 672 notarial Certificate, enclosed is the renewal certificate of trademark No. 1128213.

    7. (2017) Laifeng City Certificate No. 673 notarial Certificate, enclosed is the renewal certificate of trademark No. 1137521.

    8. (2017) Laifeng City Certificate no. 675 notarial Certificate, enclosed is the certificate of renewal of trademark No. 4378572.

    Evidence 2- Evidence 8, proving the plaintiff's rights of the trademark in question.

    9. The approval of [Trademark No. 7 (2009)] issued by the State Trademark Office, which proves the popularity of the "Opai" trademark.

    10. (2016) The Notarial Certificate no. 353 of Laifengcheng Certificate contains a set of honor certificates including the certificate of "China famous Brand Product", the Certificate of "Guangdong Famous Brand Product", the certificate of "Guangdong Famous Trademark", etc., to prove the certificate of honor obtained by the plaintiff and the popularity of the plaintiff and his products.

    11. (2017) The Notarial Certificate no. 260 of Laifeng City Certificate contains the certificate of "Famous Trademark of Guangdong Province" and the certificate of brand value, which further proves the brand value of the plaintiff's enterprise and the trademark it holds.

    12. (2016) The Notarial Certificate of Laifeng City Certificate No. 357, which contains the tax payment certificate of the plaintiff from 2013 to 2015, proves that the "Opai" brand of the plaintiff has a large profit margin and high brand value.

    13. (2016) The notarial Certificate of Laifeng City Certificate No. 355, which contains a set of publicity and promotion contracts, proves that the brand "Opi" is widely known by the public and has high brand value.

    14. (2016) The advertisement renewal contract and invoice attached to the Notarial Certificate no. 356 of Laifeng City Certificate, which prove the plaintiff's promotion of "Opai" brand.

    15. A group of newspapers and periodicals to prove the promotion, popularity and use of the advertising slogan of "Eurogroup".

    16. (2017) The Notarial Certificate no. 1015 of Laifeng City Certificate contains the change of registration of the plaintiff's enterprise, which proves that the plaintiff has been using "Europa" as the enterprise name since 1997, which has a long history.

    17. (2017) The notarial Deed of Laifengcheng Certificate No. 365 and the enclosed sealed physical objects, name CARDS and shopping vouchers prove that the defendant sold the goods involved.

    18. The plaintiff produces and sells four printed photos of the authentic range hood, which prove that the involved range hood is not the authentic one produced and sold by the plaintiff.

    19. (2017) The Notarial Certificate of Laifengcheng Certificate No. 372, which proves the display of the plaintiff's authentic boutique and the outer packing and real goods of the relevant authentic products, and further proves that the range hood sold by the defendant involved in the case is an infringing product.

    The above evidence, after being cross-examined in court by the defendant Andeli Firm, has no objection, but believes that it did not know that the range hood involved is an infringing product. After being cross-examined in court, the defendant believed that he had no objection to evidence 1-8 and 16; There is no objection to the authenticity of evidence 9-15, but the defendant Suzhou Opai Company did not produce and sell the products involved, so this part of evidence is not relevant to this case. Evidence 17 is not relevant to the case; For evidence 18 and 19, it is believed that the "OPPMEN" marked on the lampblack machine involved in the case does not constitute an infringement on the exclusive right of the trademark "OPPEIN" held by the plaintiff.

    No evidence was presented to the court by the accused Firm.

    Defendant suzhou European company to refute the plaintiff's claim is submitted to our wenling city of zhejiang province people's court (2017) 1081 3617 in the early days of zhejiang civil judgment, prove that the plaintiff argues that the change of enterprise name request has been dealt with in the case, and by wenling city people's court, "OPOAIN" and "OPPEIN" trademark of the plaintiff held does not constitute approximation.

    After the trial cross-examination, the plaintiff Opai company thinks that the evidence submitted by the defendant has nothing to do with this case, and wenling City people's court to hear the commodity involved in the gas stove, not the case of the range cooker. The defendant, Andri Firm, has no objection to the evidence presented by the defendant, Suzhou Opai Company.

    We think that after checking the above evidence for the plaintiff's evidence, the evidence of 15, though the plaintiff has failed to provide the original and some newspapers and magazines. But the newspaper is a public offering, the defendant can verify verify through public channel, and in this case the defendant did not submit evidence to prove that the group newspapers do not have authenticity, so we found evidence of the group; The Court shall determine that the other evidence presented by the plaintiff complies with the law. Suzhou opie company submit evidence for the defendant, after we check in court, the judgment for the defendant appeal suzhou ou company and no effect, but the plaintiff of the trademark holdings and access to the information such as the corresponding honor has relevance to the case, so we shall be determined in the case, but the probative value determined comprehensively.

