Civil judgment of Zhongshan Intermediate People's Court, Guangdong Province

    Zhongshan Intermediate People's Court of Guangdong Province

    Written judgment of civil affairs

    (2017) No. 4680 of Minzhong of Yue20

    Appellant (plaintiff in the first instance) : Opai Home Furnishing Group Co., LTD., 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.

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

    Appellant (defendant in the first instance) : He Mou, male, born on August 14, 1980, Han Nationality, residing in Ningyuan County, Hunan Province.

    Agent AD litem: Zhang Zhongping, lawyer of Guangdong Guishun Law Firm.

    Appellant (defendant in the first instance) : Zhongshan Xishuangban Huwei Technology Co., LTD., No. 21, Tongan Avenue West, Dongfeng Town, Zhongshan City, Guangdong Province (one of the Factories of Zhao Lanhao).

    Legal representative: Wang Mou, manager of the company.

    Agent AD litem: Zhang Zhongping, lawyer of Guangdong Guishun Law Firm.

    Appellant (defendant in original trial) : Jiangsu Opai Electric Co., LTD., Flat A7, 9 / F, Yingao International Building, 707-713 Nathan Road, Mongkok, Kowloon, Hong Kong Special Administrative Region.

    Legal representative: Wang Mou, director of the company.

    Agent AD litem: Zhang Zhongping, lawyer of Guangdong Guishun Law Firm.

    Appellant (defendant in the first instance) : Wang Xx, male, born on April 4, 1983, han Nationality, living in Xingyi city, Guizhou Province.

    Appellant opie household group co., LTD. (hereinafter referred to as company) with the appellant He Mou, zhong shan xi double with hutch defends technology co., LTD. (hereinafter referred to as "xi double with company) and the appellee jiangsu opie electric appliance co., LTD. (hereinafter referred to as" jiangsu company), wang mou of unfair competition disputes, refuses to accept the second people's court (2016) guangdong zhongshan city of guangdong province 2072 5928 in the early days of the civil judgment, to file an appeal. After filing a case, the court formed a collegial panel in accordance with the law, reviewed the appeal opinions, and decided not to hold a hearing. The case is now closed.

    The appellant, Opai, requests to appeal: 1. Cancel the judgment of the first instance in paragraph 5, and revise the judgment according to law to pay compensation of RMB 150,000 to Opai within 5 days after the judgment takes effect (including reasonable expenses paid to stop infringement); 2. 2. Cancel the sixth sentence of the original judgment, and revise the judgment according to law: Jiangsu Opai Company, Xi Shuangxian Company and Wang Mou shall pay 850,000 yuan of compensation to Opai Co., Ltd. within five days from the date of the legal effect of the judgment (including reasonable expenses paid to stop infringement); Iii. Jiangsu Opai Company shall immediately stop using the enterprise name with the word "Opai"; Four, this case a, second instance case acceptance fee by he Mou, Xi Shuanglian company, Jiangsu Europe sends company, Wang Mou burden.

