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) Zhejiang 0110, 6770 in the early Republic of China

    Plaintiff: Kweichow Moutai Liquor Co., LTD.

    Legal representative: Yuan Renguo, chairman of the board.

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

    Attorney: Xiao Ju, lawyer of Shandong Changping Law Firm.

    Defendant: Zhejiang Taobao Network Co., LTD

    Legal representative: Zhang Yong, chairman of the board.

    Agent AD litem: Chen Shuida, lawyer of Zhejiang Haihao Law Office.

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

    Defendant: Li Jie.

    Defendant: Guizhou Hanzhuang Wine Co., LTD.

    Legal representative: Li Jie.

    Defendant: Guizhou Lairen Brewery Co., LTD.

    Legal representative: Zeng Peng.

    The plaintiff guizhou moutai co., LTD. (hereinafter referred to as the maotai company) and the defendant zhejiang taobao network co., LTD. (hereinafter referred to as the taobao company), li jie, guizhou han zhuang wine co., LTD. (hereinafter referred to as "han zhuang), guizhou Lai Ren wine co., LTD. (hereinafter referred to as Lai Ren company) the infringement trademark dispute case, in our hospital from May 2017 Hitachi after 3, using normal procedures in accordance with the trial. Because it cannot be served by other means, the court serves litigation materials to the defendant Li Jie and Lai Ren company by means of public announcement according to law. The case was heard in public on October 23, 2017. The plaintiff Zhai Mingyue, the agent AD litem of Maotai company, and the defendant Taobao company entrusted agent AD litem to attend the lawsuit, and the defendant Li Jie, Hanzhuang company and Lai Ren company failed to attend the lawsuit after being legally summoned by the court. The case is now closed.

    The plaintiff Moutai Company filed a lawsuit to the court: 1. The defendant Taobao Company, Li Jie, Hanzhuang Company and Lai Ren Company immediately stopped infringing the plaintiff's right to exclusive use of the trademark; 2. 2. Defendant Li Jie, Hanzhuang Company and Lai Ren Company published a statement on the front page of taobao store for 30 days to eliminate the influence; 3. The defendant Li Jie, Hanzhuang Company and Lai Ren Company shall compensate the plaintiff a total of 500,000 yuan for economic losses and reasonable expenses of rights protection; The costs of this case shall be borne by the defendant. At the trial, Moutai company dropped the first, second claims.

    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. Moutai company is a "guizhou maotai" no. 3159141, no. 237040 flying graphics, no. 284526 "guizhou maotai" exclusive is to use a registered trademark, since its inception, always thought that broad consumer brewing liquor taste unique as own duty, after several generations of maotai are hard working operation, has its flagship brand "guizhou maotai" into the public mind as is known to all, household model for high-end liquor. Recently, Moutai found that Li jie's shop on Taobao.com, whose member name is Hanzhuang Liquor Co., was selling counterfeit baijiu that infringed moutai's registered trademark, seriously violating the company's trademark rights. After investigation, taobao was founded by Taobao Company, and the products involved were marked with the enterprise names of Hanzhuang company and Lai Ren Company. Taobao, as the founder of the e-commerce platform, shall take necessary measures to protect the exclusive right to use registered trademarks, and shall have a higher examination obligation on the sellers registered on the platform to publish the commodities containing well-known trademarks. In case of infringement due to the failure to fulfill reasonable examination obligations, the company shall also bear corresponding legal liabilities. In order to safeguard its legitimate rights and interests, Moutai filed a lawsuit.

    The defendant Taobao argues that, firstly, taobao, as a service provider of information release platform, is not a publisher of the commodity information involved in the lawsuit, nor does it participate in the buying and selling activities as a buyer or seller, so it has not committed infringement. Ii. According to the provisions of Article 36 of the Tort Liability Law, an infringement is constituted only when the plaintiff knows that the goods are infringing and fails to take any measures. In this case, the plaintiff did not file a complaint to Taobao, and Taobao has no subjective fault of knowing the infringement. 3. No matter whether the act involved constitutes infringement or not, Taobao is committed infringement, and the plaintiff's claim against Taobao shall not be supported. To sum up, Moutai's claim against Taobao has no factual basis or legal basis, and it requests to dismiss the claim against Taobao.

