Civil judgment of Chancheng District People's Court, Foshan City, Guangdong Province

    Chancheng District People's Court, Foshan City, Guangdong Province

    Written judgment of civil affairs

    (2018) Yue 0604, Early Republic of China No. 14730

    Plaintiff: Opai Furniture Group Co., LTD., domicile: No. 366, Guanghua Third Road, Baiyun District, Guangzhou City, Guangdong Province, unified social credit code ××97C.

    Legal representative: Yao Liangsong, chairman of the board.

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

    Defendant: Guanhu Trading Co., LTD., Shunde District, Foshan City, No.10 Shop of Poly Garden, No. 8 Wenhai West Road, Ronggui Haiwei Neighborhood Committee, Shunde District, Foshan City, Guangdong Province, unified social credit code ××88C.

    Legal representative: Zhang Yanfang, manager.

    Defendant: Zhongshan Xiangjia Electric Appliance Co., LTD., 4th Floor, Building B, No.10 Kangjing Road, Food Industrial Park, Huangpu Town, Zhongshan City, Guangdong Province, its domicile, unified social credit code ××66R.

    Legal representative: Zeng Shengli, chairman of the board.

    Defendant: Liu Wurong, male, born on November 11, 1973, Han Nationality, residing in Anfu County, Ji 'an City, Jiangxi Province,

    The co-authorized agent AD litem of the three defendants: Guo Hongxia, lawyer of Guangdong Jingzi Law Firm.

    Plaintiff opie household group co., LTD., shunde district, foshan city, v. the defendant crown fox business trade co., LTD. (hereinafter referred to as the crown fox company), zhongshan xiang home electric appliance co., LTD. (hereinafter referred to as xiang companies), Liu Wurong infringement trademark and unfair competition disputes, our college on June 25, 2018 to begin, the defendant xiang companies during the submit petition to the jurisdiction of the court, in our hospital in 2018 on July 26 to 0604 (2018), guangdong is one of the early 14730 civil verdict, reject the defendant xiang companies put forward objection to jurisdiction over the case. The ruling has taken legal effect. The court followed normal procedures in accordance with the law and held a hearing in public on February 18, 2019. Zhai Mingyue, the authorized agent AD litem of the plaintiff, and Guo Hongxia, the jointly authorized agent AD litem of the defendant, Guanhu Company, Xiangjia Company and Liu Wurong, attended the proceedings. The case is now closed.

    The plaintiff filed a lawsuit to the court: 1. The defendant Was ordered to stop the use of the word "Oupai" in its "JINGdong", "Suning" and "Gome Online" online stores and to stop the sale of disinfection cabinets, range hoods, gas stoves and water heaters marked with the words "Guangdong Oupai Electrical Appliances Co., LTD" in the TWO-DIMENSIONAL code; 2. Ii. The defendant Xiangjia company was ordered to immediately stop the production and sales of disinfection cabinets, range hoods, gas stoves and water heaters marked with the words "Guangdong Oupai Electric Appliance Co., LTD" on the TWO-DIMENSIONAL code; 3. The defendant Xiang Jia was ordered to immediately stop using the words "Guangdong Opai" and "Guangdong Opai Electrical Appliances Co., LTD" in the title of its www.opaiein.com.cn website and product pictures of its website; Iv. The defendant, Guanhu Company, was ordered to compensate the plaintiff for economic losses and reasonable expenses for safeguarding their rights in this case, totaling 400,000 yuan; V. The judgment ordered the defendants Xiang Jia Company and Liu Wurong to compensate the plaintiff for economic losses and reasonable expenses of safeguarding their rights in this case, totaling 800,000 yuan; 6. The three defendants were ordered to bear the costs of the case.

    Fact and Reason: Plaintiff was founded in 1994, is the leading brand of the whole cabinet industry, the products cover the whole wardrobe, kitchen appliances, bathroom, commercial kitchen utensils and other fields. "" "OPPEIN "and other trademarks owned by the plaintiff, after decades of meticulous construction and huge investment in advertising and publicity, have become household names and well-known brands of household furniture, kitchen appliances and sanitary ware in China. This brand has successively won the reputation of" China famous brand product ", "China well-known trademark" and so on. At the same time, in February 2017, the plaintiff was successfully listed in Shanghai with stock code 603208, which further laid the leading brand advantage of the plaintiff in the industry. Nowadays, in the public mind, "Opai" series of trademarks is not only a representative symbol of the plaintiff's products and enterprise names, but also a significant identification mark indicating the market subject and commodity source of the plaintiff and the plaintiff's affiliated enterprises.

