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. 3543, Minzhong, Yue20

    Appellant (defendant in the first instance) : Guangdong Opai Technology Co., LTD., No.313 6-3, 22 Licitang Road, Shangjia, Ronggui Street, Shunde District, Foshan City, Guangdong Province.

    Legal representative: Su Liangzhu, manager of the company.

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

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

    Appelee (plaintiff in the first instance) : Opai Furniture 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.

    Defendant in the first instance: Long Daji, male, born on May 12, 1985, Zhuang nationality, living in Nandan County, Guangxi Zhuang Autonomous Region.

    Defendant in the first instance: Zhongshan Houkitchen Electric Appliance Co., LTD., Liuheng Road, Qiye South Road, Ma 'an Village, Huangpu Town, Zhongshan City, Guangdong Province.

    Legal representative: Xiao Guohua, manager of the company.

    The appellant, guangdong European science and technology co., LTD. (hereinafter referred to as the guangdong company) with the appellee opie household group co., LTD. (hereinafter referred to as the European household company) after the original defendant Long Daji, zhongshan kitchen electric appliance co., LTD. (hereinafter referred to as the kitchen company) after the infringement trademark rights and unfair competition disputes, refuses to accept the second (2016) of the people's court of zhongshan city guangdong 2072 no. 5948 in the early days of the civil judgment, to file an appeal. After accepting the case on July 3, 2017, the court formed a collegial panel in accordance with the law and decided not to hold a hearing after reviewing papers, investigating and questioning the parties concerned. The case is now closed.

