Civil judgment of Yuhang District People's Court in Hangzhou

    Hangzhou Yuhang District People's Court

    Written judgment of civil affairs

    (2016) Zhejiang 0110, Early Republic of China No. 12495

    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.

    Attorney: Yang Fudong, 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: Jin Yue, lawyer of Zhejiang Zehou Law Firm.

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

    Defendant: Liu Mengchen, male, born on November 8, 1988, han Nationality, residing in Hongshan District, Wuhan City, Hubei Province.

    The plaintiff, Kweichow Moutai Liquor Co., LTD. (hereinafter referred to as Moutai Company), sued the court on September 8, 2016 for trademark infringement dispute with the defendant, Zhejiang Taobao Network Co., LTD. (hereinafter referred to as Taobao Company) and Liu Mengchen. 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 February 15, 2017. The plaintiff MAO Tai company entrusted agent Yang Fu Dong, the defendant Taobao company entrusted agent Jin Yue to the court to participate in the lawsuit, the defendant Liu Mengchen by the court notice service summons without justifiable reasons refused to court. The case is now closed.

    Kweichow Moutai Co., LTD., the plaintiff, sued: Since its establishment, kweichow Moutai, with its profound historical and cultural heritage and unique brewing technology, has not only won many honors such as "Gold Award of Panama World Exposition", "National Quality Gold Award" and "China Famous Trademark", but also been rated as national famous wine for many years. The plaintiff is the exclusive licensee of the registered trademarks "Kweichow Moutai" No. 3159141, "Kweichow Moutai" No. 237040 and "Kweichow Moutai" No. 284526. In November 2015, the plaintiff found that the online store "Chennian Vintage Wine Workshop" set up by the defendant Liu Mengchen on Taobao.com was selling fake "Kweichow Moutai liquor", which seriously infringed the trademark right of the plaintiff. The plaintiff authorized relevant legal institutions to apply for notary office to notarization of preservation evidence. Taobao was started by Taobao Corporation. The plaintiff believes that the defendant Liu Mengchen violated the trademark law and relevant laws by selling fake "Kweichow Moutai liquor", which not only seriously violated the plaintiff's trademark right and caused huge economic loss to the plaintiff, but also caused a bad influence on the plaintiff's brand reputation. The defendant as e-commerce platform taobao taobao company owners, shall take necessary means to protect the right to exclusive use of a registered trademark, the platform with abnormal price for registered sellers selling the well-known goods of high examination obligation, because the defendant did not fulfill the duty of reasonable review taobao company defendants Liu Mengchen infringing facts, and shall undertake corresponding legal responsibility. I. The defendant Taobao And Liu Mengchen immediately stop infringing the exclusive right to use the trademark of the plaintiff Moutai Company; 2. Defendant Liu Mengchen published a statement on the homepage of Taobao.com for 30 days to eliminate the influence; 3. Liu Mengchen, the defendant, compensates the plaintiff Moutai Company for economic losses and reasonable expenses of rights protection totaling 150,000 yuan; The litigation costs of this case shall be jointly borne by the defendant Taobao Company and Liu Mengchen. At the trial, the plaintiff Moutai Company applied to withdraw the second claim, which does not violate the provisions of the law, and the court granted permission.

    To support the plaintiff's claim, Moutai Company has provided the court with the following evidences:

    1. One original copy of the (2014) Rengong Certificate No. 2950-1 issued by The Notary Office of Renhua City, Guizhou Province (including the trademark Registration Certificate No. 3159141, the certificate of change of registered trademark and the certificate of renewal of approval), certifying that China Kweichow Mowai Distillery (Group) Co., Ltd. is the exclusive owner of the trademark No. 3159141.

    2. One original of trademark Registration Certificate No. 3159143, certificate of change of registered trademark, certificate of renewal of approval, certifying that Kweichow Moutai Distillery (Group) Co., LTD., China is the exclusive owner of trademark No. 3159143.

    3. Guizhou province renhuai issued by the notary office (2013) ren notarization notarial deed original no. 400 a (including the trademark registration certificate no. 237040, approved the trademark transfer certificate, registered trademark change) and the renewal of trademark registration certificate in one original and prove that China kweichow moutai distillery (group) co., ltd. is a trademark rights to exclusive use of trademarks of no. 237040.

