Civil judgment of Shaoxing Intermediate People's Court, Zhejiang Province

    Zhejiang Shaoxing Intermediate People's Court

    Written judgment of civil affairs

    (2018) No. 39, Zhejiang 06, Early Republic of China

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

    Legal representative: Yao Liangsong, chairman of the board.

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

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

    Defendant: Oupai Bathroom Sales Department, Baisha Town, Zhengdong New District. Location: Kangzhuang Village, Baisha Town, Zhengdong New District, Zhengzhou city, Henan Province, China.

    Operator: Zhang Yueqin.

    Defendant: Shenzhen Oupai Electric Appliance Co., LTD. Domicile: 1303, Block D, Building 1, Fuyuan Trading Building, Southeast of Xinanban Chuangye West Road, Bao 'an District, Shenzhen city, Guangdong Province.

    Legal representative: Hao Chunxiu, General Manager.

    Defendant: Shengzhou Santai Electric Appliance Co., LTD. Address: No. 1848 South Shengzhou Avenue, Sanjiang Street, Shengzhou City, Zhejiang Province.

    Legal representative: Cui Jianwei, executive Director.

    Attorney: Wu Songliang, lawyer of Zhejiang Shengjiu Law Firm.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the company) and the defendant of zhengdong new district town baisha opie bathroom in sales) (hereinafter referred to as the European sanitary ware sales, shenzhen European faction electric appliance co., LTD. (hereinafter referred to as the group company), shengzhou SAN tai electric appliance co., LTD. (hereinafter referred to as the three company) the infringement trademark rights, unfair competition disputes, we accept after February 5, 2018, in accordance with the applicable normal procedure public hearing on the trial. Yang Fudong, the agent AD litem of Opai, the plaintiff, and Wu Songliang, the agent AD litem of Santai, the defendant, attended the proceedings. The defendant, Ou Pai Bathroom sales department and Ou Pai Company, was subpoenaed by the court and did not attend the lawsuit without good reason. The case is now closed.

    1. The plaintiff filed a lawsuit to the court: 1. The defendant was ordered to stop the sales department of Oupai Sanitary ware immediately selling the words "Shenzhen Oupai Electric Appliance Co., LTD", "Oupai" and other words as well as the celebrity endorsement image pictures of the gas stove products (model JZT-B011) signed by the plaintiff; 2. 2. The defendant was ordered to stop the bathroom and bathroom sales department of the defendant immediately from highlighting the use of words such as "Oupai kitchen and bathroom appliances", "Oupai", "Youjia Youai Oupai" and the celebrity endorsement image in the storefront signs, interior decoration, shelves, billboards, business CARDS and bills of the stores involved in the case; 3. The defendant Ou Pai Co., Ltd. and The defendant SAN Tai Electric Co., Ltd. were ordered to immediately stop the production and sale of the products marked with the words "Shenzhen Ou Pai Co., LTD.", "Ou Pai" and other words, as well as the celebrity endorsement image pictures signed by the plaintiff company involving the gas stove products (model JZT-B011); 4. Order the three defendants to jointly compensate the plaintiff's economic losses and reasonable expenses for safeguarding their rights, totaling RMB 200,000 yuan; 5. The three defendants are ordered to bear the litigation costs of this case. At trial, the plaintiff withdrew the second claim.

