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, 6769 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.

    Defendant: Storing winter plums.

    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 Chu Dongmei had a trademark infringement dispute. After the case was filed on May 3, 2017, the court held a trial in public by using ordinary procedures according to law. The plaintiff MAO Tai company enlists lawsuit agent Zhai Mingyue, the defendant Taobao company enlists lawsuit agent Chen to attend a lawsuit, the defendant Chu Dongmei by court summons without justifiable reason refused to appear in court. The case is now closed.

    The plaintiff Moutai Company filed a lawsuit to the court: 1. The defendant set up Taobao company and Chu Dongmei to stop infringing the plaintiff's trademark right immediately; 2. 2. Defendant Chu Dongmei published a statement on the front page of taobao online store for 30 days to eliminate the influence; 3. Judge the defendant Chu Dongmei to compensate the plaintiff for the economic loss and the reasonable expense of safeguarding the rights, totaling RMB 200,000 yuan; The costs of this case shall be borne by the defendant. During the trial, Moutai Company withdrew the first and 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. In November 2015, Moutai Company found that Chu Dongmei's online store on Taobao.com violated the registered trademark of Moutai company by selling baijiu, which seriously infringed the legitimate interests of Moutai 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 is a service provider of the online platform, and only ACTS as the transaction object of users, negotiates the transaction of goods and services, and obtains all kinds of trade-related goods and services, and does not participate in the transaction itself as a buyer or seller. So Taobao company did not carry out direct infringement. 2. Even if Chu Dongmei's act of publishing the commodity information related to the lawsuit on the platform constitutes infringement, Taobao shall not constitute infringement for lack of fault. 3. No matter whether the act involved constitutes infringement or not, Taobao has not committed infringement, and the plaintiff's claim against the respondent should 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.

    Chu Dongmei, the defendant, did not enter a plea.

    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. If the defendant Chu Dongmei did not appear in court and did not submit evidence, it is deemed to have waived her right to cross-examine evidence. For the evidence submitted by Moutai Company, the court finds as follows: Evidence 1 (2014) ren notarization notarial deed original 2950-1, evidence 2 # 3159143 trademark registration certificate, registered trademark certificate change, renewal of registration approval certificate, original evidence 3 (2016) ren certificate notarial deed original, no. 601 is evidence 4 word no. 400 (2013) ren notarization notarial deed original and approved trademark renewal of registration certificate no. 237040, evidence five word no. 2950 (2014) ren notarization notarial deed original, 6 shows that the original evidence, evidence 7 (2015) pingyin certificate by the word no. 938 is notarial deed original and physical involved, Evidence 8 The original invoice of notary fee, Taobao company has no objection to its authenticity, which has been confirmed by the examination of this hospital. Evidence provided by the taobao company, we decided as follows: the evidence 1 (2016) money of the word no. 9151 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, via our review and confirm.

    Based on the above valid evidence and the parties' statements in the court hearing, 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 China Kweichow Moutai Distillery (Group) Co., LTD. (hereinafter referred to as Moutai Group); On June 17, 2013, the registration of registered trademark No. 3159141 was approved and renewed, valid until April 20, 2023.

    On April 21, 2003, China Kweichow Moutai Distillery Co., Ltd. obtained the registered trademark No. 3159143 "", which approved the use of category 33 commodities, including alcoholic beverages (except beer), fruit liquor (containing alcohol), liquor (beverages), 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. 3159143 in the name of Moutai Group; On May 27, 2013, the registration of registered Trademark No. 3159143 was approved to be renewed and valid until April 20, 2023.

    On September 28, 2003, Kweichow Moutai Distillery Co., Ltd. of China obtained the registered trademark No. 3333018 "", which approved the use of category 33 commodities, including fruit liquor (alcoholic), liquor (beverage), alcoholic liquid, alcoholic beverage (except beer), etc. The registration is valid until September 27, 2013; On May 6, 2013, the Trademark Office of the State Administration for Industry and Commerce approved the change of registered trademark No. 3333018 in the name of Moutai Group; On October 8, 2013, the registration of registered trademark No. 3333018 was approved for renewal and shall remain valid until September 27, 2023.

    On November 19, 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. 3333018 in the name of Moutai Group; After being approved by the Trademark Office of the State Administration for Industry and Commerce, the registered trademark No. 3333018 shall remain valid until November 14, 2025.

