Civil judgment of Yuhang District People's Court in Hangzhou city, Zhejiang Province

    People's Court of Yuhang District, Hangzhou City, Zhejiang Province

    Written judgment of civil affairs

    (2017) No. 2351, Zhejiang 0110, Early Republic of China

    Plaintiff: Kweichow Moutai Liquor Co., LTD. Domicile: Moutai Town, Renhuaicity, Zunyi city, 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: Zhang Yong, chairman of the board.

    Attorney: Lin Yiyi, lawyer of Zhejiang Haihao Law Firm.

    Defendant: Hu Yannan, male, born on October 04, 1989, han Nationality, residing in Nanle County, Henan Province.

    Kweichow Moutai Wine Co., LTD. (hereinafter referred to as Moutai Wine Company) sued the defendant Zhejiang Taobao Network Co., LTD. (hereinafter referred to as Taobao Company) and Hu Yannan for trademark infringement dispute, and filed a lawsuit to the Court on February 20, 2017. After accepting the case on the same day, the court formed a collegial panel according to law, and held the trial in public session on June 30, the same year. Zhai Mingyue, the authorized agent of The plaintiff Mowai Liquor Company, and Lin Yiyi, the entrusted agent of the defendant Taobao Company, attended the proceedings in the court. Hu Yannan, the defendant, served a copy of the complaint and the opening summons by the court announcement and refused to attend the court without justified reasons. The case is now closed.

    The plaintiff, Moutai Liquor Company, sued that "Guizhou Moutai Liquor", with its profound historical and cultural heritage and unique brewing technology, has not only won many honors such as "Gold Award of Panama World Expo", "National Quality Gold Award" and "China Famous Trademark", but also been rated as national famous liquor for many consecutive years. Moutai Company is the exclusive licensee of the registered trademarks "Kweichow Moutai" No. 3159141, "Feitian" No. 237040 and "Kweichow Moutai" No. 284526. Since its establishment, Moutai Has always taken it as its duty to produce liquor with unique taste for consumers. Through the diligent management of several generations of Moutai people, moutai has built its main brand "Kweichow Moutai" and other series of products into the model of high-end liquor known to the public.

    In December 2015, Moutai found that mo Yan, the owner of Taobao registered by Hu Yannan, was selling baijiu that infringed the trademark of Moutai. According to Moutai, Hu's unauthorized sales of the goods involved infringed on moutai's trademark rights and caused huge economic losses, so he should bear the legal liability for infringement. Taobao, as a third-party trading platform operator, shall take necessary measures to protect the exclusive right to use registered trademarks, and shall have a higher duty to examine the well-known commodities sold at abnormal prices by registered sellers on the platform, but shall bear the corresponding legal liability if it fails to fulfill the reasonable duty of examination. Therefore, Moutai Liquor Company appealed to the court and requested the following orders: 1. Taobao Company and Hu Yannan immediately stopped selling infringing products; 2. 2. Hu Yannan published a statement on the front page of taobao store for 30 consecutive days to eliminate the influence; 3. Hu Yannan shall compensate the economic loss 282,000 yuan and the reasonable cost of safeguarding his rights 18,000 yuan (referring to the notary fee, lawyer's fee, shopping fee and travel expenses).

    In the lawsuit, Moutai Liquor Company confirmed that the taobao shop "Mo Yan Drunken Village" involved in the case had no infringing commodity information, so it withdrew the first and second lawsuit request, which was granted by the court.

    In order to prove the facts of the plaintiff's claim, Moutai Liquor Company submits the following evidence to the court:

    1. Guizhou Renhuai Notary Office (2014) Rengongzi No. 2950-1 Notary, which proves the fact that China Kweichow Mowai Distillery (Group) Co., Ltd. is the exclusive owner of the registered trademark No. 3159141.

    2. One certificate of trademark registration, certificate of change of registered trademark, certificate of approval for renewal of registration, proving the fact that China Kweichow Moutai Distillery (Group) Co., Ltd. is the exclusive owner of the registered trademark No. 3159143.

    3. Renhuai Notary Office, Guizhou (2013) Rennotarized Notary No. 400, which proves the fact that China Kweichow Mowai Distillery (Group) Co., Ltd. is the exclusive owner of the registered trademark No. 237040.

    4. Guizhou Renhuai Notary Office (2014) Rengong Certificate No. 2950 Notary, which proves the fact that the trademark "Kweichow Moutai" has won the title of "China famous Trademark".