    In April 2018, the plaintiff found that the defendant Guanhu company used the words "Guangdong Opai", "Guangdong Opai Electrical Appliances" and "European Opai Specialty stores" in a large number of online stores on "JINGdong", "Suning" and "Gome Online stores", and sold a large number of disinfection cabinets, range hoods, gas stoves and water heaters marked with the words "Guangdong Opai" on the QR code. To the above infringement, the plaintiff applied for notary office to preserve evidence. After further investigation, the plaintiff found that the above products were manufactured by Guangdong Opai Electric Appliance Co., Ltd. and the defendant Xiangjia Company, and the above products were also sold in "Aileen electric Appliance store" on "JINGdong". It was also ascertained that Guangdong Opai Electrical Appliance Co., Ltd. was a Hong Kong company, which had not obtained a business registration certificate in Hong Kong, and the defendant, Liu Wu-wing, was the sole shareholder of the company. After further investigation, the three defendants and Guangdong Opai Electric Appliance Co., Ltd. had been sued by the plaintiff for infringement of the plaintiff's trademark right and unfair competition. The three defendants and Guangdong Opai Electric Appliance Co., Ltd. have promised to stop the infringement immediately in the mediation document of the court. Also found out, www.opaiein.com.cn website title and website product pictures also used a large number of "Guangdong Opai" "Guangdong Opai Electrical Appliances Co., LTD.", the owner of the website for the defendant Hunan company. It was also ascertained that the plaintiff's agent had notified the defendant Guanhu Company on March 13, 2018 through the online contact information of jingdong.

    To sum up, the plaintiff argues that the three defendants to clings to the plaintiff's "European" brand reputation, deliberately in the store, company name, website, title, product images and products production and sales of qr code in the illegal use of "European" words, the behavior is not only the infringement of the right to exclusive use of a registered trademark of the plaintiff, and violate the principles of honesty and credit and recognized business ethics, the infringement of the right to enterprise name of the plaintiff, constituting unfair competition to the plaintiff. The defendant, Liu Wu-rong, took advantage of the relaxed company registration system in Hong Kong to register the plaintiff's registered trademark as the name of a Hong Kong company, and then authorized the infringement activities in China in the name of the Hong Kong company to obtain illegal interests. This act greatly infringed the interests of the plaintiff, disturbed the normal operation order and violated business ethics. This case should uncover the mystery of its malicious registration company, apply the corporate personality denial system, let it bear the corresponding legal responsibility. The three defendants in this case have repeated infringement, and the infringement has obvious malicious intent. Therefore, according to the Trademark Law of the People's Republic of China, The Law of the People's Republic of China against Unfair Competition and other relevant provisions, the plaintiff filed a lawsuit to the court, and asked for a judgment as requested.

    The defendant, Guanhu Company, argued that first, the plaintiff repeatedly sued the online stores of "JINGdong" and "Suning" for infringement. The plaintiff in this case has already filed a lawsuit in case No. 15,499 of Yu0604 in the early Republic of China (2018), demanding compensation of 600,000 yuan from Guanhu Company. Therefore, this case is a repeated lawsuit, and the relevant claims should not be supported repeatedly. 2. The use of the word "Opai" and the trademark "OPAIEIN" by Guanhu in its online stores of "JINGdong", "Suning" and "Gome Online stores" does not infringe the exclusive right of the plaintiff, nor does it constitute unfair competition. The trademark "OPAIEIN" used by Guanhu Company is legally registered by the trademark holder guangdong Opai Electric Appliance Co., LTD., which is still valid to this day. Therefore, Guanhu Company has no infringement and does not need to compensate the plaintiff for any losses. In addition, Crown Fox has closed its Gome store on June 4, 2018, and the store is no longer in operation. 3. Guanhu company has deleted the words related to "Opai" in its online store, and the TWO-DIMENSIONAL code has also stopped being used. The plaintiff's first claim has no basis. Iv. The plaintiff's claim against Guanhu Company for economic loss of RMB 400,000 has no basis and should not be supported by the court according to law. In this case, the plaintiff did not prove the loss, and Crown Fox company did not make a profit by selling the products involved, so Crown Fox company is not liable for compensation. Fifth, crown Fox company does not have malicious infringement, does not belong to the repeated infringement. The civil judgment No. 6866 of Yue 0604 in the early Republic of China was not the effective judgment. In this case, Guanhu Company and the plaintiff reached a mediation agreement during the second instance. In accordance with the provisions of Article 67 of The Provisions of the Supreme People's Court on Evidence for Civil Proceedings, the crown Fox Company cannot be deemed to have committed infringement ACTS based on the judgment and the mediation agreement reached between Crown Fox Company and the plaintiff, let alone the repeated infringement and obvious malicious infringement by Crown Fox Company. In summary, the request to dismiss the plaintiff's action or to dismiss his claim.

