Civil judgment of Yuhang District People's Court of Hangzhou

    Hangzhou Yuhang District People's Court

    Written judgment of civil affairs

    (2016) Zhejiang 0110, 7563 in the early Republic of China

    Plaintiff: Kweichow Moutai Liquor Co., LTD. Domicile: Moutai Town, Renhuaicity, Guizhou Province.

    Legal representative: Yuan Renguo, chairman of the board.

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

    Defendant: Zhejiang Taobao Network Co., LTD. Address: Room 601, 6 / F, Building 1, No. 969 wenyi West Road, Wuchang Street, Yuhang District, Hangzhou, Zhejiang.

    Legal representative: Lu Zhaoxi, chairman of the board.

    Attorney: Liu Bin, lawyer of Zhejiang Zehou Law Firm.

    Attorney: Teng Weixing, lawyer of Zhejiang Zehou (Shaoxing) Law Firm.

    Defendant: Jiang Qiaoyan, female, born on April 13, 1995, han Nationality, living in Shuyang County, Jiangsu Province.

    The plaintiff kweichow Moutai Liquor Co., LTD. (hereinafter referred to as Moutai Liquor Company) filed a lawsuit against the defendant Zhejiang Taobao Network Co., LTD. (hereinafter referred to as Taobao Company) and Jiang Qiaoyan on June 1, 2016. After accepting the case on the same day, the court formed a collegial panel in accordance with the law and held the hearing in public on December 7, 2016. Zhai Mingyue, the entrusted agent of The plaintiff Mowai Liquor Company, and Liu Bin, the entrusted agent of the defendant Taobao Company, attended the hearing. Defendant Jiang Qiaoyan failed to appear in court after serving a summons by notice of the court. The case is now closed.

    The plaintiff maotai company Sue said: "guizhou maotai" since the brand since its inception, with its profound historical culture, unique brewing process, not only won the "world's fair gold medal of panama", "national quality award", "China well-known trademark", and many other awards, has for many years been rated as the national wine, maotai company is no. 3159143, no. 284526 rights to exclusive use of registered trademark.

    In November 2015, maotai company found taobao taobao offered "rock bar" online sales of fake "guizhou maotai" serious violation's trademark, the maotai maotai related legal institutions authorized to apply for notarization notarial evidence preservation, upon further investigation, maotai company found that the shop is Jiang Qiaoyan open.

    Maotai company thinks, Jiang Qiaoyan unauthorized, do STH without authorization sales maotai company registered trademark infringement behavior of goods, in violation of the "trademark law of the People's Republic of China" and relevant laws and regulations, not only seriously violated maotai's trademark, caused huge economic loss for maotai liquor company, also had a bad influence on maotai company's brand reputation. As e-commerce platform taobao company "taobao" owners, shall take necessary means to protect the right to exclusive use of a registered trademark, the platform registered sellers release contains well-known trademark goods higher examination obligation, caused by taobao company did not fulfill the duty of reasonable review infringing facts, also shall bear the corresponding legal responsibility. Therefore, Moutai Liquor Company appealed to the court and asked for a judgment: 1. The defendants Taobao and Jiang Qiaoyan immediately stopped infringing the exclusive right of Moutai Liquor Company's trademark; 2. 2. Defendant Jiang Qiaoyan published a statement on the homepage of taobao.com for 30 days to eliminate the influence; 3. Defendant Jiang Qiaoyan compensates Moutai Liquor Company for economic losses and reasonable expenses of rights protection of RMB 500,000; 4. The litigation costs of this case shall be borne by the defendant Taobao Company and Jiang Qiaoyan. During the trial, Moutai Liquor Company withdrew the first and second claims.

    To support its claim, the plaintiff Moutai Liquor Company provided the court with the following evidences:

    1. One original copy of (2005) Renzizhi Notary No. 083 issued by Renhuai Notary Office of Guizhou Province, certifying that China Kweichow Mowai Distillery (Group) Co., Ltd. is the exclusive owner of the trademark No. 284526.

    2. One original of the trademark Registration Certificate, certificate of change of registered trademark and certificate of renewal of approval for trademark No. 3159143, which is used to prove the fact that China Kweichow Moutai Distillery (Group) Co., Ltd. is the exclusive owner of trademark No. 3159143.