    5. State one copy to prove the fact that Moutai Liquor Company is authorized by China Kweichow Moutai Distillery (Group) Co., Ltd. to use trademarks No. 3159141, 3159143 and 237040 and has the right to fight counterfeiting and protect its rights in its own name.

    6. Tianjin Teda Notary Office (2015) One copy of Tianjin Teda Notary Certificate No. 9301 (with a notarized DISC) and one real object of notarization to prove the fact of Hu Yannan's infringement.

    7. A copy of the notary fee invoice (note: only claim 900 YUAN) certifying the fact that Moutai Liquor Company paid the notary fee for its rights protection.

    The defendant, Taobao, replied that as a service provider of information release platform, taobao was not a publisher of the commodity information involved in the lawsuit, nor did it participate in the transaction as a buyer or seller, so it did not commit infringement. The legal consequences arising from the release of commodity information or commodity transaction shall be borne by the members themselves, and Taobao Shall not bear the liability for infringement caused by the operation of the store or the release and sale of the commodity.

    2. Even if Hu Yannan's act of publishing the commodity information related to the lawsuit on Taobao.com constitutes infringement, Taobao.com shall not constitute infringement for lack of fault. According to article 36 of the Tort Liability Law, Taobao, as a service provider providing an information publishing platform, infringes on goods only when it knows the information is infringing and has not taken any measures. In this case taobao company does not exist knowing the infringement of subjective fault. After receiving the indictment materials, Taobao checked the information involved in the case and confirmed that the information no longer existed and fulfilled its duty of care. Therefore, Taobao company does not knowingly knowingly knowingly of the infringement of this case, there is no subjective fault, no liability for tort.

3. No matter whether the act involved constitutes infringement or not, Taobao has not committed infringement, and moutai Liquor's claim against Taobao should not be supported.

To sum up, the court is requested to dismiss moutai Liquor Company's lawsuit against Taobao.

To prove the facts of his defense, the defendant Taobao Submitted the following evidence to the court:

1. Hangzhou Qiantang Notarial Office, Zhejiang Province (2014) Notarial Certificate No. 13842 (including value-added telecom business license) in Zhejiang Hangzhou Money Certificate, which proves that Taobao is a service provider of information release platform and provides value-added telecom services according to law.

2. Hangzhou Qiantang Notary Office, Zhejiang Province (2014) Notarial Certificate No. 1167 in Zhejiang Hangzhou Money Certificate, which proves that Taobao requires users not to publish information infringing intellectual property rights in the Service Agreement and has fulfilled the duty of care that it has reminded in advance.

3. Take a screenshot of the website of the product off the shelf (network print), which proves that Taobao has checked the commodity information involved in the case and confirmed the fact that the link of the infringing product has been broken.

The defendant Hu Yannan did not plead his case nor submit evidence, and waived the right to cross-examine the evidence submitted by the plaintiff Moutai Liquor Company and the defendant Taobao Company.

On the evidence submitted by the plaintiff, Moutai Liquor Company, and the defendant, Taobao, the court finds as follows after cross-examination at the court: The defendant, Taobao, has no objection to the evidence submitted by the plaintiff, but believes that it has nothing to do with the responsibility of Taobao. All of them are valid.

To the evidence submitted by the defendant Taobao, the plaintiff Moutai Liquor Company has no objection, and the court has found it valid.

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

A, China kweichow moutai distillery co., LTD. Approved by the state trademark office registered trademark, the no. 3159141 for approval to use commodity for 33 classes: alcoholic beverages (except beers), wine (alcohol), wine (drink), alcoholic liquor, rice wine, alcohol, bitterness, an aperitif wine, wine, cooking extract (liqueur and spirits), registration is valid from April 21, 2003 to April 20, 2013. After the renewal to April 20, 2023. On May 6, 2013, the name of the trademark registrant was approved and changed to China Kweichow Moutai Distillery (Group) Co., LTD.

China kweichow moutai distillery co., LTD. Approved by the state trademark office registered trademark, the no. 3159143 for approval to use items for class: 33 alcoholic beverages (except beers), wine (alcohol), wine (drink), alcoholic liquor, rice wine, alcohol, bitterness, an aperitif wine, wine, cooking extract (liqueur and spirits), registration is valid from April 21, 2003 to April 20, 2013. After the renewal to April 20, 2023. On May 6, 2013, the name of the trademark registrant was approved and changed to China Kweichow Moutai Distillery (Group) Co., LTD.

China kweichow moutai distillery co., ltd. has registered trademark no. 237040 with the approval of the state trademark office, and the approved use of the commodity is class 33 liquor. The effective period of registration is from November 15, 2005 to November 14, 2015 solstice. It is then extended to 14 November 2025. On May 6, 2013, the name of the trademark registrant was approved and changed to China Kweichow Moutai Distillery (Group) Co., LTD.

