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

    No. 21047, Zhejiang 0110, Early Republic of China

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

    Legal representative: Li Baofang, chairman of the board.

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

    Defendant: Zhejiang Taobao Network Co., LTD. Address: Room 601, 6 / F, Building 1, 969 Wenyi West Road, Wuchang Street, Yuhang District, Hangzhou

    Legal representative: Jiang Fan, chairman of the board.

    Attorney: Sun Jiawei, lawyer of Zhejiang Haihao Law Firm.

    Agent AD litem: Cheng Lin, lawyer of Zhejiang Haihao Law Firm.

    Defendant: Wu Sumei, female, born on November 11, 1992, han Nationality, living in Zunyi, Guizhou Province.

    The case of plaintiff Kweichow Moutai Liquor Co., LTD. (hereinafter referred to as Moutai Liquor Company), defendant Zhejiang Taobao Network Co., LTD. (hereinafter referred to as Taobao Company) and Wu Sumei for trademark infringement and unfair competition was filed and accepted by the Court on November 28, 2018 and tried according to law by applying summary procedure. Because the defendant Wu Sumei could not serve the case by other means, the court served the notice according to law, and made (2018) Zhejiang 0110 (21047) civil order on January 30, 2019, ruling that the case was transferred from summary procedure to ordinary procedure for trial. The court held a hearing in public on May 15, 2019. Zhai Mingyue, the plaintiff's agent AD litum of Moutai Liquor company, and Sun Jiawei, the defendant's agent AD litum of Taobao Company, attended the lawsuit in court. Wu Sumei, the defendant, was summoned legally by the court and refused to attend the lawsuit without justified reasons. The case is now closed.

    The plaintiff Moutai Liquor Company filed a lawsuit to the court: 1. Ordered the defendant Taobao company to delete the links of the infringing products immediately; 2. 2. Judge the defendant Wu Sumei to immediately stop selling the liquor involved in the infringement of the plaintiff's trademark exclusive right; 3. The defendant Wu Sumei is ordered to compensate the plaintiff for economic losses and reasonable expenses of safeguarding rights, totaling RMB 200,000 only; The costs of this case shall be borne by the defendant. During the court hearing, Moutai Company confirmed that the alleged infringement information in the online store involved in the case had been deleted, voluntarily withdrew the first and second claims, and clarified that taobao company had made no claims in the case and no longer claimed unfair competition. Therefore, the court adjusted the cause of the case to be infringement of trademark rights.

    Facts and Reasons: Since its establishment, Guizhou Maotai Wine has not only won the gold Medal of Panama World Exposition, National Quality Gold Medal, China Famous Trademark and many other honors with its profound historical and cultural heritage and unique brewing technology, but also been rated as national famous wine for many years. An outsider to the case, China Kweichow Moutai Distillery (Group) Co., LTD. (hereinafter referred to as Moutai Group) is the holder of registered trademarks no. 3159141, Kweichow Moutai and Feitian Graphics, etc. The plaintiff, authorized by Moutai Group, has the right to use the above trademarks and protect his rights in his own name. "Kweichow Moutai", as a well-known and well-known liquor product, has left a deep impression on the relevant public with its mellow aroma and unique packaging and decoration design style. It has established a specific relationship with both the bottle of wine and the packaging and decoration design style of logo, pattern and color matching.

    In April 2017, the plaintiff discovered the defendant taobao company launched taobao website shopkeeper called "direct" guizhou maotai maotai-flavor liquor "maotai maotai-flavor liquor straight for the" net sales infringes upon the plaintiff trademark involved in liquor products, the plaintiff authorized agencies to apply for notarization notarial evidence preservation on the online store. Through investigation, seller of net inn of case of case is accused Wu Sumei.

    The plaintiff believes that the defendant's behavior of selling the liquor products involved without the permission of the plaintiff violates the Trademark Law of the People's Republic of China and other relevant laws and regulations, which not only seriously violates the trademark right of the plaintiff, but also causes huge economic losses to the plaintiff and has a negative impact on the brand reputation of the plaintiff. The defendant as e-commerce platform taobao company "taobao" owners, shall take necessary means to protect the right to exclusive use of a registered trademark, sales platform registered sellers to abnormal price higher examination obligation, well-known as the defendant did not fulfill the duty of reasonable review taobao company defendants Wu Sumei infringing facts, also shall bear the corresponding legal responsibility. To sum up, in order to safeguard the legitimate rights and interests of the plaintiff, the court to appeal for judgment.