    The defendant Li Jie, Hanzhuang company, Lai Ren company did not plead.

    The plaintiff Moutai Company and the defendant Taobao Company submitted evidence according to law around the lawsuit claim, and the court organized the parties to conduct cross-examination of evidence. The defendants Li Jie, Hanzhuang Company and Lai Ren Company did not attend the court or submit evidence, which is deemed as waiver of the right to cross-examine evidence. For the evidence submitted by Moutai Company, the court finds as follows: Evidence 1 (2016) ren certificate notarial deed original, no. 601 is evidence 2 word no. 2950 (2014) ren notarization notarial deed original, 3 illustrates the original evidence, evidence 4 (2015), tianjin teda certificate by the word no. 9305 is notarial deed original and copy of notarization involved physical sequestration, evidence five original notarial fees bill, evidence 7 "" registered trademark certificate no. 237040, the transfer of certificates, certificate of renewal, evidence of 8" "registered trademark certificate no. 3159143, the transfer of certificates, certificate of renewal, taobao company, there is no objection on the authenticity, legitimacy of evidence are confirmed by our review. Evidence 6. The printed copy of the trademark web page is basically consistent with the online information after being logged into the website of the State Trademark Office in court and confirmed by the examination of the Court. Evidence provided by the taobao company, we decided as follows: the evidence 1 (2017) money of the word no. 11637 is notarial deed of zhejiang hangzhou, 2 (2016) evidence, money of the word no. 6630 is notarial deed of zhejiang hangzhou, 3 (2017), zhejiang hangzhou evidence of money of the word no. 4243 is notarial deed of evidence, evidence 4 seller identity information printed pieces, 5 goods shelves page screenshots, printout maotai company of authenticity has no objection, confirmed by our hospital examination, and confirmed as the basis of the relevant to the case facts.

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

On April 21, 2003, China Kweichow Moutai Distillery Co., Ltd. obtained the registered trademark No. 3159141 "" after being approved by the Trademark Office, which approved the use of category 33 commodities, including alcoholic beverage (except beer), fruit liquor (containing alcohol), liquor (beverage), alcoholic liquid, etc. The registration period is valid until April 20, 2013. On May 6, 2013, the name of the registrant was changed to Moutai Group Company upon approval of the Trademark Office; On June 17, 2013, the registration shall be renewed with the approval of the Trademark Office until April 20, 2023.

On September 28, 2003, China Kweichow Moutai Distillery Co., Ltd. obtained the registered trademark No. 3333018 "" after being approved by the Trademark Office, which approved the use of category 33 commodities, including fruit liquor (containing alcohol), liquor (beverage), alcoholic liquid, alcoholic beverage (except beer), etc. The registration period is valid until September 27, 2013. On May 6, 2013, the name of the registrant was changed to Moutai Group Company upon approval of the Trademark Office; On October 8, 2013, the trademark Office approved the renewal of the registration valid until September 27, 2023.

On April 17, 2015, maotai group instructions issued by a company, authorized maotai company during the term of authorization to use no. 3159141 (from April 21, 2013 to December 30, 2018) and 3333018 (from September 28, 2013 to December 30, 2018), trademark, etc., in the period of authorized maotai company not only has 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 December 1, 2015, shandong province, changping law firm entrusted agent shou-zhen wang applied to tianjin teda notarization for its online purchases infringing products, browse, interception of related web pages, and through the use of video screen expert software video online shopping for the entire operation process and the products are the evidence preservation, the appraisal process. On December 3rd, shou-zhen wang used under the supervision of notaries notarization and the notarization computer to buy on taobao shopkeeper called "han zhuang wine industry co., LTD." open "han zhuang wine" online sales of wine, web page display name for "guizhou maotai maotai-flavor liquor food wine protoplasmic wine 53 degrees high liquor khun sa 500 ml of wine", priced at 9.9 yuan, accumulative total review 173, 5551, clinch a deal the record commodity details display brand: han, zhuang shou-zhen wang to buy 6 pieces, pay 59.4 yuan, to form the order number: 1294604686654885, order details are shown in a nickname: Hanzhuang Wine Co., LTD., real name: Li Jie, intercepted the relevant sales web page.

