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

    (2016) No.11587, 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.

    Agent AD litem: Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Zeng Junyao (formerly known as Jun Yao), male, Han Nationality, born on September 18, 1993, residing in Huaibin County, Henan Province.

    Defendant: Guangdong Opai Technology Co., LTD., No.313-6, 3rd Floor, 22 Licitang Road, Shangjia, Ronggui Street Office, Shunde District, Foshan City, Guangdong Province. Unified social credit code ×××294.

    Legal representative: Su Liangzhu.

    Agent AD litem: Lian Yan, lawyer of Guangdong Bodao Jujia Law Firm

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

    Defendant: Zhongshan Xinbang Electric Appliance Co., LTD., No. 18, Jinyuan Road, Shenghui North Industrial Zone, Nantou Town, Zhongshan City, Guangdong Province. Unified Social credit code ×××5X6.

    Legal representative: Zeng Fanming.

    Agent AD litem: Wang Yalun, lawyer of Guangdong General Law Firm.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the European group) Zeng Junyao v. the defendant, the defendant guangdong opie technology co., LTD. (hereinafter referred to as guangdong), the defendant in zhongshan xin bang electric appliance co., LTD. (hereinafter referred to as zhongshan xin state) the infringement trademark rights and unfair competition disputes, in our hospital in 2016 after October 31 cases accepted form a collegial panel in accordance with the law, the defendant zhongshan xin nations put forward to in our hospital to the jurisdiction of the court, in our hospital in 2016 on December 8, ruling, rejected the defendant zhongshan xin to the jurisdiction of the court. The defendant, Zhongshan Xinbang, lodged an appeal to Foshan Intermediate People's Court. The Intermediate People's Court of Foshan issued a civil ruling no.114 (2017) of Yu06 People's Government on March 27, 2017, rejecting the objection of jurisdiction of the defendant, Zhongshan Xinbang. The court held a hearing in public on December 15, 2017. Wang Ning, the agent AD livened by the plaintiff Opai Group, and Wang Yalun, the agent AD livened by the defendant Zhongshan Xinbang, attended the court proceedings. The case is now closed.

    The plaintiff filed a lawsuit to the court: 1. The court ordered the defendant John Tsang to immediately stop the trademark infringement and unfair competition behavior of using the word "Opi" in the online store for false publicity; 2. 2. Order the defendant, Mr John Tsang chun-yiu, to immediately cease the sale of water heaters marked "Opai" and "Guangdong Opai Technology Co., LTD"; The defendant guangdong Opai Technology Co., Ltd. and the defendant Zhongshan Xinbang Electric Appliance Co., Ltd. were ordered to immediately stop the production and sale of water heaters marked "Opai" and "Guangdong Opai Technology Co., LTD." in terms of unfair competition; 4. Order the three defendants to compensate the plaintiff's economic losses and reasonable expenses for safeguarding their rights in this case, totaling RMB 1 million only; 5. The three defendants were ordered to bear the costs of the case.

    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 August 2016, the plaintiff found that the defendant John C Tze used "Oupai" extensively in his "Guangdong Oupai Electric Appliance Image store" on Taobao.com to carry out false propaganda and sell water heaters marked with "Oupai" and "Guangdong Oupai Technology Co., LTD". In response to the above infringement, the plaintiff applied for evidence preservation at the notary office. After further investigation, the plaintiff found that the above products were manufactured by Guangdong Opai Technology Co., Ltd. and Zhongshan Xinbang Electrical Appliance Co., LTD.

    To sum up, the plaintiff argues that the three defendants to clings to the plaintiff's "European" brand reputation, deliberately in the shop, product illegal use of the "European" word "guangdong opie technology co., LTD.", this behavior is not only the infringement of the right to exclusive use of a registered trademark of the plaintiff, and violate the principles of honesty and credit and recognized business ethics, constitutes unfair competition to the plaintiff, caused great economic losses to the plaintiff, shall bear the corresponding legal responsibility. Therefore, the plaintiff, in accordance with the Trademark Law of the People's Republic of China, the Law of the People's Republic of China against Unfair Competition and other relevant provisions, appealed to the court to make a fair judgment in accordance with the law.