    Facts and reasons: I. Wang Mou should bear the tort liability of unfair competition in this case. 1. On November 14, 2012, Mr. Wang registered Jiangsu Opai Company with the name "Opai" in Hong Kong with only HK $10,000 (the minimum registered amount), and then on November 22 of the same year, jointly invested and established The Company, and held 90% of the shares of the company. Jiangsu European company and authorize xi two trace processing production with the wording "opie electric appliance co., LTD in jiangsu" infringement products, like double with company in order to help the jiangsu opie the sale of infringing products in mainland China, also set up a website for "www.opaidq.com.cn" website, and on the website using "opie appliances is an important brand" the company's description. The website also has wang's contact information. Jiangsu Opai company, Xi Shuangpeng company began a series of infringement. Thus it can be seen that from the registration of Jiangsu Opai company to the mature marketing of the whole infringing links are planned by Wang mou alone; 2. According to the enterprise registration information of Jiangsu Opai Company, the company has not obtained the "Business registration certificate" since its establishment in Hong Kong and has not carried out any business activities in Hong Kong. It has no business qualification in mainland China, but entrusts Xishuangban company to produce infringing products in mainland China, and then sells them in mainland China in the name of Jiangsu Opai Company. Obviously, the fundamental purpose of The registration and establishment of Jiangsu Opai Company and Xishuanglian Company is to produce and sell infringing products, and all the business activities of Jiangsu Opai Company in mainland China should be regarded as the personal behavior of Wang. Moreover, Wang himself is a mainland resident, not a Hong Kong citizen. His purpose of registering Jiangsu Opai Electric Appliance Company in Hong Kong is to take advantage of the relaxed company registration environment in Hong Kong and "ride along" in the mainland after registration. According to the investigation, at present in addition to Jiangsu Oupai company, Wang also to well-known enterprise name in the core part of the registered "Zhuhai Smith kitchen Equipment Co., LTD." and "Jiangmen Golden Cherry Technology Co., LTD.," seriously disturbed the normal market order, obviously constitute unfair competition, should be severely hit; 3. There are a lot of use of the provisions of the Hong Kong company registration system loose to well-known enterprise name registered companies in Hong Kong, and in the name of the Hong Kong company authorized mainland companies for infringement activities to obtain illegal behavior of interests, greatly infringes the interests of the obligee, disturbed the normal management order, violates the principle of a recognized business ethics and integrity, should be of the perpetrator directly imposed a responsibility, to standardize the market and establish a good market value guidance role. To sum up, The purpose of Wang's registration of Jiangsu Opai Company is to carry out unfair competition and infringement, subjectively, there is a strong malicious infringement. The judgment of the first instance has determined that Wang's behavior has an obvious infringement intentionally, is to achieve the purpose of taking the famous brand, but the judgment does not assume responsibility, it is incomprehensible. The responsibility for wang mou to the case that should apply the law of the People's Republic of China tort liability law of the People's Republic of China against unfair competition, the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law and article 58 the provisions of the trademark law of the People's Republic of China, Hong Kong should not apply the provisions of the laws about shareholders' rights and obligations. The amount awarded in the first instance is obviously too low. 1. According to the 8th screenshot attached to the notarial Certificate No. 196, submitted by Opai (2016), the unit price of the range hood involved in the case was 138 yuan per unit, and 1,228 pieces of the online store involved in the case had been sold, with the sales amount being 169,464 yuan. The original judgment ignored this fact and only ordered He to pay compensation of 20,000 yuan, which was obviously too low; 2. Jiangsu Opai Co., Ltd. and Xishuangban Co., Ltd. are producers that attract investment from all over the country for the products involved. There are various types of range hood with a long infringement time span. 3. Zhongshan has always attached great importance to the protection of intellectual property rights. In 2009 and 2013, the amount of compensation awarded in similar cases was more than 500,000 yuan. With the increasing efforts of the state to protect intellectual property rights, coupled with the rapid rise of prices in recent years, the cost of safeguarding rights is rising, and the amount of the original judgment is low. This is not only contrary to the spirit of intellectual property protection in China, but also obviously unfair. In addition, as for the amount of compensation, Opai has tried its best to prove its trademark popularity, publicity and promotion, enterprise income and tax payment in the first instance, but the other party refused to provide relevant financial books, so the actual loss and infringement profit could not be determined. Given the high-profile company trademarks and company, has extensive market influence, in the case of infringement product sales range is big, low compensation would be tantamount to connivance of the infringement, or lead to infringement due to the infringement of low cost and give up work ethic, disrupt the industry market, establish and improve the credit system, is not conducive to effectively curb the infringement. Therefore, the court of second instance is requested to reasonably support the economic loss claimed by Opai according to the specific case, the popularity and market value of the trademark in dispute. Three, jiangsu European company since was established has not dealt with business registration certificate, registered its aim is to free-ride, hitchhiking, opie ordered jiangsu company request the company to immediately stop using with the word "European" of the enterprise name, conform to the law, as for later execution problems, the company may apply for the Hong Kong courts admit, execution.

    In response to the appeal of Opai company, He defended that: 1. He is not the subject of the unfair competition, but only the agent selling the products of Jiangsu Opai Company and Xishuanglian Company, and he has no intention to carry out the improper behavior and shall not bear the tort liability. 2. Ii. According to the evidence provided by Opai, the sales amount of He mou is only 169,000 yuan, and the normal profit is only several thousand yuan. The original judgment of its compensation of 20,000 yuan is too high.

    Appeal to European companies, like double with company, jiangsu opie reply said: one, the PanPei amount of zhongshan city intermediate people's court of other similar cases are to be controlled in 90000 yuan, the company request jiangsu sent company HeXiShuang associated with significantly higher compensation for 850000 yuan, and they had no evidence from jiangsu European company and infringement of xi double with corresponding high loss, also do not have evidence to prove that jiangsu opie HeXiShuang partner company profit of 850000 yuan. Ii. The original judgment of Jiangsu Opai Company and Xishuanglian Company for compensation of 100,000 yuan is also obviously too high. 3. The claim by OPai that Jiangsu Opai has not applied for the business registration certificate is not true. Opai Jiangsu is a legally established company in Hong Kong Special Administrative Region.

    Against opai's appeal, Wang did not answer.

    The appellant, Xi Shuanglian company, requests for appeal: 1. According to law, the appellant shall amend the judgment that Xi Shuanglian Company shall compensate OPai RMB 50,000 yuan (including reasonable expenses incurred to stop infringement) or send the case back for retrial. 2. The litigation costs of the case shall be borne on a pro rata basis.

