Civil judgment of Hangzhou Intermediate People's Court, Zhejiang Province

    Hangzhou Intermediate People's Court of Zhejiang Province

    Written judgment of civil affairs

    (2016) Zhejiang 01 Minzhong No. 7076

    Appellant (defendant in the first instance) : Meng Qiuyue, female, born on December 28, 1989, han Nationality, residing in Gushi County, Henan Province.

    Agent: Ge Junma, meng Qiuyue husband.

    Appellant (plaintiff in the first instance) : Kweichow Moutai Liquor Co., LTD., domicile place: Moutai Town, Renhua, Guizhou province.

    Legal representative: Yuan Renguo, chairman of the board.

    Agent: Zhai Mingyue, Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant in the first instance: Zhejiang Taobao Network Co., LTD., Room 601, 6 / F, Building 1, No. 969 wenyi West Road, Wuchang Street, Yuhang District, Hangzhou city, Zhejiang Province.

    Legal representative: Lu Zhaoxi, chairman of the board.

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

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

    Appellant for the first month of autumn month the appellee guizhou moutai co., LTD. (hereinafter referred to as the maotai company), the original defendant zhejiang taobao network co., LTD. (hereinafter referred to as the taobao company) the infringement trademark dispute case, leads to yuhang district, hangzhou city, zhejiang province people's court (2016), zhejiang 0110 no. 7389 in the early days of the civil judgment, to file an appeal. After accepting the case on November 15, 2016, the court formed a collegial panel in accordance with the law and convened the parties to investigate the case on December 14, 2016. The case is now closed.

    The original trial court found that: On April 20, 1987, China Kweichow Moutai Distillery registered trademark no. 284526. The trade mark is approved for the use of class 36 wines, valid from April 20, 1987 to April 19, 1997, and thereafter approved for renewal until April 19, 2017. On May 6, 2013, China Kweichow Moutai Distillery (Group) Co., LTD registered the change of registered trademark approved by the Trademark Office of the State Administration for Industry and Commerce. On April 21, 2003, China Kweichow Moutai Distillery Co., LTD registered trademark No. 3159143. The trade mark is approved to use goods in category 33, namely alcoholic beverages (other than beer), fruit wines (containing alcohol), alcoholic beverages (beverages), alcoholic liquids, cooking wines, edible spirits, bitter wines, aperitifs, wines, cooking extracts (liquors and spirits), valid for registration from 21 solstice April 2003 to 20 April 2013. On May 6, 2013, China Kweichow Moutai Brewery (Group) Co., LTD was approved by the Trademark Office of the State Administration for Industry and Commerce and agreed to renew its registration until April 20, 2023.

    On April 17, 2015, China kweichow moutai distillery (group) co., LTD to issue instructions confirmed: its authorized maotai company has the right to use, including no. 284526, no. 3159143, the registered trademark, the license period since April 21, 2013, respectively, on April 20, 2007 to December 30, 2018, not only have 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 November 12, 2015, Yang Jinchao, the entrusted agent of Shandong Changping Law Firm, applied for evidence preservation and notarization in the computer operation process of Yang Jinchao using the notary office in Laiwu city, Shandong Province. Use notary office computer on the same day, Yang today, through the search into taobao shopkeeper called "GaZi 1232" liquor "sea" store, Yang today in the online store to choose the "53 degrees flying maotai liquor maotai maotai-flavor 500 ml, maotai liquor quality goods bag mail." One bottle of white wine, 639 yuan. This commodity page shows: price 639 yuan, accumulated comments 213, 338 transaction records. Yang Jinchao click the order information again, show the order number is 1396103546383911. On November 16, 2015, The notary staff of Fengcheng Notary Office in Laiwu city, Shandong Province came to the business department of "Deppon Logistics" on Wenhe Avenue, Laicheng District, Laiwu City, Shandong Province with Yang Jinchao. Yang Jinchao picked up a piece of goods with well-packed WAYbill no. 5040180129 in the business department. Notary office staff will bring the goods back after notarization, the notary public, under the supervision of Yang today first appearance on the above the goods taken two photos, and then will open for the above goods, there is a bottle of "guizhou maotai", Yang today take photographs seven of the above items, the contents of the parcel after packaging, sealing, the parcel by the notary office after sealing under the custody of Yang today. On November 18, 2015, Yang Jinzhao used the notary office computer to enter Taobao and log in, click "My Taobao", select "Bought baby", find the order number 1396103546383911, click "Order Details" in the order, display the logistics information: the logistics company is "Deppon Logistics", the tracking number is 5040180129. On January 4, 2016, Fengcheng Notary Office in Laiwu city, Shandong Province issued the (2015) Fengcheng Notary Public no. 1849.

    In the original trial court, the original trial court unsealed the notarization object attached to the notarial certificate of Certificate No. 1849 of Laifeng City (2015), which showed that it contained a bottle of "Kweichow Moutai Liquor". The logo of "Kweichow Moutai" is pasted on the front of the packaging box and the bottle of the product. The logo shows: the word kweichow Moutai is marked in the middle with black and white diagonal lines on the upper and lower sides; In the upper left corner of the icon are the flying apsaras logo of Maotai and the words KWEICHOWMOUTAI; Kweichow Moutai Co., LTD. The box is marked with the words "Kweichow Moutai" on both sides. The wine bottle cap, the bar code of the wine bottle, the wine glass with the bottle as a gift, the anti-counterfeiting label with the label.