    On November 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., LTD. (hereinafter referred to as "Kangjie Company") registered trademark No. 1128213 and approved to be used on category 20 commodities. The commodities approved for use are furniture, sideboards, metal furniture, cupboards, counters and other commodities. On April 7, 1999, the registrant of the trademark was changed to Guangzhou Opai Cabinet Enterprise Co., LTD. (hereinafter referred to as Opai Cabinet Company); On January 6, 2011, the registrants of the trademark were changed to Guangdong Opai Group Co., Ltd. and Guangdong Opai Home Furnishing Group Co., LTD. On March 24, 2014, the registrant of the trademark was changed to Opai, namely the plaintiff in this case. Upon renewal, the trademark is still in force.

    Approved by the State Trademark Office, on December 21, 1997, Kangjie Company registered the trademark "" no. 1137521, approved for use in the 11th category of goods, approved for use in the goods such as kitchen stoves, gas stoves, electric cookers, refrigeration equipment, cooking utensils and other goods. In 1999, the trademark registrant changed to Opai Cabinet Company; In 2011, the registrants of the trademark were changed to Guangdong Opai Group Co., Ltd. and Guangdong Opai Home Furnishing Group Co., LTD. On March 24, 2014, the registrant of the trademark was changed to Opai, namely the plaintiff in this case. Upon renewal, the trademark is still in force.

    Approved by the trademark office of the State, on June 7, 2007, Opai ambry Company registered no. 4378572 "" trademark, approved to use in the 11th category of goods, the goods approved to use for gas stove, microwave oven (kitchen utensils), electric cooker, kitchen with lampblack machine and other goods. On January 6, 2011, the registrants of the trademark were changed to Guangdong Opai Group Co., Ltd. and Guangdong Opai Home Furnishing Group Co., LTD. On March 24, 2014, the registrant of the trademark was changed to Opai, namely the plaintiff in this case. Upon renewal, the trademark is still in force.

    On March 14, 2011, Guangdong Oppe Group Co., Ltd. registered the trademark "OPPEIN" No. 7731876 and approved its use in category 11 commodities, including ovens, cooking utensils, gas stoves, water heaters, refrigerators, kitchen range hoods and other commodities. On March 30, 2012, the registrant of the trademark was changed to Guangdong Opai Furniture Group Co., LTD.; On March 20, 2014, the registrant of the trademark was changed to Opai. In addition, the trademark is still in the valid period of registration.

    In terms of the popularity of the trademark, in February 2008, "" No. 1128213, used on sideboards, storage racks, and cupboards, was awarded as" Guangdong Famous Trademark ". In April 2009, the registered trademark of "Opai" used on category 20 sideboard goods was recognized as "well-known trademark" by the State Trademark Office. In 2016, trademarks no. 1128213 and no. 12088111 "+OPPEIN" used on sideboards and furniture (wardrobes) were identified as "Famous Trademarks of Guangzhou City", and registered trademark No. 4378572 no. 7731876 used on kitchen range hoods and bath equipment was identified as "famous trademarks of Guangzhou City".

    In terms of brand awareness, in 2007, opai household cabinets produced by Opai Cabinet Company were identified as "China's famous brand products" by the State Administration of Quality Supervision. In 2008, Opai cabinet was identified as "Guangdong famous brand products" by Guangdong Quality Supervision Bureau. In 2012, Guangdong Opai Household Group Co., Ltd. was identified as "Top 10 Overall Kitchen Leading Enterprises" by China Building Decoration Association Kitchen and Sanitation Engineering Committee. In 2013, Guangdong Opai Furniture Group Co., Ltd. was awarded the "2012 Guangzhou Mayor Quality Award" by Guangzhou Municipal Government. In May 2016, Opai's brand "Opai" was elected as "the 6th Iconic Brand of Chinese Cabinet Industry" and selected as "Top 500 Chinese Brand Value" with a brand value of 16.603 billion yuan.

    In terms of enterprise scale and benefits, from 2013 to 2015, Europa paid more than 100 million YUAN of VALUE-ADDED tax every year.