    Guangdong Opai Company appeals: the original judgment is annulled, and the judgment rejects all the litigation requests of Opai Household Company. Facts and reasons: 1. It is wrong to determine that Guangdong Opai Company, Longdaji, Houhuichuan Company and Opai Household Furniture Company constitute unfair competition in the first instance. 1. In the first instance, it was wrongly concluded that Guangdong Opai Company, Longdaji, Houhou Kitchen Company and Opai Furniture Company had competitive relations. Opai furniture company's industry is 20 categories of cabinet furniture industry, not 11 categories of household appliances industry; It is not necessary to specify the industry or field in which the "Opai" brand of Opai household company has a high popularity. These two assertions are clearly inconsistent and completely false. That has clear instructions in front of European household company is engaged in the industry is 20 kind of cabinets and other products, is not engaged in household appliances industry, and the cognizance is European household company "European" font size specific in which industries or fields that have high visibility, thus to European household companies provide interdisciplinary error protection type. Because both parties are not engaged in the same industry, how to have a competitive relationship. Therefore, the above identification is inconsistent, contradictory and wrong, and the two parties do not constitute unfair competition. Similarly, the original judgment determined that "Opai" series products and the name of "Opai" have a high popularity in the whole country. Meanwhile, it also affirmed that these many honors obtained by Opai household company are only concentrated in the cabinet household industry. These two assertions are clearly inconsistent and completely false. The previous confirmation does not specify the specific industry or field in which the "Opai" brand of Opai Household Furniture company has a high reputation, while the later confirmation thinks that opai household furniture Company is engaged in the category 20 furniture industry, such as cabinets, and does not engage in the home appliance industry. Therefore, the original judgment is inconsistent, contradictory and wrong, there should not be cross-field protection, flood protection, wrong protection identification problems. 2. Opai household is not well-known enough to forbid the use of the enterprise name of Guangdong Opai On the product being sued. It can be clearly seen from the popularity evidence of Opie furniture companies listed in the original judgment that all the evidence of Opie furniture companies are cabinets, sideboards and other furniture industries, and their popularity is only limited to the popularity of the above industries. Ou sent home company enterprise name and trademark involved in home appliances products for practical use and actual promotion, so on the product and industry of the use of the enterprise name not infringing European household company's right of name, also did not form a higher point and only the profile of did not reach "anti-unfair competition law" and relevant judicial interpretations of the requested absolutely prohibit others to use high visibility and the corresponding degree, not enough to ban of the use of the enterprise name. 3. In the judgment of the first instance, the use of the name of the accused enterprise is easy to make the relevant public think that there is some connection between its products and Opie furniture company, which is easy to make the relevant public confuse and misidentify the source of the products. This case, European household company did not submit any evidence to prove that the alleged enterprise name in be used actually caused any confusion and mistakes of the relevant public, the original sentence is considered only as imagined, and without any real evidence to proof of the use of the enterprise name "makes the relevant public think its products with European companies there is a link between household", therefore, the enterprise name of the defendant did not violate paragraph 3, article 5 of the anti-unfair competition law "regulation, the original the cognizance of European household companies rights to expand protection of error. The trademark and the name of the company being sued on the products involved in this case were legally obtained, and the standardized use method was enough to enable the relevant public to clearly distinguish the source of the products, without causing any confusion and misidentification, and without causing any unfair competition to Opai Household Company. Ii. It is wrong to affirm in the first instance that the products involved are jointly produced and sold by Guangdong Opai Company and Houzhou Kitchen Company, and they should bear the joint responsibility. 1. Guangdong company has clearly stated that in the original guangdong company in this case there is only "OPAICN" registered trademark authorization act no. 12124262, no authorization is v. use other behavior, enterprise name after the kitchen company be authorized to legally use a registered trademark of the other 12124262 behavior has nothing to do with the guangdong company, should not be borne by the guangdong company common responsibility. 2. The original judgment asserts the product packaging, product involved in the fuselage and instructions on the "opie technology co., LTD. (producer) of guangdong, the guangdong science and technology co., LTD.", and the word no. 438 (2016) lai FengCheng card people after hutch according to notarial deed of the company's staff has confirmed the alleged infringement product production, sales for the company, so that the products for guangdong European companies involved and the kitchen company production and sales, this is wrong. In this case, in addition to product packaging, the fuselage, instruction manual and product anti-counterfeiting mark on warranty card with the enterprise name of the guangdong company, European household company did not submit from any evidence to prove that the accused of the products involved in the enterprise name is guangdong kitchen company after company authorized to use, and the enterprise name of general information, even if not guangdong company authorized, can be others to learn and use. In Europe as a result, the original sent home company without any real evidence to submit, regardless of the guangdong sent the statement of the company, by the use of general information that the alleged enterprise name is authorized the use of the guangdong European company, and make sure products are involved in guangdong opie company production and sales, is wrong. The judgment of the first instance found that Guangdong Opai company had authorized others to produce related products, which was a wrong determination. Moreover, under the circumstance that Opai does not submit any actual evidence to prove that Guangdong Opai Furnishing Company has authorized the use of the name of the accused enterprise, opai Furnishing Company does not bear the prior burden of proof, and under the circumstance that Opai Furnishing Company does not provide prior evidence, there is no need to provide refuting evidence. Therefore, the original judgment of this point is wrong. 3. The admissibility of the evidence and the misdetermination of the facts in the judgment of the first instance. 1. The notarial Certificate No. 350 in the opinion on evidence Identification of Opai Household Company 1 is the trademark registration certificate on the product of Category 20, which has nothing to do with the product of category 11 involved in the case. It is wrong to adopt the evidence and consider it relevant in the original judgment. 2. In the original judgment, the third, fourth, fifth, sixth and seventh of the opai Furniture Company's evidence identification opinions are all the evidence of opai furniture Company's wardrobe and cabinet products in category 20, which have nothing to do with the category 11 products involved in this case. It is wrong to adopt the above evidence and consider it relevant in the original judgment; At the same time, the original judgment based on the above evidence to prove the European furniture company in the case have to prohibit the used by v. enterprise name recognition is a serious mistake: the evidence can prove the above sent home company on 20th cabinets and other products and industry has popularity, but could not prove ou sent home company involved in 11 kind of household electrical appliances products and have known in the industry, and the degree of awareness has been as high as to prohibit others to use. 3. The judgment in the first instance made a mistake in the opinion 1 on the evidence of Guangdong Opai Company. The trademark certificate just proves that the trademark and enterprise name used on the products involved are different from those of Opai Household Products. Can point to the product source on commodities not only just business name, it is more important and trademarks, and used in the case of the 12124262 registered trademarks trademark is completely different with European household company, only the trademark was enough to get the relevant public to distinguish the product is not a European household products, coupled with the alleged enterprise name with European household company name is completely different, the product belongs to category of goods and industry is different, the involved products on the market doesn't cause consumer confusion may cause misidentification, less likely to form of unfair competition. Therefore, the facts of the trademark certificate are related to the case, and it is wrong to dismiss it in the first instance. 4. The original judgment on the determination of evidence of Guangdong Opai Co., LTD. This part of the evidence of Guangdong Opai Furniture Company has been recognized as authentic at the trial. Meanwhile, the content of the evidence is closely related to the case, which proves that: European furniture company in the market is not the only point to the word "European" and has a high visibility, opie electric cars is number one in the country, opie wooden door is zhejiang famous trademark, the pie is one of the ten national household floor, floor opie washing machine is in household electrical appliances industry the only "European" there is a famous brand, the market already have more than one set the enterprise name and the trademark coexist, opie household company in its 20th household goods industry is not the only, in 11 type of household electrical appliances industry is more involved with no practical use and popularity, in the real situation, Opai furniture Company has not achieved the high popularity on the products involved and the uniqueness corresponding to "Opai", which is required to completely prohibit the use of the name of the enterprise being sued. Therefore, the facts of this part of the evidence are closely related to this case, and it is wrong and unfair to Guangdong Opai Company not to affirm in the original trial. Fourth, the original judgment that Guangdong Opai company and the kitchen company constitute unfair competition and should compensate 110,000 yuan is wrong. First of all, Guangdong Opai company and kitchen company and without any legitimate competition behavior, should not be compensation; Second, even if the courts had to find unfair competition, the sums awarded would have been too high. Company of 30000 yuan, in the original European household lawyers did not submit any evidence, and the products involved only identified as a disinfection cabinet, oil absorption, even if the infringement, small, single value is not high, and the alleged enterprise name is approved by the industrial and commercial bureau to use, in addition to the outside of the use of the enterprise name, this case, there is no other tort, therefore, guangdong European company and also is the only legitimate use of the kitchen after, was found guilty of infringement is helpless, the plot is not serious, and the original evidence without any actual loss or profit, the prosecution discretionary PanPei 110000 yuan in emotion in reason are too high. To sum up, the original judgment is wrong in fact identification and wrong in evidence acceptance. Guangdong Opai Company and kitchen company have no unfair competition behavior and shall not bear any responsibility. The judgment in the first instance is obviously unfair and wrong, and we hereby appeal to the court to revoke the original judgment in the second instance and amend the judgment to reject all the claims of Opai Furniture Company.