On December 11, 2015, under the supervision of notary and notary staff, Wang Shouzhen came to the conference room on the first floor of Hanting Chain Hotel, No. 5, Youyi Road, Hexi District, Tianjin, and signed for a package of goods sent by the Courier of YTO Express, with the order number of 880854980198676031. Wang Shouzhen first took pictures of the outer packing of the goods, and then opened the outer packing. There were 6 bottles of baijiu in the bottle with the word "Flying Sky Original liquor". Wang Shouzhen took pictures on the spot. The notaries and notaries repacked the goods, sealed them and took photos by Wang Shouzhen for safekeeping.

On December 14, 2015, Under the supervision of the notary and notary staff, Wang Shouzhen logged on taobao.com using the computer of the notary office and clicked on the "Bought baby" to check the logistics details of the transaction with the order number of "1294604686654885". The website showed that the logistics company was YTO Express and the tracking number was 880854980198676031. On January 11, 2016, Tianjin Teda Notarial Office issued (2015) Tianjin Teda Notarial Certificate No. 9305.

During the trial, the court unsealed the real notarization attached to the Notarization certificate no. 9305 of Jinteda Certificate (2015). There was a YTO express box inside. Box with six bottles of liquor, the name of "flying protoplasmic wine", attached to the bottle "have long march + star + wheat + gear" pattern, "guizhou maotai", "han zhuang company" and "production license: QS520015017060, product: han, zhuang production enterprises: Lai Ren company", the product bottle with an anti-counterfeiting mark, marking "han zhuang wine" and "han " logo.

Query the state trademark office website, search "han" zhuang, show more information about han zhuang company, show the trademark "han ", application/registration number: 24585354, the international classification: 33, the applicant name: han zhuang company, the applicant's address: view mountain lake district of guiyang in guizhou province guiyang century city the first K K, L, group district shops along the street layer 1 # 36, trademark status: waiting for the substantive examination.

The legal representative of the defendant Hanzhuang Company was the defendant Li Jie.

It is also determined that www.taobao.com (Taobao) is registered and operated by Taobao Company, and any person registered to become a taobao member shall agree to the taobao Platform Service Agreement formulated by Taobao Company, in which the agreement stipulates that users shall not publish goods or service information suspected of infringing intellectual property rights or other legitimate rights and interests of others. Taobao Confirmed that the Taobao store "Hanzhuang Wine Industry", named as "Hanzhuang Wine Industry Co., LTD.", was registered by Li Jie. Moutai confirmed that the infringing link has been removed.