    3. One original copy of rengong Certificate No. 2950 (2014) issued by Renhuai Notary Office of Guizhou Province, which proves the fact that the trademark "Kweichow Moutai" has won the title of "China famous Trademark".

    4. One original "note" issued by Kweichow Moutai Distillery (Group) Co., LTD., certifying the fact that Moutai Has the right to file a lawsuit against the trademark infringement.

    5. (2015) One original copy of the Notarial Certificate no. 1839 of Lifengcheng Certificate and one copy of the case sealed by the notary Office to prove jiang Qiaoyan's infringement.

    6. One original copy of the identity information of Jiang Qiaoyan disclosed by Taobao is used to prove the fact that jiang Qiaoyan is the founder of "Rock Bar".

    The defendant Taobao defended that: First, Taobao was only a service provider providing information release platform, and it was neither a publisher of the commodity information involved in the case, nor did it carry out any direct infringement of the plaintiff's trademark rights such as selling or promising to sell. Second, the plaintiff's claim against Taobao has no factual and legal basis. First of all, Taobao has done its duty of attention in advance. Secondly, the obligations undertaken by Taobao as a provider of online trading platform should match with its civil capacity and capacity for civil liability, and should not exceed its management and technical capacity. Third, after receiving the indictment materials, Taobao confirmed that the commodity information involved no longer existed, and took necessary measures to fulfill its duty of care afterwards. In this case, the central Bank did not make a complaint to The intellectual property protection platform of Taobao company. After receiving the complaint, Taobao company confirmed that the commodity information had been deleted and fulfilled its reasonable duty of care. To sum up, the court is requested to dismiss all claims of the plaintiff against Taobao.

    To support its defense, the defendant Taobao presented and stated the following evidence materials at the trial:

    1. (2014) A copy of notarization Certificate No. 13842 in the Certificate of Zhejiang And Hangzhou, which is used to prove that Taobao is a service provider of the information release platform and provides value-added telecom services according to law.

    2. (2014) A copy of notarization Certificate No. 1167 in the Zhejiang and Hangzhou Money Certificate, which is used to prove that Taobao requires merchants not to release information infringing intellectual property rights in the Service Agreement and has done its duty of warning in advance.

    3. A printout of the webpage screenshot of the product taken down, which is used to prove that Taobao has confirmed the fact that the infringing link has been broken in time and fulfilled the corresponding legal obligations.

    The defendant Taobao cross-examines the evidence provided by the plaintiff Moutai Liquor Company as follows: Evidence 1-5, and has no objection to any of the three. 6. There is no objection to any of the three. This evidence can prove that Taobao has provided relevant authentic information to the plaintiff and fulfilled the obligations of the platform.

    The plaintiff Moutai Liquor Company cross-examines the evidence provided by the defendant Taobao as follows: Evidence 1, 3, no objection to the three. No objection is raised to the authenticity of evidence 2. It can be seen from this evidence that Although Taobao has fulfilled its duty of attention, it has not fulfilled its duty of review.

    The defendant Jiang Qiaoyan neither pleaded nor provided evidence, and waived the right to cross-examine the evidence provided by the plaintiff Moutai Liquor Company and the defendant Taobao Company.

    The court certifies the evidence provided by the plaintiff Moutai Wine company as follows: Evidence 1, 2, 4, 5, 6, which conforms to the principle of three nature of evidence, and the Court confirms it as the basis for determining the relevant facts of this case. Evidence 3: The court confirms the fact that the trademark of "Kweichow Moutai" has high popularity.

    The court certifies the evidence provided by the defendant Taobao as follows: Evidence 1, 2 and 3, which are in line with the three principles of evidence. The Court confirms them as the basis for determining the relevant facts of this case.

