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

    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

    The infringed product was marked with the words "OPAICN" and "Guangdong Opai Technology Co., LTD. (Supervisor)", and the manufacturer is Written: Zhongshan Hangxin Electric Appliance Co., LTD. ShanHang company confirmation letter in trial, accused of infringing products from the production and sales, and pointed out that in the conversion of oil absorption smoke on package labeled "OPAICN" trademark is guangdong opie company authorized letter to ShanHang in use, at the same time submitted on April 8, 2016 in the company and guangdong ShanHang letter company accredit a power of attorney, signed the accredit a power of attorney agreed in guangdong company authorize ShanHang letter company use 12124262 trademark processing production machine, stove, water heater, disinfecting cabinet products and printing packaging, production and sales. It is also agreed that the printing plant where the licensee USES the packaging marks of the licensed trademark shall report to the Licensor for filing. Therefore, it can be concluded that Guangdong Opai company and Zhongshan Hangxin Company jointly carried out the infringement act. Guangdong Opai Company put forward the opinion that the products involved were fake trademarks and enterprise names of Guangdong Opai Company.

    About Focus 2, whether Du Qingjun constitutes trademark infringement and whether the actions of Du Qingjun, Zhongshan Hangxin Company and Guangdong Opai Company constitute unfair competition.

    Article 48 of the Trademark Law stipulates, "The use of a trademark referred to in this Law means the use of a trademark on commodities, packaging or containers of commodities, and trading documents, or the use of a trademark in advertising, publicity, exhibition and other commercial activities to identify the source of commodities." (1) Using a trademark identical with a registered trademark on the same kind of goods without the permission of the registered trademark owner; (2) using a trademark similar to its registered trademark on the same good s or using a trademark identical with or similar to its registered trademark on similar good s without the permission of the trademark registrant, which is liable to cause confusion..." According to the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation of article 9, the provisions of article 10, in trademark infringement cases that advocate for the rights of accused of infringement identification and whether the registered trademark constitutes approximation, should regard trademark or its constituent elements involved significant degree, market popularity, such as the specific circumstances, in the consideration and comparison form, pronunciation and meaning of the text, graphic composition and color, or on the basis of the combination of elements of the structure, the whole or the major part is the possibility of market confusion to comprehensive analysis and judgment.

    In this case, according to the facts found out, the registered trademark no. 4378572 of OPie Group is approved to be used in the 11th category of goods, including kitchen range hood, and the infringing product of this case is the household range hood, both of which belong to the same kind of goods. Du qing in the sales page of the site to use the word "Europe", is accused of infringement identification "European" and advocate for the rights of European group compared to no. 4378572 "European" registered trademark, the pronunciation and meaning are the same, the relevant public to general attention easily confused between the two, as a result, the first-instance court ascertained that du qing use "European" logo on the website and advocate for the rights of European group involved in trademark constitutes a confounding approximation. According to the above law, without the permission of the trademark registrant, If Du Qingjun USES a trademark similar to the registered trademark of Opai Group on the same commodity, it has constituted trademark infringement.

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

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

    On Focus 3, Du Qingjun, Zhongshan Hangxin Company and Guangdong Opai Company shall bear the civil liability.

    Although the company guangdong opie defenses that its has nothing to do with online stores and the alleged infringing products involved, but according to ShanHang letter in the company, according to the power of attorney to submit it with ShanHang letter company exists in trademark licensing, but its licensing companies use ShanHang letter no. 12124262 in "OPAICN" trademark, and licensing ShanHang letter company in its production, the sale on boardly use the wording "guangdong opie technology co., LTD. Producer" behavior, is under the guise of trademark licensing indulge ShanHang letter in the name of the company involved in the alleged infringement product on the suspicion of improper use its corporate name. Article 8 of the Tort Liability Law of the People's Republic of China stipulates that if two or more persons jointly commit a tort and cause damage to another person, they shall bear joint liability. In this case, Guangdong Opai Co., Ltd. and Zhongshan Hangxin Co., Ltd. have the joint intention to carry out unfair competition, constituting joint infringement, and they should bear joint liability for compensation.