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

    1. (2016) 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.

    2. (2016) The Notarial Certificate of Lai Feng City Certificate No. 350 certifies that the plaintiff has the exclusive right to use the registered trademark No. 1128213.

    3. (2016) Notarial Certificate No. 346 of Laifeng City Certificate, proving that the plaintiff has the exclusive right to use the registered trademark No. 1137521 according to law.

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

    5. (2016) Notarial Certificate No. 352 issued by Fengcheng License, which proves that the plaintiff legally owns the copyright of "" fine art fonts. This work, created on August 10, 1996, is completely consistent with the contents of the registered trademarks No. 4378572, 1128213 and 1137521 of the plaintiff, and also proves that the" "brand of the plaintiff has certain originality and a long history.

    6. The trademark [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce certifies that the registered trademark "" no. 1128213 enjoyed by the plaintiff was recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on April 24, 2009.

    7, (2016), lai FengCheng card people word no. 353 is notarial deed, prove that the plaintiff and the plaintiff brand have high market visibility, content as follows: (1), July 9, 2007, the state administration of quality supervision, inspection and quarantine awarded "China famous brand product certificate", prove that the plaintiff of production European brand household cabinet was awarded "China famous brand product" title. (2) In October 2008, guangdong Provincial Bureau of Quality and Technical Supervision issued the "Guangdong Famous brand Product" certificate, proving that the Oupai brand cabinet produced by the plaintiff was awarded the "Guangdong famous brand Product" title. (3) In February 2008, the Guangdong Province Famous Trademark Certificate issued by the Guangdong Province Famous Trademark Recognition Committee proves that the registered trademark "Opai" No. 1128213 was recognized as a Famous trademark of Guangdong Province in March 2005 and February 2008. (4), in December 2012, China building decoration association kitchen and sanitation engineering committee issued the certificate, proving that the plaintiff in 2012 was rated as "2012 China kitchen and sanitation 100", "overall kitchen leading enterprises top 10". (5) In September 2013, the Guangzhou Municipal People's Government issued the certificate of honor, proving that the quality of the plaintiff company was awarded the "2012 Guangzhou Mayor quality Award". (6), December 28, 2014, certificate issued by the brand watch magazine, prove that the plaintiff's European brand strategy to be included in the "2014 China's annual brand marketing case silver" (7), in January 2015, the guangdong province association of float subsequently, honorary certificate issued by the guangdong furniture chamber of commerce, prove that the plaintiff in 2014 was awarded "top ten most valuable brands". (8) In January 2015, Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce issued the certificate of honor, proving that the plaintiff was awarded "Top 10 Enterprises with Innovation Ability" in 2014.

    8, the word no. 357 (2016) lai FengCheng card people notarial deed, prove that the plaintiff part of pay taxes, prove that "European" brand benefit huge profits, the brand value is extremely high, specific content as follows: (1), the guangzhou baiyun district issued by the state administration of taxation cloud duty five [2014] no. 100014 tax certificate, prove that the plaintiff on January 1, 2013 to December 31, 2013 to the bureau to pay taxes one $$hk suhuang spreading spreading Wan Jiu us $3 and pure Angle and pure. (2) the tax payment certificate no. [2014]100579 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2014 solstice on June 30, 2014 to the 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 state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid a tax of 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 and 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 twenty-nine thousand nine hundred and seventy-eight yuan eighty sixty 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 the tax on July 1, 2014 and December 31, 2014 to the bureau, i.e., the tax amount of three thousand six hundred and fifty-eight thousand nine hundred 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) The Notarial Certificate no. 354 of Leifeng City Certificate proves the audit department's audit of the profits obtained by the plaintiff by using the brand "OPPEIN" and "OPPEIN", which proves the high value of the brand "OPPEIN" and "OPPEIN".

    10. (2016) The Legal certificate of Laifengcheng Ziminzi No. 355, which proves that the plaintiff has carried out continuous publicity for the "Opai" brand through CCTV and Hunan SATELLITE TV, and proves that the "Opai" brand has been widely known by the public and has a high brand value. The specific content is 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" propaganda of the plaintiff brand, advertising for wu bai 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.

