Civil judgment of Yuhang District People's Court in Hangzhou

    Hangzhou Yuhang District People's Court

    Written judgment of civil affairs

    (2017) Zhejiang 0110, 694 in the 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.

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

    Attorney: Xiao Ju, 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.

    Agent AD litem: Teng Weixing, lawyer of Zhejiang Zehou Law Firm.

    Agent AD litem: Wang Ying, lawyer of Zhejiang Zehou Law Firm.

    Defendant: Jiang Bangquan, male, born on February 9, 1965, han Nationality, living in Gushi County, Henan Province.

    The plaintiff, Kweichow Moutai Liquor Co., LTD. (hereinafter referred to as Moutai Company), the defendant, Zhejiang Taobao Network Co., LTD. (hereinafter referred to as Taobao Company) and Jiang Bonquan had a trademark infringement dispute. After the case was filed on January 13, 2017, the court applied ordinary procedures according to law and held a trial in public. Xiao Ju, the plaintiff's agent AD litem of Moutai Company, and Wang Ying, the defendant's agent AD litem of Taobao Company, attended the lawsuit in court, while Jiang Bangquan, the defendant, refused to attend the lawsuit without justifiable reasons after being subpoenaed. The case is now closed.

    The plaintiff Moutai Company filed a lawsuit to the court: 1. The plaintiff ordered the defendant Taobao Company and Jiang Bangquan to immediately stop infringing the trademark exclusive right of the plaintiff Moutai Company; 2. 2. Judge the defendant Jiang Bangquan to publish a statement on the homepage of Taobao.com for 30 days to eliminate the influence; 3. Judge the defendant Jiang Bangquan to compensate the plaintiff Moutai Company for the economic loss and the reasonable expense of safeguarding rights totaling 150,000 yuan; 4. The litigation costs of this case shall be jointly borne by the defendant Taobao Company and Jiang Bangquan. In the course of the lawsuit, moutai Company, the plaintiff, has confirmed that the accused infringing link has been deleted, so it applies to withdraw the first and second lawsuit claims and give up the claim against Taobao company, which does not violate the legal provisions, and the court gives permission. Facts and Reasons: Since its establishment, With its profound historical and cultural heritage and unique brewing technology, Guizhou Moutai has not only won many honors such as "Gold Award of Panama World Exposition", "National Quality Gold Award", "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 "Fragrant Moutai liquor" set up by the defendant Jiang Banguan 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 notarize the preservation evidence. Taobao was started by Taobao Corporation. The plaintiff believes that the defendant Jiang Bangquan violated the trademark law and relevant laws by selling fake "Kweichow Moutai", 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 Jiang Bangquan infringing facts, and shall undertake corresponding legal responsibility.

    The defendant Taobao pleaded 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 act of direct infringement of the plaintiff's trademark rights, such as selling or promising to sell. Second, Taobao has done its duty of attention in advance. Before the merchants move in, merchants are required to fill in their identity information and verify their identity. At the same time, Taobao's Service Agreement explicitly requires users not to publish commodity information that infringes the legitimate rights and interests of others. At present, taobao has nearly 10 million sellers and more than 1 billion items of goods. Coupled with the immediateness of information flow, taobao is required to conduct a prior review of the authenticity, accuracy and legality of all such huge and constantly changing transaction information in the network environment, which is not objectively and technically operable. Iii. After receiving the indictment materials, Taobao company promptly confirmed that the commodity information involved no longer existed, and took necessary measures to fulfill its duty of care afterwards. In this case, the plaintiff did not complain to Alibaba's intellectual property platform, and Taobao confirmed that the link of the goods involved was deleted on August 1, 2016. Taobao confirmed before the lawsuit that the commodity information involved no longer existed, and took necessary measures to fulfill the duty of care afterwards. Therefore, the plaintiff's claim against Taobao has no factual and legal basis. To sum up, the court is requested to dismiss the plaintiff's entire appeal to Taobao company according to law.

    The defendant, Jiang Bangquan, made no plea.

    The plaintiff Moutai Company and the defendant Taobao Company submitted evidence according to law around the lawsuit claim, and the court organized them to provide evidence for cross-examination. The court does not confirm the notarization No. 2950 (2014) submitted by the plaintiff Moutai Company, which has nothing to do with this case. Other evidences submitted by the plaintiff Moutai Company and all evidences submitted by the defendant Taobao company have been confirmed by the court after examination and proved in the volume.