    Based on the above valid evidence and the parties' statements in the trial, the Court determines the following facts:

    On April 20, 1987, Kweichow Moutai Distillery registered trademark No. 284526. The trade mark is approved for the use of class 36 wines, valid from April 20, 1987 to April 19, 1997, and thereafter approved for renewal until April 19, 2017. On May 6, 2013, China Kweichow Moutai Distillery (Group) Co., LTD registered the change of registered trademark approved by the Trademark Office of the State Administration for Industry and Commerce. On April 21, 2003, China Kweichow Moutai Distillery Co., LTD registered trademark No. 3159143. The trade mark is approved to use goods in category 33, namely alcoholic beverages (other than beer), fruit wines (containing alcohol), alcoholic beverages (beverages), alcoholic liquids, cooking wines, edible spirits, bitter wines, aperitifs, wines, cooking extracts (liquors and spirits), valid for registration from 21 solstice April 2003 to 20 April 2013. On May 6, 2013, China Kweichow Moutai Brewery (Group) Co., LTD was approved by the Trademark Office of the State Administration for Industry and Commerce and agreed to renew its registration until April 20, 2023.

    On April 17, 2015, China kweichow moutai distillery (group) co., LTD to issue instructions confirmed: its authorized maotai company has the right to use, including no. 284526, no. 3159143, the registered trademark, the license period since April 20, 2007, on April 21, 2013 to December 30, 2018, not only have the right to the use of the trademark to identify the authenticity and issue a report, also have the right to the trademark rights violations behavior separate civil and criminal incidental civil lawsuit rights action.

    On November 12, 2015, Yang Jinchao, the entrusted agent of Shandong Changping Law Firm, applied for evidence preservation and notarization in the computer operation process of Yang Jinchao using the notary office in Laiwu city, Shandong Province. Using a computer at the notary office, Yang searched an online shop named "rock bar" on taobao.com, where he purchased "53 ° f maotai 500ml feitian maotai 53 ° f sf express free of charge." One piece of white wine (including 6 bottles), RMB 3599. This commodity page shows: price per box (6 bottles) 3599 yuan, accumulated comments 554, transaction record 274. Yang Jinzhao clicks the order information again, shows the order number is 1394893317543911. On November 17, 2015, The notary staff of Fengcheng Notary Office in Laiwu city, Shandong Province came to "SF Express" business Department of ×× Hardware Mechanical and Electrical City in ×× City, Laiwu City with Yang Jinchao. Yang Jinchao picked up a piece of goods with well-packed tracking number 023819492399 in the business department. Notary office staff will bring the goods back after notarization, the notary public, under the supervision of Yang today first appearance on the above the goods taken two photos, and then will open for the above goods, there is a "guizhou maotai" a box, Yang today taken 13 photos of these items, maotai company an appraiser of the liquor on the spot and issue a appraisal table a. After that, the notary will repackage and seal the contents of the package, and the above parcel will be sealed by the public security office and handed over to Yang Jinzhao for safekeeping. On November 18, 2015, Yang Jinzhao entered Taobao.com using the notary office computer, logged in, clicked "My Taobao", selected "Bought baby", found the order number 1394893317543911, clicked "Order Details" in the order, and displayed the logistics information: the logistics company was "SF Express", and the tracking number was 023819492399. On January 4, 2016, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2015) Fengcheng Notary Public character no. 1839.

    During the court hearing, the court unsealed the notarized object attached to the notarial certificate No. 1839 of Laifengcheng Certificate (2015), which showed that it contained 6 bottles of "Kweichow Moutai Liquor" in a box. The logo of "Kweichow Moutai" is pasted on the front of the packaging box and the bottle of the product. The logo shows: the word kweichow Moutai is marked in the middle with black and white diagonal lines on the upper and lower sides; In the upper left corner of the icon are the flying apsaras logo of Maotai and the words KWEICHOWMOUTAI; Kweichow Moutai Co., LTD. The box is marked with the words "Kweichow Moutai" on both sides. There are marks on the outer packing carton, the bottle cap, the bar code of the wine bottle, the complimentary wine glass with the bottle, and the anti-counterfeiting instructions.

    Another confirmation: the owner of the taobao store named "Rock Bar" is Jiang Qiaoyan.