    The court of first instance also found that meng Qiuyue registered the taobao store of "Haihui Wine Industry" with the user name of "Gazi 1232".

    On May 27, 2016, Moutai Liquor Company filed a lawsuit to the court of first instance, requesting the following orders: 1. Taobao And Meng Qiuyue immediately stop infringing the exclusive right to use the Trademark of Moutai Liquor Company; 2. 2. Meng Qiuyue published a statement on the homepage of taobao.com for 30 days to eliminate the influence; 3. Meng Qiuyue shall compensate Moutai Liquor Company for economic losses and reasonable expenses of rights protection of RMB 100,000 yuan; 4. The litigation costs of this case shall be borne by Taobao Company and Meng Qiuyue. In the original trial, Moutai withdrew the second claim and all claims against Taobao.

    The court of first instance holds that China Kweichow Mowai Distillery (Group) Co., Ltd. is the holder of the trademark whose registration number is no. 284526 and No. 3159143. These trademarks are still protected within the period, and the legal state is stable, and the exclusive right of the trademark should be protected by law. China Kweichow Moutai Distillery (Group) Co., Ltd. authorizes Moutai To use the said trademark and to file a separate civil lawsuit against the infringement of the said trademark rights. Therefore, Moutai Is a qualified plaintiff in this case. In this case, the products involved marked the words and ICONS of "Kweichow Moutai" on the packaging boxes and bottles, and marked the labels at the wine bottle caps and bar codes, etc., which played a role in identifying the source of goods and should belong to trademark use. Outer-package of product and bottle labeled "guizhou maotai" icon positive compared with maotai company use no. 284526 of the trademark, the overall structure, and the word "guizhou maotai" is the trademark has significant recognition part, by the relevant public attention, easy to cause confusion or mistake on the sources of goods, therefore, products involved in the bottle, bottle bottle with the words "guizhou maotai" icon and maotai company use constitute a similar mark the 284526th of a registered trademark. The goods involved in the case used the same logo as the registered trademark No. 3159143 in many places such as wine bottle caps and bar codes, constituting the same trademark. In addition, the above-mentioned two registered trademarks of Moutai Liquor Company involved in this case are both approved to use "liquor", while the infringing item is liquor, so it should be the same commodity. Moutai Confirmed that the products involved were produced without the right owner or authorized. To sum up, the products involved in the case are infringing the exclusive right of registered trademark No. 284526 and No. 3159143 owned by Moutai Liquor Company. According to item (3) of Article 57 of the Trademark Law of the People's Republic of China, the sale of commodities infringing the exclusive right to use a registered trademark shall be an act infringing the exclusive right to use a registered trademark. Therefore, Meng qiuyue's sales of baijiu with the trademark involved violated moutai's exclusive right to use the registered trademark involved in the case. Moutai company withdrew the lawsuit against Taobao company, so it is no longer judging the liability of Taobao company.

    In conclusion, When Meng Qiuyue sells commodities that infringe the exclusive right of the trademark involved in the case, she infringes the exclusive right of the trademark involved in the case of Moutai, and fails to provide the legal source of the commodities involved, so she shall bear the civil liability for compensation. As for the amount of compensation, Moutai liquor Company maintains that the amount of compensation should be calculated according to the legal compensation. The court of first instance should take into account the popularity of the trademark involved, the nature of Meng Qiuyue's infringement, the degree of subjective fault, and the reasonable expenses paid by Moutai liquor Company to stop the infringement. At the same time, the court of first instance took note of the following facts: 1. 2. Maotai Liquor Company notarizes rights and entrusts a lawyer to appear in court, and pays 639 yuan for the shopping. During the trial, Moutai Confirmed that Meng Qiuyue's store had no information of being accused of infringement, so the moutai company's appeal to Meng Qiuyue to stop infringement was no longer necessary, and the court of first instance did not support it. In conclusion, the original court in accordance with the trademark law of the People's Republic of China article sixty-three, article 57, 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, the Supreme People's Court about civil action evidence certain provisions on the provisions of article 2, sentence on October 9, 2016: a month, the first month of autumn in the decision within 10 days from the date the maotai company economic loss compensation (including the reasonable expenses) 100000 yuan; Other claims of Moutai Shall be dismissed. If the pecuniary obligation is not performed within the period specified in the 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 acceptance fee is 2300 yuan, borne by Meng Qiuyue.