    Based on the parties' statements and the evidence examined and confirmed, the Court finds the following facts:

    China kweichow moutai distillery has been approved by the national trademark office to register the trademark no. 284526, the approved use of the commodity is the 36th class (liquor), the validity of the registration from April 20, 1987 solstice April 19, 1997, after the national trademark office twice renewed to April 19, 2017, the approved renewal registration in the commodity no. 33 class; On September 7, 2001, China Kweichow Moutai Distillery Co., LTD was approved by the Trademark Office of the State. 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 (group) co., LTD to issue instructions confirmed: its authorized maotai company in accordance with the use of trademark license within the time limit, mandate: no. 284526 trademark since April 20, 2007 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. 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 on Taobao.com, browsing and intercepting relevant websites, as well as in the process of obtaining and authenticating the products. On the same day, Yang today used under the supervision of two notaries notarization office computer, buy on taobao shopkeeper called "fragrance maotai" "fragrance maotai" online sales of guizhou maotai liquor bottle, page shows the commodity name for "guizhou maotai 53 degrees flying 500 ml new authentic maotai maotai wine domestic liquor sale bag mail", price 800 yuan, clinch a deal the record 313, 246 total evaluation, after buying real payment of 800 yuan, to generate the order of the order no. 1396617125713911 a. In the same month on the 16th, under the supervision of two notaries, Yang today in NO. 69 of lai city dipper north road in laiwu city "suitable abundant speed luck" in the city of hardware machinery sales department to sign for the goods packing sound one, single number 307240999534, notaries will be back to notarization place, under the supervision of notaries, Yang today on its pictures, unpacking, maotai company surveyor wang mou within the parcel on liquor has carried on the appraisal on the spot, and issue the number on the spot for "qian MaoJian NO: 1235410" the appraisal proof of guizhou moutai co., LTD., a conclusion of "production, packaging is not my company." The latter two notaries sealed the above goods, stamped the notary office seal and handed them over to Yang Jinzhao for safekeeping. On the 18th of the same month, Yang Jinzhao used the computer of the notary office under the supervision of two notaries to confirm the receipt of the above order. The logistics information of the order showed as follows: Logistics company: SF Express; Waybill Number: 307240999534. On January 4, 2016, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2015) Fengcheng Notary Public character No. 1847.

    During the court hearing, the court unsealed the notarization attached to the notarization certificate no. 1847 of Leifeng City Certificate (2015), including a bottle of white wine, an introduction of anti-counterfeiting method, a box of complimentary wine glasses (two), and a express order of SF Express (no. 307240999534). The liquor packaging boxes, wine bottles and bottles are marked with the label of "Kweichow Moutai". Introduction of anti-counterfeiting method, wine cup packaging box, wine cup, bottle cap, organic code of wine bottle and other places marked with "MOUTAI" pattern logo; White wine packaging boxes, bottles and bottles with flying apsaras logo.

    In addition, taobao (××) registered taobao business. Taobao confirmed that the taobao store, whose user name was "Piaxiang Moutai", was registered and operated by the defendant, Jiang Bangquan. The plaintiff confirmed that the links of the goods involved no longer existed and did not complain to Taobao about the alleged infringing products.

    It is determined that Moutai company pays notary fees for this case and entrusts a lawyer to appear in court.

    The court holds that Moutai Company has obtained the right to use the trademark No. 284526, No. 3159143 and No. 237040 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 used in the place such as liquor bottle, bottle bottle "guizhou maotai liquor bottle" logo, the anti-fake method is introduced, glasses boxes, glasses, bottle caps, bottles used the place such as the organic code "prerevolutionary" design logo, used in the place such as liquor bottle, bottle bottle flying pattern identification, obviously have the effect of identifying sources of goods, belong to the trademark use behavior. In the logo above the "guizhou maotai" bottle logo and no. 284526 trademark approximation, "prerevolutionary" logo is the same as the no. 3159143 trademark design, flying pattern identification and trademark approximation, no. 237040 and involved trademark approved use include wine, the plaintiff maotai company confirmed the goods involved than its production or authorized production, therefore, in the case of goods for use without the consent of the holder of the trademark on the same commodity and approximate trademark goods, the same belong to the infringement of no. 284526, no. 3159143, no. 237040 registered trademarks of commodities. Jiang Bangquan'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. About the amount of compensation for the damage, because the plaintiff because by the actual loss of the infringement and the defendant Jiang Bangquan 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 commodity involved sold for 800 yuan, 313 transactions were recorded, and 246 comments were accumulated; 2. 2. Moutai pays notary fee and shopping fee (800 yuan) and entrusts a lawyer to appear in court in order to protect its rights.

    The plaintiff Moutai Company has abandoned the claim against Taobao company in the litigation process, so the court will no longer judge the legal 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, 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 Jiang Bangquan 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 Jiang Bonquan.

    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.

    Judge Lang Mengjia people's juror Wang Jinlong people's juror Xu Guilin

    April 1, 2017

    Clerk Chen Cen