    On brand promotion, the company respectively with CCTV two set of columns "swap space", hunan radio and television advertising corporation, zhejiang wisdom beauty car advertising co., LTD., kashgar silver pine culture media co., LTD., and other cooperation, in the CCTV news channel, household decorate a design program, such as awards show ads, and hire a actress jiang wenli for European brand cabinets, wardrobe, bathroom in advertising agent, during the endorsement for August 1, 2013 to July 31, 2015. In addition, the plaintiff published advertisements on newspapers and magazines such as Zhuhai Special Zone Daily, Anqing Daily, Linchuan Evening News, Shanghai Cabinet, Sales Market, Ruili Home Furnishing and Decorating the World to promote and publicize the brand and products of "Opai".

    On the change of enterprises and the use of "European" as the enterprise name, on July 1, 1994, Kangjie company was approved and registered by the industrial and commercial department, and its business scope is the development, processing, manufacturing, cooking utensils and so on. On May 15, 1997, The enterprise name of Kangjie company was changed to Guangzhou Oupai Cabinet Equipment Co., LTD., and its business scope remained the same with the former. On October 28, 1997, Guangdong Oupai ambry Equipment Co., Ltd. applied to the industrial and commercial department to change the name of the enterprise to Guangzhou Oupai ambry Enterprise Co., LTD., namely Oupai ambry Co., LTD., the scope of business will be kitchen appliances extended to kitchen appliances, and include home, household appliances research and development, processing, manufacturing, etc.; On May 21, 2009, approved by the industrial and commercial department, Opai Cabinet Company was changed into Guangdong Opai Group Co., LTD.; On July 29, 2010, approved by the industry and Commerce Department, Guangdong Opai Group Co., Ltd. was changed into Guangdong Opai Home Furnishing Group Co., LTD., and in 2013, opai Home Furnishing Group Co., LTD., namely, the plaintiff in this case.

    In addition, it is found out that The enterprise registered name of Andeli Hardware and electrical appliance Firm is Yushan Town, Changshu City, and the business place is No. 717, Building 7, Zone 1, Changshu Building Decoration Materials Market, Jiangsu Province. The organization is operated by individuals and the registered owner is Chen Linhua.

    Suzhou Opai Co., Ltd. was registered and approved on November 28, 2012. Its domicile is No. 2-4, Xiatang, Xihuaqiao Lane, Suzhou city, Jiangsu Province. Its business scope covers the production, processing and sales of household appliances, range hood, gas cooking utensils, integrated suspended ceiling, etc.

    It was also found out that on February 22, 2017, Jindun Intellectual Property Service Center in Laicheng District, Laiwu City, Shandong Province applied for evidence preservation to Fengcheng Notary Office (hereinafter referred to as Fengcheng Notary Office). On February 27, 16 when 15 points, FengCheng notarization notaries xiu-ping zhang, FengCheng notarization staff tech centers and committed intellectual property service center of laiwu city lai city entrusted agent shou-zhen wang arrived at the three-ring east road, changshu changshu building decoration materials market area 7 building 17, door head labeled "macro" shop, by shou-zhen wang in the name of the ordinary consumers in the shop to buy a sticker with the words "suzhou opie electric appliance co., LTD." and so on the smoke lampblack machine (the smoke lampblack machine panel, manuals, panel and cabinet tape on the other marked "suzhou opie electrical appliances"). We obtained on the spot a business card of "Chen Linhua" issued by the salesclerk and a sales sheet affixed with the special invoice seal of "Andali hardware and electrical appliance Firm, Yushan Town, Changshu city", and Wang Shouzhen took pictures of the displayed goods and exterior scenes of the shop. After that, under the supervision of Zhang Xiuping and Gao Ke, Wang Shouzhen took photos of the above-mentioned articles obtained in the notarization process. Then the notarization staff and notarization staff sealed up the above-mentioned lampblack machine, and Wang Shouzhen took photos of the sealed articles. The notary and notary staff shall deliver the sealed articles, business CARDS and original bills to Wang Shouzhen for safekeeping. On April 18, 2017, Fengcheng Notary Office issued the notarial certificate No.365 (2017) for the above notarial evidence preservation.

    After the court opened and removed the above sealed material, it is a household range hood. The words "Suzhou Oupai Electric Appliance Co., LTD" are marked on the side of the outer packing case, the packing rope, the back of the operation manual and the certificate of quality. The words "Suzhou Opai Electric Appliance" are marked on the sealing tape; On the front side of the operating manual and the hood, the text "OPOMEN" and "Suzhou Opai Electric Appliance" are listed up and down. Around the box, 'OPOMEN' is marked. The product label on the side of the packing box indicates that the production base is Suzhou Oupai Electric Appliance Co., LTD., and the address of the company is marked on the label and the operation manual. The guide has a code that reads' Home, love, OPOMEN 'and has a QR code. A scan of the qr code shows the omen web site, which is marked "OPOMEN" and "Suzhou Opai Electric Co." and shows that the defendant, Suzhou Opai Electric Co., LTD., operated at 418 Suzhan Road, Suzhou city, and had a manufacturing base in Daten Industrial Zone, Huangpu Town, Zhongshan City. The site is located at www.suzhou Opai.cn.