    Opai argues that the original judgment should be upheld because the facts are clear and the law is applied correctly.

    The kitchen company and Longda Ji did not appear in court after being legally summoned, nor did they submit a written defense.

    1. Longdajie is ordered to immediately stop using the word "Oupai" in its online store for false publicity, unfair competition in selling range hood and disinfection cabinet, and infringement of trademark rights; 2. Longdaji is ordered to immediately stop the sale of range hoods and disinfection cabinets marked "Guangdong Opai Technology Co., LTD"; 3. Order Guangdong Oupai Company and Kitchen Company to immediately stop production and sale of disinfection cabinets and range hoods marked with the words "Guangdong Oupai Technology Co., LTD"; 4. Guangdong Opai Company, Kitchen Company and Longdaji were ordered to compensate the plaintiff opai Household Company for economic loss and reasonable expenditure of rights protection of 1 million yuan in this case.

    The court of first instance confirmed the fact that Opai Furniture Company was founded on July 1, 1994 with a registered capital of RMB 373581,112. Its business scope: furniture manufacturing industry. The enterprise nature of guangdong European company is a limited liability company (natural person sole proprietorship), founded in 2014, on April 30, a registered capital of 10 million yuan, scope of business of biotechnology products, household appliances, metal products, electrical accessories, water purification equipment, air to water heaters, bathroom supplies, daily necessities, household items, electrical materials, electronic products research and development, processing, manufacturing, sales, etc. Houhu Kitchen Co., Ltd. was founded on December 11, 2013 with a registered capital of 100,000 yuan. Its business scope: production, processing and sales: household appliances and accessories, electric water heater, range hood, gas water heater, gas stove, hardware products (excluding electroplating process). Opai household Is the owner of the registered trademark No. 4378572, No. 1137521 and No. 1128213, which are approved to be used in class 11 and 20. The approved products include gas stove, kitchen range hood, etc. The above trademarks are all within the valid period. Opai Household Is the owner of the trademark "OPPEIN" No. 7731876 approved for use in class 11. The products approved for use include kitchen range hoods, etc., and the trademark is within the term of validity.

    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 General Administration of Quality Supervision, Inspection and Quarantine of the People's Government of China awarded opai household cabinet "China famous brand". In October 2008, The Bureau of Quality and Technical Supervision of Guangdong Province awarded Opai household Products as guangdong famous brand cabinet products. In February 2008, "Opai" trademark was recognized as "Famous trademark of Guangdong Province" by Guangdong Famous Trademark Recognition Committee. In December 2012, European home furnishing company by China building decoration association hutch and sanitation engineering committee identified as "2012 China hutch and sanitation 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 of Opai Furniture Company evaluated by Brand Watch magazine was selected as the silver Award of 2014 Chinese Brand Marketing Case of the Year. In January 2015, Guangdong Home Furnishings Federation and Guangdong Furniture Chamber of Commerce jointly awarded Opai home Furnishing Company the title of "Top 10 Most Valuable Brands" and "Top 10 Innovative Enterprises" in guangdong pan-household field in 2014.