    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), no. 3333018 (from September 28, 2013 to December 30, 2018) trademarks, no. 3159143 (from April 21, 2013 to December 30, 2018) trademarks, no. 237040 (November 15, 2005 to December 30, 2018), trademark, etc., within 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 November 19, 2015, shandong changping law firm entrusted agent shou-zhen wang applied to shandong pingyin notarization for its purchases infringing products on taobao, 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 the same day, shou-zhen wang in the notary and the notary personnel under the supervision of the use of notarization computer to buy on taobao shopkeeper called "I like" 4360 "dongsheng" wine shop sales of guizhou maotai, and intercepting the related sales page, page shows the commodity name for "guizhou new 53 degrees flying maotai 500 ml glass of maotai-flavor liquor quality goods on sale", price 738 yuan, total review 625, 364 trading success, buy 2 pieces, real payment of 1400 yuan, is the order number: 12750602237754885. The seller delivers the goods via Zto Express, the tracking number is 762898172463. On November 27, 2015, under the supervision of notaries and notaries, Wang Shouzhen came to the sales department of Zto Express in the north section of Yushan Road, Pingyin County to pick up a package of zto Express with the tracking number 762898172463. Back at the notary office, I opened the package under the supervision of the notary staff. There were two bottles of "Kweichow Moutai liquor" and one handbag inside. After taking photos, the package was sealed by the notary staff and kept by Wang Shouzhen. On November 27, 2015, wang Shouzhen logged on Taobao.com with the computer of the notary office under the supervision of the notary public and the notary public, clicked in the "Bought Baby" to check the logistics details and order details of the order number "12750602237754885", and confirmed the receipt of the above orders. On December 1, 2015, Shandong Pingyin County Notary Office issued the (2015) Pingyin Certificate Jing Zi No. 938 notary.

    During the court hearing, the court unsealed the real notarization attached to the Notarization certificate no. 938 of Pingyin Certificate (2015). There was a box of Zto express. There are two bottles of white wine in the box and a paper bag, among which the words "Kweichow MOUTAI", "Kweichow MOUTAI", "Kweichow MOUTAI", "Kweichow MOUTAI" and other logos on the bag; The outer package box of the liquor shows the word "Kweichow Moutai". The box contains a bottle of liquor, a small package box and an anti-counterfeiting specification each. There is a flying symbol and the words "Kweichow Moutai" on the bottle body. Small boxes and security instructions with "" logo; There are two wine glasses in the small box, with the logo "" printed on the body.

    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 Company confirms that "Dongsheng Business Firm", a Taobao store named "Tao I Love 4360", is registered and operated by Chu Dongmei. Moutai confirmed that the infringing link has been removed.

    The court holds that Mowai Group Company is the holder of the trademark registration no. 3159141 "", 3333018", 3159143 "and 237040" Feitian pattern. 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 Company claims that storing winter plum and selling products that violate the exclusive right of the trademark involved above violate its exclusive right of the trademark involved above. 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, the marks "" and" "and the words" Kweichow Moutai "were used on the hand bags of the products involved. "Kweichow Moutai" and flying patterns are on the outer package and bottle. There are "" marks on the bottle cap, cup box, wine cup and the attached security specification. The above marks play a role in identifying the source of goods and belong to trademark use. The trademarks ""," "and Feitian on the goods and handbags are the same as those of Moutai Company No. 3333018, 3159143 and 237040 respectively; Bottles and carrier bags as shown on the "guizhou maotai" text compared with maotai company USES 3159141 trademark, the two words are basically the same, by the relevant public attention, easy to cause confusion or mistake on the sources of goods, therefore, in the case of products are marked "guizhou maotai" use with maotai company registered trademark constitutes trademark approximate number 3159141. In addition, the above-mentioned trademark involved in the case of Moutai Company is approved to use the scope of commodities including liquor, and the products involved in the case are liquor, so they should be the same commodities. Moutai company confirms that the products involved are not produced by right holders or authorized to produce. Therefore, the goods involved are those that use the same trademark or similar trademark on the same goods without the permission of Moutai Company, which may easily cause confusion, and belong to the goods that infringe the registered trademarks of plaintiff No. 3333018, No. 3159143, No. 237040 and No. 3159141. The sale of the above-mentioned infringing products also belongs to trademark infringement. Because Moutai company has dropped the lawsuit against Taobao company, the court will no longer judge the liability of Taobao Company.

    To sum up, If Storage Dongmei sells the infringing products involved and fails to prove that the products involved are legally obtained by it and the supplier, it shall bear the civil liability for compensation. 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 selling price of the product involved is 738 yuan, the accumulated comments are 625, the transaction is successful 364, the transaction record is 518, 2. Moutai company purchased products for rights protection for 1400 yuan, notarized evidence preservation and entrusted lawyers to appear in court; 3. The trademark involved has high popularity. 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, Chu Dongmei, shall compensate the plaintiff, Kweichow Moutai Co., Ltd. for the economic loss (including reasonable expenses) of 190,000 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 4,300 yuan, which is borne by the plaintiff Kweichow Moutai Co., Ltd. and 4,192 yuan by the defendant.

    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 4,300 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 Feng Bailiang

    September 30, 2017

    Clerk Zhang Xiaoying