    During the trial, the printed photos of the authentic range hood submitted by the plaintiff and the image photos of the store show that the outer package, instructions and certification are marked with "OPPEIN" and the manufacturer marked with "OPPEIN Household Group Co., LTD".

    After further investigation, the plaintiff Opai, suzhou Opai and other defendants constituted infringement of trademark rights and unfair competition, and filed a lawsuit in Wenling People's Court of Zhejiang Province on March 24, 2017. On October 10, 2017, wenling city make the first-instance judgment on the case of the people's court, the defendant suzhou European companies, such as the defendant stop the trademark infringement and compensate for the economic and reasonable costs, at the same time the defendant in suzhou, the company to immediately stop using "Europe" as enterprise size, and become effective decision within 30 days from the date of the change of enterprise name. However, this judgment has not taken effect because of the appeal filed by Suzhou Opai Company.

    In addition, in this case, opai, the plaintiff, paid 530 yuan for the purchase of the infringing products in the store registered and operated by The defendant's Anddeli Firm.

    In this case, the main dispute focus of the original defendant and both parties is: 1. Whether the range hood involved in the case should be determined to be produced by the defendant Suzhou Oupai Company; 2. 2. Whether the defendant's behavior violates the trademark rights enjoyed by the plaintiff; 3. Whether the defendant's behavior constitutes unfair competition.

    One, about the manufacturer and seller of lampblack machine involved.

    The Court holds that, unless otherwise provided by law, the parties shall provide evidence to prove the facts on which their claims are based or the facts on which they refute the other party's claims. If a party fails to provide evidence or the evidence is insufficient to prove his claim before the people's court makes a judgment, the party bearing the burden of proof shall bear the adverse consequences.

    In this case, first of all, according to the provisions of the twenty-seventh Product Quality Law of Our country, the products or the marks on the packaging must be true, must mark the product name, the name and address of the factory and other information. And the evidence preservation object that the plaintiff submits shows, in the outer packing of lampblack machine that involves case and use manual, repeatedly label the defendant Suzhou Opie company as the manufacturer of lampblack machine that involves case.

    Secondly, scan the relevant TWO-DIMENSIONAL code marked in the operating instructions of the range hood involved in the case, and enter the website marked by the defendant Suzhou Opai Co., LTD., wherein the enterprise information and address marked are consistent with the relevant labels on the outer packing of the range hood involved in the case and in the operating instructions.

    Thirdly, in this case, the plaintiff submitted to the court the evidence preservation notarial certificate and the attached sales bill, physical object and other evidence. In the notarial certificate, it is clearly stated that the range hood was purchased from the defendant Andeli Firm. The relevant photos attached to the notarial certificate are consistent with the physical objects opened in court. The invoice seal of the defendant Andeli Firm is affixed to the purchase instrument.

    Finally, the defendant Andy firm in the trial also made it clear that the range hood was purchased from Guangdong, and is provided by the defendant Suzhou Oupai Company.

    Accordingly, the evidence that plaintiff submits can prove this smoke lampblack machine to be produced by respondent Suzhou Ou Pai company, respondent An Deli firm place retail. Defendants benefit businesses and suzhou opie company although involved smoke lampblack machine production, the seller is disputed, but failed to provide evidence of its claims to prove, so we put forward the related to the defendant claims will not be adopted, the smoke lampblack machine shall be deemed to be the defendant in suzhou, the company production, Ann benefit businesses sell the defendant.

    2. Whether the defendant's act constitutes trademark infringement.

    The Court holds that the trademark stipulated in the trademark Law is identical, which means that the trademark accused of infringement is compared with the registered trademark of the plaintiff, and there is basically no visual difference between the two. Trademark approximation is refers to the accused of infringement of trademark compared with the plaintiff's registered trademark, the glyph, pronunciation and meaning of the text or graphic composition and color, or the combination of whole structure similar to that of all the elements or the stereo shape, color combination, easy to make the relevant public to mistake the source of the goods or think of its source and the plaintiff's registered trademark commodities have a specific contact.