    Facts and Reasons: Plaintiff was founded in 1994, is a comprehensive domestic integrated modern home services provider, products covering the whole wardrobe, kitchen appliances, bathroom, commercial kitchen utensils and other fields. The plaintiff is the registered trademark owner of "OPPEIN" and "OPPEIN". After decades of painstaking operation, the plaintiff has built "Opai" into a well-known household, electrical and sanitary brand throughout the country, and has successively won the reputation of "China famous brand product", "China famous Trademark" and so on. "Have a home, there is love, there are" the slogan in the consumer has a high influence and obtained the full affirmation, in the relevant public mind "Europe" is not only to become a symbol for the plaintiff products and the representative 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 September 2017, the plaintiff, the survey found in the stores involved store signs, the decor, shelves, the place such as billboards highlight labelled "opie hutch defends electric appliance", "Europe", "the home has love with European" wording, etc, and star endorsements image, at the same time the store sales of kitchen burning gas involved products (JZT model - B011) packing box, kitchen is provided, operating instructions, security certification, the place such as qr code icon labeled "shenzhen opie electric appliance co., LTD.", the words such as "Europe", and the plaintiff company signed a star endorsement image picture. In addition, the name card and sales service sheet obtained on the spot were marked with the words "Opai", etc., and the plaintiff entrusted the notary office to preserve evidence for the above behaviors. According to the investigation, the store involved in the case was operated by the defendant Opai Sanitary sales Department, and the products involved were produced by the defendant Opai Company and the defendant Santai Company. The plaintiff believes that the trademark rights of the plaintiff were infringed by the use of "Opi" logo in the commercial publicity activities of the signboard lights of the premises and the production and sale of the products involved by the defendant. At the same time, the defendant the one company, without any justified reason, the registered enterprise name containing "European" font size and with the company of three common annotations on the production and sales of the products involved in the word "European" enterprise name, slogan, and without good reason to use the plaintiff practice of signing the original image of celebrity endorsements, enough to produce market confusion. The ACTS of the above-mentioned defendants all constitute unfair competition and shall bear civil liability. Therefore, into a suit.

    The defendant, Ou Pai Sales Department of Sanitary ware and Ou Pai Company, did not attend the lawsuit and did not submit a written defense to the court within the statutory period.

    The defendant Santai Claimed that on July 8, 2017, a person named "Tian Zong", who held the letter of introduction of Shenzhen Oupai Electric Appliance Co., LTD., a copy of the business license and the original trademark registration certificate, came to the respondent to customize the general gas stove and required the laser printing trademark to be OPPULI. For the trademark registration certificate, can not constitute infringement, the respondent agree to production, concrete under the glass panel and the oven body embedded between laser printing OPPULI trademark, the respondent product besides OPPULI trademark, have common tags, suggests that producers did not set the text or the English trademark words, packing using transit (general packing: there is no direct printing manufacturers, distributors or clients, GeChang general, manufacturers through the post don't stick form clear). From the evidence photos provided by the plaintiff, it can be seen that the other defendants had falsified the tags, nameplates and outer packing, which were not consistent with the original production status of the company. The company has inventory of products can provide comparison. To sum up, the respondent has not committed any production act that infringes upon the exclusive right to use the Opal trademark, involving some signs and marks with opal's words, such as hangtags, nameplates and outer packages, which are not provided or produced by the respondent. The original product was accused European party company or its Zhengzhou sales party made a change, the tort is other defendant to implement. Therefore, the request to dismiss the plaintiff's claim against the respondent.

    To prove his claim, the plaintiff submits to the Court the following evidence:

    1. The printed copies of the information of the plaintiff opai And the defendant in the National Enterprise Credit Information Publicity system prove that the plaintiff company was established earlier and the original and the defendant belong to the business entities of the related industries in terms of business scope.

    2. (2016) Notarial Certificate No. 350 and (2017) Notarial Certificate No. 672, which proves the fact that the plaintiff has the exclusive right to use the registered trademark of "Opai" No. 1128213 according to law and that the plaintiff protects the registered trademark of "Opai".

    3. (2016) Notarial Certificate No. 346 and (2017) Notarial Certificate No. 673, which proves the fact that the plaintiff has the exclusive right to use the registered trademark of "Opai" No. 1137521 and the plaintiff protects the registered trademark of "Opai".

    4. (2016) Notarial Certificate No. 347 and (2017) Notarial Certificate No. 675, proving that the plaintiff has the exclusive right to use the registered trademark "Opai" no. 4378572 according to law.

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

    6. (2016) Notarial Certificate no. 353 of Laifeng City Certificate, which proves that the plaintiff and the plaintiff's brand have relatively high market visibility and obtained honor.