    Facts and reasons: I. Factual error in the judgment of the first instance. 1. Jiangsu Opai Company is a legally registered company in Hong Kong, and has the legal right to use the enterprise name "Opai". As authorized by Oupai company, Oupai Company produces products with Jiangsu Oupai Company as the supervisor. In case of infringement, Oupai Company shall also be liable for compensation. 2. Since May 2016, Xi Shuanglian company has stopped producing and selling range hood marked with the words "Jiangsu Oupai Electric Appliance Co., LTD". Since receiving the judgment of first instance, Xi Shuanglian Company has not used the words "Oupai Electric Appliance" and "You Have A Home and love Jiangsu Oupai" on its website. The production and sales time of The Two partners is short, the profit is very small, and Opie does not prove its actual loss. In conclusion, it is advisable for Xi Shuanglian company to compensate OPai company for 50,000 yuan (including reasonable expenses for preventing infringement) according to law. Error of the subject of liability in the judgment of first instance. The unfair competition behavior must have the intention to take the unfair competition behavior subjectively, the negligent behavior does not fall within this scope. Xi Shuangjian Company is authorized by Jiangsu Opai Company to produce related products, without any intention of infringement, and it is not known that its ACTS constitute infringement. If an infringing product is produced solely because of authorization, it cannot constitute unfair competition. In case of any loss caused by his behavior due to his ignorance of laws and regulations, the authorized person shall bear the liability first, and The Company shall only bear the supplementary liability. Three, the original judgment of litigation costs bear error. Opai sued for compensation of 1 million yuan. The first instance judgment only supported the claim of 120,000 yuan, indicating that opai demanded too much. Therefore, opai should bear the litigation costs by itself, that is, it should bear the litigation costs of 12,144 yuan.

    In response to the appeal of Xi Shuanglian company, Opai argues that: I. The judgment of the first instance finds that The conduct of Jiangsu Opai Company and Xi Shuanglian Company is correct. Ii. If the amount of compensation awarded in the first instance is obviously too low, the judgment shall be made according to the 850,000 yuan appealed by Opai. According to the evidence submitted by Opai and the relevant cases inquired by Zhongshan District Court, the amount of damages awarded by Zhongshan District Court to relevant cases before was over 500,000 yuan.

    He stated that he agrees with the appeal of The Company.

    In response to the appeal of Xi Shuanglian Company, Jiangsu Opai Company states that it agrees with the appeal of Xi Shuanglian Company.

    Against xi Shuangxian company's appeal, Wang did not state the opinion.

    Appellant He mou appeal request: according to the law, he Mou not to pay compensation to Europa company 20,000 yuan.

    Facts and reasons: I. Factual error in the judgment of first instance. He mou does not carry out unfair competition behavior. He ran the "Baixin kitchen health" online shop, is a legally registered online shop, sales of the product is the product produced by Xi Shuangban company. Since Jiangsu Oupai company is a legally registered company in Hong Kong, And Xishuanglian Company is authorized by Jiangsu Oupai Company to produce products with Jiangsu Oupai Company as the supervisor, He has reason to believe that the use of the word "Oupai" in the products produced by Xishuanglian Company is legal and does not constitute infringement. He mou has no obligation to find out whether the products sold are infringing, only in the case of unable to find out the producer, the seller is liable. However, Xi Shuanglian company admitted that the products sold by He mou were produced by him, and the judgment of first instance also confirmed the fact that He mou sold the products without his knowledge, and the liability arising therefrom shall be borne by Xi Shuanglian Company. When he discovered possible unfair competition, he immediately stopped selling the hoods labeled "Jiangsu Opai Electric Co.," and stopped using the word "Opai" on the website. Ii. Errors in the application of law in the judgment of first instance. At the same time, the first-instance judgment requires Xi Shuangxian Company, Jiangsu Opai Company and He Mou to assume the liability for compensation, which is a repeated punishment. At the same time, after Xishuanglian Company and Jiangsu Opai Company compensate for the loss of Opai, the loss of Opai company has been fully compensated, and it cannot ask others to compensate for the loss.

    In response to he's appeal, Opai argued that the facts were correct in the first instance, but the amount of compensation was obviously too low. In the first instance, he's agent admitted in court that he's sales amount was 169,464 yuan. It is understood that the market purchase price of the infringing products involved is about 30-50 yuan, that is, he's profit is more than 100,000 yuan, the amount of compensation awarded by the first-instance court is obviously too low.

    Regarding he's appeal, Xi Shuanglian Company and Jiangsu Opai Company state that they agree with he's appeal.