    In this case, although Opie company has been approved by the Trademark Office of the State Council and legally holds the trademark "OPPEIN" No. 7731876, it enjoys the exclusive right to the said trademark according to law and has the right to forbid others to use the same or similar logo of its trademark on the same or similar goods. However, in comparison with the original "OPPEIN" trademark, which begins with an "OP" and ends with an "N", the two concepts are distinct in pronunciation and letter combinations and can be distinguished from each other by the type of attention received by the general public. Furthermore, considering the visibility of the trade mark (7731876) held by the Plaintiff, "OPPEIN" and "OPPEIN" are not confusing, the Court disclaims that the English name "OPPEIN", which the plaintiff considers to have infringed upon the exclusive right of the trade mark (7731876) held by the Plaintiff.

    In addition, although in the case of smoke lampblack outside packaging, instruction manual, the place such as decorative cover, packing rope several times with the "suzhou opie electric appliance co., LTD.", "suzhou opie appliances", such as text, and the related traditional ways of writing, however, these words in writing style and the style, color and size is consistent, not about the "European" text feature, system integrity to use, does not constitute to the plaintiff claims no. 1128213, no. 4378572 and no. 1137521 "" involved, such as the use of a registered trademark infringement, Therefore, the court does not accept the plaintiff's claim.

    To sum up, the relevant words marked on the external package of the lampblack machine involved in the case and the instructions for use do not constitute the infringement of the exclusive right of the four registered trademarks such as No.1128213, which the plaintiff claims in this case. Therefore, it should be recognized in this case that the relevant words marked on the lampblack machine involved in the case do not constitute trademark infringement.

    Iii. Whether the involved behaviors of the defendants, Andeli Firm and Suzhou Opai Company, constitute unfair competition.

    The college holds that an enterprise name is composed of administrative divisions, shop names, industries, organizational forms and other elements, and has the function of identifying the source of goods and services. Any unauthorized use of another person's enterprise name, which may be mistaken for another person's goods, shall be regarded as an act of unfair competition. In addition, the name of an enterprise that has certain market popularity and is known to the relevant public can be identified as the "enterprise name" in the anti-unfair competition law.

    In this case, first of all, in the history of use, the plaintiff and its predecessor have been using "Opie" as the name of their enterprise since May 1997 and have been using it continuously for more than 20 years. In terms of the scale efficiency of the enterprise, the evidence submitted by the plaintiff shows that during the period from 2013 to 2015, the annual VAT paid was more than 100 million yuan. In terms of enterprise popularity, the plaintiff's products have won the honor of "China famous brand products", "Top 10 overall leading kitchen enterprises", etc., and have been selected into "Top 500 Chinese Brand Value". The brand value of "Opai" is 16.603 billion yuan. In terms of publicity and promotion, the plaintiff cooperates with CCTV, Hunan Radio and TELEVISION Advertising Corporation, Zhejiang Zhimei Car Advertising Co., LTD., Kashgar Yinsong Culture media Co., LTD., and relevant decoration professional newspapers and magazines to release advertisements for promotion and promotion, and employs image spokespersons. In terms of the popularity of the trademark used, trademark No. 1128213 "" was identified as well-known trademark by the State Trademark Office in 2009, and registered trademark No. 4378572 used on kitchen range hood and other commodities was identified as" Guangzhou Famous trademark ". Therefore, from the plaintiff the use time of enterprise survival and the shop name, trademark and brand, size, the magnitude of the promotion, enterprise scale and the benefit, to gain the honor of considerations, the plaintiff's enterprise name shall be deemed as to have a high market popularity and is known by the relevant public, the use of "Europe" the shop name shall be identified as "enterprise name" in the anti-unfair competition law of China.

    Second, the plaintiff's company is located in guangzhou city of, a defendant in suzhou, the company registration of residence is located in suzhou, but according to the smoke lampblack machine and the defendant involved in suzhou, the company's web site, according to its production base is located in zhongshan city, guangdong province, and the plaintiff is located in guangdong province, are engaged in kitchen electrical products production and sales. As mentioned above, the trademark of "Opai" was identified as a "famous trademark of Guangdong Province" before 2008, and was identified as a well-known trademark by the Trademark Office of the People's Republic of China in 2009. Through a series of promotion and publicity, the trademark of "Opai" and "Opai" have gained relatively high popularity in the whole country. In addition, the plaintiff and its predecessor, since May 1997, has begun to use "Europe" as its enterprise name, engaged in kitchen electricity and other goods production and sales. The defendant, Suzhou Opai Company, was not registered until November 2012. As an enterprise engaged in the research and development and production of the same and similar products, the defendant Suzhou Opai Company shall, before the registration of the enterprise, have a full understanding of the plaintiff's situation in the aspects of enterprise popularity, name and product. However, in this case, so far, the defendant has not submitted evidence to prove that its products and enterprises have certain popularity in the industry, let alone to prove that since the date of its establishment, the defendant has carried out corresponding publicity and promotion of the enterprise and its r&d, production and sales products. Therefore, in the plaintiff's "European" trademark and enterprise name under the condition of the whole household industry have high visibility, the defendant still use "Europe" as its enterprise name, its subjectively has clings to the plaintiff held "European" trademark and the use of the intention of the visibility and reputation, "European" font size, subjective malice.

