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

    Jinhua Intermediate People's Court, Zhejiang Province

    Written judgment of civil affairs

    (2018) Zhejiang 07 Minzhong 3355

    Hangzhou Robam Appliances Co.,Ltd., Domicil: 592 Linping Avenue, Yuhang Economic Development Zone, Yuhang District, Hangzhou City, Zhejiang Province.

    Legal representative: Ren Jianhua, chairman of the board.

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

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

    Appellant (defendant in the first instance) : Yiwu Ouwen Electric Appliance Co., LTD., Address: Room 202, 169 Jiangbin North Road, Yiwu City, Zhejiang Province.

    Legal representative: Li Quan.

    Appellee (defendant in the first instance) : Shenzhen Boss Industry and Trade Co., LTD., place of residence: 402, Building 54, Caopu Chawwai Village, Jinpaddy Road, Dongxiao Street, Luohu District, Shenzhen, Guangdong.

    Legal representative: Li Kejia.

    Appellant Hangzhou Robam Appliances Co., Ltd. (hereinafter referred to as Hangzhou boss company) with the appellee yiwu the smell electric appliance Co., Ltd. (hereinafter referred to as the smell of the company), the boss of shenzhen industrial and trading Co., Ltd. (hereinafter referred to as "shenzhen boss company) the infringement trademark rights and unfair competition disputes, yiwu city, zhejiang province, the people's court (2017), zhejiang 0782 no. 12629 in the early days of the civil judgment, to file an appeal. After accepting the case on June 25, 2018, the court formed a collegial panel to hear the case according to law. As the appelyees' European News Company and Shenzhen boss Company did not find this company on the industrial and commercial registration address, nor could they get in touch by other means, the court served copies of the appeal petition, evidence materials and court summons on the two appelyees by public notice according to law. On September 18, 2018, the court heard the case in public. Hangzhou boss company entrusted litigation agent Wang Ning to court to attend the proceedings. The appellee Ou Wen Co., LTD and Shenzhen Boss Co., LTD refused to attend the proceedings after being legally summoned without justified reasons, and the court is absent from trial according to law. The case is now closed.

    (1) Europe News Stopped using the words "boss" and "Shenzhen boss" in its online store to infringe the appellant's trademark right no. 1296853; (2) Shenzhen Boss Company shall immediately stop unfair competition and stop marking "Shenzhen Boss Industry and Trade Co., LTD" on the products it produces and sells; (3) The Boss Company of Shenzhen shall immediately change its enterprise name, and the word "boss" shall not be used in the changed enterprise name; 4. Shenzhen Boss Company shall compensate the appellant for economic loss of RMB 160,000 within 10 days from the date of the judgment taking effect. 2. The contents of the first and second judgments of the first instance shall be upheld. 3. The costs of the first instance and the second instance shall be borne by the appellee.

    Facts and Reasons: 1. It was found in the first instance that the evidence submitted by the appellant was insufficient to determine that the infringed product was manufactured by Shenzhen Boss Company. 1. The infringement notarial certificate submitted by the appellant can prove that "Shenzhen Boss Industry and Trade Co., LTD" is marked on the outer package, manual and panel label of the product involved, and the two-dimensional code displayed on the product manual is scanned to show the word "Shenzhen Boss Industry and Trade Co., LTD", which is consistent with the name of the appellant. The information of production enterprises marked in the outer package of products and operating instructions has the function of letting consumers identify the producer or operator of products, that is, it has the nature of clearly pointing to the product provider. Therefore, the appellant has submitted preliminary evidence to prove that the products involved in the case are made by the Appellee's Shenzhen boss Company. When the appellee neither appeared in court to answer the lawsuit nor provided refuting evidence, the first-instance court should support the appellant's claim and confirm that the products involved are made by the appellee's Shenzhen boss Company. 2. The owner of the trademark on the products involved is Li Kejia, the legal representative of the appellee Shenzhen Boss Company. According to the Supreme People's Court about the cases of infringement of the victim to product trademark all the defendant filed civil lawsuits reply (July 4, 2002, the 1229th meeting by the Supreme People's Court trial committee) interpretation "[2002] 22," according to their own name, the name, trademark or any other logo to identify embodied in products, said it as a manufacturer of enterprises or individuals, all belong to the "general principles of the civil law of the People's Republic of China" in article one hundred and twenty of this law "manufacturer" and "product quality law of the People's Republic of China" regulation of 'producers' ". In addition, the trademark has no visibility and there is no need for others to copy it. Both of the above aspects can be identified that the products involved are produced by the appellee's Shenzhen boss Company. The court of first instance did not confirm that the products involved were produced by Shenzhen Boss Company in accordance with the law before the company appeared in court and did not deny it, which violated the rules of evidence in civil proceedings and was a mistake in the application of law.