    The defendant Xiangjia company argued that the plaintiff repeatedly sued for infringement. The plaintiff in this case has filed a lawsuit in case No. 9866 in the early Republic of China of Guangdong 2072 (2018), demanding compensation of 300,000 YUAN from Xiangjia Company. Therefore, this case is a repeated lawsuit and the relevant claims should not be supported repeatedly. 2. The use of the word "Guangdong Opai" in the website title, product pictures and TWO-DIMENSIONAL code of Xiangjia Company does not infringe the plaintiff's right to exclusive use of the trademark, nor does it constitute unfair competition. The trademark "OPAIEIN" used by Xiangjia Company is legally registered by the trademark holder guangdong Opai Electric Appliance Co., LTD., which is still valid to this day. Therefore, Xiangjia Company does not have any infringement and does not need to compensate the plaintiff for any losses. Three, Xiangjia company has deleted the website title and website product pictures in the "Opi" related words, two-dimensional code has also stopped using. The plaintiff's first claim has no basis. Iv. The plaintiff's claim against Xiangjia Company and Liu Wurong for compensation of economic loss of RMB 800,000 has no basis and should not be supported by the court according to law. In this case, the plaintiff did not prove its loss, and Xiangjia company did not make profits from the sale of products with the word "European", so Xiangjia Company is not liable for compensation. Fifth, Xiangjia company does not exist malicious infringement, does not belong to the repeated infringement. (2016) Civil judgment No. 6866 of Yue 0604 in the early Republic of China was not effective judgment. In this case, Xiangjia Company and the plaintiff reached a mediation agreement during the second instance. According to the provisions of Article 67 of The Provisions of The Supreme People's Court on Evidence for Civil Proceedings, the judgment and the mediation agreement reached between Xiangjia Company and the plaintiff shall not confirm the infringement of Xiangjia Company, let alone the repeated infringement and obvious malicious infringement of Xiangjia Company. In summary, the request to dismiss the plaintiff's action or to dismiss his claim.

    The defendant Liu Wu-rong argued that, first, Liu Wu-rong is not a qualified defendant in this case, the plaintiff sued the wrong. Liu Wu-rong is a director of Guangdong Opai Electric Appliance Co., LTD., which is not the same subject as Guangdong Opai Electric Appliance Co., LTD. What Liu Wurong did in connection with Guangdong Opai Electric Appliance Co., Ltd. was an act of duty performance, not a personal act of Liu Wurong, and the legal consequences shall be borne by Guangdong Opai Electric Appliance Co., LTD. Request the court to dismiss the plaintiff's action against Liu Wurong or dismiss the plaintiff's claim. Guangdong Opai Electrical Appliances Co., Ltd. has never produced or sold disinfection cabinets, range hoods, gas stoves, and water heaters marked with the words "Guangdong Opai Electrical Appliances Co., LTD." in the two-dimensional code, and guangdong Opai Electrical Appliances Co., Ltd. has gone through relevant procedures for the cancellation of company registration with the Companies Registry of the Hong Kong Special Administrative Region. 3. Guangdong Opai Electric Appliance Co., Ltd. does not violate the trademark right of the plaintiff and conduct unfair competition, let alone that of Liu Wurong. When the plaintiff filed this lawsuit, Guangdong Opai Electric Appliance Co., Ltd. was still legally registered, and the trademark "OPAIEIN" was the legally registered trademark of "OPAIEIN", which is still valid. "OPAIEIN" once authorized Guanhu and Xiangjia to use the word "Opai" and the trademark "OPAIEIN", which did not infringe the exclusive right of the plaintiff's trademark and did not constitute unfair competition. Therefore, Guangdong Opai Electric Appliance Co., LTD., Guanhu Co., Ltd. and Xiangjia Co., Ltd. do not have infringement behaviors, and do not need to compensate the plaintiff for any losses. Iv. The plaintiff's claim against Xiangjia Company and Liu Wurong for compensation of economic loss of RMB 800,000 has no basis and should not be supported by the court according to law. In this case, the plaintiff did not prove the loss, guangdong Opai Electric Appliance Co., Ltd. also did not make profits due to the production and sales of "Opai" products, and the company has been cancelled, has stopped production and operation, so Liu Wurong does not have to bear the liability for compensation. V. Liu Wurong does not have malicious infringement and does not belong to repeated infringement. (2016) Yue 0604 Civil judgment No. 6866 in the early Republic of China is not an effective judgment. In this case, Liu And the plaintiff reached a mediation agreement during the second instance. According to the provisions of Article 67 of The Provisions of The Supreme People's Court on Evidence for Civil Proceedings, liu Wurong shall not be deemed to have committed a tort based on the judgment and the mediation agreement reached between Liu Wurong and the plaintiff, still less shall Liu Wurong be deemed to have repeated torts with obvious malicious torts. In summary, the request to dismiss the plaintiff's action or to dismiss his claim.

