Civil judgment of Longgang District People's Court, Shenzhen city, Guangdong Province

    People's Court of Longgang District, Shenzhen City, Guangdong Province

    Written judgment of civil affairs

    (2018) No. 3116, Yue 0307, Early Republic of China

    Plaintiff: Opai Home Furnishing Group Co., LTD., domicile is No. 366, Guanghua 3rd Road, Baiyun District, Guangzhou City, Guangdong Province.

    Legal representative: Yao Liangsong, chairman of the board.

    Attorney: Yang Fudong, lawyer of Shandong Changping Law Firm.

    Agent: Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Defendant: Shenzhen Opiwang Technology Development Co., LTD., domiciling at Unit 404, Unit 3, Building A, Yaqingju, 2 Xin 'an Road, Wuhe Community, Bantian Street, Longgang District, Shenzhen.

    Legal representative: Liu Qiang, General Manager.

    Attorney: Chen Shibin, lawyer of Guangdong Tiandaoqin Law Firm.

    Defendant: Zhongshan Stys Electric Appliance Co., LTD., located at the south of Jianye Road Industrial Factory, Suixi, Nantou Town, Zhongshan City.

    Legal representative: Hua Guoping, General Manager.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the European household group) and the defendant zhengdong new district baisha town rich xin electronics firm, shenzhen opie flourishing development of science and technology co., LTD. (hereinafter referred to as "opie flourishing company), history of zhongshan king electronics co., LTD. (hereinafter referred to as the history of zhongshan co.) the infringement trademark rights and unfair competition disputes, we accept after form a collegiate panel open trial conducted in accordance with the law. At the trial, the plaintiff withdrew the lawsuit and part of the lawsuit request against the defendant, Fuxin Electric appliance Company, Baisha Town, Zhengdong New District. Yang Fudong, the plaintiff's appointed agent, and Chen Shibin, the defendant's appointed agent, Attended the lawsuit. After being summoned by the court according to law, the defendant Zhongshan Sidis Company refused to attend the court proceedings without justified reasons, and the court tried in absentia according to law. The trial is now over.

    The plaintiff, founded in 1994, is a comprehensive domestic service provider of integrated modern household products, covering the fields of integrated wardrobe, kitchen appliances, sanitary ware and commercial kitchen utensils. The plaintiff is the holder of the registered trademark such as "OPPEIN" and "OPPEIN". After decades of painstaking operation, "OPPEIN" has become a well-known trademark, which is not only the representative symbol of the plaintiff's product and enterprise name, but also the significant identification mark indicating the market subject and commodity source of the plaintiff and the related enterprises. The slogan "family, love and Europe" has a high visibility and influence in related fields, and has been affirmed by many consumers. In September 2017, the plaintiff baisha town rich in zhengdong new district xin electronics firm bought this case is accused of infringing range hood products, product packaging box office marked "opie (traditional)", "shenzhen opie flourishing development of science and technology co., LTD.", "WWW. Opie technology. Net", the words such as "Europe", and the plaintiff signed jiang wenli star endorsement image picture. The manufacturers of product labeling are the defendant Opevon Company and the defendant Zhongshan Stitis Company. Without the permission of the plaintiff, the two defendants infringed on the trademark rights enjoyed by the plaintiff by selling and producing the products marked with the words and marks related to "Opie". At the same time, the behavior of the defendant Opie Technology co., Ltd. to register the enterprise name of "Opie" without justified reasons and mark the enterprise name and website address containing "Opie" on the products involved in production and sale has the intention of obviously retaining the goodwill of the plaintiff company and the brand, which is enough to cause market confusion and constitute unfair competition. In conclusion, the plaintiff requests the court to judge: 1, the defendant shenzhen opie prosperous history of science and technology development co., LTD., zhongshan city, emperor electric appliance co., LTD. Immediately stop the production, the sale marked "opie (traditional)", "shenzhen opie flourishing development of science and technology co., LTD.", "WWW. Opie technology. Net", the words such as "Europe", and the plaintiff signed jiang wenli star endorsement image picture of oil absorption behavior; 2. The defendant, Shenzhen Opiwang Technology Development Co., LTD., immediately stopped the unfair competition behavior, namely immediately changed the enterprise name, and the changed enterprise name shall not contain the words "Opiwang"; 3. The defendant shall jointly compensate the plaintiff for the economic loss and the reasonable expense of safeguarding the rights, totaling RMB 200,000 only; 4. The defendant shall jointly bear the costs of the case. Clear the plaintiff in the trial, the defendant's tort, there are two specific performance is a used on product "European science and technology", "opie (traditional)", the infringement of the trademark of the plaintiff 4378572th of a registered trademark, the second is on the product labeling "shenzhen opie flourishing development of science and technology co., LTD." in the enterprise name, marked with "opie technology" url endorsement image, and the plaintiff has clings to intention, constitutes unfair competition. The plaintiff withdrew the second claim in court because the defendant Was ordered to change the name of the company.