    Ii. It is wrong to affirm in the first instance that the appellee Shenzhen Boss Company does not constitute unfair competition behavior to the appellee. 1. The name is registered first. The court of first instance affirmed that the appellee shenzhen boss company registered earlier error. According to the appellant's enterprise registration information, the appellant used the name "Boss" as the company name to establish in 1999. Only after the name change, Hangzhou Boss Industrial Group Co.,Ltd. formally changed its name to Hangzhou Robam Appliances Co.,Ltd., in 2010. 2. Similarity and regional analysis of commodity services. Both the appellant and the appellee shenzhen boss company are household electrical appliances enterprises, and their business objects include gas appliances. Although the appellant and the appellee shenzhen Boss company do not exist in the same jurisdiction, under the current Internet sales model, the geographical restrictions of consumer purchasing channels have been broken, so they should be identified as competitors in the same region. 3. Identification of well-known trademarks. Article 14 of the trademark law, the following factors shall be considered in the determination of a well-known trademark :(2) the duration of the use of the trademark; The provisions of Article 3 (5) of the Provisions on Recognition and Protection of Well-known Trademarks shall include other evidentiary materials to prove that the trademark is well-known, including the output, sales volume, sales income, profits and taxes, sales region and other relevant materials of the major commodities using the trademark in the recent three years. The recognition of the well-known trademark should investigate the popularity of the trademark in the recent three years. The appellant's trademark No. 1296853 "Boss" was identified as the well-known trademark on August 20, 2007, so the trademark has had a certain popularity in 2004. The Shenzhen boss company and the appellant are competitors in the same trade and established much later than the appellant. When registering the enterprise name, they should know the trademark and name of "boss" with high market popularity, but still apply for the establishment of the company, and the subjective malice is obvious. 4. Seller confusion. The smell of the company in its online store sales, infringing products in the product pictures left highlight use the word "shenzhen boss, at the same time in the column marked product details" brand owners ", on the one hand products prove that the seller has the right to use the appellant and the appellee's products have been produced confusion, on the other hand that sellers that use "brand: the boss" to confuse the purpose of, in order to make the relevant public to mistake the source of the goods or has the certain relation with the plaintiff's goods, so deliberately prominent use of the word "boss", to explain the appellant shenzhen boss company ACTS of unfair competition. 5. Subjective will of shenzhen boss Company. Shenzhen Boss Company USES "boss" as the name and then operates the same products as the appellant, making it easy for consumers to mistake its products for the appellant's products or to think that there is some connection between the two. Meanwhile, "Shenzhen Boss Industry and Trade Co., LTD" is printed on the outer package, manual and gas stove panel of the infringing products involved, which further strengthens the connection between them.

    Iii. The judgment of the first instance omitted the appellant's first claim. 1. The original sentence has been decided that the smell of company in the online store page using the "shenzhen boss, the wording" brand: the boss ", the infringement of the trademark of the appellant, but no decision within the company to immediately stop at the store to use with the words "boss", "shenzhen boss, etc., hangzhou boss company trademark infringement behavior, belong to miss the first item of the appellant to the claims. 2. The original court since the boss in the original judgment that shenzhen company for the appellant not constitute the unfair competition, also have not recognized products infringe on the trademark of the appellant, but the first sentence in yiwu the smell in the judgment electric appliance co., LTD., to stop selling the products involved, inconsistent, belong to ascertaining the facts is not clear, the application of law. In conclusion, the appellant shenzhen boss company to apply for registration and the actual use "boss" as the font size has obvious "free rider", malicious free-ride, the fair market competition principle of honesty and credit, in violation of the recognized business ethics, violated the appellant, right to enterprise name constitutes unfair competition, the original ascertaining the facts wrong, the original sentences unfair, errors, looking at a second trial court commuted in accordance with the law.