    To prove a claim, the plaintiffs to we submitted the following evidence: 1. The word no. 347 (2016) lai FengCheng card people, (2017) lai FengCheng people word notarial deed, (2016) no. 675 lai FengCheng word no. 350, (2017), the people FengCheng certificate notarial deed, (2016) no. 672 lai people word FengCheng word no. 346, (2017), the people FengCheng certificate notarial deed, (2016) no. 673 people word word no. 348 lai FengCheng card people notarial deed; 2. The word no. 352 (2016) lai FengCheng card people notarial deed, issued by the state administration for industry and commerce trademark office trademark chi word [2009] no. 7 on that "European" trademark for well-known trademark approval, (2016) lai FengCheng people word certificate notarial deed, (2017) no. 353 lai FengCheng people word certificate notarial deed, (2016) no. 260 lai FengCheng people word notarial deed, (2016) no. 357 lai FengCheng certificate notarial deed, (2016) no. 355 lai people word FengCheng certificate notarial deed no. 356, 2011 people word on April 21, 22, 25, 26, 28, 29 "Linchuan evening news published day, on August 26, 2011 issue of the" shenzhen special zone signs up for ", on September 20, 2011, published on September 30, anqing daily, published in September 2010 years of the ambry in Shanghai ", published in June 2011, the sales and marketing management edition, published in April 2011 "ruili household", published in April 2014, decorate world magazine (the newspapers are all copy); 3. (2018) Fengcheng Certificate No. 527 and Notarial sealed articles, (2018) Fengcheng Certificate No. 602, (2016) Yue0604 Civil Judgment No. 6866 (excerpt), (2017) Yue06 Minzhong No. 7607 Civil Conciliation Statement; 4. Two notary fee bills; 5. The plaintiff's business license, the industrial and commercial registration information of Guanhu Company and Hunan Company, the registration materials of Guangdong Opai Electrical Appliance Co., LTD (from the Hong Kong Companies Registry), and the identity information of Liu Wu-rong.

    For the above evidence, the court recognizes as follows: For evidence 1, the three defendants have no objection to the authenticity, because the group of evidence is a notarized document issued by the notarial office according to law, the content is the trademark registration document of the plaintiff, etc., which is related to this case, the court accepts and accepts; For 2 evidence, the three defendants in reality, there is no objection for this group of evidence in addition to the newspaper, are notarized documents issued by the notary public in accordance with the relevant documents issued by the administrative organ of legal sources, is associated with the case, we shall be disbelieved newspapers did not provide the original check, but with (2016), we have believed FengCheng certificate no. 355, 356 people notarial deed content can support each other, so we be trusted; For 3 evidence, three defendants on (2018) lu lai FengCheng people word and notary seal item no. 527, (2018) lu lai FengCheng word no. 602 is the people notarial deed, there is no objection on the authenticity of the evidence that is associated with the case to the facts, we believed, the three defendants not objection for the remainder of the group evidence evidence of authenticity, for which some evidence for the former case, the defendant's judgment, the conciliation statement, relevant to the case, we are to be believed; With regard to evidence 4, the three defendants disagreed with the authenticity, and because the group of evidence was confirmed with evidence 3, the court accepted it. In evidence 5, the court admissible the fact that the three defendants had no objection to the authenticity.

    In order to prove the defense claim, the defendant Guanhu Company submitted the following evidence: 1. (2018) Yue 0604 Civil Complaint Case No. 15,499 and application for increasing the amount of claim; 3. Three online printouts of Gome.

    For the above evidence, the court finds as follows: for evidence 1 and 2, the plaintiff and the defendant Xiang Jia Company and Liu Wurong have no objection to the authenticity, and the court accepts the above evidence which is relevant to this case; For evidence 3, the plaintiff does not confirm the authenticity, and the defendant Xiang Jia Company and Liu Wurong have no objection to the authenticity, because the evidence reflects the store contract situation of the backstage of Gome online merchant, the source and content of which cannot be confirmed, the court will not accept it.

    In order to prove the defense claim, the defendant Xiangjia Company submitted the following evidence: 1. (2018) The civil judgment of Guangdong 2072 case No. 9866 in the early Republic of China.

    As for the above evidence, the court finds as follows: The plaintiff and the defendant guanhu Company and Liu Wurong have no objection to the authenticity of the above evidence, and the Court accepts it.

    The defendant, Liu Wu-rong, did not present evidence in the case.

    On the basis of the admissible evidence and the parties' statements, the following facts may be ascertained:

    The plaintiff and his claim

    The plaintiff Opai Household Group Co., Ltd. was founded on July 1, 1994. Its business scope is furniture manufacturing industry, and its main businesses are integral kitchen (including kitchen stove, electrical appliances), cabinets and wardrobes, integral bathroom (including water heater and other bath equipment).

    On November 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. was approved to register trademark No. 1128213 "", and approved to use goods in category 20, including furniture, sideboards, counters, etc. The registration was renewed and valid until November 20, 2027. On December 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. approved and registered the trademark "" no. 1137521, and approved the use of goods in category 11, including kitchen stoves, gas stoves, electric cookers, etc. The registration was renewed and valid until December 20, 2027. On June 7, 2007, Guangzhou Opai Cabinet Enterprise Co., Ltd. approved and registered the trademark No. 4378572 "", and approved the use of goods in category 11, including gas stoves, bathroom fixtures, disinfection cupboards, bath equipment, kitchen range hoods, etc., and the registration was renewed and valid until June 6, 2027. On March 14, 2011, Guangdong Opai Group Co., Ltd. approved and registered the trademark "OPPEIN" No. 7731876, which was approved to be used in category 11, including cooking utensils, gas stoves, water heaters, kitchen range hoods, bathroom fixtures, bath appliances, etc. The registration is valid until March 13, 2021. The four registered trademarks above changed the name of the registrant to be the plaintiff on March 24, 2014.