    11. (2016) The Notarial Certificate no. 356 issued by Lifeng 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 12, 2011, 21, 22, 25, 26, 28, 29, "linchuan evening news", published on August 26, 2011 issue of the "shenzhen special zone signs up for", on September 20, 2011, published on September 30, anqing daily, published in September 2010 years of the ambry in Shanghai ", published in June 2011, the sales and marketing management edition, published in April 2011 "ruili household", published in April 2014, decorate 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.

    13. (2016) Notarial Certificate No. 948 of Laifengcheng Certificate (including the infringing material object sealed by the notary Office). Prove the facts of the defendant's infringement.

    14. One notarization fee note. The plaintiff claims 700 yuan in this case, which proves the plaintiff's reasonable expense in safeguarding his rights.

    15. Zhongshan Xinbang holds the trademark and printed copies of the website. It is proved that the products involved in the case are produced and sold by Xinbang Company. Many of its trademarks are well-known trademarks and the company has a large scale.

    16. Zhongshan Xinbang Industrial and Commercial Registration Information. It proves that Zhongshan Xinbang has a number of business sites and branch offices, which proves its large scale.

    17. Printed copies of the website of Opai Home Furnishing Group Co., LTD. That the plaintiff is producing and selling the same products as the products in question.

    The defendant, Mr John Tsang Chun-yiu, and the defendant guangdong Opal did not submit a reply.

    Defendant Zhongshan Xinbang argues that: 1. Defendant Zhongshan Xinbang did not produce and sell the infringement products involved, nor did it authorize others to produce and sell the products involved; 2. 2. Defendant Zeng Junyao used the word "Eurogroup" in the online store for publicity and sales activities, which has nothing to do with defendant Zhongshan Xinbang. The source of the products involved is not from defendant Zhongshan Xinbang, which means there is no joint infringement between defendant Zhongshan Xinbang and defendant Zeng Junyao; 3. The company name and relevant information of defendant Zhongshan Xinbang are often used falsely by illegal third parties in the market, and the products involved in infringement should be used falsely by illegal third parties; 4. The product involved in the infringement used the name of defendant Guangdong Europae, instead of highlighting the word "Europae", it used the full name of defendant Guangdong Europae, which is a normal use of the company name; 5, the plaintiff's business scope is mainly in the kitchen cabinet and other household items, belong to the household furniture manufacturing enterprises, and the defendant zhongshan xin state is the main water heater, etc., is a household electrical appliance industry enterprises, the two do not belong to the same industry, at the same time, the plaintiff's premises in guangzhou, and the defendant which ran in zhongshan, zhongshan xin nation is not the same administrative area, the defendant in opie confinement in foshan, guangdong province, also with the plaintiff is not the same administrative district, if the defendant guangdong opie USES its corporate name, also belong to the fair use its corporate name; 6, from average person look, "Europe sends" two words, think of above all is Europe sends hutch ark, not be Europe sends water heater, it is kitchen household, it is the electric equipment of washroom, won't be confused. 7. The plaintiff has no evidence to prove that he has used the trademark "Opi" on the water heater products three years before the notarization of infringement, and has not caused any loss to the plaintiff. Even if the defendant Zhongshan Xinbang constitutes infringement, the plaintiff has no loss, so the defendant Zhongshan Xinbang does not need to compensate. 8. The approved scope of the trademark of the plaintiff does not include the water heater, so it can be seen that the plaintiff has not used his trademark on the water heater for a long time, and trademark No. 4378572 is not a well-known trademark in class 11. Finally, even if the defendant Zhongshan Xinbang constitutes infringement, the amount of compensation claimed by the plaintiff is too high and unreasonable. The following should be considered: 1. The infringement on the Internet by the defendant John Tsang cannot be regarded as the infringement by the defendant Sun Yat-sen Xinbang; 2. 2. Defendant Zhongshan Xinbang was established earlier and operated on a small scale; 3. The plaintiff did not use the trademark involved on the water heater. Ask the court to dismiss the plaintiff's claim.

    The defendant, Zhongshan Xinbang, did not submit evidence.

    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, 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.