    Thirdly, according to the newspaper submitted by the plaintiff, it has been using the slogan of "Youjia, Youai, youpai" in its promotion since 2011 at the latest, while at this time, the defendant Suzhou Oupai company had not yet registered. In addition, the defendant, Suzhou Opai Co., Ltd. produced and sold a product that was ostensibly different from the advertising slogan used by the plaintiff, or was a promotional promotion for the logo on the lampblack machines. But essentially, 'You have a family, you have love, you have OPOMEN' is only as different in Chinese and English as the plaintiff's advertising terms. In use of the plaintiff "have home, have love, have the pie" advertising language has been deeply rooted in the hearts of the people, in the advertising language has been establishing stable corresponding relationship with the plaintiff, the defendant in the case on boardly use "have a home, have love, have OPOMEN" word, is enough to make the relevant public goods for the source of confusion and mistakes, and make the enterprise name and font size cannot be the plaintiff play to distinguish between the function of the source of goods and services, should stop to use.

    Finally, the defendant in suzhou, the company in its production and sales involved take lampblack outside packing, certificate of approval, sealing tape, rope, operating instructions and decorative cover on the use of "suzhou opie electric appliance co., LTD." and the words such as "suzhou opie electronics", "Europe" is written in it, taking with the defendants held by "" trademark in the writing style is consistent. Although the defendant in the case on boardly annotation text above, does not leave the "European" highlighted, but keep the integrity when the relevant written use way, but the use way, still belongs to the enterprise name to the plaintiff and the use of font size, easy to cause confusion and mistakes, also constitutes unfair competition.

    To sum up, the plaintiff has a high visibility in the overall household and kitchen electric industry and is known to the general public. The plaintiff and its predecessor have continuously used "Europa" as the enterprise name for more than 20 years, and its name "Europa" should be identified as the enterprise name in the anti-unfair competition law. As an enterprise registered only in 2012, the defendant Suzhou Opai Company and the plaintiff's domicile are both located in Guangdong Province and engaged in the production and sales of the same and similar products. Moreover, the defendant's company and its products do not have any popularity. Therefore, the defendant, Suzhou Oupai, used words such as "Suzhou Oupai Electric", "Suzhou Oupai Electric" and "Youjia youai OPOMEN" on its fume hoods, which were subjectively malicious and objectively constituted unfair competition. In addition, the defendant in suzhou, the company, in this case failed to submit evidence to prove that an enterprise name and its research and development, production and sales of products have a certain visibility, but will still be others in the kitchen electric industry has already been used, have of well-known trademark and name "Europe" as its enterprise name, and on boardly annotation "suzhou opie appliances", etc, etc, "European" trademark of the plaintiff held with the font size and shall be identified as the anti-unfair competition law "European" of the enterprise name, its purpose is to make the relevant public to mistake the source of the goods, It is wrong to think that the original defendant has specific connections such as licensing use and association relation, which causes confusion and misidentification, rather than the intention of labeling the product manufacturer. It is subjectively obviously malicious and objectively sufficient to constitute unfair competition, so its use should be prohibited.

    In addition, the plaintiff had filed a lawsuit to Wenling City People's Court on the grounds that the defendant suzhou Opai Company and other defendants constituted trademark infringement and unfair competition. In the relevant judgment of Wenling People's Court, the defendant Suzhou Opai Company has been ordered to stop using the name of "Opai" immediately and ordered to change the name of the company within 30 days from the date of the judgment taking effect. Although the judgment has not taken effect temporarily because the defendant Suzhou Opai Filed an appeal, the plaintiff has filed an appeal in this case and the court receiving the case has made a judgment in the corresponding judgment. The relevant appeal of the plaintiff in this case is a repeated claim of rights, which is no longer involved in this case.

    Civil liabilities to be borne by the defendant.

    As mentioned above, the range hood sold by the defendant Andeli Firm is a commodity that constitutes unfair competition. The defendant Andeli Firm shall bear civil liabilities such as stopping the sale immediately and compensating for economic losses and reasonable expenses. According to the relevant labels on the lampblack machine involved in the case, the defendant Suzhou Opai Company is the manufacturer of lampblack machine involved in the case, and shall bear the civil liabilities such as immediately stopping production and selling lampblack machine involved in the case, compensation for economic losses and reasonable expenses.