    On October 30, 2012, Europa home furnishing company signed a sponsorship cooperation agreement with Beijing ontime boiling international advertising co., LTD. It was agreed that Europa home furnishing company would sponsor two sets of "exchange space" home decoration fund of CCTV. The contract was performed on January 5, 2013, solstice on December 28, 2013, and the sponsorship advertising fee was RMB 5700000. On July 20, 2013, The Company hired Jiang Wenli as its spokesperson. On November 11, 2013, Europa furniture company signed a TV advertisement release contract with zhejiang zhimei chewen advertising co., LTD. It was agreed that Europa furniture company entrusted zhejiang zhimei chewen advertising co., ltd. to release the advertisement during January 1, 2014 solstice on December 31, 2014. The release medium was cctv-news channel, and the cost was RMB 40463970. In July 2014, the European household company and hunan, hunan radio and television advertising corporation downwind media co., LTD., television advertising project contracts, agreement: European household company commissioned in hunan, 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 broadcast hunan satellite TV channels, release time is on September 28, 2014 to October 12, 2014, cost $18 million, using the slogan of "there is love, there's a, have the pie". On October 22, 2014, Europa furniture company signed an advertising agency contract with kashgar yinsong culture & media co., LTD. It was agreed that the kashgar yinsong culture & media co., ltd. would act as an agent for Europa furniture company to advertise 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, Europa home furnishing company signed a sponsorship cooperation agreement with Beijing ontime boiling international advertising co., LTD., which agreed that Europa home furnishing company would sponsor two sets of "exchange space" home decoration fund of CCTV. The contract was performed on April 4, 2015, solstice on March 26, 2016, and the sponsorship advertising fee was 6 million yuan.

    In 2010, Opie home Furnishing company put an advertisement in a Cabinet in Shanghai, using the slogan "You have a home, you have love, you have Opi". In 2011, Opai home Furnishing company put advertisements in Linchuan Evening News, Zhuhai Special Zone Newspaper, Anqing Daily, Sales market, Ruili Home furnishing and decoration world respectively, using the slogan "Youjia, Youai, Youopai". The brand spokesperson employed in the above advertising promotion is Jiang Wenli.

    On March 9, 2016, Opai Furniture Company applied for evidence preservation to Fengcheng Notary Office in Laiwu city, Shandong Province. On the same day, in the notarization notaries and notarial personnel, under the supervision of the sent home company entrusted agent Yang today use notary office computer I bought on taobao shopkeeper called "dragon yiyi darling" "hutch defends electric appliance affordable shop" online sales of range hood, disinfection cabinets, Yang today during operation on the relevant page screenshots and videos. After the end of the above ACTS, under the supervision of the notary and notary staff, Yang Will burn the above video documents and screenshots in the office into three copies of CD, sealed by the notary staff and affixed the notary office seal. On March 14 of the same year, under the supervision of notaries and notaries, Yang came to the sales department of "Yunda Express", No. 42, Xiangshan Road, Laicheng District, Lai Wu City (general Curtain wall courtyard). In the sales department, Yang extracted the goods with intact outer packing and marked with the words "powerful type range hood". Notary personnel will receive the goods back to the notary office, under the supervision of notary and notary personnel, Yang Today will open the above goods, there are marked in the packing box "Guangdong Opai technology Co., LTD. (supervision)" a range hood anti-counterfeiting certificate, a manual, anti-counterfeiting quality guarantee card. The notary staff sealed the above articles and gave them to Yang Jin Jin for safekeeping. On March 18 of the same year, under the supervision of notaries and notaries, Yang came to the business department of "Yun Da Express" again to pick up the goods with intact outer packing and marked with the words "embedded disinfection cabinet". The notary staff will receive the goods back to the notary office, under the supervision of the notary and notary staff, Yang Will open the above goods, the packing box marked "Guangdong Opai Technology Co., LTD." a disinfection cabinet, a manual, a product anti-counterfeiting guarantee card. The notary sealed the article and gave it to Yang Jin Jin for safekeeping. On March 18 of the same year, below the supervision of notary member and notary personnel, Yang Today USES computer of notary office to buy shopkeeper name "Long Yi yi is docile" "hutch is protected electric appliance real benefit shop" the lampblack machine that net inn sells, disinfect ark undertook affirmatory receive goods. Yang Jinzhao took screenshots of relevant pages during the operation and recorded the entire operation. After the above ACTS are completed, Yang Jin Zhao prints the above screenshots in triplicate, and the above video files and screenshots are burned to a CD in triplicate under the supervision of the notary and notary staff, and the notary staff seals and affix the seal of the notary office. Fengcheng Notary Office of Laiwu City, Shandong Province issued a (2016) Notarial certificate of Laifeng City Minzi No. 448 for the above facts. The notarial certificate records the following contents: the nickname displayed on the online store involved in the case was "Long Yiyi darling", and the real name was "Long Daji".