    4. One original copy of the (2005) Renzizhi Notary No. 081 issued by Renhuai Notary Office of Guizhou Province (including the Trademark Registration Certificate No. 3333018, the certificate of change of registered trademark and the certificate of renewal of approval), certifying that China Kweichow Mowai Distillery (Group) Co., Ltd. is the exclusive owner of the trademark No. 3333018.

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

    6. One original copy of the instructions issued by China Kweichow MOUTAI Distillery (Group) Co., Ltd. certifying that the plaintiff has the exclusive right to use the registered trademarks of kweichow MOUTAI Bottle stickers, Kweichow MOUTAI, MOUTAI and graphics, Flying Brand, graphics and Five-pointed Star Graphics, and that the plaintiff is the eligible subject of the lawsuit.

    7. (2015) One original copy of the Notarial Certificate no. 1850 of Laifeng City and one copy of the real object sealed by the notary office, which proves the infringement facts of the two defendants.

    The defense of the defendant Taobao: 1. Taobao is only a service provider providing information release platform. It is neither a publisher of the commodity information involved in the case, nor has it carried out any direct infringement of the plaintiff's trademark rights such as selling or promising to sell.

Second, Taobao company has done its duty of warning in advance, there is no subjective fault.

First of all, merchants are required to fill in their identity information and verify their identity information before they move in. At the same time, taobao's Service Agreement explicitly requires users not to publish commodity information that infringes others' legitimate rights and interests, and expressly requires users to promise not to publish commodities that infringe others' legitimate rights and interests, fulfilling their duty of warning in advance.

Secondly, Taobao has a large number of shops and shop operators. Due to the infinite amount of information on the Internet and the immediacy of information flow, Internet service providers have neither the legal obligation nor the ability to monitor the network and find infringement ACTS. Taobao has no way to know whether the commodity information involved in the lawsuit infringes the trademark right of the plaintiff before the obligee complains, so there is no subjective fault.

Third, Taobao has done its duty of care after the event. In this case, the original complaint did not go through the way of safeguarding rights created by Taobao company before. After receiving the complaint, Taobao company confirmed that the commodity information involved in the case no longer existed, and took necessary measures to fulfill the duty of care afterwards.

To sum up, the plaintiff's claim against Taobao company has no factual and legal basis. Request the court to dismiss the plaintiff's appeal against Taobao company.

In order to support its defense, the defendant Taobao Submitted the following evidences to the court:

1. (2014) A copy of notarization Certificate No. 13842 in the Certificate of Zhejiang And Hangzhou, certifying 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 proves that Taobao has requested merchants not to release information that infringes others' intellectual property rights in advance and fulfilled its duty of warning.

3. A printout of the webpage screenshot confirming that the link of the product involved has been deleted, which proves that Taobao has confirmed that the information of the product involved no longer exists after receiving the complaint and has fulfilled its corresponding legal obligations.

The defendant Taobao cross-examines the evidence of the plaintiff Moutai Company as follows: Evidence 1-6, no objection to any of the three; Evidence 7: There is no objection to the authenticity and legality, and there is no objection to the relevance. Taobao is only a service provider of the network platform, and it has not committed any infringement.

The plaintiff Moutai Company cross-examines the evidence submitted by the defendant Taobao as follows: Evidence 1, 3, no objection; Evidence 2: there is no objection to the authenticity, and there is no objection to the relevance, which can only prove that Taobao company has reminded the merchants in advance, but cannot prove that it has fulfilled the inspection obligation.

The defendant Liu Mengchen did not attend the court to plead, also did not provide evidence, to the plaintiff Moutai company, the defendant Taobao company submitted evidence to give up the right to cross-examine in court.

The court certifies as follows: The evidence submitted by the plaintiff, Moutai Company, and the defendant, Taobao Company, conforms to the three principles of evidence, which the Court confirms 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:

China kweichow moutai distillery co., LTD. Approved by the state trademark office registered trademark, the no. 3159141 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), the validity of registration since April 21, 2003 to April 20, 2013, after the renewal of April 20, 2023. On May 6, 2013, China Kweichow Moutai Distillery (Group) Co., LTD was approved by the Trademark Office of the State.