    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 August 19, 2016, wang Shouzhen, the entrusted agent of the plaintiff, applied to Fengcheng Notary Office of Laiwu City, Shandong Province for evidence preservation. Under the supervision of the notary staff, Wang Shouzhen operated the computer of the notary office and bought the water heater sold by the storekeeper named "ZJY521126" on the website of "Taobao.com". In the process of operation, Wang Shouzhen took screenshots of relevant pages and recorded the whole process. "Guangdong opie electrical image store" in the online store promise the sales page, there are "in the early 1990 s, the parties will take the lead in Europe as a whole kitchen concept introduced to China" of the text, and there are "opie hutch defends electric appliance such as introduction and" opie double bravery slim flat barrel ", "opie new original remote control electric water heater", etc. The "New European-style genuine remote control electric water heater" costs 288 yuan per unit and shows that it has been sold since 51882. On August 22, 2016, under the supervision of the notary public, Wang Shouzhen signed a cargo marked with the words "water storage type electric water heater" sent by a Courier from Yunda in Fengcheng Notary Office in Laiwu city, Shandong Province. The order number is "3908220444811". Wang Shouzhen will open the above items separately to take photos. In the carton marked "water storage type electric water heater", there is a manual marked "Guangdong Opai Technology Co., LTD" and a water heater. Then the notary staff sealed the above articles with the seal of the notary office, and delivered the sealed articles and logistics documents to Wang Shouzhen for safekeeping. Fengcheng Notary Office of Laiwu City, Shandong Province supervised the above purchase and receiving process, and issued the notary Certificate of Laifeng City Certificate No. 948 (2016).

    According to the order information provided by the plaintiff, the owner of the shop named "ZJY521126" is the real name of Zeng Junyao, and the ID number is:.

    In trial, plaintiff opened the product that afore-mentioned notarization bought in court, plaintiff charges this case tort product is water heater. On the outer packing box of the water heater should be marked "Water Storage electric water heater" and the words "OPPSMS" and "Guangdong OPPSMS Technology Co., LTD. (Supervision)". The manufacturer: Zhongshan Xinbang Electric Appliance Co., LTD. Guangdong Opai Technology Co., LTD. (Supervisor) is marked in the manual. Address: 400-992-1858, Shenghui North Industrial Zone, Nantou Town, Zhongshan City. The anti-counterfeiting certificate on the product is marked with the words "OPPSMS", "Guangdong OPPSMS Technology Co., LTD", "You have a home, you love, you have OPPSMS". Plaintiffs believe that the accused of infringement on the outer packing, specifications, product quality certificate on a defendant guangdong opie enterprise name and on the outer packing with manufacturer in zhongshan city xin bang electric appliance co., LTD., name, address, telephone number, so the defendant is accused of infringement product department in guangdong opie, zhongshan xin state production, used in the accused of infringement product packaging "opie technology co., LTD. (producer) of guangdong province", constitutes a ACTS of unfair competition to the plaintiff, the infringement of the plaintiff's right to enterprise name. Marked "have family have love have European faction", "European faction" is used prominently, which not only infringes the plaintiff's trademark right, but also constitutes false propaganda of unfair competition behavior. In addition, the defendant John C Tsang used such words as "Opai kitchen and Bathroom Appliances", "Guangdong Opai Appliance image store" and "Opai" to sell the products involved in the case in his online store, which infringed the exclusive right of the plaintiff's registered trademark "Opai" no. 4378572 and constituted unfair competition behavior.

    Defendant zhongshan xin believes the outer packing has the defendant zhongshan xin state enterprise name and address information, but not prove that the product is involved by the defendant zhongshan xin states the production and sales, the holder of the "OPPSMS" on the outer packing and the product is not the defendant zhongshan xin, executive producer is the guangdong opie, product is likely to be a third person involved using the defendant zhongshan xin state enterprise name, it is possible that the plaintiff malicious prosecution and production, from the outer packing, does not highlight using the word "Europe", but use, is the defendant guangdong enterprise name, belongs to the legitimate use of enterprise size. Nor are they ACTS of unfair competition. The security certificate of the case did not mark the name of the defendant Zhongshan Xinbang, which cannot be proved to be made by the defendant Zhongshan Xinbang; The operating instructions did not label the name of the defendant, Zhongshan Xinbang, nor was it made by the defendant.