    The appellee Europe news Company and Shenzhen boss Company did not reply in the second instance.

    1. The company was ordered to stop infringing the trademark of hangzhou Boss Company by using the words "boss" and "Shenzhen boss" in its online store; 2. Order Ouwen Company to immediately stop selling gas stoves labeled as "Shenzhen Boss Industry and Trade Co., LTD"; 3. Order Shenzhen Boss Company to immediately stop unfair competition by marking "Shenzhen Boss Industry and Trade Co., LTD" on the gas stove products it produces and sells; 4. Order shenzhen Boss Company to change its enterprise name immediately, and the changed enterprise name shall not use the word "boss"; 5. Order European News Company and Shenzhen Boss Company to compensate Hangzhou Boss Company for economic loss and reasonable expense of rights protection totaling RMB 200,000 yuan; 6. Order Ouwen Company and Shenzhen Boss Company to bear the costs of the case. In the first trial, Hangzhou Boss Company changed the claim 1 to: it was ordered that Ou Wen Company immediately stop selling the goods that infringed on the exclusive right of registered trademark no. 1296853 of Hangzhou Boss Company.

    The first-instance court ascertained that the facts: 1296853, "the boss" registered trademark originally boss industrial group co., LTD. Hangzhou on July 21, 1999, the state trademark office approved registration, trademark approved use goods for 11 categories: "kitchen lampblack machine, gas stove, electric heaters, electric water heater, flashlight, refrigeration equipment, air dryer, boiler (not machine parts), disinfection equipment, electric clothes dryers." On May 12, 2009, the name of the registrant was changed to Hangzhou Boss Company. The renewal of the trademark registration shall be valid from July 21, 2009 to July 20, 2019. On August 20, 2007, the registered trademark of "Boss" on the products of kitchen range hoods used by Hangzhou Boss Company was rated as well-known trademark by the Trademark Office of the State Administration for Industry and Commerce.

    Ou Wen Company was founded on June 23, 2016 with a registered capital of 1 million yuan. Its business scope: on-site wholesale, online sales: household appliances, daily provisions.

    Shenzhen boss company was founded on January 5, 2005, registered capital of 500,000 yuan, business scope: household appliances, kitchen equipment, gas appliances, range hood, daily provisions of the technology development and sales (excluding limited projects).

    Hangzhou Boss company was founded on December 18, 2010, the business scope: range hood, gas, disinfection cupboard, oven, steam stove, microwave oven, dishwasher, water purifier and other kitchen appliances manufacturing, processing, sales, import and export business, electrical appliances technical services.

    On June 28, 2017, hangzhou boss company entrusted agent shou-zhen wang FengCheng notarization to apply for evidence preservation in laiwu city in shandong province, the notary office staff supervision, landing site of the "alibaba", in "yiwu the smell electric appliance co., LTD." within the store to buy the kitchen burning gas a infringing products, purchase and payment 143 yuan. "Shenzhen boss" is highlighted in the bottom left corner of the product picture of "Kitchen gas stove manufacturer direct sale of household kitchen appliances energy-saving gas stove tempered glass liquefied gas stove wholesale". The webpage shows "price 88 YUAN, 70 yuan, 66 yuan", "6 pieces for sale", "999999963 pieces for sale", and labels "brand boss" in the column of product details.

    After comparison, the infringing product is the gas stove, in the product manual and the outer packing box marked "Shenzhen boss industry and Trade Co., LTD.", and highlighted the use of the "" trademark, in the lower left corner of the gas stove label marked" Shenzhen Boss Industry and Trade Co., LTD. ", and highlighted the use of the "" trademark.

    The registrant of the trademark "" No. 4474440 is Shenzhen Boss Company.

    The hangzhou boss company paid the notary fee of 700 yuan and the purchase price of 143 yuan.