    On March 17, 2016, Jindun Intellectual Property Service Center in Laicheng District, Laiwu City, Shandong Province applied for evidence preservation from Fengcheng Notary Office. In the same year on March 19, the notaries and notarial personnel, under the supervision of the applicant's agent shou-zhen wang in the name of the ordinary buyers come to zhongshan huangpu town ma 'an village qi six cross road south road near the intersection of kitchen electric appliance co., LTD. "after the" zhongshan city, shou-zhen wang within the company office, a self-proclaimed "little man" salesman for a product flyer a quotation and zhongshan kitchen electric appliance co., LTD., and for the company location filming two photos. After the above actions, the notary staff photocopied and printed the above leaflets and quotations, and then handed over the original copies of the above leaflets and quotations to Wang Shouzhen for safekeeping. On March 28 of the same year, under the supervision of the notary and notary staff, Wang Shouzhen used the computer connected to the Internet there to chat with QQ users whose number was 29×× 29. During the chat, Wang sent nine pictures to the 29×× 29QQ user, while the 29×× 29QQ user also sent three pictures to Wang. During the above operation, Wang Shouzhen used the screen video expert software to record the above part of the process and took screenshots of some pages. After the above actions are completed, under the supervision of the notary and notary, Wang Shouzhen shall record the above photos, screenshots and video files in triplicate and print the page Numbers of the above photos and screenshots in triplicate in the notary office. The notary shall seal the above CDS and affix the seal of the notary office. Fengcheng Notarial Office of Laiwu City, Shandong Province issued the above facts (2016) Notarial certificate No. 438 Of Laifeng City Notarial Certificate. The attached brochure and quotation show that the contact information of the kitchen company is the sales hotline QQ: 29×× 29 in other provinces and the local QQ: 11×× 92 "Xiao Man (handwritten)".

    Through trial examination, the above notarized purchase of lampblack machine, disinfection cabinet and CD sealed in good condition, notary office seal and seal integrity. The front of the packing boxes of "embedded disinfection cabinet" and "Powerful range hood" are marked with the words "Guangdong Oupai Technology Co., LTD" and the other words "Guangdong Oupai Technology Co., LTD" and the two sides of the packing boxes are marked with the words "Guangdong Oupai Technology Co., LTD". The manufacturer is Zhongshan Houhu Electric Appliance Co., LTD. The address is Maxin Industrial Zone, Huangpu Town, Zhongshan city. Open the carton box of "embedded disinfection cabinet" on site, containing disinfection cabinet, operation manual, product anti-counterfeiting and warranty card. Open the carton box of "powerful range hood" on site, which contains range hood and accessories, operation manual, product anti-counterfeiting and warranty card. Disinfect ark body marked "guangdong science and technology co., LTD.", oil absorption use manual cover marked "guangdong", back cover marked "guangdong opie technology co., LTD. Producer, manufacturer: after the kitchen electric appliance co., LTD., zhongshan city, address: zhongshan huangpu town Ma Xin industrial zone, products anti-counterfeiting are marked on the warranty card" opie technology co., LTD. (producer) of guangdong province ". The scene opens the evidence preservation 3 envelopes, each has a CD. Play word no. 448 (2016) lai FengCheng card people notarial deed video screen displayed when the online store has been involved in February 16, 2014 completed alipay real-name certification, through the comparison, the store on the product name, product introduction, extensive use of "European" word "guangdong", such as "opie authentic European household big suction side suction double motor automatic cleaning smoke lampblack machine" "opie high temperature disinfection cabinet embedded vertical domestic large capacity two-door disinfection embedded cupboard". When playing the video recording on the screen of Laifengcheng Certificate No. 438 notarial Certificate (2016), 29×× 29QQ users confirmed that the above-mentioned range hood and disinfection cabinet were produced and sold by the kitchen company during chatting with the agent of Opai Household Company. Opai Furniture Company, Guangdong Opai Company and kitchen company have no objection to the above facts. Opai Believes that the extensive use of "Opai" on the online store involved in the case for publicity constitutes trademark infringement. The words "Guangdong Opai" and "Guangdong Opai Technology Co., LTD" are both trademark infringement and unfair competition on the outer package, body, instruction manual, warranty card of the products accused of infringement. Guangdong Opai argues that the products are not actually produced or sold by guangdong Opai. Guangdong Opai only authorizes the kitchen company to use the registered trademark and does not authorize the use of its enterprise name. The kitchen company believes that the notarized real goods are not purchased directly from the kitchen company, and the enterprise name printed on the product is legally registered, without the prominent use of the word "Eu pai", which does not constitute unfair competition.

    In the court hearing, the parties failed to provide evidence on the amount of losses suffered by Opai Household Company due to the infringement and the profits made by the infringer due to the infringement. Opai said its reasonable costs included 30,000 yuan for lawyers (no bill provided), 5,000 yuan for travel (no bill provided), 1,400 yuan for notary fees and 1,186 yuan for purchasing infringing products.

    The first-instance court thinks, is accused of infringement shop the shopkeeper called dragon yiyi darling, show real name for Long Daji, the online store has completed real-name certification, and Long Daji sent to Europe to live in the company's prosecution without complaint, no evidence to prove that others pretend to be in the name of the product sales is accused of infringement, as a result, the first-instance court ascertained that accused of infringing online store for the Long Daji management and sales have been accused of infringing products. At issue in the case are: 1. 2. Whether the online shop involved in the case constitutes trademark infringement; 3. Whether the ACTS of Guangdong Opai Company, Kitchen Company and Longdaji constitute unfair competition; 4. Subject and amount of compensation.