    In addition, the manufacturer marked on the outer packing boxes of the products involved: Zhongshan Xinbang Electric Equipment Co., LTD. Address: Shenghui North Industrial Zone, Nantou Town, Zhongshan City.

    (3) the defendant guangdong sent on April 30, 2014, shunde district, foshan city, the registration and establishment, the registered capital is 10 million yuan, scope of business of biotechnology products, household appliances, metal products, electrical accessories, water purification equipment, air to water heaters, bathroom supplies, daily necessities, household items, electrical materials, electronic products research, development, processing, manufacturing, marketing; Biotechnology research, development and consultation; Enterprise investment consultation; Domestic trade.

    Defendant zhongshan xin bang on April 20, 2011, shunde district, foshan city, in registration and establishment, the registered capital is 1 million yuan, business scope for the production, processing and sales: gas water heater, electric water heater, range hoods, disinfection cabinet, gas stoves, sanitary ware, kitchen supplies, household appliances, address is: zhongshan city in southern China's 18 litres of fai north industrial zone JinYuan road, enterprise contact phone number: 8973 x x x 8, 89736599.

    The court holds that this case is a case of infringement of trademark rights and unfair competition disputes. At issue in this case are: 1. Whether the defendant has committed the alleged infringement; 2. 2. Whether the ACTS of the three defendants constitute trademark infringement and unfair competition; 3. The responsibility that should be borne.

    Focus on 1, according to the material of zhejiang taobao network co., LTD., the seller the shopkeeper real name called "zjy521126" shop operators to Zeng Junyao, id card number is:, so we confirm the taobao station involved the shopkeeper called "zjy521126" "guangdong opie electrical image store" shop is run by the defendant Zeng Junyao, online campaigns extensive use of the word "Europe", and is accused of infringement by its product sales.

    The alleged infringing product was labeled "Guangdong Opai Technology Co., LTD. (Supervisor)" and the manufacturer, Zhongshan Xinbang Electric Co., LTD. The anti-counterfeiting certificate on the product is marked with the words "Guangdong Opai Technology Co., LTD" and "You have a home, you love, you have Opai". The address, telephone number and other information of the defendant Zhongshan Xinbang are marked on the outer packing box of the water heater. Therefore, it can be concluded that the defendant Guangdong Opai and the defendant Zhongshan Xinbang jointly carried out the infringement. The defendant Zhongshan Xinbang put forward the opinion that the product involved was counterfeit of its enterprise name, but the court did not accept it.

    On Focus 2, whether the actions of the three defendants constitute trademark infringement and unfair competition.

    Article 48 of the Trademark Law; "The use of trademarks as mentioned in this Law means the use of trademarks on commodities, packages or containers of commodities and trade documents, or the use of trademarks in advertising, publicity, exhibitions and other commercial activities to identify the sources of commodities." (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 approved scope of use of plaintiff's registered trademark No. 4378572 in category 11 goods includes bathroom fixtures, steam bath fixtures, and bathing equipment, while the product accused of infringement in this case is electric water heater, which belong to similar goods. Defendant Zeng Junyao sold on the website page using the word "European" and sales of the products involved anti-counterfeiting mark on "have family love the pie", "European" two words highlight use, is accused of infringement identification "European" and advocate for the rights of the plaintiff compared to no. 4378572 "European" registered trademark, the pronunciation and meaning are the same, the relevant public to general attention easily confused between the two, as a result, we concluded that the defendant Zeng Junyao website using "European" and sales of product anti-counterfeiting mark on "the home has love with European" in the "European" logo and trademark involved advocate for the rights of the plaintiff confounding approximation. According to the above legal provisions, without the permission of the trademark registrant, the defendant's use of trademarks similar to the plaintiff's registered trademarks on the same goods has constituted trademark infringement.