    The court of first instance held that Hangzhou Boss Company is the owner of the exclusive right to use the registered trademark "Boss" No. 1296853. The trademark is currently in the period of registration validity, and it enjoys the exclusive right to use the said registered trademark according to law. According to the Trademark Law of the People's Republic of China, the use of a trademark similar to the registered trademark on the same kind of goods or the use of a trademark identical with or similar to the registered trademark on similar goods without the permission of the trademark registrant is likely to cause confusion; Selling goods that infringe the right to exclusive use of a registered trademark; Is an infringement of the right to exclusive use of a registered trademark. In this case, no. 1296853 "boss" the commodity class that registers trademark to check and ratify USES includes gas cooker, be sued tort product is gas cooker, reason both commodity kind is same. Ouwen Sells the accused infringing products in its online store, and the word "Shenzhen boss" is highlighted in the bottom left corner of the picture of the accused infringing products, and the word "brand Boss" is also marked in the column of product details, which plays the role of marking the origin of products and is used in the sense of trademark. By comparing with the boss of the company's registered trademark of hangzhou, easy to make the relevant public to mistake the source of the goods and/or that the source and the boss of the company's registered trademark of hangzhou has the specific commodity, the first-instance court ascertained that the "shenzhen boss approximate and in the case of a registered trademark, the brand column labeled" boss "and in the case of a registered trademark of the same. Therefore, ou Wen company's sales of the infringed products infringed the "boss" registered trademark of Hangzhou Boss Company No. 1296853. European news company shall bear the legal responsibility to stop the infringement and compensate for the economic loss. As for the compensation, because hangzhou boss company did not provide evidence to prove that the interests of the obligee's loss or the gain, comprehensive consideration of the registered trademark involved in the popularity, the value of the infringing products, the nature of the infringement, consequences and hangzhou boss company for the reasonable expenses of the rights, and determine the amount of compensation for 40000 yuan (including the reasonable expenses). On the issue that hangzhou Boss company claims that Europe news Company and Shenzhen boss company have unfair competition behavior. The first-instance court held that the evidence provided by The Hangzhou boss company was not enough to determine that the infringing product was produced by the Shenzhen Boss Company; Another, hangzhou boss boss company and shenzhen company in different registration authority shall, within their respective jurisdictions and boss company in shenzhen earlier registration, and hangzhou boss company fails to provide sufficient evidence in hangzhou boss company business name has a famous market within the scope of shenzhen boss company implemented a promiscuous behavior when using the enterprise name, cause public mistake, damage the legitimate rights and interests of the hangzhou boss company. Therefore to the hangzhou boss company this part of appeal, does not support. If ou Wen Company and Shenzhen boss company refuse to appear in court without justified reasons after being subpoenaed, it shall be deemed as giving up the right of proof, cross-examination and debate, and the judgment can be made by default according to law. In accordance with the "tort liability law of the People's Republic of China, article 15, article 2 of the trademark law of the People's Republic of China the first article 57 (a), (2), item (3), the third paragraph of article sixty-three, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain" the second paragraph of article 16 and article 17 and article one hundred and forty-four of the "civil procedure law of the People's Republic of China" regulation, ruling: one, the smell company immediately to stop selling infringement of hangzhou boss no. 1296853 is a registered trademark of the goods; 2. The European News Company shall compensate the Hangzhou Boss Company for the economic loss of RMB 40,000 (including reasonable expenses) within 10 days after the judgment takes effect; Reject other litigation claims of Hangzhou boss Company. If the pecuniary obligation is not fulfilled within the period specified in the 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 acceptance fee is 4300 yuan, which is 1720 yuan borne by hangzhou boss company and 2580 yuan borne by European news Company.

    In the second instance, Hangzhou Boss Company submitted the following evidence to the court:

    1. One copy of proof material of change of Hangzhou boss Company, which is intended to prove that Hangzhou Boss Company was founded on October 12, 2000, when the company was founded, it was Hangzhou Boss Household appliances Kitchen & Bathroom Co., LTD., which was changed to the current name on August 28, 2008, and has been using the name of "boss" since its establishment.

    2. Hangzhou boss industrial group co., LTD., the enterprise credit information publicity report and a copy each of the "situation", intends to prove that the company is the boss company associated enterprises in hangzhou, hangzhou, the boss of the company's "boss" font size of the company, the company "boss" font size was founded in 1995, "the boss" font size has a long history.

    3. Printed copies of Sina Finance, Huashi Hall of Fame and Baidu Encyclopedia intend to prove the history and market share of the "Boss" trademark created by the legal representative of Hangzhou Boss Company.

    4. The VAT payment certificate of Hangzhou Boss Industrial Group Co., LTD from 2001 to 2004, which is intended to prove that the sales volume of the affiliated company of Hangzhou Boss Company from 2001 to 2004 is huge, which further proves that the name of "boss" belongs to the abbreviation of enterprises with certain influence during the period of 2001 to 2004.

