Civil judgment of Jinhua intermediate people's Court of Zhejiang Province

    Zhejiang Jinhua intermediate people's court

    Civil judgment

    (2018) zh07 Minzhong 3355

    The appellant (plaintiff in the original trial): Hangzhou boss Electric Appliance Co., Ltd., with its domicile at No. 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.

    Agent ad litem: Zhai Mingyue, lawyer of Shandong Changping law firm.

    The appellee (defendant in the original trial): Yiwu Ouwen Electric Appliance Co., Ltd., with its domicile at Room 202, No. 169, Jiangbin North Road, Yiwu City, Zhejiang Province.

    Legal representative: Li Quan.

    The appellee (the defendant in the original trial): Shenzhen boss industry and Trade Co., Ltd., with its domicile at 402, building 54, Caopu Zhaowei village, jintiandao Road, Dongxiao street, Luohu District, Shenzhen City, Guangdong Province.

    Legal representative: Li Kejia.

    The appellant Hangzhou boss Electric Appliance Co., Ltd. (hereinafter referred to as Hangzhou boss company) is not satisfied with the case of infringement of trademark rights and unfair competition between the Appellants Yiwu Ouwen Electric Appliance Co., Ltd. (hereinafter referred to as Ouwen company) and Shenzhen boss industry and Trade Co., Ltd. (hereinafter referred to as Shenzhen boss company), and refused to accept the No. 12629 (2017) zh0782 minchu No. 12629 of Yiwu people's court Civil judgment, appeal to this court. After accepting the case on June 25, 2018, the court formed a collegial panel according to law to hear the case. As the appellees Ouwen company and Shenzhen boss company found no such company on the industrial and commercial registration address, and could not get in touch with other means, the court announced and served copies of the appeal petition, evidence materials and court summons to the two appellees according to law. On September 18, 2018, the court heard the case in public. Wang Ning, the agent ad litem of Hangzhou boss company, attended the court. The appellees, Ouwen company and Shenzhen boss company, refused to attend the court without legitimate reasons after being summoned legally, and the court heard the case by default according to law. The case has now been concluded.

    Hangzhou boss company's appeal: 1. Cancel the third item of the original judgment according to law and amend the judgment: (1) Ouwen company stops using the words "boss" and "Shenzhen boss" in its online stores to infringe the appellant's No. 1296853 trademark right; (2) Shenzhen boss company immediately stops unfair competition and stops marking "Shenzhen boss" on its products (3) Shenzhen boss company immediately changed its enterprise name, and the word "boss" should not be used in the changed enterprise name; (4) Shenzhen boss company should compensate the appellant for the economic loss of 160000 yuan within 10 days from the effective date of the judgment. 2、 The contents of the first and second judgments of the original judgment shall be maintained. 3、 The litigation costs of the first and second instance shall be borne by the appellee.

    Facts and reasons: first, the evidence submitted by the Appellant was not enough to determine that the accused infringing products were produced by Shenzhen boss company. 1. The notarization certificate of infringement submitted by the appellant can confirm that "Shenzhen boss industry and Trade Co., Ltd." is marked on the outer package, instruction manual and panel label of the product involved, and the two-dimensional code on the product manual is scanned to show the word "Shenzhen boss industry and Trade Co., Ltd." which is consistent with the appellant's enterprise name. The information of production enterprises marked on the outer package and operation manual of the product has the function of enabling consumers to identify the producer or operator of the product, that is, it has the nature of clearly pointing to the product provider. Therefore, the appellant has submitted preliminary evidence to prove that the product involved in the case is the appellee's Shenzhen boss company. In the case that the appellee has neither appeared in court nor provided refuting evidence, the court of first instance shall support the appeal of the appellant and determine that the product involved is produced by the appellee's Shenzhen boss company. 2. The owner of the trademark marked on the product involved is Li Kejia, the legal representative of the appellee Shenzhen boss company. According to the reply of the Supreme People's Court on whether the victim of a product infringement case can bring a civil action with the trademark owner of the product as the defendant (adopted at the 1229th meeting of the judicial committee of the Supreme People's Court on July 4, 2002), the Supreme People's Court (FSH [2002] No. 22) "any person who embodies his own name, name, trademark or other identifiable logo on the product means that he is the manufacturer of the product All enterprises or individuals belong to the "product manufacturer" specified in Article 120 of the general principles of the civil law of the people's Republic of China and the "producer" specified in the product quality law of the people's Republic of China. In addition, the trademark does not have any popularity, and there is no need for others to copy the trademark. The above two aspects can confirm that the products involved in the case were produced by the appellee's Shenzhen boss company. In the case that the Shenzhen boss company did not appear in court and did not deny it, the court of first instance did not legally determine that the products involved in the case were produced by Shenzhen boss company, which violated the evidence rules of civil litigation and belonged to the applicable law error.