    Meng Qiuyue, the appellant, refused the above civil judgment and appealed to the court, saying: 1. The court of first instance found the facts unclear. < / p > < p > Meng Qiuyue did not receive the first instance court summons, because live in the mountains, summons has not been served on family hands, received the notice when the trial has ended. 2. Meng Qiuyue purchased products from other stores on Taobao and sold them to earn a price difference. She was not aware of the trademark infringement. 3, evaluation 213, transaction records 338, are brush records. All brushing orders are delivered by Quanfeng express, and the brushing record and express record can be provided. Moreover, taobao store has been closed due to the suspected false transaction of brushing. 4. The goods involved were purchased by other taobao stores, which were also closed in November 2015. Moutai demanded compensation of 100,000 yuan, more than Meng could afford. 1. Cancel hangzhou Yuhang District People's Court (2016) Zhejiang 0110 civil judgment No. 7389 in the early Republic of China, and amend the judgment to reject the claim of Moutai Liquor Company for Meng Qiuyue's compensation for economic losses and rights protection expenses of RMB 100,000; 2. Moutai Shall bear the litigation costs for the second instance.

    The appellant, Moutai Liquor Company, argues that the facts in the original judgment are clear and the application of law is correct. The appellant requests to reject Meng Qiuyue's appeal and maintains the original judgment.

    In the first instance, the defendant Taobao pleaded that: In the first instance, Moutai Liquor Company has abandoned the claim against Taobao company, Taobao company is not liable for tort. Request to maintain the original judgment against taobao part of the company.

    During the second instance, Meng Qiuyue, the appellant, submitted the following evidence: Courier receipt and inquiry records. Proof: most of the goods involved in the sales are brush.

    After cross-examination, Moutai liquor company believes that the Courier receipt and query records can not verify the authenticity, nor prove the fact of brushing. After examination, the court found that Meng Qiuyue failed to submit the transaction details and logistics records of the products involved in the infringement, and the express order's relevance to the case could not be determined, so it did not have evidence validity.

    The court confirms the facts ascertained in the original trial.

    According to the appeal request and reasons of The appellant meng Qiuyue and the respondent Moutai Liquor Company's defense opinions, the focus of the disputes between the parties of the case in the second instance are as follows: 1. 2. Whether the amount of compensation awarded by the court of first instance is reasonable.

    As for the first focus of dispute, in accordance with Article 136 of the Civil Procedure Law of the People's Republic of China, the people's court shall notify the parties and other participants in the proceedings three days before the opening of the court session. Check the files of trial on June 4, 2016, I have to sign for first month of autumn month court summons, even by the second instance when the statements in the Mid-Autumn festival party see the summons, time is about September 15, 2016, and the court of first instance trial time for October 9, 2016, so there is no failure to receive a summons, we appeal to the reason not to support in accordance with the law.

    As for the second focus of the dispute, Article 63 of the Trademark Law of the People's Republic of China stipulates, "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual loss suffered by the right holder due to the infringement. Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; Where it is difficult to determine the losses of the right holder or the benefits obtained by the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. ... If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the profits obtained by the infringer as a result of the infringement, or the licensing fee for the use of the registered trademark, the people's court shall make a judgment of not more than three million yuan in accordance with the circumstances of the infringing act." For Meng Qiuyue's reasons for appeal, first, Meng Qiuyue stated that the products involved in the infringement were purchased from other stores, and there was no subjective fault. We think that the infringing products involved for maotai, first month of autumn month as operators of liquor products, on the one hand, its purchase price and the price of the authentic maotai readme varies widely, not belong to the normal and reasonable market prices, on the other hand, it did not to purchase product for effective product quality inspection certificates and alcohol operator affixed with the seal of drinks the enclosed form, its behavior belongs to know or should know the commodity involved infringing goods for sale, has the obvious subjective fault. Second, Meng Qiuyue statement transaction records are brush single generation. In this regard, the court believes that the transaction record on Taobao.com is an automatic record of the number of sales agreements reached between sellers and relatively specific buyers by the online trading platform system. Moutai Has fulfilled its initial burden of proof and should be confirmed in the absence of sufficient evidence to prove the existence of false transactions. In this case, Meng Qiuyue did not provide the specific sales records of the products involved in the infringement, and could not check with the express order one by one, and could not prove the fact that he claimed to brush the order. Meanwhile, Meng Qiuyue also recognized his actual sales behavior. So in this case, the original court in maotai company did not provide the evidence to prove that its infringement or damage the interests of the first month of autumn month for the infringement cases, comprehensive consideration of the fame of the trademark involved in the degree, the nature of the infringement behavior, subjective fault, maotai company factors such as reasonable expense for stopping the infringement, the discretion to determine the first month of autumn month maotai company 100000 yuan for compensation Yu Fayou according to, we confirm. Therefore, the court does not support Meng Qiuyue's appeal based on the fact and legal basis.

    To sum up, the judgment in the first instance clearly ascertained the facts, applied the law correctly, and dealt with the entity properly, and the appellant Meng Qiuyue's claim of appeal was not established, the judgment is made as follows in accordance with article 170, Paragraph 1 (1), and Article 175 of the Civil Procedure Law of the People's Republic of China:

    Dismiss the appeal and maintain the original judgment.

    The fee for the second instance is RMB 2,300, which shall be borne by Meng Qiuyue, the appellant.

    This judgment shall be final.

    Zhang Mian, chief judge

    Acting judge Rebecca Wong

    Acting judge Li Cheng

    December 16, 2016

    Clerk Huang Fang