    1. Labels on the packaging of the alleged infringing products include "Guangdong Opai Technology Co., LTD.", "Guangdong Opai Technology Co., LTD. (supervision)" and "Manufacturer: Zhongshan kitchen electric appliance co., LTD. ", after disinfection ark body, oil absorption instructions on the word "guangdong opie technology co., LTD.", products anti-counterfeiting mark on warranty card "opie technology co., LTD. (producer) of guangdong province", product packaging, instruction manual, product anti-counterfeiting warranty card transaction documents of production enterprise information for consumers to identify the function of product producers or sellers, which has a clear point to the nature of the product provider, And the word no. 438 (2016) lai FengCheng card people after notarial deed shows kitchen employees has confirmed the above was accused of infringing products production and sales for the company, therefore, in the guangdong company, after the kitchen under the condition of the company did not provide a rebuttal evidence, the first-instance court ascertained that is accused of infringement product by the guangdong company, after hutch company production and sales together.

    2. Article 48 of the Trademark Law of the People's Republic of China stipulates that "the use of a trademark referred to in this Law means the use of a trademark on commodities, commodity packaging or containers, and commodity trading documents, or the use of a trademark in advertising, publicity, exhibition and other commercial activities to identify the source of commodities." And the seventh paragraph of article 57 "to others the right to exclusive use of a registered trademark of other damage caused by the behavior of infringing the right to exclusive use of a registered trademark" and "the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation under paragraph (2) the first article" copy, imitation, translation of the well-known trademark of others register or its main part in not the same or similar goods used as a trademark, misleading the public, thereby causing damage to the interests of the well-known trademark registrant may, belong to the provisions of the trademark law of the behavior of the other damage to the right to exclusive use of a registered trademark of others." The approved goods of "Opai" trademark No. 1128213 of Opai Household Furniture Co., Ltd. are in the 20th class. Although the electrical products sold by Longda are not covered, the trademark was recognized as a well-known trademark on April 29, 2009 and enjoys the special protection of well-known trademark according to law. In this case, first of all, Longdaji used "Opai... Words such as "opie authentic European household big suction side suction double motor automatic cleaning smoke lampblack machine" "opie high temperature disinfection cabinet embedded vertical domestic large capacity two-door disinfection embedded cupboard", among them, the "European" suffix words is the description of product features, properties, the relevant public attention and recognition effect is the word "Europe", the relevant public will "European" word as a source of difference between a product or service mark, so the Long Daji use the word "European" behavior constitute a trademark use, secondly, will store involved using the "European" logo compared with cited trademark, the two words, pronunciation is the same, It is similar in composition and easy to cause confusion among consumers. Londaji used the words "Opai" in the online store involved in the case for publicity, which infringed the exclusive right of the registered trademark of "Opai" No. 1128213 of Opai Furniture Company. Londaji shall bear the responsibility to stop the infringement and compensate for the loss.

    3. (1) Counterfeiting the registered trademark of others; (3) making unauthorized use of another person's enterprise name or name to mislead others into believing it is another person's commodity ". This case, "Europe" is the European household font size on your company's business name, is also a European household company use of trademark, European household company is the domestic famous furniture production enterprise, on the 20th of the sideboard, "European" trademark by the trademark office as a well-known trademark, the enterprise also won many honors, such as China's brand-name products, famous trademarks of guangdong province, 2012 China top hutch defends, whole kitchen top ten leading enterprises, 2012 guangzhou mayor quality prize, 2014 guangdong household field top ten most valuable brands, innovation ten strong enterprise honorary title, In CCTV, hunan TV station and other print media for advertising, pay a lot of advertising costs, visible "European" series of products as well as the "European" font size across the country have high visibility, and by the relevant public know, European furniture 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". Long Daji when the online store using "guangdong", guangdong company, after hutch company in the production and sales of the products, packaging, and warranty card with the word "guangdong opie technology co., LTD.", easy to make the relevant public to mistake its products with European companies there is a link between household, easy to make the relevant public confusion and mistakes of product source, damage the legitimate rights and interests of European household company, guangdong opie, after hutch, Long Daji behavior clearly violates the law of the People's Republic of China of unfair competition law, the provisions of article 2 "operators in market transactions, Should follow the principle of voluntariness, equality, fairness, good faith ", violate the recognized business ethics in the market transaction, infringe on the right of enterprise name of Opai furniture Company, belong to unfair competition behavior, Guangdong Opai Company, kitchen company, Longdaji should bear the tort liability.