    For the amount of compensation for the economic losses to be borne by the defendant, the plaintiff opie company did not provide evidence to prove that the economic losses, the defendant benefited businesses, suzhou opie company also did not provide evidence to prove that its profits to in our hospital, so the popularity of our enterprise name according to the plaintiff and the font size, the duration of the nature of the infringement, the defendant and the possible impact of factors such as comprehensive.

    For the reasonable expenses that the defendant should bear, although the plaintiff did not submit the invoice of notarization fee and attorney fee, the plaintiff submitted evidence to preserve the notarization certificate in this case and entrusted the lawyer to appear in court to participate in the lawsuit. Therefore, it is inevitable for the plaintiff to pay the notarization fee and attorney fee in this case. Considering that the notarization fee and lawyer's fee claimed by the plaintiff are in accordance with the law, therefore, the court supports the lawyer's fee and notary fee claimed by the plaintiff. As for the 530 yuan cost of purchasing the infringing products claimed by the plaintiff, the notarial certificate submitted by the plaintiff to the court contains relevant receipts, so the court also supports the cost of purchasing the infringing products claimed by the plaintiff.

    On this basis, According to the anti-unfair competition law of the People's Republic of China "(1993) (3) of article 5 of the, article 20, paragraph 1 of article sixty-three of the" trademark law of the People's Republic of China ", the third paragraph, the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in paragraph 1 of article 6, article 17, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain" article 9, paragraph 1 of article 16, paragraph 2, article 17, the Supreme People's Court on the applicable < the civil procedure law of the People's Republic of China > the interpretation of the provisions of article ninety, The verdict is as follows:

    1. The defendant, Andeli Hardware and electrical appliance company of Yushan Town, Changshu, immediately stopped selling range hoods marked "Suzhou Oupai Electrical Appliances", "Suzhou Oupai Electrical Appliances Co., LTD" and "Youjia Youai".

    Ii. The defendant, Andali hardware and electric appliance firm in Yushan Town, Changshu city, shall compensate the plaintiff, Opai Home Furnishing Group Co., Ltd. for economic losses and reasonable expenses totaling RMB 10,000 yuan within 5 days from the effective date of this judgment.

    3. The defendant, Suzhou Oupai Electric Co., LTD., immediately stopped producing and selling lampblack machines marked "Suzhou Oupai Electric Co., LTD." and "Youjia Youai" and "OPOMEN".

    Iv. The defendant, Suzhou Opai Electric Appliance Co., LTD., shall compensate the plaintiff, Opai Home Furnance Group Co., LTD., a total of RMB 150,000 for economic losses and reasonable expenses within five days from the effective date of this judgment.

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

    The case acceptance fee is RMB 4,300, which shall be borne by the defendant, Andali hardware and electric appliance firm and Suzhou Oupai Electric Appliance Co., LTD., In Yushan Town, Changshu City. The costs borne by the defendant shall be paid to the plaintiff directly within five days after this judgment takes effect. The court will not refund the plaintiff's litigation costs.

    If you are not satisfied with this judgment, you may, within 15 days from the date the judgment is served, file an appeal to this court, and make copies according to the number of the other party, and appeal to suzhou Intermediate People's Court, Jiangsu Province. At the same time in accordance with the State Council "litigation fee payment" provisions to suzhou Intermediate people's Court in Jiangsu province to pay the appeal case acceptance fees. Account name: Suzhou Intermediate People's Court, bank name: Agricultural Bank of China suzhou Sufu Road Sub-branch, Account number: 10×× 76.

    Zhang Zhiqiang, Chief judge

    Judge Li Jun

    People's Juror Zhang Liping

    January 31, 2008

    Clerk Hu Yue

    Attachment 1: the trademark involved, the range hood, the manual and the outer packing style

    1, the lampblack machine packaging front 2, lampblack machine used tape and rope

    3. The side of the range hood involved in the case. 4

    5, lampblack machine decoration cover 6, the trademark used by the plaintiff

    Annex II: Relevant Legal Provisions:

    Anti-unfair Competition Law of the People's Republic of China (enacted in 1993)

    Article 5 Business operators shall not engage in market transactions by the following means of unfair competition to the detriment of competitors:

    ...

    (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods;

    ...