    7. (2017) The Notarial Certificate of Laifeng City Certificate No. 260, which proves that the plaintiff company has obtained some certificates and honors in 2016, and the plaintiff company enjoys high brand value and popularity.

    8. (2016) Legal notarial Certificate No. 357 of Laifeng City Certificate, which proves that part of the tax paid by the plaintiff from 2013 to 2015, "Opi" brand has generated huge profits and benefits, and its brand value is extremely high.

    9. (2016) The Notarial Certificate of Laifengcheng Certificate Minzi No. 355 proves that the plaintiff has invested a large amount of money in the continuous promotion of the "Opi" brand through TV, outdoor advertising, etc. The "Opi" brand has been widely known by the public and its brand value is very high.

    10. (2016) The Notarial Certificate no. 356 issued by Lifeng City Certificate Minzi, which proves that the plaintiff spent money to hire the star Jiang Wenli to endorse the products of "Europa" in order to promote the brand of "Europa", and further proves that the endorsement image of Jiang Wenli has established a specific connection with the plaintiff's Europa brand in the publicity and use of cabinets and sanitary ware related products.

    11.2011 on April 21, 22, 235, 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, September 2010 issue of the "Shanghai ambry", published in April 2011 "ruili household", (the above all are copy), published in April 2014, decorate world magazine (the original), prove that the plaintiff on the large amount of screen media such as magazines, newspapers for "European" "OPPEIN" brand publicity, Further prove that opai brand has a high popularity, but also prove the plaintiff's original "family, love, opai" advertising slogan continued to use, publicity.

    12. (2017) The Notarial Certificate no. 1503 (including the infringing material object sealed by the notary office) of Laifeng City certifies the facts of the defendant's infringement case and the evidence preservation entrusted by the plaintiff to the notarial office for the protection of rights.

    13. (2017) Notarial Certificate No. 1015 of Laifengcheng Certificate, which proves that the plaintiff company has been using European style since its establishment and has a certain history. From May 7, 1997, guangzhou Kangjie Kitchen Co., Ltd. was changed to Opai Home Furnishing Group Co., LTD., which has always contained Opai name.

    The defendant Santai Co., Ltd. holds that it has no objection to the authenticity and purpose of evidence 1 to 11 submitted by the plaintiff. Evidence for 12 outside part involves the kitchen burning gas is not comment, review by the court according to law, has nothing to do with the defendant, kitchen burning gas in 12 part cross-examination evidence opinions with defense, this defendant only produced a stove body parts, all of the tags, nameplate, etc are production, not the defendant is not the defendant, in terms of production behavior the defendant did not happen the infringing act. No objection is made to evidence 13.

    To prove its claim, Defendant Santai Submitted to the Court the following evidence:

    1. Business license (photocopy stamped with official seal) and trademark registration certificate (photo copy) provided by the ordering party to prove that the ordering party is the defendant European Company, and that the company ordered gas stoves with the trademark of OPPULI to the ordering party at that time.

    2. The general instructions attached to the package prove that the products produced by the defendant do not involve any brand or trademark.

    3. The gas stove products and the fixed trademark OPPULI produced by the defendant in the packaging prove that the defendant did not produce products bearing the European Brand name, but only products bearing the OPPULI trademark.

    4. The gas stove products and product instructions produced by the defendant in the package (without Opie and related words).

    5. The defendant provided the outer packing of the ordered products (all in common packing, without Euro and related words).

    Evidence 2-5 proves that except for the stove body which is OPPULI, other nameplates do not have the word "Oppe", and the defendant does not produce the product with the word "OPpe", which does not constitute infringement.

    The plaintiff holds that there is no objection to the authenticity of the business license and trademark registration certificate of evidence 1 provided by the defendant, and that the evidence 2 and 5 provided by the defendant have nothing to do with the case and are provided by the defendant unilaterally, so there is an objection to its authenticity. There is no objection to the authenticity of evidence 3, but objection to the content of proof. The substance of evidence 4 is not relevant to the case, and the defendant has said that this is a general purpose gas cooker and is not relevant to the case.