    The court holds that China Kweichow Moutai Distillery (Group) Co., Ltd. is the holder of the trademark registration No. 284526 and No. 3159143. These trademarks are still protected within the period of protection, and the legal status is stable, and the exclusive right of the trademark should be protected by law. China Kweichow Moutai Distillery (Group) Co., Ltd. authorizes Moutai To use the said trademark and to file a separate civil lawsuit against the infringement of the said trademark rights. Therefore, Moutai Is a qualified plaintiff in this case. In this case, the products involved marked the words and ICONS of "Kweichow Moutai" on the packaging boxes and bottles, and marked the labels at the wine bottle caps and bar codes, etc., which played a role in identifying the source of goods and should belong to trademark use. Outer-package of product and bottle labeled "guizhou maotai" icon positive compared with maotai company use no. 284526 of the trademark, the overall structure, and the word "guizhou maotai" is the trademark has significant recognition part, by the relevant public attention, easy to cause confusion or mistake on the sources of goods, therefore, products involved in the bottle, bottle bottle with the words "guizhou maotai" icon and maotai company use constitute a similar mark the 284526th of a registered trademark. The goods involved in the case used the same logo as the registered trademark No. 3159143 in many places such as wine bottle caps and bar codes, constituting the same trademark. In addition, the above-mentioned two registered trademarks of Moutai Liquor Company involved in this case are both approved to use "liquor", while the infringing item is liquor, so it should be the same commodity. Moutai Confirmed that the products involved were produced without the right owner or authorized. To sum up, the products involved in the case are infringing the exclusive right of registered trademark No. 284526 and No. 3159143 owned by Moutai Liquor Company. According to item (3) of Article 57 of the Trademark Law of the People's Republic of China, the sale of commodities infringing the exclusive right to use a registered trademark shall be an act infringing the exclusive right to use a registered trademark. Therefore, Jiang qiaoyan's sales of baijiu with the trademark involved in the case violated moutai's exclusive right to use the trademark involved in the case. Moutai company withdrew the lawsuit against Taobao company, so it is no longer judging the liability of Taobao company.

    To sum up, the defendant Jiang Qiaoyan violated the exclusive right to use the trademark involved in the case of Mowai Liquor Company by selling the goods that violated the exclusive right to use the trademark involved in the case, and did not provide the legal source of the goods involved, so she should bear the civil liability for compensation. As for the amount of compensation, Moutai liquor Company maintains that the compensation shall be calculated according to the legal compensation. The court will determine the amount of compensation by taking into account the popularity of the trademark involved, the nature of the defendant's infringement, the degree of subjective fault, and the reasonable expenses paid by Moutai liquor Company to stop the infringement. At the same time, the court has noticed the following facts: 1. The selling price of the commodities involved is 3599 yuan per box (6 bottles), the accumulated comments are 554, the transaction record is 274 yuan; 2. 2. Moutai Liquor Company notarizes rights protection and entrusts a lawyer to appear in court, and pays 3599 yuan for the shopping; 3. The trademark of Moutai Has a high popularity. In accordance with the law of the People's Republic of China article 57 of the trademark law, article sixty-three, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation of article 9, article 10, article 16 and article 17, the civil procedure law of the People's Republic of China, article one hundred and forty-four of the first paragraph of article sixty-four, the Supreme People's Court about civil action evidence certain provisions on the provisions of article 2, the sentence is as follows:

    I. Defendant Jiang Qiaoyan shall compensate the plaintiff kweichow Moutai Co., Ltd. for the economic loss (including reasonable expenses) of RMB 300,000 yuan within 10 days from the effective date of this judgment;

    Other claims of the plaintiff, Kweichow Moutai Liquor Co., LTD., were rejected.

    If the pecuniary obligation is not performed within the period specified in this judgment, the interest on the debt for the delayed period shall be doubled in accordance with article 253 of the Civil Procedure Law of the People's Republic of China.

    The case handling fee of this case is 8,800 yuan, which is borne by the plaintiff Kweichow Moutai Co., Ltd. and 7,040 yuan by the defendant Jiang Qiaoyan. The notice fee is 560 yuan, which is borne by Jiang Qiaoyan.

    The plaintiff, Kweichow Moutai Liquor Co., LTD., applies to the court for refund within 15 days from the effective date of this judgment; The defendant Jiang Qiaoyan shall, within seven days from the effective date of this judgment, pay the legal costs to the court.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, submit an appeal to the court, and make copies of the appeal according to the number of the other party, and appeal to the Intermediate People's Court of Hangzhou, Zhejiang Province.

    Wang Yongjiang, Presiding judge

    People's juror Song Weibao

    People's juror Wang Jinlong

    January 18, 2017

    Clerk Wang Monroe