    Against he's appeal, Wang did not state an opinion.

    Opai company sues to the first instance court request: 1. He Mou immediately stops using "Opai" text in its online store to carry out false propaganda of unfair competition behavior; 2. 2. He mou immediately stop selling range hoods marked with the words "Jiangsu Oupai Electric Appliance Co., LTD"; 3. Jiangsu Oupai Company and Xishuangban Company shall immediately stop the production and sale of range hoods marked with the words "Jiangsu Oupai Electrical Appliance Co., LTD"; Iv. Xishuangxian Company shall immediately stop the unfair competition behavior of using the words "Opai Electric" and "You Have a family and love Jiangsu Opai" on www.opaidq.com.cn; V. Jiangsu Opai Company shall immediately change its enterprise name, and the word "Opai" shall not be used in the changed enterprise name; 6. Jiangsu Opai Company, Xi Shuanglian Company, He Mou and Wang Mou shall compensate opai Company for economic losses and reasonable expenses of 1 million yuan.

    The court of first instance confirmed the fact that Opai was founded on July 1, 1994 with a registered capital of RMB 373581112 and its business scope is furniture manufacturing industry.

    Guangzhou Oupai Cabinet Enterprise Co., Ltd. applied for registration of trademark No. 4378572 "Oupai" on June 7, 2007, and approved the use of kitchen range hoods including category 11. The term of validity is until June 6, 2017. Guangzhou Kangjie Kitchen Equipment Co., Ltd. applied for the registration of trademark "Opai" No. 1137521 on December 21, 1997, and approved the use of goods including electrical cookingware of Category 11. The valid term will be extended to December 20, 2017. On March 14, 2011, Guangdong Opai Group Co., Ltd. applied for the registration of trademark "OPPEIN" No. 7731876, which approved the use of kitchen range hoods including category 11. The term of validity is until March 13, 2021. On March 24, 2014, the above-mentioned three registered trademarks were approved by the National Trademark Office, and the name of the registrant was changed to Opai Company.

    On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized the trademark of "Opai" on the sideboard of category 20 of the International Classification of Goods and Services as a well-known trademark. In September 2007, the state administration of quality supervision, inspection and quarantine set awarded to the company's brand household cabinet for "China famous brand product". In October 2008, Guangdong Provincial Bureau of Quality and Technical Supervision granted Opai's cabinet products as "Guangdong famous brand products". In February 2008, "Opai" trademark was recognized as "Famous trademark of Guangdong Province" by Guangdong Famous Trademark Recognition Committee. In December 2012, Opai 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", effective term of a year. In September 2013, The Guangzhou Municipal People's Government awarded Opai the title of "2012 Guangzhou Mayor Quality Award". On December 28, 2014, the case evaluated by Brand Watch magazine was selected into the silver Award of 2014 Annual Brand Marketing Case in China. In January 2015, Guangdong Home Furnishings Federation and Guangdong Furniture Chamber of Commerce jointly awarded Opai the title of "Top 10 Most Valuable Brands" and "Top 10 Innovative Enterprises" in 2014 guangdong pan-household industry.

    On October 30, 2012, opai signed an agreement with Beijing ontime boiling international advertising co., ltd. on the sponsorship and cooperation of home decoration fund. It was agreed that opai would sponsor two sets of "exchange space" home decoration fund of CCTV. The contract was performed from January 5, 2013 to December 28, 2013. On July 20, 2013, Opai hired Jiang Wenli as its spokesperson. On November 11, 2013, opai signed a TV advertisement release contract with zhejiang zhimei chewen advertising co., LTD., which agreed that opai entrusted zhejiang zhimei chewen advertising co., ltd. to release the advertisement during the period of January 1, 2014 solstice and December 31, 2014. The release medium was cctv-news channel, and the cost was RMB 40463970. In July 2014, the company with hunan, hunan radio and television advertising corporation downwind media co., LTD., television advertising project contract, contract the company commissioned in hunan province, hunan radio and television advertising corporation downwind media co., LTD., published "the 10th golden eagle festival closing ceremony and awards" project related advertising, distribution medium for hunan radio and TV, hunan satellite TV station, release time is on September 28, 2014 to October 12, 2014, cost $18 million, using the slogan of "there is love? Have a home? There are Europeans. On October 22, 2014, Europa signed an advertising agency contract with kashgar yinsong culture & media co., LTD., which agreed that Europa would be the agent of Europa in cctc-news "global view" on January 1, 2015 and December 31, 2015. The agreed fee was RMB 23.97 million. On November 27, 2014, opai signed an agreement with Beijing ontime boiling international advertising co., ltd. on the sponsorship and cooperation of home decoration fund. It was agreed that opai would sponsor two sets of home decoration fund of CCTV "exchange space". The contract was performed from April 4, 2015 to March 26, 2016, solstice, and the sponsorship advertising fee was 6 million yuan.