    After reviewing the evidence presented by the parties, the Court finds that the defendant Santai Company has no objection to the evidence 1-11 and 13 presented by the plaintiff, which are both authentic and lawful, and the Court confirms them. Evidence 2-4 shows that plaintiff is the owner of the registered trademarks no. 1128213, 1137521 and 4378572, and evidence 6-11 shows the goodwill of plaintiff. The notarization of evidence 12 can certify the purchase process by the plaintiff.

    After reviewing the evidence submitted by the defendant Santai Company, the court finds that the plaintiff has no objection to the authenticity of evidence 1 and 3, and confirms it. The plaintiff think the evidence 2, 4, 5, and the lack of relevance to the case, but the plaintiff for the material object is the production and no objection, at the same time think evidence 4 stove body is gm's kitchen burning gas, the wording is labeled with the tag, combined with the scope of operations for the production, processing, marketing integrated kitchen stove, oven, and so on and so forth, we also found evidence of the above.

    Based on the evidence ascertained by the Court and the plaintiff's statements at the trial, the Court ascertained the facts of the case as follows:

    Opai Home Furnishing Group Co., LTD is the registrant of the registered trademarks of Opai No. 1128213, Opai No. 1137521 and Opai No. 4378572. The goods approved for the use of the aforementioned "Opai" trademark No. 1128213 are in class 20 and the rest are in class 11. The renewal of registered trademark no. 1128213 shall be valid from 21 November 2017 solstice 20 November 2027. The renewal of registered trademark no. 1137521 shall be valid from 21 December 2017 solstice 20 December 2027. Registered trademark no. 4378572 shall be renewed for a limited period from 7 June 2017 to 6 June 2027 solstice.

    In September 2007, the general Administration of Quality supervision, Inspection and Quarantine of the People's Republic of China awarded the Opai household cabinet produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. as "China famous brand products", and the period of validity was from September 2007 to September 2010. In October 2008, Guangdong provincial Bureau of Quality and Technical supervision granted The Opai cabinet products produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. as "Guangdong famous brand products", valid from October 2008 to September 2011. On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized guangzhou Oupai Cabinet Enterprise Co., Ltd. as a well-known trademark of the registered trademark "Oupai" on the sideboard goods of category 20 of the International Classification of Goods and Services for trademark registration. In December 2012, Guangdong Opai household Group Co., Ltd. was identified by China Building decoration Association Hutch and sanitation Engineering Committee as "2012 China hutch and sanitation top 100", "overall kitchen leading enterprises top 10", valid for December 2012 to December 2013. In September 2013, Guangzhou Municipal People's Government awarded Guangdong Opai Furniture Group Co., Ltd. the title of "2012 Guangzhou Mayor Quality Award". In January 2015, Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce jointly awarded the plaintiff the title of "Top ten Most Valuable Brands" in the field of Guangdong extensive home furnishing in 2014. In January 2016, Guangzhou Municipal Administration for Industry and Commerce recognized the registered trademark "Opai" No. 1128213 on sideboards and furniture (wardrobes), the registered trademark "Opai" No. 4378572 on kitchen range hood and bath equipment as "Famous Trademark of Guangzhou City". In May 2016, Opai was awarded the "6th" Trademark brand of Chinese cabinet industry by China Industry Trademark Brand Review Committee. The evaluation committee of China top 500 Brand Value determined that Opai's brand value was 16.603 billion yuan, and it was selected into the 10th China Top 500 Brand Value.

    The plaintiff Opai Group paid taxes on time from 2013 to 2015, and the tax payment amount exceeded 100 million yuan. To promote their products, on August 1, 2013 to July 31, 2015, the plaintiff, employ actress jiang wenli as European brand cabinets, wardrobe, bathroom, and successively in two sets of CCTV "swap space", "10th golden eagle festival closing ceremony and awards", CCTV news channel, "Oriental horizon", when the international news, newsweek, and the world weekly, China central television (CCTV) - news advertisement "global vision" and so on. Advertisement was published in Shanghai Cabinet in September 2010, Linchuan Evening News, Shenzhen Special Zone Daily, Anqing Daily, Ruili Home Furnishing and other newspapers and magazines in April 2014.