    2、 The original trial found that the appellee Shenzhen boss company did not constitute unfair competition behavior to the appellant. 1. The registration of font size is prior. The court of first instance held that the appellee's Shenzhen boss company was wrongly registered. According to the appellant's enterprise registration information, the appellant, with the name of "boss", was established in 1999, only after the change of enterprise name. In 2010, the appellant officially changed its name from Hangzhou boss Industrial Group Co., Ltd. to Hangzhou boss Electric Appliance Co., Ltd. 2. Analysis of the similarity of goods and services and business areas. Both the appellant and the appellee, Shenzhen boss company, are household appliance enterprises, and their business objects include gas appliances. Although the appellant and the appellee Shenzhen boss company and

    Zhejiang Jinhua intermediate people's court

    Civil judgment

    (2018) zh07 Minzhong 3355

    The appellant (plaintiff in the original trial): Hangzhou boss Electric Appliance Co., Ltd., with its domicile at No. 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.

    Agent ad litem: Zhai Mingyue, lawyer of Shandong Changping law firm.

    The appellee (defendant in the original trial): Yiwu Ouwen Electric Appliance Co., Ltd., with its domicile at Room 202, No. 169, Jiangbin North Road, Yiwu City, Zhejiang Province.

    Legal representative: Li Quan.

    The appellee (the defendant in the original trial): Shenzhen boss industry and Trade Co., Ltd., with its domicile at 402, building 54, Caopu Zhaowei village, jintiandao Road, Dongxiao street, Luohu District, Shenzhen City, Guangdong Province.

    Legal representative: Li Kejia.

    The appellant Hangzhou boss Electric Appliance Co., Ltd. (hereinafter referred to as Hangzhou boss company) is not satisfied with the case of infringement of trademark rights and unfair competition between the Appellants Yiwu Ouwen Electric Appliance Co., Ltd. (hereinafter referred to as Ouwen company) and Shenzhen boss industry and Trade Co., Ltd. (hereinafter referred to as Shenzhen boss company), and refused to accept the No. 12629 (2017) zh0782 minchu No. 12629 of Yiwu people's court Civil judgment, appeal to this court. After accepting the case on June 25, 2018, the court formed a collegial panel according to law to hear the case. As the appellees Ouwen company and Shenzhen boss company found no such company on the industrial and commercial registration address, and could not get in touch with other means, the court announced and served copies of the appeal petition, evidence materials and court summons to the two appellees according to law. On September 18, 2018, the court heard the case in public. Wang Ning, the agent ad litem of Hangzhou boss company, attended the court. The appellees, Ouwen company and Shenzhen boss company, refused to attend the court without legitimate reasons after being summoned legally, and the court heard the case by default according to law. The case has now been concluded.

    Hangzhou boss company's appeal: 1. Cancel the third item of the original judgment according to law and amend the judgment: (1) Ouwen company stops using the words "boss" and "Shenzhen boss" in its online stores to infringe the appellant's No. 1296853 trademark right; (2) Shenzhen boss company immediately stops unfair competition and stops marking "Shenzhen boss" on its products (3) Shenzhen boss company immediately changed its enterprise name, and the word "boss" should not be used in the changed enterprise name; (4) Shenzhen boss company should compensate the appellant for the economic loss of 160000 yuan within 10 days from the effective date of the judgment. 2、 The contents of the first and second judgments of the original judgment shall be maintained. 3、 The litigation costs of the first and second instance shall be borne by the appellee.