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), the validity of registration since April 21, 2003 to April 20, 2013, after the renewal of April 20, 2023. On May 6, 2013, China Kweichow Moutai Distillery (Group) Co., LTD was approved by the Trademark Office of the State.

China kweichow moutai distillery co., ltd. has been approved by the state trademark office to register the registered trademark no. 237040, and the approved use of the commodity is class 33 liquor. The registration is valid from November 15, 2005, solstice, November 14, 2015, and will be renewed to November 14, 2025. On May 6, 2013, China Kweichow Moutai Distillery (Group) Co., LTD was approved by the Trademark Office of the State.

China kweichow moutai distillery co., LTD. Approved by the state trademark office registered trademark registration no. 3333018, approved by use of commodities for 33 categories: wine (alcohol), bitter wine, wine, wine, cooking extract (liqueur and spirits), wine (drink), alcoholic liquor, alcoholic beverages (except beers), cooking wine, alcohol, registered since September 28, 2003, valid until September 27, 2013, after the renewal until September 27, 2023. On May 6, 2013, China Kweichow Moutai Distillery (Group) Co., LTD was approved by the Trademark Office of the State.

On September 19, 1991, the organizing committee issued a certificate stating that Kweichow Moutai brand was awarded the title of "China famous Trademark" in the first Consumer selection activity of "China famous Trademark" (some commodities).

China kweichow moutai distillery (group) co., LTD to issue instructions confirmed: its authorized maotai company in accordance with 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, no. 3333018 trademark from September 28, 2013 to December 30, 2018. Moutai company not only has the right to the authenticity of the above-mentioned trademark used goods and issue an authentication report, but also has the right to independently file civil, criminal and incidental civil actions against the infringement of the said trademark rights.

On November 12, 2015, Yang Jinchao, 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, browsing and intercepting relevant websites on Taobao.com. On the same day, Yang today in two notarial personnel use notarization place under the supervision of the computer to buy on taobao shopkeeper called "Chen" years of wine distillery had "of the" Chen "years of wine distillery had" "guizhou maotai" bottle of store sales, and intercepting the related sales page, page shows the name of commodity "53 degrees flying maotai 500 ml of guizhou maotai flying limited maotai-flavor quality goods on sale bag mail", price 468 yuan, clinch a deal the record 521, 337 cumulative review, real payment of 468 yuan, the formation of the order number: 1395612503983911. On November 16, 2015, under the two notarial personnel supervision, today in laiwu city in shandong province lai Yang city (river road and south road interchange of 50 meters south road east garden hutong "just-in-time" within the sales department to extract a of the goods the packing sound, number 4437763341, and back to notarization, the notary personnel opened and under the supervision of the inspection and take photos, appraiser wang mou on the spot within the parcel on liquor maotai company has carried on the appraisal, and on the spot to issue the Numbers for "qian MaoJian NO: 1235406" the appraisal proof of guizhou moutai co., LTD., The conclusion was "not produced and packaged by our company". After the notary sealed the package and express order and stamped the notary office seal, Yang Jinzhao took care of it. On November 18, 2015, Under the supervision of two notaries, Yang Jinzhao used the computer of the notary office to confirm the receipt of the above order. Waybill number: 4437763341. On January 4, 2016, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2015) Fengcheng Notary No. 1850.

Trial, lai FengCheng certificate (2015) the people in our hospital and word 1850 notarial deed attached notarial material for unpacking, display containing liquor bottle, glass gift two, handbags one, introduced a anti-fake method and with a "just-in-time" delivery list (number 4437763341) of the carton, a liquor packing boxes, handbag, glasses boxes, the place such as anti-fake method is introduced, marked "guizhou maotai" glass, bottle cap and the top small labels, the place such as anti-counterfeiting method is introduced with "prerevolutionary" pattern identification, liquor packaging, the place such as the bottle with a "flying" design logo, Handbag and other places are printed with five-pointed star logo.

In addition, taobao (××) registered taobao business. As an operator of an online trading platform, Taobao has a value-added telecom business license and is engaged in Internet information service business. Anyone to register as a user, taobao must be agreed to taobao company set "taobao service agreement", the taobao rules, rules of the agreement and asks the user may not be sold on taobao, online trading platform countries ban or restrict sales of goods, may not be sold infringement of intellectual property rights or other legitimate rights and interests of others. Taobao confirmed that liu Mengchen registered and operated a Taobao store named "Chennian Distillery", and the plaintiff confirmed that the link to the goods involved no longer existed.