    On May 7, 1997, guangzhou kang jie kitchen co., LTD. Change to equipment co., LTD., guangzhou opie ambry after October 28, 1997, changed to guangzhou opie ambry enterprise co., LTD., on July 6, 2009, changed to guangdong opie group co., LTD., July 20, 2010 change to European household group co., LTD., guangdong on August 19, 2013, change to European household group co., LTD.

    On September 14, 2017, Fengcheng Notary Office of Laiwu City, Shandong Province accepted the application of jindun Intellectual Property Service Center of Laicheng District, Laiwu City, Shandong Province, and appointed The notary Zhang and the notary Xu's agent Wang Shouzhen to visit the "European Kitchen and Sanitary Appliances" store located in Zhengdong New District, Zhengzhou City, Henan Province. Shou-zhen wang in the shop in the name of ordinary consumers to buy the marked "European faction electronics (shenzhen) co., LTD." the oil absorption of a (the lampblack machine panel) marked "Europe", marked "opie electronics (shenzhen) co., LTD." the kitchen burning gas of a (the kitchen burning gas security certificates marked with the "European faction electronics (shenzhen) co., LTD"), marked "shenzhen opie sanitary ware co., LTD." the implement of a, marked "European" water purification machine a set of (the water purification machine with "have a home, there is love, there are" words, The manual is marked with the words "Shenzhen Oupai Electric Appliance Co., LTD" and the words "Wancheng Oupai". I got on the spot a POS card, a Sales and Service order of Opai, a business card with the word "Zhang Yueqin" and a brochure with the word "Shenzhen Opai Electric Appliance Co., LTD" issued by the store. Wang Shouzhen took nine pictures of the shop inside and outside. After the end of the above activities, Under the supervision of the notary, Wang Shouzhen took 47 photos of the above articles, the notary sealed the above articles, Wang Shouzhen took 5 photos of the appearance of the sealed articles, and the sealed articles were kept by Wang Shouzhen. On October 19, 2017, Fengcheng Notary Office of Laiwu City, Shandong Province issued a notary Certificate of Laifeng City Certificate No. 1503.

    During the court hearing, the court organized the two parties to compare the real gas cooker purchased by the nobel.the outer packing box of the gas cooker was marked with the word "OPPULI" and the information such as "Shenzhen OPPULI Electric Appliance Co., LTD" and "Manufacturer: Shengzhou Santai Electric Appliance Co., LTD" were printed. Packing paper box inside a gas cooker, a manual, a security certificate. The labels on the gas stoves are labeled with the words "embedded household gas stoves", "Model JZT-B011" and "Shenzhen Oupai Electric Appliance Co., LTD". The words "OPPULI" are laser printed at the bottom left of the gas cooker. The cover of the manual is printed with the words "OPPULI" and "Shenzhen OPPULI Electric Appliance Co., LTD", and the anti-counterfeiting certificate is printed with the information of "OPPULI" and "Shenzhen OPPULI Electric Appliance Co., LTD". The plaintiff thinks that the notarized information on the outer package and stove body can prove the fact that the defendant Shenzhen Oupai Company and the defendant Santai Company have produced and sold the accused infringing products. The words "Shenzhen Oupai Electric Appliance Co., LTD" were used on the packaging of the products involved, which played a role in identifying the source of the trademark and was used in the sense of trademark law. Among the words marked with the distinguishing meaning and significance is the word "Europa", which constitutes a similar use with the trademark enjoyed by the plaintiff. At the same time the defendant company of shenzhen group company, the accused three as the operator of related industries, should know the plaintiff opie and European trademark enterprise reputation, still on the product label use contain the words "European" enterprise name, violates the second anti-unfair competition law and article 6 of the regulations, constitute ACTS of unfair competition.