    From March 2005 to February 2011, the trademark "" of Guangzhou Opai Cabinet Enterprise Co., Ltd. was recognized as a famous trademark of Guangdong Province on the sideboard and other commodities. From September 2007 to September 2010, Opai household cabinets produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. were identified as China's famous brand products by the General Administration of Quality Supervision, Inspection and Quarantine. From October 2008 to September 2011, Opai cabinets produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. were identified as guangdong famous brand products by Guangdong Provincial Bureau of Quality and Technical Supervision. On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized guangzhou Oupai Cabinet Enterprise Co., Ltd. as a well-known trademark. From December 2012 to December 2013, Guangdong Opai Home Furnishing Group Co., Ltd. was named "2012 China's top 100 kitchens overall kitchen leading enterprises". From January 2016 to December 2018, the trademarks "OPPEIN" and "" used by the plaintiff on sideboards, furniture (wardrobes), kitchen range hoods and bathing equipment were recognized as famous trademarks of Guangzhou by The Administration for Industry and Commerce of Guangzhou municipality.

    From 2011 to 2016, the plaintiff continued to publicize its "Opai" brand through advertisements in many newspapers such as Linchuan Evening News, Ruili Home Furnishing and Decorate the World, as well as media such as CCTV and Hunan SATELLITE TV. The advertising slogan "There is a family, there is love, there is Opai" was promoted together with its "Opai" brand. From 2013 to 2015, the plaintiff continued to employ jiang Wenli, a film and television star, as the spokesperson of "Opai" brand cabinet, wardrobe, bathroom and other products.

    The facts of an alleged infringement

    In order to safeguard their legitimate rights and interests, the plaintiff authorized The Jindun Intellectual Property Service Center in Laicheng District of Laiwu City to notarize the preservation evidence on behalf of the Center and filed an application for the preservation evidence notarization to Fengcheng Notary Office of Laiwu City, Shandong Province on April 18, 2018. (I) On April 18, 2018, under the supervision of notaries and notaries of the notary Office, Wang Shouzhen, the entrusted agent of Jindun Intellectual Property Service Center in Laicheng District, Laiwu city, used the computer connected to the Internet of the notary Office. In jingdong online champions league fox business trade co., LTD., shunde district, foshan city, "" open" OPAIEIN flagship store "in the store to buy the goods entitled" OPAIEIN (guangdong) disinfection cabinet embedded household disinfection cupboard with high temperature disinfection cabinet OP512 gold ", "OPAIEIN (guangdong) kitchen lampblack machine suit smoke oven suit smoke lampblack machine kitchen three-piece suit the kitchen" words of alexipharmic ark, oil absorption, kitchen burning gas, water heater, every one, total price 3898 yuan, after the payment, generate the order of the order number is 73192811514. Shou-zhen wang were then login crown fox business trade co., LTD., shunde district, foshan city, "" in Su Ningyi purchase website to open" opie OPAIEIN guangdong electrical outlet ", "fox electrical outlet", in gome online website to open the "fox stores OPAIEIN European champions league," online browsing, and through their own "jd_9598100" account with jingdong "OPAIEIN flagship store" online customer service online chat history records. The titles or links of the products displayed on the four websites all contain the word "Canton and Eastern European". On April 25, 2018, in the notarization notaries and notarial personnel, under the supervision of laiwu city in shandong province shou-zhen wang came to lai city victory south road no. 50 (California lido shops along the street) "jingdong help services" of the sales department, in the sales department to extract the packaging intact, marked with "instantaneous gas water heater domestic heating water, gas cookers" home ", "" embedded disinfection cabinet, the wording" household range hood "four pieces of goods (merchant order number 73192811514). Wang Shouzhen will open the above containers respectively, there are marked "OPAIEIN" water heater, gas stove, disinfection cabinet, a range hood and a manual. The notary and notary staff shall seal the above articles with the seal of the notary office and deliver them to Wang Shouzhen for safekeeping. On May 3, 2018, under the supervision of notaries and notaries in the notary office, Wang Shouzhen confirmed the receipt of the order 73192811514 from Jingdong by using the computer connected to the Internet in the notary office. On May 29, 2018, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2018) Lulaiwufengcheng Notary No. 527 for the above process. (2) on June 5, 2018, in the notarization notaries, notarial personnel, under the supervision of shou-zhen wang in the public notary office, the use of mobile phones WeChat XXX scanning (2018), respectively, shandong laiwu FengCheng word no. 527 is notarial deed card people attached pictures of the water heater, gas burner, disinfection cabinet, the conversion of oil absorption smoke that qr code on the packing, four web page pops up, the above four forward the website links to the qr code link WeChat XXX of "file transfer assistant", displays the qr code link page titles are based on "guangdong opie hutch electricity, guangdong opie kitchenware, guangdong electrical appliances, Guangdong opie hutch defends electric appliances, guangdong European kitchen appliances, guangdong opie electric appliance co., LTD., range hood, cooker, disinfection cabinet, water heater, web sites are "http://www.opaien.com.cn/..." , log into the computer web WeChat client, click in the "file transfer assistant" into the above to browse the web, according to the above the top of the page and the product pictures of the water heater, gas burner, disinfection cabinets, range hood products are marked with "OPAIEIN" logo, more pictures product of oil absorption marked "OPAIEIN" logo and the wording "guangdong opie electric appliance co., LTD."; Wang then used a computer to check the registration information of the domain name "opaien.com.cn", which showed that it was registered by "Zhongshan Xiangjia Electrical Appliance Co., LTD". On June 8, 2018, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2018) Lulaiwufengcheng Notary No. 602 to certify the above process. The plaintiff paid 2,000 yuan for the notary fee.