    The defendant Wu Sumei, Taobao company did not plead.

    The plaintiff Moutai Liquor Company submitted evidence according to law around the lawsuit claim, and the court organized both sides to cross-examine the evidence. The defendant Wu Sumei, Taobao company did not provide evidence. The evidence submitted by the plaintiff, Moutai Liquor Company, conforms to the certification rules of evidence, which is confirmed by the court after examination and supported in the volume.

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

    On April 21, 2003, Kweichow Moutai Distillery Co., Ltd. of China obtained the registered trademark No. 3159141 "", which approved the use of category 33 commodities, including alcoholic beverages (except beer), fruit liquor (alcoholic), liquor (beverage), alcoholic liquids, etc. The registration period is valid until April 20, 2013; On May 6, 2013, the Trademark Office of the State Administration for Industry and Commerce approved the change of registered trademark No. 3159141 in the name of Moutai Group; On June 17, 2013, the registration of registered trademark No. 3159141 was approved and renewed, valid until April 20, 2023.

    On November 15, 2005, China Kweichow Moutai Distillery Co., Ltd. obtained the registered trademark No. 237040 "", which approved the use of category 33 commodities, including liquor (up to date). The registration is valid until November 14, 2015; On May 6, 2013, the Trademark Office of the State Administration for Industry and Commerce approved the change of registered trademark No. 237040 in the name of Mowai Group Company; The term of validity of the trademark subject to approval for renewal shall expire on 14 November 2025.

    On May 7, 2010, China Kweichow Moutai Distillery Co., Ltd. obtained the registered trademark No. 6862377 "", which approved the use of category 33 commodities, including alcoholic beverages (except beer), fruit wines (containing alcohol), alcoholic beverages (beverages), alcoholic liquids, etc. The registration period is valid until May 6, 2020; On May 6, 2013, the Trademark Office of the State Administration for Industry and Commerce approved the change of registered trademark No. 6862377 in the name of Moutai Group.

    On January 14, 2013, China Kweichow Moutai Distillery Co., Ltd. obtained the registered trademark No. 10195572 "", which approved the use of category 33 commodities, including alcoholic beverages (except beer), fruit liquor (containing alcohol), liquor (beverage), alcoholic liquids, etc. The registration period is valid until January 13, 2023; On May 6, 2013, the Trademark Office of the State Administration for Industry and Commerce approved the change of registered Trademark No. 10195572 in the name of Mowai Group; The term of validity of the trademark subject to approval for renewal shall expire on 14 November 2025.

    On May 29, 2018, maotai group instructions issued by a company, authorized maotai company during the term of authorization to use no. 3159141 (from April 21, 2013 to April 20, 2023), 10195572 (January 14, 2013 to January 13, 2023), 6862377 (May 2010 on May 6, 7, 2020), no. 237040 (November 15, 2005 to November 14, 2025), in the authorized period, Moutai company not only has the right to appraise the authenticity of the above-mentioned trademark products and issue the appraisal report, but also has the right to independently file civil and criminal collateral civil actions against the infringement of the said 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.

    Moutai company's Moutai liquor products through long-term publicity, promotion, with a high market visibility and reputation.