    Founded on November 22, 2012 with a registered capital of 500,000 yuan, The company's business scope covers research, development, production and sales of kitchen appliances, gas stoves, electric water heaters, electronic products, environmental protection and energy saving range hood, disinfection cabinet, bath bar and household appliances. Invest and develop gas water heater. Jiangsu Opai Company was incorporated in Hong Kong Special Administrative Region on November 14, 2012. Mr. Wang is the current director and sole shareholder of Jiangsu Opai Company.

    On January 20, 2016, Opai Applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. On the same day, under the supervision of two notaries in the notary office, wang Shouzhen, the agent entrusted by The European company, USES the computer in the notary office to buy a range hood machine on taobao.com from the shopkeeper named "Hundred letters hutch to protect" the "Fang Information hutch to protect electrical appliances" online shop, Wang Shouzhen carried out screenshot and video recording to the relevant page in the operation process. On January 28 of the same year, under the supervision of two notaries, Wang Shouzhen came to the sales department of "Yunda Express" on Xiangshan Road, Laicheng District, Laiwu City. Wang Shouzhen picked up a piece of goods with intact outer package in the sales department, the order number was 1901394492589. Two notaries will receive the goods back to the notary office, under the supervision of the two notaries, Wang Shouzhen will open the above goods, in the packing box there is a range hood, marked "Jiangsu Opai Electrical Appliances Co., LTD. (supervision)" a manual, anti-counterfeiting quality guarantee card. The notary sealed the above articles and gave them to Wang Shouzhen for safekeeping. On February 3 of the same year, under the supervision of two notaries, Wang Shouzhen used the notary office computer to purchase the shopkeeper named "Hundred letters kitchen," "square information kitchen, sanitary appliances" online shop sales of the oil absorption hoods browsing the process and video. Therefore, Fengcheng Notary Office of Laiwu City, Shandong Province issued the above facts (2016) Laifeng City Notary No. 196. Notarial certificate content shows, "fang xun kitchen appliance" taobao shop seller for "100 letter kitchen," registered information for he, the shop on the display of lampblack machine product description used "European group" text. After the court hearing (2016), the evidence preserved by the Notarial Certificate No. 196 of Laifengcheng Certificate contains 1 domestic range hood, 1 copy of operation manual, 1 security quality guarantee card and 1 security certificate. Among them, the outer packing boxes of the products are marked with the words "Jiangsu Oupai Electrical Appliances Co., LTD" and "Jiangsu Oupai Electrical Appliances Co., LTD (supervisor)", the address is located in the west of Tongan Avenue, Dongfeng Town, Zhongshan City, Guangdong Province, telephone number 0760-236××× 1, fax number 076089766488 and website http://www.opaidq.com.cn, etc. The panel of the range hood has "" logo, the operation manual, anti-counterfeiting quality guarantee card, anti-counterfeiting certificate printed with" "logo and Jiangsu Opai Electric Appliance Co., LTD. (supervision)" and other words, the anti-counterfeiting certificate marked with the website "http://www.opaidq.com.cn" and the operation manual also marked with "Have a home? There is love? Jiangsu Opai ". Jiangsu Opai Company confirms that it has authorized Xi Shuangjian Company to produce the alleged infringing products, which are sold to He Mou and the trademark is registered by it. Xi Shuangjian Company confirmed that it accepted the commission of Jiangsu Opai Company to process and produce the products involved in the alleged infringement.

    On March 17, 2016, Opai Applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. On March 20, the same year in the notarization two notaries, under the supervision of the entrusted agent of the company's shou-zhen wang in the name of the ordinary buyers came to dongfeng town, zhongshan city of guangdong province, 21 deep road west of "zhong shan xi double with hutch defends technology co., LTD.", shou-zhen wang within the company office, a self-proclaimed "zhao mou" a salesman for a name card and OPAICN, PPAIRJS, kang home good wife each a copy of product brochures, and location filming two photos to the company. After the above actions, two notaries photocopied and printed the above name CARDS and brochures, and then gave the original copies of the above name CARDS and brochures to Wang Shouzhen for safekeeping. On March 25, 2016, under the supervision of two notaries, Wang shouzhen used the computer of the notary office to chat with a QQ user with the number 112× 155. During the chat, Wang sent four photos, as well as screenshots and videos, to QQ users with the number 112× 155. For this reason, Fengcheng Notary Office of Laiwu City, Shandong Province issued the notary Certificate of Laifeng City Certificate Minzi No. 442 (2016) to the above facts. After trial opening word no. 442 (2016) lai FengCheng card people notarial deed, content, according to the shou-zhen wang and 112 x 155 in qq chat records, 112 x 155 users called "zhongshan xi double with zhao", the user to confirm shou-zhen wang sent logo is "opie electric appliance co., LTD in jiangsu" range hood products packaging, instruction manual, security quality warranty card image is the company in the production of product packaging; The website "www.opaidq.com.cn" shows the company as Xi Shuangjian Company. In the company profile, there is a description of "Opai Is an important brand of the company". In the prominent position of the website, there are "" and" Have a home? There is love? Jiangsu Opai ". The Company confirms that the chat history and the aforementioned web site is the company's own web site.