    5. National Quality Award MEDALS, which are intended to prove that the "boss" brand of Hangzhou Boss Company had already enjoyed high market popularity in 1991. In 1991, Hangzhou boss company already made boss brand, but did not make name promotion.

    6. Three copies of Zhejiang Famous Trademark Certificate are intended to prove that the trademark of "Boss" owned by the affiliated enterprises of Hangzhou Boss Company was recognized as a famous trademark of Zhejiang Province by Zhejiang Administration for Industry and Commerce from 1997 to 2007, which further proves that the name of "Boss" belongs to the abbreviation of enterprises with certain influence during the period from 1997 to 2007.

    7. Certificate of Zhejiang Well-known Firm, which is intended to prove that the "boss" name owned by the affiliated enterprise of Hangzhou Boss Company was recognized as a well-known firm by Zhejiang Administration for Industry and Commerce from 2004 to 2007, further proving that the "boss" name was relatively well-known around 2004.

    8. "China Famous Brand Product Certificate" is intended to prove that the affiliated enterprise of Hangzhou Boss Company, "Boss" products, are well-known in the market around 2005, and further prove that the name of "Boss" belongs to the abbreviation of enterprises with certain influence around 2005.

    9. "Oriental Bojie Advertising Business Contract" is intended to prove that the affiliated enterprises of Hangzhou Boss Company published advertisements on CCTV in 2003, which further proves that the name of "Boss" was relatively well-known in 2003.

    10. CCTV web page a printout, intends to prove that the boss appliances worked in CCTV's advertising, kitchen is provided for five consecutive years in 2003 boss RongLie national market similar products sales of the top three, the boss of kitchen appliances since 2000 has remained the growth rate of 40% to 50%, "the boss" brand in the market value is huge, "the boss" font size in high-profile 2003 years ago.

    11. On November 8, 2010, The Initial public Offering prospectus of Hangzhou Boss Company intends to prove the company's scale, market share and reputation before 2010, and the "Boss" brand is very well-known.

    12. The boss of shenzhen company name of legal representative Li Kejia eight trademark printing, intends to prove the legal representative of the appellant is a professional engaged in free-ride, hitchhiking unscrupulous operators, the registered trademark of free-ride, malicious obviously unfair competition, such as ROISPAM alongside the appellant ROBAM, Wan Bin road alongside marlboro, qiang ling alongside mei ling, hence wife alongside his wife, hence more brand alongside every treasure love, which is the alongside TCL, hemisphere alongside hemisphere.

    13. A shenzhen boss company public information, the information shows it has on July 27, 2015, the shenzhen market and included in the list of abnormal operation of the state administration of quality supervision, management, and has not been eliminated, this match with the court's service situation, intends to prove that the boss company is a fake shell companies in shenzhen, not in actual business in shenzhen, obviously is the use of shenzhen loose company registration system to register the "boss" font size of the company, achieve the purpose of implementation of ACTS of unfair competition in zhongshan.

    The appellee European News Co., Ltd. and Shenzhen Boss Co., Ltd. did not submit evidence in the second instance, nor did they give cross-examination opinions on the evidence submitted by Hangzhou Boss Co., Ltd. in the second instance.

    Regarding the evidence submitted by the appellant hangzhou Boss Company in the second instance, the court certifies as follows: Evidence 1, 2, 4 and 8 are originals, which are confirmed by the Court; Because the original is used in other cases, the appellant submits it for verification after court, and the court confirms its authenticity. Among them, Evidence 5 is the medal of National Quality Award, and there is no information about the object or product awarded on it, so the court cannot confirm its relevance to this case. Evidence 3, 10 series of network printed copies, web page involving the "boss" brand content, should be combined with other evidence to confirm; Evidence 9 is a copy, whose authenticity cannot be confirmed; Evidence 11 is a prospectus of a listed company, and its contents shall meet the requirements of authenticity, accuracy and completeness of information disclosure of the listed company. Although the appellant submits it in the form of CD-ROM and printed copies, its contents can be verified and confirmed by the Court; Evidence 12-13 is a network printed copy, but its content is public information, which can be verified and confirmed by our hospital.