    In order to prove his claim, the plaintiff submitted the trademark registration certificate and the relevant notarial certificate, the award certificate, the defendant's main information, the notarial certificate, the judgment, the defendant's business website print and other evidence.

    Defendant Opie argues that our company was established on May 10, 2013, and our company changed its equity in November 2016. Since then, our business has ceased and we have not engaged in relevant civil and commercial activities. We have never established a cooperative relationship with the defendant, Zhongshan Stris Co., LTD., who falsely USES the name of our company without our authorization. We have filed an infringement lawsuit to the Second People's Court of Zhongshan city on November 6 this year. Because the case is being heard, request the case collegial panel to suspend the case. Step back to tell, the plaintiff in this case did not provide evidence of its use of its right trademark on the lampblack machine product, also did not provide evidence to prove its economic loss because of the defendant's behavior related evidence. To sum up, appeal to the collegial panel to suspend the hearing. And submitted the notice of accepting the case of the Second People's Court of Zhongshan city, legal fee payment voucher, equity transfer see the certificate and other evidence to prove his defense opinion.

    After trial, it is found that Guangzhou Oupai Cabinet Enterprise Co., Ltd. is a registered trademark no. 4378572.

    ", guangdong Opai Group Co., LTD is the registered trademark no. 7737876."

    ". The types of goods approved for use in the above two trademarks are all 11 categories, including kitchen range hoods, etc., and the effective period of registration starts on June 7, 2007 and March 14, 2011 respectively. On March 24, 2014, upon the approval of the Trademark Office of the State Administration for Industry and Commerce, the registrants of the above two trademarks were changed to Opai Home Furnishing Group Co., LTD., both of which are within the validity period.

    Founded on July 1, 1994, The plaintiff Opai Home Furnishgroup is engaged in the manufacturing of household kitchen appliances, kitchen equipment and kitchen supplies wholesale, etc. In April 2009, the trademark "Opai" used by the plaintiff on the category 20 sideboard goods was identified as a well-known trademark by the Trademark Office. After the plaintiff's continuous promotion and operation, the plaintiff's enterprise and European brand won the "top 100 Chinese kitchen and health in 2012", "top 10 most valuable brands in 2015", "Top 500 Chinese brand value in 2016" and other honors. Among them, registered trademark no. 4378572 "" is recognized as a famous trademark of Guangzhou City on kitchen range hood products, valid from January 2016 to December 2018. Since 2012, the plaintiff has invested a large amount of publicity costs to broadcast advertisements on platforms such as TV program exchange space, the closing ceremony and award evening party of the 10th Golden Eagle Festival of Hunan SATELLITE TV, CCTV News channel, etc., to continuously promote and promote the "Opai" brand.

    On August 27, 2017, the agent of the plaintiff, Jindun Intellectual Property Service Center in Laicheng District, Laiwu city, Shandong Province, applied for notarization from Fengcheng Notary Office. In the same year on September 15, notarization notaries xiu-ping zhang, notarial personnel xiho accompanied the entrusted agent of the applicant, the shou-zhen wang arrived in zhengdong new district town baisha royal village in henan province plumbing fittings wholesale center north logistics park 2-6-7 "opie kitchen appliances sanitary ware shop", in the name of ordinary consumers to buy the marked "shenzhen opie flourishing development of science and technology co., LTD." the words each one oil absorption, kitchen burning gas and marked "OPPEIN opie clothes-horse, and get a receipt and printed with" shenzhen opie flourishing development of science and technology co., LTD. "the words of the brochure. Among them, the pay consideration price of lampblack machine is RMB 600 yuan. The notary Zhang Xiuping and the notary Xu Hao sealed the above articles, and the Fengcheng Notary Office of Laiwu city, Shandong Province issued the Notary Certificate of Laifeng City Certificate No. 1512 (2017) for the above behavior.