    In the first instance, Opal makes it clear that it only advocates unfair competition in this case.

    The court of first instance held that: Jiangsu Opai Company and Xi Shuanglian Company confirmed that the products involved in the alleged infringement were produced and processed by them, so they identified Jiangsu Opai Company and Xi Shuanglian Company as the producers of the alleged infringing products. The focus of the dispute in this case is: A, whether the accused infringement products by he mou sales; Ii. Whether the behaviors of He Mou, Jiangsu Opai Company and Xi Shuanglian Company constitute unfair competition behavior; Third, the issue of responsibility. On the first point of focus. Be involved in a case to be accused to infringe lampblack machine product to be he Mou to establish "100 letter hutch defends" net inn is sold, and he Mou did not put forward rebuttal opinion, should affirm he Mou to be the person that accuses tort product to sell. On the second point of focus. In accordance with paragraph 3 of Article 5 of the Law of the People's Republic of China against Unfair Competition, business operators shall not engage in market transactions by unauthorized use of another person's enterprise name or name, which may be mistakenly taken as the goods of another person, thereby harming their competitors. The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the first paragraph 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 regarded as the third paragraph of article 5 of the anti-unfair competition law" enterprise name ". In this case, the company since its inception in 1994, on the cabinets and other products continue to use "the" font size, and through advertising and product sales, "European" font size across the country has a higher visibility, known by the relevant public, the company'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". He Mou in its online store with description of product is "Europe", easy to make the relevant public to mistake the sales of products and the company there is a link between, easy to make the relevant public confusion and mistakes of product source, damage the lawful rights and interests of the company, He Mou behavior clearly violates the law of the People's Republic of China against 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 the company enterprise name right, belong to the ACTS of unfair competition, He Mou shall bear tort liability. Jiangsu European company's sole shareholder wang mou for mainland residents, in the "European" brand awareness, to circumvent the law, "Europe" as the name registered in the Hong Kong special administrative region of jiangsu European companies, and jiangsu European companies, like double with knowing the product outer packing and security guarantee card, security certification, use manual fine transaction documents using word "opie electric appliance co., LTD in jiangsu", will cause the relevant consumers for jiangsu opie for European companies affiliated enterprise, the free-ride intentionally. At the same time, The use of the word "Europa Electric appliance" in the content of its website is likely to cause confusion and misidentification of the product source by the relevant public, which harms the legitimate rights and interests of Europa. Jiangsu Opai Co., Ltd. and Xishuanglian Company occupied the market share of Opai Co., LTD., which obviously violated the principle of good faith and violated the recognized business ethics in market transactions and constituted unfair competition against Opai Co., LTD. Therefore, Xi Shuanglian Company and Jiangsu Opai Company shall immediately stop infringement and compensate opai company for its economic losses and reasonable expenses incurred in stopping infringement. Jiangsu opie company was registered in the Hong Kong special administrative region, belong to the Hong Kong special administrative region, the registration behavior is legal and effective, and should be confirmed by the jurisdiction of the courts of the Hong Kong special administrative region, the company requests ordered jiangsu European company to stop the use of "European" in an enterprise name font size and changes, the company's name in there, should be rejected. Opie has not provided any evidence to prove the popularity of the slogan "There is a family with love", so the company claims that "There is a family with love? Jiangsu Opai's claim that it constitutes unfair competition will not be supported. On the third point of focus. The parties failed to provide evidence for He Mou, double with company, jiangsu opie implementation of ACTS of unfair competition and result in the company's actual loss, as well as He Mou, double with company's earnings, jiangsu opie, considering the company's brand awareness and He Mou, double with company's scale of operation, jiangsu opie, He Mou, double with company, jiangsu opie during the implementation of the nature of the infringement, and consequences and the degree of subjective fault, the company and entrust a lawyer to appear in court to stop infringement litigation or spending the notarial fees, the cost of buying infringing material and query cost factors, We decide that he should pay 20,000 yuan to Opai (including reasonable expenses for stopping infringement), and That Xi Shuanglian and Jiangsu Opai should pay 100,000 yuan to Opai (including reasonable expenses for stopping infringement). Wang mou is guangdong opie the sole shareholder of the company and executive director, but jiangsu European company is incorporated in the Hong Kong special administrative region of the company, as the rights and obligations of shareholders, wang mou shall be governed by the laws of the Hong Kong special administrative region, the company request to wang mou to jiangsu responsible for the debts of the company, located in method, shall be rejected. In conclusion, in accordance with the law of the People's Republic of China civil law, in the second paragraph of the first paragraph of article one hundred and thirty-four of the anti-unfair competition law of the People's Republic of China "in paragraph 3, article 5 of article 2, and the Supreme People's Court on the trial of civil cases of unfair competition" the explanation of application of law in the first paragraph of article 1 and article 7, paragraph 1 of article 17, the foreign-related civil relationship between law applicable law of the People's Republic of China, paragraph 1 of article 14, the civil procedure law of the People's Republic of China, the provisions of article one hundred and forty-four of the first paragraph of article sixty-four, judgment by default: A, he mou in the legal effect of the date of the judgment immediately stop using the "European" text on the online shop selling range hood behavior; Ii. He mou immediately stops selling range hood products with the words "Jiangsu Oupai Electric Appliance Co., LTD" on the date when the judgment takes legal effect; Iii. Jiangsu Oupai Company and Xishuanglian Company shall immediately stop producing and selling range hood products marked with the words "Jiangsu Oupai Electrical Appliance Co., LTD" as of the date when the judgment takes legal effect; Iv. On the day when the judgment takes legal effect, Xi Shuangxian Company shall immediately stop using the words "Opai Electrical appliances" on the website www.opaidq.com.cn; 5. Within 5 days from the date of the legal effect of the judgment, He mou shall pay the compensation of RMB 20,000 yuan to Europa (including reasonable expenses paid to stop infringement); 6. Jiangsu Opai Company and Xishuanglian Company shall, within five days from the date of the legal effect of the judgment, pay AN indemnity of RMB 100,000 to Opai Company (including reasonable expenses for preventing infringement); Vii. Rejecting other claims of OPai. 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 case handling fee is 13,800 yuan, 2,760 yuan for Opai, 1,104 yuan for He, and 9,936 yuan for Jiangsu Opai Company and Xi Shuanglian Company.