    Upon hearing the case, the court, on the basis of the evidential evidence submitted by the appellant in the second instance, determines the following facts:

    Hangzhou Boss Company, formerly Known as Hangzhou Boss Appliances & Kitchen Co.,Ltd., applied for establishment on October 12, 2000 with its legal representative Ren Jianhua and Hangzhou Boss Industrial Group Co.,Ltd as one of its shareholders. On August 28, 2008, Hangzhou Boss Appliances & Kitchen Co.,Ltd changed its name to "Hangzhou Robam Appliances Co.,Ltd.".

    Hangzhou Boss industrial Group Co., Ltd. was established on March 22, 1995. Its legal representative, Ren Jianhua, paid tax of 7627750.96 yuan in 2001, 12238123.97 yuan in 2002, 17448937.55 yuan in 2003 and 20836329.43 yuan in 2004. Zhejiang province administration for industry and commerce in 1997 and 2001 respectively as hangzhou boss industrial group co., LTD., used in the machine of the lampblack that take off the goods on the "boss" trademark for the famous trademark of zhejiang province (valid for three years), in 2004 concluded that hangzhou boss industrial group co., LTD. To register and use in 11 kinds of oil absorption, kitchen burning gas, disinfection cabinet goods on the "boss" trademark for the famous trademark of zhejiang province (valid for three years), in 2004 concluded that hangzhou boss industrial group co., LTD. "the boss" trade name for well-known firms in zhejiang province (for three years). The General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China awarded the Boss range hood manufactured by Hangzhou Boss Industrial Group Co., Ltd. as China's famous brand products in September 2005 (valid period: From September 2005 to September 2008).

    In its 2010 IPO prospectus about the issuer, Hangzhou Boss Corporation stated: "The main initiator of the company is Hangzhou Boss Industrial Group Co., LTD... Before December 2007, Hangzhou Boss Industrial Group Co., Ltd. mainly engaged in the research and development, production and sales of range hood products and other kitchen appliances sales business, with the assets related to the above business. In order to integrate the kitchen electricity business of the company, completely solve the problem of peer competition and related transactions between Hangzhou Boss Industrial Group Co., Ltd. and the company... The Company shall acquire all the above operating assets and all business of Hangzhou Boss Industrial Group Co., LTD, including land use right, house ownership right, equipment and software use right, trademark, patent, proprietary technology, creditor's right and debt, inventory and equity of 12 sales subsidiaries "; About the company's main business situation shows: "according to the statistics of China's industry enterprise information release center of the National Bureau of Statistics, since 2003, the company's range hood products have been ranked first in national sales for seven consecutive years, gas stove products have been ranked top three in national sales for seven consecutive years.

    The legal representative of shenzhen boss company is Li Kejia. The company was listed on the list of abnormal operation by Shenzhen Market and Quality Supervision and Administration Commission on July 27, 2015 and on August 2, 2018 on the list of seriously illegal enterprises. The applicant for trademark "" No. 4474440 is Li Kejia. The Li family also applied for the trademark registration of "Wan Bin Lu", "Qiang Ling" and "Yuan Wife".

    Other facts are consistent with the facts ascertained by the court of first instance.

    The court believes that the focus of the dispute in the second instance of this case lies in: 1. Ii. Whether the behavior of Ou Wen Company infringes on the exclusive right of registered trademark of Hangzhou Boss Company; Iii. Whether the alleged infringing product is produced by shenzhen boss Company; Iv. Whether the behavior of ouwen Company and shenzhen boss company constitutes unfair competition.

    As for the focus of the dispute, the appellant, Hangzhou Boss Company, filed a lawsuit in the first instance, requesting that Ouwen Company stop using the words "boss" and "Shenzhen boss" in its online store to infringe the appellant's trademark right no. 1296853. After the first-instance court explained the change of the lawsuit. After reviewing the appellant's claim and evidence in the first instance, the appellant believed that Eurwen company's infringement of trademark rights was mainly reflected in its online store using the words "boss" and "Shenzhen boss", and did not claim that the products sold by Eurwen Company violated its right to exclusive use of registered trademark. In the second instance, the appellant clearly insisted on his claim at the time of filing, and the court recognized this. The first-instance court has smell of the company on the online store using the words "boss", "shenzhen boss whether the trial and constitute trademark infringement, but not in the judgment shall be reflected in the running, but according to the hangzhou boss company after the change of the claims smell ordered the company to stop selling the alleged infringement product, it is mishandled, but does not belong to omit the claims.