    According to the provisions of Paragraph 1 and Paragraph 3 of Article 63 of the Trademark Law of the People's Republic of China, "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual loss suffered by the right holder due to the infringement; Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; Where it is difficult to determine the losses of the right holder or the profits of the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests gained by the infringer as a result of the infringement, or the licensing fee for the registered trademark, the people's court shall, in light of the circumstances of the infringement, make a judgment to compensate the obligee not more than THREE million yuan." At the same time, article 20 of the Anti-Unfair Competition Law stipulates that if a business operator violates the provisions of this Law and causes damage to the injured business operator, it shall be liable for damages. The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in article 17 of the regulation:" determined in article 5 of the anti-unfair competition law, article 9, article 14 of the regulation of damage compensation of ACTS of unfair competition, can consult to determine the use of a registered trademark infringement damages method." Du Qingjun's actions constitute trademark infringement and unfair competition, while the actions of Guangdong Opai And Zhongshan Hangxin constitute unfair competition. In this case, the group of the actual loss and du qing, ShanHang letter in the company, guangdong company illegal gains are not sure, the first-instance court consider the visibility of the goodwill send group integrated du qing, ShanHang letter in the company, guangdong company's subjective, intentional torts plot, business scale, the alleged infringement product sales, and other factors, discretionary du qing compensate European group for the economic loss of 40000 yuan, ShanHang letter to the European group in compensation for the economic losses of RMB 160000 yuan, ShanHang letter of European company in guangdong company shall bear the liability for compensation shall be jointly and severally liable. The above compensation amounts have included the reasonable expenses incurred in the case.

    According to Article 118 of the General Principles of the Civil Law of the People's Republic of China, a citizen or legal person whose right to exclusive use of a registered trademark has been infringed upon shall have the right to demand that the infringement be stopped and that the loss be compensated for. Therefore, the first-instance court should support the request of Opai Group to stop the infringement of Du Qingjun, Zhongshan Hangxin Company and Guangdong Opai Company. Regarding the lawsuit filed by Opai Group against Guangdong Opai Co., Ltd. to change its enterprise name immediately, the changed enterprise name shall not contain "Opai". Article 10 of the Opinions of the Supreme People's Court on Several Issues concerning the Overall Situation of Intellectual Property Trial Services under the current economic situation stipulates: properly handle the conflicts between registered trademarks, enterprise names and prior rights, and stop the unfair competition behaviors such as "pandering to famous brands" according to law. The Supreme People's Court about the trial of a registered trademark and enterprise name and prior right conflict the provisions on some issues of civil dispute case of article 4 of the regulations also accused of infringement of right to the exclusive use of a registered trademark or enterprise name constitutes unfair competition, the people's court may, according to the European group's claim and the specific circumstances of the case, order the defendant to stop using, and using specification assume civil liability. Guangdong Opai Technology Co., Ltd. USES the enterprise name "Guangdong Opai Technology Co., LTD.", which is obviously intended to free ride. No matter whether it is used conspicuously or not, it will cause confusion in the market. And Guangdong Opai company does not stop using the enterprise name is not enough to prevent market confusion. Therefore, the appeal of Opai Group was upheld by the court of first instance.

    In conclusion, according to the provisions of article one hundred and eighteen of the "general principles of the civil law of the People's Republic of China" and "tort liability law of the People's Republic of China" in article 8, paragraph 1 of article 3 of the "trademark law of the People's Republic of China", article sixty-three, paragraph 1 and 3, Chinese anti-unfair competition law "in the paragraph 1 of article 2, article 5, paragraph 3, article 20 of the Supreme People's Court on the trial of a registered trademark and enterprise name and prior right conflict the provisions on some issues of civil dispute case of article 4, and the law of the People's Republic of China civil procedure law, the provisions of article one hundred and forty-four of the judgment by default: 1. Du Qingjun immediately stops the use of the word "Oupai" in the taobao shop of the shopkeeper named "Oupai High-end Kitchen and Sanitary Appliances Direct selling" since the effective date of the judgment; Ii. As of the effective date of the judgment, Du Qingjun immediately stops selling the lampblack hoods with the words "supervised by Guangdong Opai Technology Co., LTD"; 3. Within 10 days from the effective date of the judgment, Du Qingjun shall compensate EUROgroup for the economic loss of RMB 40,000 (including the reasonable expenses paid by Eurogroup to stop the infringement); Iv. Guangdong Opai Co., Ltd. and Zhongshan Hangxin Co., Ltd. shall immediately stop the production and sale of the hoods with the words "supervised by Guangdong Opai Technology Co., LTD." as of the effective date of the judgment; V. Within 10 days from the effective date of the judgment, Zhongshan Hangxin Shall compensate OPai Group for the economic loss of 160,000 yuan (including the reasonable expenses paid by OPai Group to stop the infringement in this case); 6. Guangdong Opai Shall assume joint and several liabilities for the compensation liability borne by Zhongshan Hangxin In the fifth contract above; 7. Guangdong Opai Company shall, within 30 days from the effective date of the judgment, register the change of its enterprise name, and the word "Opai" shall not be used in the changed enterprise name. The receiving fee of this case is 4,300 yuan, 1,000 yuan to be borne by Du Qingjun, and 3,300 yuan to be borne by Zhongshan Hangxin company. Guangdong Opai Company shall assume joint and several liability for the receiving fee to be paid by Zhongshan Hangxin Company.

    In the second instance, neither party presented any new evidence.