    The defendant Santai company believes that the gas stove body involved is its production, but the product packaging, product instructions, certification tags are not its production. The embedded household gas stove label affixed to the stove body was not affixed by the defendant. In this case, the printed matter part of the product accused of infringement involves infringement, but it is not implemented by the defendant, which is completely inconsistent with the products produced by the defendant. The defendant only produces general gas stove products. The plaintiff needs to prove that the printed matter such as the product description is also produced by the defendant. Specification is color printing printed matter, the cost is relatively large, the number of kitchen body products produced by the defendant is very small, only 40, 50, it is impossible to entrust others to make plate, from common sense that the defendant does not exist the possibility of making printed matter.

    The plaintiff to the defendant Santai company to provide its production of gas stove physical comparison, the physical is a general gas stove, and the accused infringement product with a different label. After examination, the court thinks that the stove body part of the real object is the same as the accused infringing product, and the lower-left corner has the word "OPPULI" printed by laser, but there is no word "OPPULI" on the product specification and certificate of quality, which is different from the packaging of the accused infringing product.

    In addition, it is found that the defendant Opai bathroom Sales Department is an individual industrial and commercial merchant, which was established on October 15, 2014 and its business scope is retail bathroom. The defendant Ou Pai Company was established on August 13, 2012, and its business scope was sales of household appliances and small household appliances. Domestic trade, import and export of goods and technologies, registered capital of RMB 100,000. The defendant Santai Company was established on September 25, 2010. Its business scope covers the production, processing and sales of kitchen integrated stoves, air conditioners, range hoods, cleaning cabinets, household ovens, kitchen appliances, sinks, bath ba, water heaters, small household appliances, motors, hardware and electronic products, with a registered capital of RMB 500,000.

    The court holds that the plaintiff Opai Company is the owner of the exclusive right to use the registered trademark No. 1128213, No. 1137521 and No. 4378572, and the above trademarks are all within the period of validity, and the exclusive right to use the registered trademark should be protected by law. "Trademark law of the People's Republic of China" paragraph 1 of article 57 in the second paragraph: "without the permission of the trademark registrant, used on the same kind of goods with similar trademark registered trademark, or to use its registered trademark in the similar products of the same or similar trademark, easy to cause confusion, belongs to the exclusive use of a registered trademark has been infringed." (1) Counterfeiting the registered trademark of others; (2) to use, without authorization, the names, packaging or decoration peculiar to a well-known commodity, or to use names, packaging or decoration similar to that of a well-known commodity, so as to cause confusion with the well-known commodity of another person and cause buyers to mistake the well-known commodity for the well-known commodity; (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods; (4) forging or falsely using on a commodity authentication marks, famousand superior marks or other marks of quality, forging the origin of a commodity or making false and misleading representations concerning the quality of the commodity." In this case, through the comparison of the alleged infringement product packaging and product specification, certificate of approval on all use the word "Europe", and the plaintiff's registered trademark registered trademark on the font height 1137521 approximation, and use the aforementioned trademarks with the similar goods, easy to cause confusion, so the defendant's group company production, sales, the alleged infringement, the defendant opie bathroom products sales sales of the behavior of the infringing product infringes upon the plaintiff's 1137521th "European" registered trademark. At the same time, the defendant's company arbitrarily used the company name with the same enterprise name and the same text of the registered trademark as the plaintiff's Opai Company, which led to the mistake that its products were the products of the plaintiff's Opai Company, thus constituting unfair competition.