    About the controversial focus two, according to the "trademark law of the People's Republic of China" the provisions of article 48, the use of trademark referred to in this law refers to the trademark to commodities, commodity packages or containers as well as Commodity Exchange documents, or the trademarks used in advertising, exhibitions and other commercial activities, is used to identify the source of goods. On the pictures of the products being sold in its online store, the word "Shenzhen boss" is highlighted, which plays a role in identifying the source of the products and shall be deemed as trademark. In addition, the company also smell in the alleged infringement product sales page product information noted in the column "brand owners", although not outstanding marks the boss, but here the meaning of "boss" beyond its literal meaning, related to the source of the goods after consumers to see lenovo, has play a role, identify the sources of it shall be regarded as trademark use. By comparison with the trademark of Hangzhou Boss Company No. 1296853, the composition of "Shenzhen boss" is similar to that of the trademark involved, and the composition of the brand "Boss" is the same. Therefore, the use of the words "Shenzhen boss" and "boss" on the online store of Ou Wen Company has constituted an infringement on the exclusive right of registered trademark of Hangzhou Boss Company.

    The third focus of the dispute, shenzhen boss company's business scope includes the production and sales of gas appliances. This case is sued tort product is gas stove, in its outer packing, product itself and use manual all mark have "Shenzhen boss industry and trade limited company" word, the address on its outer packing also is the same as the address of Shenzhen boss company before industrial and commercial registration change. Scan the QR code on the instruction manual, showing the words "Luxury energy-saving gas stove Shenzhen Boss Industry and Trade Co., LTD" and so on. In addition, the owner of the trademark "" on the infringing product is the legal representative of shenzhen boss Company, Li Kejia. According to the cases of infringement of the supreme people's court about products all the victim to the product, whether the trademark as the defendant filed civil lawsuits reply "regulation: according to their own name, the name, trademark or any other logo to identify embodied in products, said it as a manufacturer of enterprises or individuals, all belong to the" general principles of the civil law of the People's Republic of China "in article one hundred and twenty-two of this law" manufacturer "and" product quality law of the People's Republic of China "regulation" producers ". To sum up, the court finds that the infringing products are produced by Shenzhen Boss Company.

    About controversial focus four, enterprise name the shop is to identify the core identity of different market main body, will use earlier by others have certain influence to the enterprise name or trademark well-known for their business name, to make the relevant public to the market main body and the confusion of the source of the goods or services that cause all of the relevant public to the enterprise name and the trademark registrant or mistakes by the holder of the font size, with the behavior of the enterprise name registered as violation of fairness, honesty and credit principle of ACTS of unfair competition. In this case, the trademark of "boss" involved was recognized as a famous trademark of Zhejiang Province by Zhejiang Administration for Industry and Commerce as early as 1997, and was recognized successively in 2001 and 2004. In 2007, the State Administration for Industry and Commerce recognized "Boss" as a well-known trademark. According to the Provisions on The Recognition and Protection of Well-known Trademarks, the recognition of well-known trademarks requires the advertising and publicity materials of the trademarks in the last three years, and the sales situation, market share, sales region and other materials of the commodities using the trademarks in the last three years. As a result, the "boss" trademark will have a certain level of nationwide popularity by 2004. In addition, Hangzhou Boss Company has been established as early as 2000, and the trademark and name of "boss" have been publicized and used by the appellant and its affiliated enterprises for many years, with high popularity. Related products have won many honorary titles in China, and the sales volume is also among the best. In the minds of consumers, the word "boss" has been associated with the brand products of Hangzhou Boss Company, and has become the main identifying commercial symbol distinguishing Hangzhou Boss Company from other market players and commodity sources in the same industry. Shenzhen boss company founded in 2005, registered in the shenzhen city, guangdong province, as the competition, could not know the "boss" trademark and name fame, but the boss company in shenzhen at the time of registration, not only not the words of "boss" prudent give way, instead of the "boss" as the enterprise name shall be registered and has obvious subjective clings to deliberately. Shenzhen improperly boss company will with hangzhou boss company has high awareness of prior registered trademark and trade name of the same text as the shop name registration for enterprise name, the smell of company boss will mark a shenzhen company name of kitchen burning gas on the online promotion, product sales, two of which the appellant inevitably produce market confusion, in violation of the good faith, the principle of fair competition market trading, damage the legitimate rights and interests of the hangzhou boss company, so the boss company in shenzhen and the smell of the company shall form of unfair competition.