    During the second trial of the Court, the appellant, Opai, submitted the following evidences to the Court according to the appeal request: 1. (2016) Yue 0604 6866, (2016) Yue 0606 1106, (2011) Zhe Zhizhong Zi No. 64 Civil judgment and the news of "Top ten Cases of Intellectual Property Trial in Zhejiang Published by Sina.com. It has been proved that shell companies set up in the Hong Kong Special Administrative Region engage in unfair competition in the Mainland by "gold-plating" and "free-riding". Ii. Registration information of Zhuhai Smith Kitchenware Co., LTD and Jiangmen Jinsakura Technology Co., LTD. It has been proved that Wang is a professional operator engaged in unfair competition. Jiangsu Opai Company, Xi Shuanglian Company, He mou and Wang Mou have not submitted new evidence to our hospital. In accordance with the law, the court organized both parties to cross-examine the above evidence submitted by Opai. Jiangsu Opai Co., LTD., Xi Shuanglian Co., LTD., and He Xx regard the above evidences I and II as copies, so they are not confirmed as authentic. Upon examination, the Court finds that, since the above evidences are photocopies and have no material effect on the handling of this case, the court does not recognize the evidential strength of the above evidences.

    The court shall confirm the facts determined by the court of first instance, which are clear and undisputed by both parties.

    The court holds that, according to the pleading of both parties and confirmed by both parties, the focus of the dispute between the parties in the second instance of this case is whether there is unfair competition between He Mou and Xi Shuanglian Company; Second, whether the amount of economic loss compensated by He Mou, Jiangsu Opai Company and Xi Shuanglian Company is reasonable; Third, whether Wang should bear the compensation liability in this case; Fourth, whether Jiangsu Opai Company should stop using the enterprise name with the word "Opai".