    Identification of production and sales activities. The information such as the registered trademark, tag or nameplate of the product, the manufacturer's name on the instructions may be prima facie evidence of the manufacturer, unless there are other facts or evidence to the contrary to prove that the manufacturer of the infringing product is another person. In this case, "Shenzhen Oupai Electric Appliance Co., LTD" and "Manufacturer: Shengzhou SAN tai electric appliance co., LTD. "and other words, the instruction manual cover with the word" opie electronics (shenzhen) co., LTD. ", security certificate printed on the information such as "shenzhen European faction electric appliance co., LTD.", the defendant's faction company refuses to appear in court without justified reasons to participate in litigation, the department accused of infringing products manufacturer did not demur, and three company also proof to prove that the defendant stove system involved the accused the group company to entrust the production, so it can be concluded that the defendant's faction company production and sales of the behavior of the infringing products. About the defendant Santai company whether there is production, sales behavior identification. The defendant Santai company defense is sued the infringement product stove body part is really its production, but its production is only the general product, without "European" word, the product outer packing, product manual, certificate of quality hang plate is not its production, the embedded household gas stove label on the stove body is not its place. We believe that the defendant in the trial of company of three statements accused the group company to entrust the production and processing the alleged infringing products, and provide the accused the school of the company's business license, "OPPULI" trademark registration certificate, etc., to prove its entrusted the accused European faction company production of gas burner stove body involved in the European faction of the company's identity and laser printing on the stove body "OPPULI" brand audit, the legitimacy of its production of stove body part does not violate the trademark of the plaintiff. Now infringe the plaintiff's relevant rights of the product use instructions, anti-counterfeiting certificate hanging plate, the stove body pasted with "embedded household gas stove", "Shenzhen Opai Electric Appliance Co., LTD." the label and so on are the accessories that can be separated from the stove body, can be made and added afterwards. Now the defendant Santai Company denies that the parts other than the above-mentioned stove body are made by it, and the plaintiff has not provided sufficient evidence to prove, so the court accepts the defense of the defendant Santai Company; The court does not support the plaintiff's claim that the defendant Santai Company should stop the infringement and assume the liability for compensation. In addition, the defendant Ou Pai bathroom sales department without the plaintiff's permission, the sale of the accused infringing products, should bear the tort liability. To sum up, the court supports the plaintiff's request that the defendant Ou Pai Electric Co., Ltd. immediately stop the sales of sanitary ware and the defendant Ou Pai Electric Co., Ltd. immediately stop the production and sale of gas stove products (model JZT-B011) marked with "Shenzhen Ou Pai Electric Co., LTD.". Plaintiff requires the defendant to stop when the gas burner products marked with the company signed a star endorsement image picture, because in this case the plaintiff provided only on August 1, 2013 to July 31, 2015 during its employ actress jiang wenli as European brand cabinets, wardrobe, bathroom spokesperson advertising contracts, not is a gas burner product endorsements, and during the endorsement is over now, the plaintiff and not to submit other evidence of product by other celebrity endorsements, therefore, to the plaintiff of the lawsuit request, we shall not be supported.

    Determination of the amount of compensation. According to 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 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 make a judgment of not more than THREE million yuan in accordance with the circumstances of the infringement." In this case, the plaintiff did not provide the actual loss caused by the infringement or the relevant evidence of the defendant's profit caused by the infringement, so the statutory compensation is applicable. Taking into account the nature and circumstances of each defendant's infringement, the popularity of the trademark involved by the plaintiff, and the fact that the plaintiff hired a lawyer to represent him in the lawsuit, etc., the amount of compensation shall be determined as appropriate. Specific as follows: the defendant the group company is accused of infringement product manufacturers, belong to the source of infringement, the initiative to entrust the defendant infringes upon the plaintiff the trademark involved three Thai company products, and refuses to appear in court without justified reasons to participate in the litigation, subjective vicious, discretion to determine the compensation for the plaintiff economic losses (including reasonable expenses) to 120000 yuan. The defendant Ou Pai sanitary ware sales department sells the infringing gas stove products without the plaintiff's permission, and assumes the liability for compensation for its sales behavior. According to the circumstances, the defendant Ou Pai company shall assume the joint and several liability for compensation within the scope of RMB 30,000 which should be borne by the company.

    The defendant Ou Pai bathroom sales department, the defendant Ou Pai electricity company by the court summons without justifiable reasons refused to attend the court proceedings, according to law can make a default judgment.