    4. The parties failed to provide evidence of implementation of the trademark infringement and unfair competition because of the infringer to European furniture company of the actual loss as well as the profits of the infringer, the first-instance court considers opie household company's brand awareness and the management of the scale, the infringer during the implementation of the nature of the infringement, and the consequences, as well as the degree of subjective fault, European household attorney's fees, incurred by the company to stop infringement notarial fees, travel expenses, the cost of buying infringing material factors, such as discretionary Long Daji pay compensation to the European household company 20000 yuan (including reasonable expense to stop the infringement), Guangdong Opai Company and Kitchen Company shall pay the compensation of RMB 110,000 to Opai Household Company (including reasonable expenses for preventing infringement).

    If Long Da Ji refuses to attend the proceedings without justifiable reasons after being legally summoned by the first-instance court, he may be deemed to have waived his right of defense in this case, but this will not affect the court's judgment according to law.

    To sum up, in accordance with the general principles of the civil law of the People's Republic of China, in the second paragraph of the first paragraph of article one hundred and thirty-four, the "trademark law of the People's Republic of China" (7), article sixty-three, article 48 and article 57, the anti-unfair competition law of the People's Republic of China, article 2, article 5, article 20, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "article 9, article 10, article 16 and article 17, The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the first article, article 4, article 6, paragraph 1 of article 17, and 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, Long Daji immediately cease as of the date of the judgment takes legal effect in the shopkeeper called" dragon yiyi darling "taobao shop sales range hood, disinfection cabinet," Europe "is used when the word" guangdong "of publicity; Ii. Londa shall immediately cease to sell the range hood and disinfection cabinet marked with the words "Guangdong Opai Technology Co., LTD" as of the date of the legal effect of this judgment; 3. Guangdong Opai Company and kitchen Kitchen Company shall immediately stop the production and sale of disinfection cabinets and range hoods marked with the words "Guangdong Opai Technology Co., LTD" as of the date of the legal effect of this judgment; Iv. Longda Shall, within 5 days from the date of the legal effect of this judgment, pay 20000 YUAN of compensation to Opai Furniture Company (including reasonable expenses paid to stop infringement); 5. Guangdong Opai Company and Houzhou Kitchen Company shall, within 5 days from the date of the legal effect of this judgment, pay compensation of RMB 110,000 to Opai Furniture Company (including reasonable expenses for preventing infringement); Vi. Rejecting other claims of Opai Furniture Company. The case handling fee is 13,800 yuan, 20% of which is 2,760 yuan borne by Opai Household Company, 20% of which is 2,760 yuan borne by Longda, and 60% of which is 8,280 yuan borne by Guangdong Opai Company and Houzhou Kitchen Company.

    In the second instance, the kitchen company and Longdaji did not submit evidence. Guangdong Opai Company has submitted three pieces of evidence. 1. (2017) Notarization Certificate No. 33763, Guangdong Opai Company intends to prove that the business site of Guangdong Opai Company is an office building and does not have the premises and equipment required for the production of home appliances. The above two evidences are intended to prove that guangdong Opai Household Appliances are not included in the promotion of Guangdong Opai Household appliances Company. Guangdong Opai Household Appliances Company and Opai Household appliances Company operate in different industries and there is no competitive relationship between the two parties. Opai household Company confirms the authenticity and legitimacy of evidence 1 of Guangdong Opai Company, but does not confirm the content of the certificate, because guangdong Opai Company took photos of its own residence, which cannot prove that it does not have a factory. Do not confirm the authenticity of evidence 2 and 3. The court accepts the notarization of evidence 1 submitted by Guangdong Opai Co., LTD., but rejects the authenticity of evidence 2 and 3, which are made unilaterally and cannot be confirmed.

    The facts ascertained by the court of first instance are basically clear and confirmed by the Court.

    The court thinks: synthesize both parties' pleading statement, the dispute focus of the second instance of this case is, one, whether the infringed commodity is produced and sold jointly by Guangdong Opai Company and kitchen company; Ii. Does guangdong Opai use the words "Guangdong Opai" and "Guangdong Opai Technology Co., LTD" on the accused infringing products constitute unfair competition? Whether the amount of compensation awarded in the first instance is reasonable.