    The first focus of the dispute is whether he mou and Xi Shuanglian company has unfair competition behavior. Article 5 of the Law of the People's Republic of China against Unfair Competition stipulates: "Business operators shall not engage in market transactions by the following unfair means to the detriment of competitors:... (3) to use, without authorization, the enterprise name or name of another person to mislead others into believing that it is another person's commodity; ... ." The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the first paragraph of article 6 of 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 regarded as the third paragraph of article 5 of the anti-unfair competition law "enterprise name". 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' in paragraph 3 of Article 5 of the Anti-Unfair Competition Law." In this case, since its establishment in July 1994, Opai has continued to use the name "Opai", and through advertising and product sales, the name "Opai" has a high market visibility throughout the country, and has been known to the relevant public. He Mou in its online store with description of product is "Europe", easy to make the relevant public to mistake the sales of products and the company there is a link between, easy to make the relevant public confusion and mistakes of product source, violated the company enterprise name right, damage the legitimate rights and interests of the European company, belong to the ACTS of unfair competition. Product outer packing and double with companies in the security guarantee card, security certification, such as instruction manual use word "opie electric appliance co., LTD in jiangsu", easy to make the relevant public to mistake jiangsu opie for European companies affiliated enterprise, and its double partner companies in the "opie appliance" is used in the site, easy to make the relevant public source for products cause confusion and mistakes, damage the legitimate rights and interests of the European company, also belong to the ACTS of unfair competition. He and Xi Shuangxian appeal that their actions are not ACTS of unfair competition, which is not supported by sufficient evidence.

    The second focus of the dispute is whether the amount of economic loss awarded by he Mou, Jiangsu Opai Company and Xi Shuanglian Company is reasonable. In the first paragraph of Article 20 of the Law of the People's Republic of China against Unfair Competition, "If a business operator violates the provisions of this Law and causes damage to the injured business operator, it shall be liable for damages. If the loss of the injured business operator is difficult to calculate, the amount of compensation shall be the profits made by the infringer during the period of infringement. It shall also bear the reasonable expenses paid by the injured operator for investigating the ACTS of unfair competition committed by the operator that infringe its lawful rights and interests." Article 17, paragraph 1, of the Supreme People's Court's Interpretation on Certain Issues concerning the Application of Law in The Trial of Civil Cases of Unfair Competition, stipulates: "... The determination of the amount of damages for ACTS of unfair competition as provided for in Article 5, article 9 and Article 14 of the Anti-Unfair competition Law may be carried out with reference to the determination of the amount of damages for infringement of the right to exclusive use of a registered trademark." In this case, both parties failed to provide evidence to prove the actual loss caused by unfair competition behaviors of He, Xi Shuanglian Company and Jiangsu Opai Company, as well as the profit situation of He, Xi Shuanglian Company and Jiangsu Opai Company. In this case, the first-instance court consider the company's brand awareness and He Mou, double with company's scale of operation, jiangsu opie, He Mou, double with company, jiangsu opie during the implementation of the nature of the infringement, and consequences and the degree of subjective fault, the company and entrust a lawyer to appear in court to stop infringement litigation or spending the notarial fees, the cost of buying infringing material and such factors as the cost of query, discretionary He Mou pay compensation to the European company 20000 yuan (including reasonable expense to stop the infringement), Xi Shuangxian Company and Jiangsu Opai Company shall pay COMPENSATION of RMB 100,000 to Opai Company (including reasonable expenses for preventing infringement), which is consistent with the above legal provisions and the economic development status of Zhongshan City, and shall be maintained by the Court. The appeal of Opai, He mou and Xi Shuanglian company cannot be established, and the court will not support it.

    The third focus of the dispute is whether Wang should bear the liability for compensation in this case. In this case, although Wang is the current director and sole shareholder of Jiangsu Opai Company, jiangsu Opai Company is registered and established in Hong Kong Special Administrative Region. In this case, the court of first instance held that Wang's rights and obligations as a shareholder should be governed by the laws of the Hong Kong Special Administrative Region. Therefore, the judgment rejected the claim of Opai To assume liability for the debts of Jiangsu Opai, which was not improper, and the court also upheld it.

    The fourth focus of the dispute is whether Jiangsu Opai Company should stop using the enterprise name with the word "Opai". As mentioned above, jiangsu European company is a company incorporated in the Hong Kong special administrative region, the registration behavior is legal and effective, and should be confirmed by the jurisdiction of the courts of the Hong Kong special administrative region, the original decision to dismiss the company request jiangsu company to stop the use of "European" in an enterprise name font size and the change of the enterprise name claims, there is nothing wrong with this, we shall be maintained.

    To sum up, the appeals of the appellant, Opai, Appellant, Xi Shuanglian and He Mou are untenable and should be rejected. The facts ascertained in the judgment of first instance are clear and the law applied is correct, which should be maintained. In accordance with the provisions of paragraph 1, Article 170 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    Dismiss the appeal and maintain the original judgment.

    The fee for the second instance is 12,600 yuan, 7,560 yuan for the appellant, Opai Household Group Co., LTD., 1,260 yuan for the appellant, He Xx, and 3,780 yuan for the appellant, Zhongshan Xishuangban Kitchen and Sanitary Technology Co., LTD.

    This judgment shall be final.

    Xu Hongni, chief judge

    Judge Jiao Fengying

    Judge Ma Yan

    December 5, 2017

    Clerk Gou Hua Wu Ge