    Facts and reasons: first, the evidence submitted by the Appellant was not enough to determine that the accused infringing products were produced by Shenzhen boss company. 1. The notarization certificate of infringement submitted by the appellant can confirm that "Shenzhen boss industry and Trade Co., Ltd." is marked on the outer package, instruction manual and panel label of the product involved, and the two-dimensional code on the product manual is scanned to show the word "Shenzhen boss industry and Trade Co., Ltd." which is consistent with the appellant's enterprise name. The information of production enterprises marked on the outer package and operation manual of the product has the function of enabling consumers to identify the producer or operator of the product, that is, it has the nature of clearly pointing to the product provider. Therefore, the appellant has submitted preliminary evidence to prove that the product involved in the case is the appellee's Shenzhen boss company. In the case that the appellee has neither appeared in court nor provided refuting evidence, the court of first instance shall support the appeal of the appellant and determine that the product involved is produced by the appellee's Shenzhen boss company. 2. The owner of the trademark marked on the product involved is Li Kejia, the legal representative of the appellee Shenzhen boss company. According to the reply of the Supreme People's Court on whether the victim of a product infringement case can bring a civil action with the trademark owner of the product as the defendant (adopted at the 1229th meeting of the judicial committee of the Supreme People's Court on July 4, 2002), the Supreme People's Court (FSH [2002] No. 22) "any person who embodies his own name, name, trademark or other identifiable logo on the product means that he is the manufacturer of the product All enterprises or individuals belong to the "product manufacturer" specified in Article 120 of the general principles of the civil law of the people's Republic of China and the "producer" specified in the product quality law of the people's Republic of China. In addition, the trademark does not have any popularity, and there is no need for others to copy the trademark. The above two aspects can confirm that the products involved in the case were produced by the appellee's Shenzhen boss company. In the case that the Shenzhen boss company did not appear in court and did not deny it, the court of first instance did not legally determine that the products involved in the case were produced by Shenzhen boss company, which violated the evidence rules of civil litigation and belonged to the applicable law error.

    2、 The original trial found that the appellee Shenzhen boss company did not constitute unfair competition behavior to the appellant. 1. The registration of font size is prior. The court of first instance held that the appellee's Shenzhen boss company was wrongly registered. According to the appellant's enterprise registration information, the appellant, with the name of "boss", was established in 1999, only after the change of enterprise name. In 2010, the appellant officially changed its name from Hangzhou boss Industrial Group Co., Ltd. to Hangzhou boss Electric Appliance Co., Ltd. 2. Analysis of the similarity of goods and services and business areas. Both the appellant and the appellee, Shenzhen boss company, are household appliance enterprises, and their business objects include gas appliances. Although the appellant and the appellee Shenzhen boss company and

    Zhejiang Jinhua intermediate people's court

    Civil judgment

    (2018) zh07 Minzhong 3355

    The appellant (plaintiff in the original trial): Hangzhou boss Electric Appliance Co., Ltd., with its domicile at No. 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.

    Agent ad litem: Zhai Mingyue, lawyer of Shandong Changping law firm.

    The appellee (defendant in the original trial): Yiwu Ouwen Electric Appliance Co., Ltd., with its domicile at Room 202, No. 169, Jiangbin North Road, Yiwu City, Zhejiang Province.

    Legal representative: Li Quan.

    The appellee (the defendant in the original trial): Shenzhen boss industry and Trade Co., Ltd., with its domicile at 402, building 54, Caopu Zhaowei village, jintiandao Road, Dongxiao street, Luohu District, Shenzhen City, Guangdong Province.

    Legal representative: Li Kejia.