    The focus of the dispute is whether guangdong Opai company and kitchen company jointly produce and sell the infringing goods. First, by the first-instance court examination, the alleged infringement of oil absorption, disinfect cupboard its packing positive all marked "guangdong science and technology co., LTD.", the packing both marked "guangdong opie technology co., LTD. Producer, manufacturer, after the kitchen electric appliance co., LTD., zhongshan city, address: zhongshan huangpu town Ma Xin industrial zone". Disinfect ark body marked "guangdong science and technology co., LTD.", oil absorption use manual cover marked "guangdong", back cover marked "guangdong opie technology co., LTD. Producer, manufacturer: after the kitchen electric appliance co., LTD., zhongshan city, address: zhongshan huangpu town Ma Xin industrial zone, products anti-counterfeiting are marked on the warranty card" opie technology co., LTD. (producer) of guangdong province ". Second, guangdong sent the company's business scope includes household appliances manufacturing, sales, although the evidence submitted in a second trial defense office property does not have its premises is site required for the production of household appliances, but given the evidence is the single production, and enterprises have the nature of the administrative office office buildings, at the same time also has a production workshop or entrust other production is a widespread social phenomenon, do not prove this guangdong company without involving electrical production capacity. Third, Guangdong Opai failed to submit rebuttal evidence. Therefore, according to the preponderative evidence, the court of first instance found that there was nothing wrong with the joint production and sale of the infringing goods by Guangdong Opai Company and the kitchen company, and the court maintained this.

    The second focus of the dispute is whether the use of the words "Guangdong Opai" and "Guangdong Opai Technology Co., Ltd." on the product of the alleged infringement by Guangdong Opai Constitutes unfair competition. According to the provisions of Paragraph 3 of Article 5 of the Law of the People's Republic of China against Unfair Competition, if an enterprise name of another person is used without authorization to cause people to mistake it for another person's goods, it shall be an act of unfair competition and shall bear the corresponding legal liability. And according to 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 regulations, has certain market popularity and is known by the relevant public enterprise name of the font size, can be regarded as provided in item (3) of article 5 of the anti-unfair competition law" enterprise name ". The name of this case is "Guangdong Opai Technology Co., LTD.", and the enterprise name requested for protection is called "Opai" in "Opai Home Furnishing Group Co., LTD.", namely the problem of right conflict between the enterprise name rights. Due to the regional limitation of enterprise name approval, the conflict between names is inevitable, and the general principle of legal protection is to enjoy the corresponding enterprise name right in their approved area. However, if the shop name has certain market popularity and is known to the relevant public, the conflict is enough to cause the relevant public to have confusion about the source of the goods, and it can be considered as unfair competition. According to this case to find out the fact that, although the "guangdong opie technology co., LTD." is the administrative department for industry and commerce approved the establishment of legitimate businesses, shall enjoy the right of an enterprise name in accordance with the law, but the company was established in April 30, 2014, while European furniture company was founded on July 1, 1994, its relative to the alleged infringement of guangdong company belongs to the prior right of an enterprise name. At the same time, the "European" text font size on your company's name is European household is also the company has a registered trademark, after European household company for "European" trademark use, advertising for many years, and have good business reputation, product quality and the enterprise size and its registered trademark in the relevant public have a higher visibility and influence, have "has certain market popularity and is known by the relevant public" conditions, opie household name rights enjoyed by the company law of the People's Republic of China against unfair competition, protection. Guangdong European companies in the same or similar products, should be on the "European" trademark and font size, its use on commodities with the wording "European" "guangdong science and technology co., LTD." when an enterprise name, obvious ability to use the subjective intent of the reputation of the font size to carry out business activities, system of "European" well-known enterprise size grows, objectively can make consumers on the oil absorption, disinfect cupboard products operators to confusion, mistaken for annotation of "guangdong science and technology co., LTD.", probably from European household products company, or that there is investment or cooperation relationship between both sides, Thus, the consumer group belonging to Opai furniture company may flow to Opai Furniture Company in Guangdong to obtain improper commercial interests, thus damaging the legitimate rights and interests of Opai furniture company. Therefore, guangdong Opai Company's use of the words "Guangdong Opai" and "Guangdong Opai Technology Co., LTD." on the accused infringing products has constituted unfair competition.

    The third focus of the dispute is about the amount of compensation. Due to European household company failed to provide evidence for guangdong company, kitchen company after implementation of ACTS of unfair competition and lead to the actual loss as well as the guangdong company, after cooking the company's profitability, the first-instance judgment, considering the European household brand reputation of the company, as well as guangdong opie company, after the kitchen scale, guangdong kitchen company after company, during the implementation of the nature of the infringement, and the consequences, as well as the degree of subjective fault, European household attorney's fees, incurred by the company to stop infringement notarial cost, the cost of buying infringing material, According to the legal evidence, Guangdong Opai Company and kitchen company shall pay compensation of RMB 110,000 yuan (including reasonable expenses for preventing infringement) to Opai Household Company. Therefore, the Court does not support the appeal.

    To sum up, the appellant guangdong Opai Company's appeal is untenable and should be rejected. The facts ascertained in the judgment of the first instance are basically clear and the application of the law is basically 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 of 2500 yuan shall be borne by The Appellant guangdong Opai Technology Co., LTD.

    This judgment shall be final.

    Xu Hongni, chief judge

    Judge Xie Jindong

    Judge Ma Yan

    September 27, 2017

    Clerk Lei Yuan