    Again, moutai company for this case notarization and entrusts a lawyer to appear in court.

    The court holds that: Moutai Company has obtained the right to use the trademark No. 315914, no. 3159143, No. 237040 and No. 3333018 and has the right to file a lawsuit in its own name through authorization. Therefore, Moutai Company is qualified as the plaintiff in this case. 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 infringing goods in liquor packing boxes, handbag, glasses boxes, the place such as anti-fake method is introduced using the word "guizhou maotai", on the back of glass, bottle caps and above small labels, the place such as anti-fake method is introduced using "prerevolutionary" design logo, use in the place such as liquor packaging, bottle "flying" pattern identification, in the place such as hand bag using a star pattern identification, obviously have the effect of identifying sources of goods, belong to the trademark use behavior, in the logo above the words "guizhou maotai" the same as the no. 3159141 trademark, The MOUTAI logo is identical to trademark 3159143, the Flying Aptera logo is similar to trademark 237040, and the Pentagram logo is identical to trademark 3333018. In addition, the scope of approved use of the trademark involved in the case includes alcohol. Therefore, the commodities involved in the case are the commodities that use the same and similar trademarks on the same commodities without the permission of the trademark owner, which is likely to cause confusion and belong to the commodities that infringe the registered trademarks no. 3159141, 3159143, 237040 and 3333018. Liu Mengchen's sale of the aforesaid infringing products is also a trademark infringement, and he fails to prove that the products involved are legally obtained by him and the supplier, so he shall bear the civil liability for compensation. Since the plaintiff confirmed that the commodity link involved no longer exists, it is no longer necessary for the plaintiff to request the two defendants to stop the infringement immediately. Therefore, the court does not support the claim.

    About the amount of compensation for the damage, because the plaintiff because by the actual loss of the infringement and the defendant Liu Mengchen for infringing the interests are difficult to determine, maotai company claims that applicable statutory compensation, we will consider the fame of the trademark involved in the synthesis, the defendant is the nature of the infringement, the degree of subjective fault, maotai company factors such as reasonable expense for stopping the infringement compensation is determined. At the same time, the court has noticed the following facts: 1. The selling price of the commodities involved is 468 yuan, and the transaction records are 521 pieces; 2. 2. Moutai pays notary fees and shopping fees and entrusts a lawyer to appear in court in order to protect its rights.

    About the responsibilities of Taobao Company. Moutai company claims that Taobao constitutes aiding infringement. In this case, Moutai Company confirmed that it did not complain to Taobao before the lawsuit, and there was no obvious illegal situation in the information liu Mengchen released about the goods involved. Therefore, Taobao company did not take timely measures knowing or should have known the infringement behavior existed, which does not constitute aiding infringement. The court will not accept Moutai's claim that taobao does not fulfill its duty of supervision, which constitutes an infringement. The court does not support moutai's claim against Taobao. Taobao company's defense opinion that it does not constitute infringement is established, and the court accepts it.

    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 liu Mengchen shall compensate the plaintiff kweichow Moutai Co., Ltd. for the economic loss (including reasonable expenses) of 120,000 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 3,300 yuan, which is borne by the plaintiff Kweichow Moutai Co., Ltd. and 2,970 yuan by the defendant Liu Mengchen. Notice fee 560 yuan, to be borne by defendant Liu Mengchen.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, submit an appeal petition and two copies to the court, appeal to the Intermediate People's Court of Hangzhou, Zhejiang Province, and pay RMB 3,300 for accepting the appeal case to the Intermediate People's Court of Hangzhou, Zhejiang Province. If the party fails to pay the appeal within seven days after the expiration of the appeal period, the appeal shall be automatically withdrawn. If an appeal is filed against a property case, the court shall notify the court in writing to pay the case acceptance fee according to the appeal against the part of the judgment of the first instance.

    Chief Judge Lang Mengjia

    People's juror Wang Shoumei

    People's Juror Dalissa

    February 16, 2017

    Clerk Zhang Xiaoying