    During the court hearing, the sealed items attached to the (2018) Notarization certificate of Fengcheng Fengzi No. 527 are respectively water heater, gas stove, disinfection cabinet and range hood (all of which are the products accused of infringement in this case), which are consistent with the photos attached to the notarization certificate. "OPAIEIN?" is printed on the front of the outer packing boxes of the alleged infringing products. Logo, "400-8733-189" words and large TWO-DIMENSIONAL code, the side of the outer packing box and the instruction manual are all marked with "OPAIEIN? Logo, "Manufacturer: Zhongshan Xiangjia Electric Appliance Co., LTD." and address, telephone, website and other information; The alleged products were labeled "OPAIEIN? "Zhongshan Xiangjia Electric Appliance Co., LTD" is marked on the energy efficiency label and product parameter label of the products. The production dates of the water heater, gas stove, disinfection cabinet and range hood products accused of infringement are respectively January 6, 2018, December 29, 2017, January 30, 2018 and April 6, 2018.

    The plaintiff thinks, jingdong, Su Ningyi purchase, gome online on the website of the four involved online in the name of the shop, the shop name of commodity links within the extensive use of the word "Europe", is accused of infringement product outer packing the qr code on the link to the page title contains "guangdong opie kitchen electric" "guangdong opie kitchenware" "guangdong opie appliances" "guangdong opie hutch defends electric appliance" "guangdong opie kitchen appliances" wording, such as web pages, the words above are using the "European" words, no. 4378572 "" trademark identical with the plaintiff, the infringement of the right to exclusive use of a registered trademark; The qr code on the outer packing cases of the alleged infringing products linked to a web page whose title contained the words "Guangdong Opai Electric Appliance Co., LTD.", and a range hood marked "Guangdong Opai Electric Appliance Co., LTD." in several photos of the products on the page, which was an act of unfair competition that infringed the plaintiff's right to the enterprise name.

    The defendant crown fox company identified four stores involved as its opening, is accused of infringement product is its sales, confirm the defendant xiang companies have been accused of infringement product is the production, but think is accused of infringing products labeled "OPAIEIN" logo, and the plaintiff's registered trademark, involved in online stores, web page using the word "guangdong" is registered in Hong Kong short for guangdong opie electric appliance co., LTD., shall not constitute a trademark infringement and unfair competition.

    Other relevant facts

    (1) The defendant, Guanhu Company, was established on August 1, 2012, and its business scope covers wholesale and retail of electronic products and household appliances.

    The defendant Xiangjia Company was established on July 30, 2012. Its business scope covers the production and sales of household appliances and accessories, range hood, electric water heater, disinfecting cupboard, gas cooker, gas water heater and hardware products.

    Guangdong Opai Electrical Appliances Co., LTD., incorporated in the Hong Kong Special Administrative Region on 10 May 2012, is no. 1742771 and its address is Room B07, 23 / F, Luxury Industrial Building, 26-38 Kwai Cheong Road, New Territories, The Hong Kong Special Administrative Region. Its directors and shareholders are the defendant, Mr Lau Wu-wing. Guangdong opie electric appliance co., LTD registered no. 11049748 "OPAIEIN" trademark, the trademark shall use goods for 11 classes including the shower water heater, kitchen smoke lampblack machine, air conditioning equipment, electric heaters, disinfection equipment, furnace, etc., registered since October 21, 2013, valid until October 20, 2023, the registered trademark in February 2019 transferred to guangdong opie electric co., LTD. (address for the Hong Kong special administrative region, New Territories kwai chang road 26-38, luxury industrial buildings B07, 23 / f). Later, the registration of Guangdong Opai Electric Appliance Co., Ltd. was revoked on May 31, 2019, and the company was dissolved on the same day.

    (2) the plaintiff to champions league fox company, guangdong electric appliance co., LTD., hunan companies, Liu Wurong the infringement trademark rights, and to our hospital because of unfair competition lawsuit, filed the case after the plaintiff in guangdong electric appliance co., LTD. In the lawsuit for cancellation to our college apply for withdrawal of the prosecution of the company, we made in accordance with the law (2018) guangdong 0604 14730 # 2 in the early days of civil verdict shall be allowed.