    The appellant Hangzhou boss Electric Appliance Co., Ltd. (hereinafter referred to as Hangzhou boss company) is not satisfied with the case of infringement of trademark rights and unfair competition between the Appellants Yiwu Ouwen Electric Appliance Co., Ltd. (hereinafter referred to as Ouwen company) and Shenzhen boss industry and Trade Co., Ltd. (hereinafter referred to as Shenzhen boss company), and refused to accept the No. 12629 (2017) zh0782 minchu No. 12629 of Yiwu people's court Civil judgment, appeal to this court. After accepting the case on June 25, 2018, the court formed a collegial panel according to law to hear the case. As the appellees Ouwen company and Shenzhen boss company found no such company on the industrial and commercial registration address, and could not get in touch with other means, the court announced and served copies of the appeal petition, evidence materials and court summons to the two appellees according to law. On September 18, 2018, the court heard the case in public. Wang Ning, the agent ad litem of Hangzhou boss company, attended the court. The appellees, Ouwen company and Shenzhen boss company, refused to attend the court without legitimate reasons after being summoned legally, and the court heard the case by default according to law. The case has now been concluded.

    Hangzhou boss company's appeal: 1. Cancel the third item of the original judgment according to law and amend the judgment: (1) Ouwen company stops using the words "boss" and "Shenzhen boss" in its online stores to infringe the appellant's No. 1296853 trademark right; (2) Shenzhen boss company immediately stops unfair competition and stops marking "Shenzhen boss" on its products (3) Shenzhen boss company immediately changed its enterprise name, and the word "boss" should not be used in the changed enterprise name; (4) Shenzhen boss company should compensate the appellant for the economic loss of 160000 yuan within 10 days from the effective date of the judgment. 2、 The contents of the first and second judgments of the original judgment shall be maintained. 3、 The litigation costs of the first and second instance shall be borne by the appellee.

    Facts and reasons: first, the evidence submitted by the Appellant was not enough to determine that the accused infringing products were produced by Shenzhen boss company. 1. The notarization certificate of infringement submitted by the appellant can confirm that "Shenzhen boss industry and Trade Co., Ltd." is marked on the outer package, instruction manual and panel label of the product involved, and the two-dimensional code on the product manual is scanned to show the word "Shenzhen boss industry and Trade Co., Ltd." which is consistent with the appellant's enterprise name. The information of production enterprises marked on the outer package and operation manual of the product has the function of enabling consumers to identify the producer or operator of the product, that is, it has the nature of clearly pointing to the product provider. Therefore, the appellant has submitted preliminary evidence to prove that the product involved in the case is the appellee's Shenzhen boss company. In the case that the appellee has neither appeared in court nor provided refuting evidence, the court of first instance shall support the appeal of the appellant and determine that the product involved is produced by the appellee's Shenzhen boss company. 2. The owner of the trademark marked on the product involved is Li Kejia, the legal representative of the appellee Shenzhen boss company. According to the reply of the Supreme People's Court on whether the victim of a product infringement case can bring a civil action with the trademark owner of the product as the defendant (adopted at the 1229th meeting of the judicial committee of the Supreme People's Court on July 4, 2002), the Supreme People's Court (FSH [2002] No. 22) "any person who embodies his own name, name, trademark or other identifiable logo on the product means that he is the manufacturer of the product All enterprises or individuals belong to the "product manufacturer" specified in Article 120 of the general principles of the civil law of the people's Republic of China and the "producer" specified in the product quality law of the people's Republic of China. In addition, the trademark does not have any popularity, and there is no need for others to copy the trademark. The above two aspects can confirm that the products involved in the case were produced by the appellee's Shenzhen boss company. In the case that the Shenzhen boss company did not appear in court and did not deny it, the court of first instance did not legally determine that the products involved in the case were produced by Shenzhen boss company, which violated the evidence rules of civil litigation and belonged to the applicable law error.

    2、 The original trial found that the appellee Shenzhen boss company did not constitute unfair competition behavior to the appellant. 1. The registration of font size is prior. The court of first instance held that the appellee's Shenzhen boss company was wrongly registered. According to the appellant's enterprise registration information, the appellant, with the name of "boss", was established in 1999, only after the change of enterprise name. In 2010, the appellant officially changed its name from Hangzhou boss Industrial Group Co., Ltd. to Hangzhou boss Electric Appliance Co., Ltd. 2. Analysis of the similarity of goods and services and business areas. Both the appellant and the appellee, Shenzhen boss company, are household appliance enterprises, and their business objects include gas appliances. Although the appellant and the appellee Shenzhen boss company and