    The court holds that Moutai Group Company is the holder of the registered trademarks no. 3159141 and 3333018. These trademarks are still under the protection period and the legal status is stable, and the exclusive right of the trademark should be protected by law. Moutai Company is authorized by Moutai Group Company to acquire the right to use the said trademark and enjoy the right to file a lawsuit in its own name. Therefore, Moutai Company is qualified as the plaintiff in this case. Moutai claims that Li Jie, Hanzhuang and Lai Ren produce and sell products that infringe the exclusive right of the trademark involved above. According to the provisions of Article 57 of the Trademark Law, without the permission of the trademark registrant, the use of a trademark identical with or similar to the registered trademark on the same kind of goods or similar goods, which may easily lead to confusion, and the sale of goods infringing the exclusive right to use a registered trademark are all ACTS infringing the exclusive right to use a registered trademark. This case, the product involved bottles marked "have long march + star + wheat + gear" logo and "guizhou maotai", including "have long march + star + wheat + gear" pattern with the plaintiff no. 3333018 "" trademark, in contrast, the grain in the opposite direction, pentagram add text" have long march ", the rest of the graphics and color combination trademark are basically identical with the plaintiff, both the overall comparison, the pattern is similar to no. 3333018 "" trademark; "Kweichow Moutai Town" contains plaintiff's trademark No. 3159141 "". Therefore, the trademark involved in the case will be the same as the plaintiff's registered trademark No. 3159141 "" and similar to the registered trademark No. 3333018" "for product decoration, and the aforesaid trademark involved in The case of Moutai Company is approved to use the scope of goods including liquor, but the product involved is liquor, so it should be the same commodity, easy to mislead the public. Moutai company confirms that the products involved are not produced by right holders or authorized to produce. Therefore, the goods involved in the case are those that use the same trademark or similar trademark on the same goods without the permission of Moutai Company, which may easily lead to confusion, and belong to the goods that infringe the exclusive right of the registered trademark of plaintiff No. 3159141 and No. 3333018.

    According to find out the facts, "han 荘" trademark applicant is han, zhuang product marked with "han zhuang company", "product: han zhuang company", "production enterprise: Lai Ren company" and "han 荘" trademark, shows that han zhuang company are involved with Lai Ren company product producers, the production product infringes the plaintiff no. 3159141, no. 3333018 is a registered trademark. Li Jie sales of the infringing products also belong to trademark infringement. Therefore, Hanzhuang Company and Lai Ren Company used the plaintiff's trademark to produce the products involved without permission. As the legal representative of Hanzhuang Company, Li Jie shall bear the civil liability for compensation for the loss if he, knowing that the products involved are infringing products, still opens an online store to sell the products involved. 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. Hanzhuang Company and Lai Ren Company produced the products involved in the case, and Li Jie was responsible for selling the products involved in the case, the price was 9.9 yuan, the accumulated comments were 173, the transaction record was 5551; 2. 2. Moutai Company pays 59.4 yuan for purchasing products for rights protection, notarizes evidence preservation and entrusts lawyers to appear in court; 3. The trademark involved has high popularity. To sum up, when Li Jie sold the products involved, the court decided the compensation amount (including reasonable expenses) to be RMB 45,000. Hanzhuang company and Lai Ren Company produced the products involved in the case, and the court decided the compensation amount (including reasonable expenses) to be 100,000 yuan.

    Due to moutai company's voluntary waiver of the lawsuit against Taobao company, the court will no longer judge the liability of Taobao Company.

    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, article seventy-six of the regulations on the implementation of the trademark law of the People's Republic of China, 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 Li Jie shall compensate the plaintiff Kweichow Moutai Co., Ltd. for the economic loss (including reasonable expenses) of RMB 45,000 within 10 days from the effective date of this judgment;

    2. The defendant, Guizhou Hanzhuang Wine Co., Ltd. and Guizhou Lairen Wine Co., Ltd. shall compensate the plaintiff, Guizhou Moutai Wine Co., Ltd. for the economic loss (including reasonable expenses) of RMB 100,000 yuan within 10 days from the effective date of this judgment;

    3. 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 8,800 yuan, which is borne by the plaintiff Kweichow Moutai Co., LTD., 3,124 yuan, the defendant Li Jie 1,763 yuan, and the defendant Guizhou Hanzhuang Wine Co., Ltd. and Guizhou Lairen Wine Co., LTD. 3,913 yuan. The notice fee of 560 yuan was borne by the defendant Li Jie and Guizhou Lairen Brewery Co., LTD.

    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 the appeal case acceptance fee of RMB 8,800 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 Dai Dapeng

    People's juror Zhu Tiangen

    People's Juror Zhou Xing

    November 30, 2017

    Clerk Roanne