    Article 2 of the Law of the People's Republic of China against Unfair Competition: "In market transactions, business operators shall abide by the principles of voluntariness, equality, fairness, honesty and credibility, and observe universally recognized business ethics." . Article 5 stipulates: "Business operators shall not engage in market transactions and harm competitors by the following improper means:. (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods; ." . According to the Supreme People's Court on the trial of civil dispute case applicable law of unfair competition, the explanation of some issues of article 6 of the regulation, the enterprise registration authority in accordance with the registered enterprise name, and for commercial use within the territory of China, foreign (regional) enterprise name shall be identified as (3) of article 5 of the anti-unfair competition law "enterprise name" prescribed in item. The shop name of an enterprise that has a 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. This case, "Europe" is the font size in the plaintiff opie group enterprise name, the plaintiff opie group is the domestic famous furniture production enterprise, in the class the sideboard 20 "European" trademark by the trademark office identified as well-known trademarks, its enterprise also won many honors, such as China famous brand product, guangdong well-known trademark, top 2012 China hutch defends, integral kitchen top ten leading enterprises, the 2012 guangzhou mayor quality prize, in 2014, guangdong generic household field top ten most valuable brands, innovation ten strong enterprise honorary title, In CCTV, hunan TV station and other print media for advertising, pay a lot of advertising costs, visible "European" series of products and the plaintiff opie group "European" font size across the country have high visibility, and by the relevant public know, belong to (3) of article 5 of the anti-unfair competition law "enterprise name" prescribed in item. Plaintiff opie group's prior rights by "general principles of the civil law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China" the protection of the defendant Zeng Junyao in its online store page marked "European" and used on the sales of products and packaging "guangdong opie technology co., LTD. Producer", easy to make the relevant public mistake involved products and there is a link between the plaintiff opie group, easy to make the relevant public source for products cause confusion and mistakes, damage the legitimate rights and interests of the plaintiff opie group, Three the defendant's act clearly violates the law of the People's Republic of China of unfair competition law, the provisions of article 2 "in market transactions, an operator shall follow the principles of voluntariness, equality, fairness, honesty and credit", violated the recognized business ethics in the market transaction, violated rights of the plaintiff opie group enterprise name, belongs to the ACTS of unfair competition, three the defendant shall bear tort liability.

    As previously mentioned, "Europe" is the font size in the plaintiff opie group enterprise name, use of the trademark is the plaintiff opie group, "European" series of products as well as the "European" font size across the country have high visibility, and by the relevant public know that the plaintiff opie group's prior rights by "general principles of the civil law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China". But as a marketer. In the registration of enterprise name, in order to comply with the good faith and recognized business ethics, should have the obligation to give the prior well-known trademark and name to avoid. But the defendant guangdong was founded in 2014, the plaintiff "European" referred to as "opie group and its size has higher visibility, its registered trademark" European "in the 20th class sideboard has been the trademark as well-known trademarks, and at the same time, the 4378572th of a registered trademark of the registered contains 11 goods, in the plaintiff opie group" Europe ", under the status of well-known trademark, the defendant guangdong opie application registered enterprise name still will "Europe" as its enterprise name recognition in different market main body core identity size of enterprise, its subjective obviously has goodwill clings to the plaintiff opie group intentionally, Objectively, the two can be confused or misassociated, which will easily lead the relevant public to confuse the service source and induce the relevant public to mistake the connection between the two. Therefore, whether or not it is used prominently, it is difficult to avoid confusion or misidentification, and its behavior constitutes unfair competition. The defendant's subjective fault is obvious when registering the enterprise name. The defendant's use of the name "Opai" may make people think that its service comes from the plaintiff opai Group, which infringes upon the prior enterprise name right of the plaintiff Opai Group and constitutes unfair competition.

    Concerning focus 3, the civil liabilities to be borne by the three defendants.

    Though zhongshan xin state defense the defendant believed the has nothing to do with online stores and is accused of infringing products involved, but the defendant on the product outer packing mark zhongshan xin state information such as address, phone number and the defendant zhongshan xin state industrial and commercial information, the accused zhongshan xin nations failed to submit the contrary evidence, we confirm the product involved to guangdong opie the defendant and the defendant zhongshan xin bond joint production and marketing. Article 8 of the Tort Liability Law of the People's Republic of China stipulates that if two or more persons jointly commit a tort and cause damage to another person, they shall bear joint liability. In this case, the defendant Guangdong Eurogroup and the defendant Zhongshan Xinbang have the common intention to carry out unfair competition behavior, which constitutes a joint infringement, and they should bear joint liability for compensation.