    In summary, in accordance with article 118 of the General Principles of the Civil Law of the People's Republic of China, Article 57 and Article 63 of the Trademark Law of the People's Republic of China, Article 5 of the Law of the People's Republic of China against Unfair Competition, and Article 144 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    Shenzhen one, the European school of electric appliance co., LTD. Immediately stop the production and sales of packaging and stove body marked with "opie electronics (shenzhen) co., LTD." on the kitchen burning gas products (JZT model - B011), and to compensate the plaintiff opie household group co., LTD., economic losses (including reasonable expense to stop the infringement) 120000 yuan;

    Ii. The defendant, Oupai Bathroom Sales Department, Baisha Town, Zhengdong New District, immediately stopped the sale of gas stove products (model JZT-B011) marked with the words "Shenzhen Oupai Electric Appliance Co., LTD" on the outer package and the stove body; And assume joint and several liability for compensation of 30,000 yuan in the aforesaid first item of debt;

    The remaining claims of the plaintiff, Opai Household Group Co., LTD., were rejected.

    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 case handling fee is 4,300 yuan, 860 yuan borne by the plaintiff Oupai Home Furnishing Group Co., LTD., and 3440 yuan borne by the defendant Shenzhen Oupai Electric Appliance Co., LTD. The defendant, Oupai Sanitary Ware Sales Department in Baisha Town, Zhengdong New District, is jointly and severally liable for 860 yuan of the expenses borne by the defendant shenzhen Oupai Electric Appliance Co., LTD.

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

    Chief Judge Hu Chunxia

    Judge Wang Hongqin

    People's Juror Yuan Wenqin

    September 3, 2008

    Clerk Xu Qing

    The attached:

    1. General Principles of the Civil Law of the People's Republic of China

    Article 118 Any citizen or legal person whose copyright (copyright), patent right, right to exclusive use of trademarks, right of discovery, right of invention or right of other scientific or technological achievements has been infringed upon by plagiarism, tampering or counterfeiting shall have the right to demand that the infringement be stopped, the impact be eliminated and the losses be compensated for.

    2. Trademark Law of the People's Republic of China

    Article 57 any of the following ACTS shall be an infringement of the right to exclusive use of a registered trademark:

    (1) using a trademark identical with a registered trademark on the same kind of goods without the permission of the trademark registrant;

    (2) using a trademark similar to its registered trademark on the same kind of goods or using a trademark identical with or similar to its registered trademark on similar goods without the permission of the trademark registrant, which is likely to cause confusion;

    (3) selling commodities that infringe upon the right to exclusive use of a registered trademark;

    (4) forging or manufacturing, without authorization, signs of a registered trademark of another person, or selling signs of a registered trademark that is forged or manufactured without authorization;

    (5) changing a registered trademark of a trademark registrant and putting the commodities with the changed trademark back on the market without the consent of the trademark registrant;

    (6) intentionally facilitating the act of infringing another person's right to exclusive use of a trademark, and helping another person to commit the act of infringing the right to exclusive use of a trademark;

    (7) causing other damage to the exclusive right to use a registered trademark of another person.

    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.

    In order to determine the amount of compensation, the people's court may order the infringer to provide books and materials related to the infringement act, provided that the obligee has tried his best to provide evidence and that the books and materials related to the infringement act are mainly in the possession of the infringer; If the infringer fails to provide false account books or materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided.

    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.

    3. Law of the People's Republic of China against Unfair Competition

    (1) Counterfeiting the registered trademark of others; (2) to use, without authorization, the names, packaging or decoration peculiar to a well-known commodity, or to use names, packaging or decoration similar to that of a well-known commodity, so as to cause confusion with the well-known commodity of another person and cause buyers to mistake the well-known commodity for the well-known commodity; (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods; (4) forging or falsely using on a commodity quality marks such as authentication marks, famousand superior marks, forging the origin of a commodity or making false and misleading representations concerning the quality of the commodity.

    4. Civil Procedure Law of the People's Republic of China

    Article 144 If a defendant, having been served with a summons, refuses to appear in court without justified reasons, or if he withdraws during a court session without the permission of the court, the court may make a judgment by default.