    To sum up, The European News Company and the Shenzhen boss company shall bear the civil liabilities such as stopping the infringement and compensating for the losses for the corresponding ACTS of trademark infringement and unfair competition. Ou Wen Company shall immediately stop using the words "Boss" and "Shenzhen boss" in its online store to infringe the exclusive right of registered trademark of Hangzhou Boss Company, and immediately stop the unfair competition behavior of selling gas stove products marked with the words "Shenzhen Boss Industry and Trade Co., LTD". Shenzhen Boss Company shall immediately stop the unfair competition behavior of marking the words "Shenzhen Boss Industry and Trade Co., LTD" on the gas stove products it produces and sells, and change its enterprise name. The changed enterprise name shall not use the word "boss". As for the amount of compensation of shenzhen boss Company, it shall adapt to the market value of the registered trademark and enterprise name involved in the case, give consideration to the nature and degree of infringement, the influence caused by infringement, subjective fault and other factors, and give adequate judicial relief to the obligee.

    In view of this, the court of first instance found that the facts were unclear and the entity mishandled, and the court corrected them according to law. In accordance with article 2 of the tort liability law of the People's Republic of China, article 15, article 57 "trademark law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China" (1993), article 2, item 3, article 5 of the civil procedure law of the People's Republic of China article one hundred and forty-four, paragraph 3 of the first paragraph of article one hundred and seventy, the Supreme People's Court about apply "the civil procedure law of the People's Republic of China > the interpretation of article ninety, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain" the provisions of article 9, the decision is as follows:

    1. The second paragraph of Civil Judgment No. 12629 of Yiwu People's Court of Zhejiang Province (2017) was upheld.

    2. Cancel items 1 and 3 of Civil Judgment No. 12629 of Yiwu City People's Court, Zhejiang Province (2017) 0782;

    Iii. Yiwu Ouwen Appliances Co.,Ltd. immediately stopped using the words "Boss" and "Shenzhen Boss" in its online shop to infringe the exclusive right of registered trademark of Hangzhou Robam Appliances Co.,Ltd.

    Iv. Yiwu Ouwen Electric Appliance Co., Ltd. immediately stops selling gas stoves labeled as "Shenzhen Boss Industry and Trade Co., LTD.";

    5. Shenzhen Bosco Industry and Trade Co., Ltd. shall immediately stop the unfair competition behavior marked with the words "Shenzhen Bosco Industry and Trade Co., Ltd." on the products it produces and sells;

    6. Shenzhen Boss Industry and Trade Co., Ltd. shall change its enterprise name within 30 days from the effective date of this judgment, and the word "boss" shall not be used in the changed enterprise name;

    7. Shenzhen Hangzhou Robam Appliances Co.,Ltd shall, within 10 days from the effective date of this judgment, compensate Hangzhou Robam Appliances Co.,Ltd for economic loss of 160,000 yuan.

    Dismiss other claims by Hangzhou Robam Appliances Co.,Ltd.

    If Yiwu Ouwen Electric Appliance Co., Ltd. and Shenzhen Boss Industry and Trade Co., Ltd. fail to perform their pecunial obligations within the period specified in this judgment, they shall pay double interest on the debt for the delayed period in accordance with article 253 of the Civil Procedure Law of the People's Republic of China.

    The first instance case handling fee is 4,300 yuan, the bulletin fee is 600 yuan, and yiwu Ouwen Electric Appliance Co., Ltd. shall bear 1,160 yuan, and Shenzhen Boss Industry and Trade Co., Ltd. shall bear 3,740 yuan. The second instance case handling fee is 4,300 yuan, the bulletin fee is 300 yuan, and yiwu Ouwen Electric Appliance Co., Ltd. shall bear 1,010 yuan, and Shenzhen Boss Industry and Trade Co., Ltd. shall bear 3,590 yuan.

    This judgment shall be final.

    Huang Meiyuan, Chief Judge

    Judge Lou Jin

    Judge Zhao Juan

    November 13, 2008

    Acting clerk Jiang Dan