    Guangdong opie electric appliance co., LTD. In this case, according to the lawsuit guangdong opie electric appliance co., LTD has never production, sales, qr code marked "guangdong opie electric appliance co., LTD." on the water heater, oil absorption, kitchen burning gas, disinfection cabinet products, it is a legally registered company, "OPAIEIN" trademark is its legally registered trademark, it has authorized crown fox company, hunan companies use the wording "Europe" and "OPAIEIN" trademark, has not been so the plaintiff also does not constitute a trademark infringement of unfair competition, its have informed crown fox company, hunan companies stop using opie electric appliance co., LTD. Guangdong's name and logo, The two companies have long ceased to use, it does not exist malicious infringement, does not belong to repeat infringement.

(3) in July 2016, the plaintiff had crown fox company, guangdong electric appliance co., LTD., hunan companies, Liu Wurong the infringement trademark rights and unfair competition for Sue to our hospital, we begin on July 15, 2016, the case number is (2016), guangdong, 0604, 6866, in the early days of our college in 2017, after the case of civil decisions on March 3,, That champions league fox company in its opening of jingdong "OPAIEIN flagship store, Su Ningyi buy online," gome online stores to use the wording "guangdong" has violated the plaintiff no. 4378572, no. 1137521 "" the right to exclusive use of a registered trademark, used on the shop" guangdong opie electric appliance co., LTD. "form of unfair competition, guangdong electric appliance co., LTD., hunan companies in kitchen burning gas, oil absorption, disinfection cabinet on the outer packing, specification of product use the wording" guangdong opie electric appliance co., LTD. "form of unfair competition, Judge Guanhu Company to stop using the words "Guangdong Opai" and "Guangdong Opai Electric Appliance Co., LTD" on the above website page, and to stop selling gas stoves, range hoods and disinfection cabinets marked with the words "Guangdong Opai Electric Appliance Co., LTD"; Guangdong Oupai Electric Appliance Co., Ltd. and Xiangjia Company shall stop the production and sale of gas stoves, range hoods and disinfection cabinets marked "Guangdong Oupai Electric Appliance Co., LTD."; Guanhu Company compensated the plaintiff RMB 200,000 yuan, and Guangdong Opai Electric Appliance Co., LTD., Xiangjia Company and Liu Wurong compensated the plaintiff RMB 400,000 yuan. The case after the verdict, guangdong electric appliance co., LTD., hunan companies, Liu Wurong consent, appeal, and in a second trial, the mediation between the parties hereto reach champions league fox company, guangdong electric appliance co., LTD., hunan companies, Liu Wurong stop the infringement and compensate the plaintiff together 500000 yuan content such as agreement, foshan city intermediate people's court on October 23, 2017 to end 7607 (2017) guangdong 06 people civil the conciliation statement shall be confirmed.

(4) in July 2018, the plaintiff to crown fox company in its business taobao shop, alibaba online implementation infringes upon the plaintiff trademark and unfair competition, citing Sue to our hospital, our hospital on July 6, 2018 to begin, the case number is (2018), guangdong, 0604, 15499, in the early days of the case in the lawsuit after additional Zhang Yanfang, Zhang Yinying to participate in litigation, the defendant in our hospital in 2019 to make the case on April 18th civil verdict, ruling crown fox company to stop in its business taobao shop, alibaba online page USES text of "guangdong opie electric appliance co., LTD." propaganda, Zhang Yanfang and Zhang Yinying are jointly liable for the compensation of 70,000 yuan to the plaintiff by stopping the use of "Ou Pai" in the shopkeeper name, store name and product name of the taobao store they operate.

(5) in August 2018, the plaintiff to xiang companies in their business taobao shop for the implementation of ACTS of unfair competition, the second in a people's court, zhongshan city, the hospital on August 7, 2018 to begin, the case number is (2018) guangdong 2072 early 9866, after the hospital on October 29, 2018 to make the case for civil verdict, ruling xiang stopped in its taobao shop shop name and use "European" text on online stores selling products, 30000 yuan compensation for the plaintiff.

The court holds that this case is a trademark infringement and unfair competition dispute. The dispute issues of this case are analyzed as follows:

Whether the plaintiff is a duplicate plaintiff

The defendant Crown fox company, Hunan company argued that the plaintiff in this case is a repeated prosecution. According to find out the fact that the defendant crown fox company is involved in the alleged infringement is on the case in the "jingdong" "Su Ningyi purchase" "gome online" website involved four words "European" used in the shop and the behavior of the product sales is accused of infringement, and guangdong (2018) 0604 15499 cases, in the early days of crown fox is involved in the alleged infringement is a company's shop in taobao shop, alibaba page USES "guangdong opie electric appliance co., LTD." to promote their writing behavior, is not the same tort, so the defendant crown fox company about repeated prosecution of defense, we will not be adopted. The defendant xiang companies is involved in the alleged infringement is on the case in the title and website www.opaiein.com.cn "guangdong" used in the product pictures with the words "guangdong opie electric appliance co., LTD." and the behavior of the production, the sale is accused of infringing products, and (2018) 2072 in early 9866, guangdong xiang companies is involved in the alleged infringement is in its shop name and store in taobao shop to use the "European" behavior of the word, not the same infringement behavior, so the defendant xiang companies about repeated prosecution of defense, we will not be adopted.