    According to the provisions of Paragraph 1 and Paragraph 3 of Article 63 of the Trademark Law of the People's Republic of China, "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual loss suffered by the right holder due to the infringement; Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; Where it is difficult to determine the losses of the right holder or the 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 ". The defendants constitute trademark infringement and unfair competition. The actual loss the plaintiff to the case and the defendant of the illegal income derived therefrom are not sure, we consider the reputation of the plaintiff's awareness and comprehensive three infringement of the defendant's subjective intent, plot, business scale, is accused of infringement product sales, and other factors, Zeng Junyao control-determine the defendant to the plaintiff compensation for the economic loss of 40000 yuan, the defendant zhongshan xin bang from the plaintiff compensation for the economic losses of RMB 100000 yuan, the defendants guangdong party zhongshan xin nations should bear the liability for compensation shall be jointly and severally liable. The above compensation amounts have included the reasonable expenses incurred in the case.

    In accordance with the provisions of Article 120 of the General Provisions of the Civil Law of the People's Republic of China, where a civil right is infringed, the infringed shall have the right to request the infringer to bear the liability for tort, to demand that the infringement be stopped and to compensate for the loss. Therefore, the court should support the plaintiff's request to the three defendants to stop the infringement.

    In conclusion, in accordance with the law of the People's Republic of China on the general civil law "article one hundred and twenty, paragraph 1 of article sixty-three of the" trademark law of the People's Republic of China "and the third paragraph, the anti-unfair competition law of the People's Republic of China" (3), article 5 of the article 20, the Supreme Court of the people's court on the trial of civil cases of unfair competition application of law in the interpretation of article 6, article 17, and the law of the People's Republic of China civil procedure law, the provisions of article one hundred and forty-four of the judgment by default is as follows:

    (3) On the effective date of this judgment, the defendant John C Tsang immediately stopped using the word "Europa" in his taobao store for publicity;

    (3) As of the effective date of this judgment, defendant John C Tsang immediately ceased the sale of water heaters bearing the names "Opai" and "supervised by Guangdong Opai Technology Co., LTD";

    (3) Within 10 days from the effective date of this judgment, defendant John Tsang shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of RMB 40,000 yuan (including the reasonable expenses paid by the plaintiff, Opai Home Furnishing Group Co., LTD., to stop the infringement in this case);

    (3) The defendant guangdong Opai Technology Co., Ltd. and the defendant Zhongshan Xinbang Electric Appliance Co., Ltd. immediately stopped the production and sale of water heaters bearing the words "Opai" and "Supervised by Guangdong Opai Technology Co., Ltd." as of the effective date of this judgment;

    (3) Within 10 days from the effective date of this judgment, the defendant, Zhongshan Xinbang Electric Appliance Co., Ltd. shall compensate the plaintiff, Opai Home Furning Group Co., LTD., for the economic loss of 100,000 yuan (including the reasonable expenses paid by the plaintiff, Opai Home Furning Group Co., LTD., to stop the infringement in this case);

    Vi. The defendant guangdong Opai Technology Co., Ltd. shall bear joint liability for the compensation liability borne by the defendant Zhongshan Xinbang Electric Appliance Co., Ltd. in the fifth judgment;

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

    The handling fee of this case is 13,800 yuan, 6,000 yuan borne by the plaintiff Oupai Household Appliance Group Co., LTD., 2,000 yuan borne by the defendant Zeng Junyao, and 5,800 yuan borne by the defendant Zhongshan Xinbon Electric Appliance Co., LTD. The defendant Guangdong Oupai Technology Co., Ltd. shall assume joint and several liability for the handling fee payable by the defendant Zhongshan Xinbon Electric Appliance Co., LTD.

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

    Chief Judge Wu Zhanhong

    People's Juror Ho Shao-li

    People's Juror Ho Wing Chun

    April 18, 2008

    Clerk Yan Yongyu