    In trial, plaintiff opened the product that afore-mentioned notarization bought in court, accuse the tort product of this case is lampblack machine. The front and back of the outer packing case and the sealing tape are printed with the website of "WWW. OPPWAN" and the logo of "OPPWAN". The front and back of the packing case are printed with the logo of "", the words of" Shenzhen Oppwang Technology Development Co., LTD "and the image picture of Jiang Wenli. On the side of the package is marked "Manufacturer: Zhongshan Sties Electric Appliance Co., LTD." with address, telephone and other relevant information. Open the package, there is a range hood, a manual, the range hood panel marked with "OPPWAN" logo, "WWW. Opai technology. Net" website; Have above the printed manual "OPPWAN" logo and "you prosperous, I swan, the parties," words, printed with jiang wenli endorsement image picture below and the "" logo, on the back label amplification of" shenzhen opie flourishing development of science and technology co., LTD. ", below arrangement "manufacturer: history of zhongshan king electronics co., LTD.", address, telephone and other information.

    The defendant Opie Wang company was established on May 10, 2013, and its business scope includes sales of household appliances, small appliances, range hoods, gas stoves, etc. The company is the registrant of the registered trademark "OPPWAN" no. 12619875. The trademark is used in class 11, including lamps, cooking utensils, kitchen range hoods, etc. The valid period of registration is from October 14, 2014 to October 13, 2024. The defendant Zhongshan Sidis Company was established on November 8, 2012. Its business scope includes processing, producing and selling range hood, gas cooker and electric water heater.

    The above facts are verified by the trademark registration certificate, the change certificate of the registered trademark, the Certificate of China famous brand product, the guangdong Famous trademark certificate, the reply to recognize the well-known trademark, the honor certificate, the contract of advertisement release of TV project, the sponsorship and cooperation agreement of the home decoration fund, the information of the main body of the enterprise, the notarial certificate and the sealed object and other evidences.

    The court believes that the cause of this case is infringement of trademark rights and unfair competition disputes, and the focus of the dispute is as follows: 1. 2. Whether the conduct of Defendants constitutes unfair competition; 3. If the two defendants constitute torts, what legal liabilities should they bear?

    On the first bone of contention. According to the facts identified in this case, it can be confirmed that the products involved in the infringement and the plaintiff has the right to exclusive use of the registered trademark no. 4378572 registered trademark approved use of the goods in the kitchen range hoods belong to the same goods. At the same time, the"

    "Logo can play the role of identifying the source of goods, belongs to trademark use. By comparison, the"

    The mark is identical with the plaintiff's registered trademark No. 4378572. The products involved in the infringement belong to the commodities that infringe the exclusive right of the plaintiff's registered trademark. The products involved in the infringement are marked as zhongshan Shis Co., LTD., which produces and manufactures commodities that infringe the exclusive right of the plaintiff's registered trademark, constituting trademark infringement. In the trial, the defendant Opie denied the identity of its producer and applied for suspension of the trial, on the grounds that the trial result of its lawsuit on the dispute of false enterprise name will have a direct impact on the judgment of this case. We think, according to their own name, the name, trademark or any other logo to identify embodied in products, said it as a manufacturer of enterprises or individuals, all belong to the "general principles of the civil law of the People's Republic of China" in article one hundred and twenty-two of this law "manufacturer" and "product quality law of the People's Republic of China" regulation "producers". The defendant Opevon company did not provide evidence to the contrary or the copy of evidence used in another case to prove the reason of its defense, so it could not cut off its connection with the involved infringement range hood. Therefore, the court did not accept the defense reasons and the application for suspension of the hearing, and found that the defendant Opevon Company and the defendant Zhongshan Stitis Company jointly carried out the production, constituting the trademark infringement.