    Article 20 If a business operator, in violation of the provisions of this Law, causes damage to the injured business operator, it shall be liable for compensation for the damage. If it is difficult to calculate the losses of the injured business operator, the amount of compensation shall be the profits made by the infringer during the period of infringement due to the infringement. It shall also bear the reasonable expenses paid by the injured operator for investigating the ACTS of unfair competition in which the operator infringes upon its lawful rights and interests.

    Where the lawful rights and interests of the infringed business operator are harmed by ACTS of unfair competition, it may bring a suit in a people's court.

    Interpretation of the Supreme People's Court on Some Issues concerning the Application of Law in The Trial of Civil Cases of Unfair Competition

    Article 6 The enterprise names registered in accordance with the law by the competent registration authorities and the foreign (regional) enterprise names for commercial use within the territory of China shall be recognized as "enterprise names" as provided for in Item (3) of Article 5 of the Anti-Unfair Competition Law. The shop name of an enterprise that has certain market popularity and is known to the relevant public may be identified as the "enterprise name" prescribed in Item (3) of Article 5 of the Anti-Unfair Competition Law.

    The name of a natural person used in the operation of a commodity shall be recognized as the "name" as provided for in item (3) of Article 5 of the Law against Unfair competition. The pseudonym or stage name of a natural person who has certain market popularity and is known to the relevant public may be identified as the "name" prescribed in Item (3) of Article 5 of the Anti-Unfair Competition Law.

    Article 17 The amount of compensation for damage caused by ACTS of infringing trade secrets as stipulated in Article 10 of the Law against Unfair competition may be determined with reference to the method of determining the amount of compensation for damage caused by ACTS of infringing patent rights. The determination of the amount of damages for ACTS of unfair competition as provided for in Article 5, article 9 and Article 14 of the Law against Unfair competition may be carried out with reference to the determination of the amount of damages for infringement of the right to exclusive use of a registered trademark.

    ...

    Trademark Law of the People's Republic of China

    Article 63 The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined on the basis of the actual losses suffered by the right holder as a result of the infringement. Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; Where it is difficult to determine the losses of the right holder or the benefits obtained by the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. If the circumstances are serious, the amount of compensation may be determined between one time and three times of the amount determined according to the above methods. The amount of compensation shall include the reasonable expenses paid by the right to stop the infringement.

    ...

    If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests gained by the infringer as a result of the infringement, or the licensing fee of the registered trademark, the people's court shall, in light of the circumstances of the infringing act, make a judgment to pay compensation of not more than THREE million yuan.

    Interpretation of the Supreme People's Court on Some Issues concerning the Application of Law in The Trial of Trademark Civil Disputes

    Article 9 When a trademark is identical in article 52, paragraph 1, of the Trademark Law (amended in 2001), it means that the trademark accused of infringement is compared with the registered trademark of the plaintiff, and there is basically no visual difference between the two.

    Trademark law (revised in 2001) the first paragraph (a) of article 52 trademark approximation, is refers to the accused of infringement of trademark compared with the plaintiff's registered trademark, the glyph, pronunciation and meaning of the text or graphic composition and color, or the combination of whole structure similar to that of all the elements or the stereo shape, color combination, easy to make the relevant public to mistake the source of the goods or think of its source and the plaintiff's registered trademark commodities have a specific contact.

    Article 16. If it is difficult to determine the profits the infringer has earned or the losses the infringed has suffered as a result of the infringement, the people's court may, at the request of the party concerned or in accordance with the provisions of Paragraph 2 of Article 56 of the Trademark Law (amended in 2001), apply the relevant functions and powers.

    When determining the amount of compensation, the people's court shall take into account such factors as the nature, period and consequences of the infringing act, the reputation of the trademark, the amount of the trademark license fee, the type, time and scope of the trademark license, and the reasonable expenses for stopping the infringing act.

    ...

    Article 17 The reasonable expenses paid to stop an infringing act as prescribed in Paragraph 1 of Article 56 of the Trademark Law (amended in 2001) include the reasonable expenses incurred by the right holder or the agent entrusted to investigate and collect evidence of the infringing act.

    The people's court may, on the basis of the litigant's claim and the specific circumstances of the case, calculate the lawyer's fee in conformity with the provisions of the relevant departments of the state within the scope of compensation.

    Interpretation of the supreme people's court on the application of the > civil procedure law of the People's Republic of China

    Article 90 Unless otherwise provided by law, a party shall provide evidence to prove the facts on which his claim or the facts on which the other party's claim is based.

    If a party fails to provide evidence before a judgment or the evidence is insufficient to prove his claim, the party bearing the burden of proof shall bear the adverse consequences.