On April 17, 2015, China kweichow moutai distillery (group) co., LTD to issue instructions, said: our company in accordance with the authorization of guizhou moutai co., LTD., the use of trademark license within the time limit, mandate trademark since April 21, 2013, 3159141 to December 30, 2018, no. 3159143 trademark from April 21, 2013 to December 30, 2018, no. 237040 trademark from November 15, 2005 to December 30, 2018. Kweichow Moutai Co., Ltd. shall have the right to independently file civil and criminal collateral civil actions to fight against counterfeiting and safeguard rights against any infringement of the above trademark rights.

On September 19, 1991, "Kweichow Moutai" brand was awarded the title of "China famous Trademark" in the first "China famous Trademark" consumer selection activity organized by the organizing committee.

Ii. On December 1, 2015, Wang Shouzhen, the entrusted agent of Mowai Liquor Company, applied to Tianjin Teda Notary Office for evidence preservation in the process of purchasing infringing products, browsing and intercepting relevant websites on Taobao.com. On December 3, two notaries supervised The operation process of Wang Shouzhen using the computer in the notary office to purchase Kweichow Maotai liquor sold on taobao, an online store with the owner's name "Mo Yan Drunk Village", and intercepted the relevant sales webpage. The intercepted web page shows that you enter Taobao.com, enter "Mo Yan Drunk Zhuang" in the store search bar of the page to perform the search, click the store "Mo Yan Drunk Zhuang" in the search results, enter the home page of the store, click the store name "Mo Yan Drunk Zhuang" at the top left of the page, and display "Shopkeeper: Mo Yan Drunk Zhuang". Input in our search bar on the right side of the page "maotai" executive search and display of search to a qualified goods, click on the search results in the "Chinese famous guizhou maotai 53 degrees flying maotai liquor 500 ml counters authentic sale bag mail, $488.00, sold 675 pieces of" words and ICONS, enter the product page, page top right shows "diamond seller: intoxicated, mo yan zhuang, the shopkeeper: intoxicated, mo yan zhuang", and display: Kweichow Moutai Feiten Moutai 53 degree white spirit, 500ml special price free of postage, price ￥888.00, Taobao price ￥488.00, inventory 4922 pieces. The agent paid 976 yuan for two of the aforesaid commodities. The order information shows: "The seller's information is nicknamed 'Mo Yan Jiuzhuang', his real name is Hu Yannan, and the order number is 1292647275014885".

On December 8, 2015, under the supervision of notary personnel shou-zhen wang * * youyi road in tianjin han * * hotel conference room to sign for the "just-in-time" Courier to send the goods packing sound of a number (4437598340), and under the supervision of the notaries took photos by the notary seal after open the package and after sealed by the notary office under the custody of shou-zhen wang. On December 14, Wang Shouzhen, under the supervision of the notary, used the computer of the notary office to confirm the receipt of Kweichow Mowai sold on the online store "Mo Yan Jiu Zhuang" on Taobao.com under the supervision of the notary office. The logistics information of the order involved showed that the logistics company was Zazhao and the waybill number was 4437598340. On January 11, 2016, the notary office issued the (2015) Jinteda Certificate No. 9301.

Iii. During the trial, the court unseals the notarization package attached to the notarization certificate, which contains:

1. A single copy of ZJS express, the tracking number is 4437598340.

2. There is a convenience bag with a bottle pattern printed on the front of the bag and a label on the front of the bottle. The words "Kweichow Moutai" are arranged from the bottom to the left at 45℃, and the words "Kweichow Moutai" are marked on the bottom right. "Kweichow Moutai" is labeled on the back top, and kweichow Moutai Co., LTD is labeled on the bottom.

3. Two bottles of wine. In the front and middle of the packaging box of the wine is the wine bottle pattern, the top left of the pattern is the feitian logo, and the bottom left is lined with the words "Kweichow Moutai" from the bottom to the top at 45℃, and the bottom right is marked with the product of Kweichow Moutai Co., LTD. Kweichow Moutai liquor is marked on the side. The food name on the back is Kweichow Moutai. Open the packaging box, there is a small box, anti - counterfeiting method, a bottle of ivory ceramic wine. The label on the front of the bottle is the same as that on the front of the packaging box. Bottle caps mark the MOUTAI logo. The MOUTAI icon is in the upper left corner of the box cover. There are two glass cups in the box, and the MOUTAI icon is on the glass. Several MOUTAI ICONS are marked in the introduction of anti-counterfeiting methods. The two bottles of wine and the package are the same.