    On April 10, 2017, Wang Shouzhen, an agent entrusted by Shandong Changping Law Firm, applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation in the process of purchasing infringing products on Taobao.com, browsing and intercepting relevant websites, receiving and authenticating the products, etc. The shou-zhen wang used in two notarial personnel under the supervision of the notary office computer to buy on taobao shopkeeper called "direct" guizhou maotai maotai-flavor liquor "maotai maotai-flavor liquor straight for the" online sales of liquor in a wooden case, and intercepting the related sales page, page shows the name of commodity "home-grown guizhou maotai-flavor 53 degrees flying maotai liquor food first reception protoplasmic wine FCL specials", price 270 yuan, has sold 816 units, article reviews 93, 270 yuan, the total payment is the order number: 6586582501074885. The seller delivers the goods through Yunda Express, the tracking number is 1202543501588. On April 16, 2017 in two notarial personnel supervision, shou-zhen wang in laiwu city, the city's "YunDa express" sales took the goods packing sound one, single number is 1202543501588, and the notarial personnel under the supervision of open the parcel after photograph by notarial personnel under the custody of shou-zhen wang after sealing and sealed by the notary office. On the same day, shou-zhen wang used under the supervision of two notarial personnel notarization computer log in taobao, click in the "have to buy baby" to check the order number is "6586582501074885" logistics details and order details, according to the seller a nickname: guizhou maotai maotai-flavor liquor for straight, real name: Wu Sumei, logistics company: YunDa express delivery, air waybill number: 1202543501588. Wang Shouzhen confirmed the receipt of the above orders. On May 25, 2017, Fengcheng Notary Office in Laiwu city, Shandong Province issued the (2017) Fengcheng Notary No. 516.

    During the court hearing, the court unsealed the notarized object attached to the notarial certificate of Laifeng City Certificate Minzi No. 516 (2017), which showed that it contained a box of Feitian reception wine, four handbags and a single copy of The details of Yun Da express, the tracking number is 1202543501588. Inside the liquor box are six boxes of 500ml liquor (single bottle). The liquor box has a "MAOTAI" logo on the top of the lid and on the front and left side of the box. Native sauce aroma ". After unpacking, there is a 500ML white porcelain bottle of Flying Apsaras reception wine and a red box containing a wine glass. The red box has "Flying Apsaras" and "" on the front," "" on the front and" "on the back, and" "and" Moutai? The words "native sauce aroma". Moutai company confirms that the goods are not produced by or under its authorization.

    During the trial, Taobao confirmed that the taobao store whose member name was "Maotai Maotai Maotai Maotai Liquor direct supply" was registered and operated by wu Sumei, the defendant.

    This court holds that Moutai Company obtains the right to use the registered trademark No. 3159141 "", No. 237040" ", No. 6862377 "" and No. 10195572" by authorization of Moutai Group Company and has the right to file a lawsuit in its own name. Therefore, Moutai Company is qualified as the plaintiff in this case. Moutai Company claims that Wu Sumei infringed upon the exclusive right of the trademark involved in the case by selling the products. 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, is accused of infringement wine boxes, and more than a bottle of liquor used ""," from ", "flying", "MAOTAI" logo all play a role in identifying the sources of, belong to the trademark use behavior, advocate for the rights of the labels with MAOTAI company respectively four trademark constitutes the same trademark, and these four trademark approved goods use scope including wine, MAOTAI company confirmed the goods involved than its production or authorized production, therefore, in the case of goods for the same goods without permission from the MAOTAI company use the same trademark on goods, belong to a commodity whose registered trademark infringement involving four. Wu Sumei sales of the aforementioned infringing products also belong to trademark infringement. As Moutai withdrew all of its claims against Taobao, there is no longer any judgment on taobao's liability.

    To sum up, Wu Sumei should bear the civil liability for compensation for the loss because she sold the products involved in the case and failed to prove that the products involved were legally obtained and provided by her. As for the amount of compensation, Moutai Company advocates the application of 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 Company to stop the infringement. At the same time, the court has noticed the following facts: 1. The price of one box and six bottles of the commodities involved is 270 yuan, 816 items have been sold, and 93 comments have been accumulated; 2. 2. Moutai company spent 270 yuan to purchase commodities for rights protection, notarized and preserved evidence, and entrusted lawyers to appear in court; 3. Involving four trademarks, "Kweichow Moutai" trademark has relatively high market visibility. 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 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 of the act, the decision is as follows:

    I. The defendant Wu Sumei shall compensate the plaintiff Kweichow Moutai Co., Ltd. for the economic loss (including reasonable expenses) of RMB 135,000 within 10 days from the date of 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 4,300 yuan, 699 yuan borne by the plaintiff Kweichow Moutai Co., Ltd. and 3,601 yuan borne by the defendant Wu Sumei. Notice fee 560 yuan, borne by defendant Wu Sumei.

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

    Chief Judge Wang Shuxian

    People's Juror Lou Zhiming

    People's juror Chen Maoxian

    May 15, 1920

    Clerk Zhang Xiaoying