    After trial, the court confirms the facts recognized by the court of first instance.

    The court holds that, based on the arguments of both parties during the second trial, the focus of this case is: 1. 2. Whether the first-instance court is correct in determining the civil liability that Guangdong Opai Shall bear.

    About the controversy one. According to this case to find out the fact that, after the European group the product sales and advertising for many years, the group and its registered trademark "European" won a number of honorary titles, "European" registered trademark has been identified as well-known trademarks, reflects the "European", both as a European group enterprise name or its registered trademark involved, in ambry furniture industry has high visibility, opie group name "European" can be considered the "anti-unfair competition law of the People's Republic of China" enterprise name "prescribed in item 3, article 5 of, by the law of the People's Republic of China against unfair competition" protection. The time for guangdong Opai Company to register its enterprise name is later than the time for the registration of the enterprise name of Opai Group and the time for the registration of the trademark involved in "Opai". Guangdong Opai Company, which is engaged in kitchen and sanitary appliance industry, should know the company name of Opai Group and the popularity of the registered trademark involved when registering its enterprise name. However, Guangdong Opai Company did not make reasonable evasion, and there is an intentional attempt to attach the goodwill of Opai Group. At the same time, although the guangdong opie company is absorb lampblack, kitchen home appliance products such as the European group of "European" font size and brand mainly on the cabinet furniture such as goods with high popularity, however, oil absorption and ambry kitchen home appliance products such as commodities are related to the kitchen, often use a combination of both, the object of consumption, sales channels are basically the same, the relevant public generally think that there is certain relationship between them, so the guangdong company in the process of operation and oil absorption use the word "European" enterprise name, Enough to cause the relevant public mistakenly believe that its products or its enterprises have a specific relationship with Eurogroup, causing market confusion. Due to the subjective intention of attaching goodwill, Guangdong Opai company improperly registered its enterprise name as a shop name and used it in kitchen household appliances such as range hoods, which was enough to cause market confusion. Therefore, the court of first instance found that its behavior constituted unfair competition, and the court maintained it. Both the registered trademark and the enterprise name are the trademark rights obtained according to the corresponding legal procedures and belong to different sign sequences. Disputes between registered trademarks and enterprise names shall be handled in accordance with the principles of good faith, fair competition and prior right protection. In the process of application for registration of enterprise name, the relevant administrative competent departments only examine the enterprise name applied for registration in accordance with the relevant provisions of enterprise name registration administration. The approval of registration of enterprise name does not mean that the enterprise name does not have the possibility of infringing any other prior rights. If the registration and use of the enterprise name itself is illegitimate, such as the registration of other people's prior registered trademark with high visibility as the name name for the enterprise name, even if the standardized use is still enough to generate market confusion, it can also be determined to constitute unfair competition. Therefore, Guangdong Opai Co., Ltd. claims that its enterprise name has been approved and registered by the relevant administrative department that its act does not constitute an infringement, which is not supported by the court.

    The second point of contention. Due to the unfair competition caused by guangdong Opai company's registration and use of the enterprise name containing the word "Opai", no matter whether Guangdong Opai company USES its enterprise name in a prominent way or not, it is difficult to avoid market confusion. Therefore, the court of first Instance has the legal basis to order Guangdong Opai Company to change its enterprise name, which is upheld by the Court.

    Guangdong Opai appeals that it should not bear joint tort liability with Zhongshan Hangxin company. We think this case evidence suggests that the alleged infringing products guangdong opie are marked on the company's business name, product packaging are printed on the "opie technology co., LTD. (producer) of guangdong province", of the trademark of the infringing products labeled "OPAICN" is ShanHang letter company in guangdong to send company license used on the product, the fact is enough to show that guangdong opie ShanHang letter in company and the company is accused of infringing products manufacturers, its common with ShanHang letter in company production and sales of the behavior of the infringing products constitute a common tort. The first-instance court correctly ordered Guangdong Opai Company and Zhongshan Hangxin Company to bear the civil liability of joint infringement, which the court upheld. Court of first instance considers opie group goodwill recognition, guangdong opie ShanHang letter in company and company's infringement, intentional torts plot, factors such as scale, accused of infringing copyright product sales, in the company and determine the guangdong ShanHang letter to the European group joint economic loss of 160000 yuan for compensation amount is reasonable, the guangdong company appeals argues that the compensation is too high a lack of motivation, does not support.

    To sum up, The appeal of Guangdong Opai Company cannot be established 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 handling fee of the second instance case is 3,300 yuan, which shall be borne by Guangdong Opai Technology Co., LTD.

    This judgment shall be final.

    Zheng Zhengjian, Chief judge

    Judge Qiu Chenghui

    Judge Vikram Pandit

    January 25, 2008

    Clerk Tan Xinyi