    On the second point of contention. In this case, the business scope of original, defendant and business scope all include the production of household appliance, gas cooker, sale, have direct competition concern. According to the provisions of Item (2) of Article 6 of the Law of the People's Republic of China against Unfair Competition, to use without authorization the name of an enterprise (including abbreviation and shop name, etc.) of which another person has certain influence, thus causing people to mistake it as the goods of another person or having a specific connection with another person, constitutes unfair competition. In this case, the plaintiff Opai Household Furniture Group is a famous domestic household furniture manufacturer. The trademark "Opai" used on the class 20 sideboard was rated as a well-known trademark, and it also won many honors such as guangdong Famous Trademark and 2016 Top 500 Chinese brand value. In order to promote the brand effect, the plaintiff invited jiang Wenli, an actress, as the brand spokesperson, and carried out advertising on CCTV, Hunan TV and many other media, investing a large amount of advertising expenses. It can be seen that the "Opai" series products and the "Opai" name of the plaintiff Opai Group have a relatively high visibility in the whole country and are known by the relevant public, and the "enterprise name (abbreviation and name)" that conforms to the foregoing provisions.

    The defendant is accused of infringing products in its production with highlights on the word "Europe", and combined with using the defendant opie flourishing company apply for registration of "OPPWAN" brand and the brand spokesperson image picture, it clings to the intention of the plaintiff's reputation, hitchhiking, objectively also easy to make the relevant public mistaken for its products there is a specific relationship with the plaintiff, causes the product source of confusion and mistakes, damage the legitimate rights and interests of the plaintiff, constitutes unfair competition.

    On the third point of contention. If the two defendants constitute a trademark infringement and unfair competition against the plaintiff, they shall bear civil liabilities for stopping the infringement and compensating for the losses. However, the plaintiff's claim for the two defendants to stop using Jiang Wenli's brand image as a spokesman is not the right subject of Jiang Wenli's character image according to law, and there is no proof that Jiang Wenli only ACTS for the plaintiff's brand products, so the court does not support the plaintiff's claim. As for the amount of compensation, since the plaintiff has not provided evidence to the Court to prove the specific amount of losses suffered by the two defendants or the benefits gained by the two defendants due to the infringement, the Court cannot determine the amount of compensation in the way of calculating the losses of the right holder or the profits of the infringer. Therefore, the court decided the amount of compensation according to the circumstances, taking into account the two defendants' subjective fault degree and business scale, the nature and circumstances of the infringement, the popularity of the plaintiff's products and the reasonable expenses paid to stop the infringement.

    To sum up, the collegial panel, according to the provisions of the trademark law of the People's Republic of China article 57 subparagraph (a), the first item (3), article sixty-three, the law of the People's Republic of China against unfair competition "the second, the first (2) of article 6, the first item (4), article 17," the general civil law of the People's Republic of China "the one hundred and twentieth, article 8 of the tort liability law of the People's Republic of China and the law of the People's Republic of China civil procedure law the provisions of article sixty-four, decision is as follows:

    I. The defendant, Shenzhen Opaiwang Technology Development Co., LTD., and Zhongshan Sties Electric Appliance Co., LTD., immediately stopped infringing the plaintiff's registered trademark No. 4378572.

    The act of exclusive right to use a trademark;

    2. The defendant, Shenzhen Opiwang Technology Development Co., LTD., and Zhongshan Sties Electric Co., LTD., immediately stopped the unfair competition of using the same or similar words as "Opi" in the production and sale of range hood products;

    Iii. The defendant, Zhongshan Stisi Electric Appliance Co., Ltd. shall compensate the plaintiff, Opai Home Furnishing Group Co., Ltd. for economic losses and reasonable expenses of safeguarding rights totaling RMB 120,000 within ten days from the effective date of this judgment;

    4. The defendant, Shenzhen Opaiwang Technology Development Co., LTD., shall bear joint liability for the compensation liability borne by the defendant, Zhongshan Sties Electric Appliance Co., LTD., in the third judgment mentioned above;

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

    If the pecuniary obligation is not performed within the period specified in this judgment, the interest on the debt for the delayed period shall be doubled in accordance with article 253 of the Civil Procedure Law of the People's Republic of China.

    The receiving fee of this case is RMB 4,300 yuan, which shall be jointly borne by the defendant Shenzhen Opaiwang Technology Development Co., Ltd. and Zhongshan Sties 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 this court, and make copies according to the number of the other party, and appeal to the Intermediate People's Court of Shenzhen, Guangdong province.

    Chief Judge Zeng Youlin

    People's juror Jiang Xianjun

    People's Juror Chen Qiuling

    November 20, 2008

    This copy is identical to the original check

    Clerk Li Yujie

    Zhang Huanhuan, a stenographer