    As an operator of an online trading platform, Taobao has a value-added telecom business license and is engaged in Internet information service business. Taobao (××) is the website of Taobao Company.

    In addition, Taobao company confirmed that taobao member "Mo Yan Wine Shop" opened by "Mo Yan wine shop" registered and operated by Hu Yannan. Moutai shall pay the notary fee of 900 yuan, attorney's fee and travel expenses for this case.

    We think: maotai company by China kweichow moutai distillery (group) co., LTD authorization made no. 3159141, no. 3159143, no. 237040 of registered trademark licensing rights and lawsuit rights in their own name, so the maotai company shall have the right in its own name and infringement of trademark infringement claims involved right, its legal rights should be protected by law.

    About whether Hu Yannan's behavior infringes on the right. Moutai contends that Hu violated the exclusive right to use the trademark involved in the case by selling products that infringed the said trademark. According to the "trademark law of the People's Republic of China" the provisions of article 57, without the permission of the trademark registrant, on the same kind of goods or similar goods to use its registered trademark identical or similar trademarks, easily lead to confusion and sales infringement of a registered trademark of the goods are of the right to exclusive use of a registered trademark infringement. In this case, after comparison, the kweichow Moutai liquor sold by the shop involved: 1. The logo on the bottle printed on the front of the convenience bag is the same as the trademark No. 3159141; 2. 2. The mark on the outer packing box is the same as mark No. 3159141 and similar to Mark No. 237040; 3. The logo on the wine bottle is the same as trademark No. 3159141 and Trademark No. 3159143, and similar to trademark No. 237040; 4. Introduction of anti-counterfeiting method, the logo on the small box and glass cup is the same as the trademark No. 3159143. The commodities accused of infringement are the same commodities as the commodities approved by the trademark involved. When Hu Yannan sells the aforesaid products, his behavior has constituted trademark infringement. However, he has failed to provide effective evidence to prove the legitimate source of the infringing products and has obvious subjective fault.

    About the amount of compensation. Because Hu Yanna because profit and the plaintiff was infringing copyright by losses are difficult to determine, and the plaintiff's claim legal damages, in our hospital according to the actor of the nature of the infringement, the degree of subjective fault, of the trademark awareness, the product involved in the sales price, quantity and the plaintiff to stop infringement was determined by the factors such as reasonable expenses of produce. For the lawyer's agency fee and travel expenses claimed by Moutai Wine Company, although the corresponding documents have not been submitted, the corresponding expenses will inevitably be incurred because the lawyer's participation in the lawsuit is true, which will be determined by the court within a reasonable scope. At the same time, the court has noticed the following facts: 1. The selling price of the goods involved is 488 yuan, and 675 pieces have been sold; 2. 2. Moutai Shall pay 900 yuan of notarization fee, attorney fee and travel expenses to protect its rights; 3. The trademark involved enjoys high popularity. To sum up, the court decides, as appropriate, that Hu Yannan shall compensate Moutai Wine Company for the economic loss of 230,000 yuan (including reasonable expenses).

    About the responsibilities of Taobao Company. Since Moutai Has no claim against Taobao, the court will not judge the liability of Taobao.

    In conclusion, on the basis of the trademark law of the People's Republic of China article 48 and article 57 and article sixty-three, the Supreme People's Court on the trial of trademark civil dispute case to explain some issues of applicable law 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 of the act, the decision is as follows:

    I. The defendant Hu Yannan shall compensate the plaintiff Kweichow Moutai Co., Ltd. for the economic loss (including reasonable expenses) of RMB 230,000 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 handling fee of this case is RMB 5,800, which shall be borne by the plaintiff kweichow Moutai Co., Ltd. and RMB 5,133 by the defendant Hu Yannan. Notice fee 560 yuan, to be borne by defendant Hu Yannan.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal petition to the court, and make copies according to the number of parties on the other side, appeal to the Intermediate People's Court of Hangzhou, Zhejiang Province, and pay RMB 5,800 for accepting the appeal case in advance to the Intermediate People's Court of Hangzhou, Zhejiang Province. If an appeal is filed against a property case, the case receiving fee shall be paid in advance by a separate written notice issued by the court in accordance with the appeal against the part decided by the court. If he fails to pay within seven days after the expiration of the appeal period, the appeal shall be automatically withdrawn.

    Chief Judge Ye Yingang

    People's juror Zheng Qiujiao

    People's juror Wang Jinlong

    September 11, 2017

    Clerk Yang Xiaoqi