Ii. Whether the defendant Guanhu Company infringed the plaintiff's right to exclusive use of the registered trademark

Article 57 of the Trademark Law of the People's Republic of China stipulates: "Any of the following ACTS shall infringe the exclusive right to use a registered trademark:... (2) using a trademark similar to its registered trademark on the same kind of goods or using a trademark identical with or similar to its registered trademark on similar goods without the permission of the trademark registrant, which is likely to cause confusion; ..."

In this case, the plaintiff obtained the exclusive right to use the registered trademark No. 4378572, which is now in the period of validity and approved to be used in category 11, including gas stove, bathroom equipment, disinfection cupboard, bathing equipment, kitchen range hood, etc. Defendant crown fox company is involved in the four stores the jingdong "OPAIEIN flagship store", Su Ningyi buy "opie OPAIEIN guangdong electrical outlet, Su Ningyi buy" crown fox appliances stores, "gome online" fox stores OPAIEIN European champions league, "in the name of commodity link within the online store are using the word" guangdong ", in its open Su Ningyi purchase "opie OPAIEIN guangdong electrical outlet," gome online "fox stores OPAIEIN European champions league," the shop name of the use of the word "Europe", the "guangdong" (" guangdong "for the administrative jurisdiction, Recognition does not have, have to identify the role of the "European" text), "Europe" with the plaintiff "registered trademark" at the same text no. 4378572, although not outstanding, but according to article seventy-six of the regulations on the implementation of the trademark law of the People's Republic of China "with others on the same goods or similar goods registered trademark identical with or similar to the symbol used as name of commodity or commodity packaging, misleading the public, belonging to the paragraph 2 of article 57 of the trademark law of the right to exclusive use of a registered trademark infringement" regulation, this case is for online sales, Relevant consumers mainly through online shop name and display name of commodity to identify sources of goods, such as the champions league fox company the use of behavior is easy to make the relevant public to mistake the source of the goods or that the source and the plaintiff "registered trademark" goods have a specific contact, has infringed upon the plaintiff no. 4378572 "" the right to exclusive use of a registered trademark.

Third, whether the defendant Guanhu Company, Xiangjia Company, Liu Wurong constitute unfair competition

Article 6 of the Law of the People's Republic of China against Unfair Competition stipulates: "Business operators shall not commit any of the following confusing ACTS that may cause them to be mistaken for other people's goods or have specific connections with others:... (2) unauthorized use of the names of enterprises (including shortened names and shop names, etc.) and social organizations (including shortened names, etc.) and names (including pennames, stage names, and translated names, etc.) that have certain influence on others; ... ."

, in this case, the plaintiff European furniture group co., LTD., founded in 1994, on July 1, early in 1997, has 20 class furniture, kitchen cabinets, counters and 11 class kitchen stove, gas stove, electric cookers, register the "" trademark on goods such as, in 2007 and 2011 respectively in class 11 gas type, disinfect cupboard, shower equipment, water heater, kitchen smoke lampblack machine on commodities such as registered the" "brand," OPPEIN "trademark, registered to use on the sideboard goods" "trademark was identified as guangdong province famous brand, China famous brand product, In 2009, it was recognized as a well-known trademark. At the same time, the plaintiff continued to advertise its "European" brand in many newspapers and magazines, CCTV, Hunan SATELLITE TV and other media, and hired film and television stars as spokespersons. , therefore, the plaintiff's "European" for the shop name and logo, as its on the sideboard commodity 20 well-known trademark recognition will to a certain extent, radiation to the kitchen appliance products, and through the plaintiff in the kitchen appliance products continue to use and promotion, the plaintiff's "European" font size already has certain market popularity, known by the relevant public, belongs to the rules of law "has certain influence enterprise name (including, font size, etc.)".

    Defendant xiang companies accused of infringing products marked the qr code link titled "guangdong opie kitchen electric" "guangdong opie kitchenware" "guangdong opie appliances" "guangdong opie hutch defends electric appliance" "guangdong opie kitchen appliance" with the words "guangdong opie electric appliance co., LTD." and so on web pages (pages for the same Gordon companies registered business), the above web page more pictures product of oil absorption marked "guangdong opie electric appliance co., LTD.", although these words is not marked on the accused of infringement product, but because the accused of infringement product the qr code on the position significantly, the space is large, When consumers scan the qr code by using the "scan" function of mobile phone software, they will be identified as "guangdong opi... The word "Guangdong Opai Electric Appliance Co., LTD" has actually played a role in identifying the source of the goods, and it also corresponds to the product name link (including the word "Guangdong Opai") of the alleged infringing products on the online store involved in the case. The above "Guangdong European Kitchen", "Guangdong European kitchen", "Guangdong European Kitchen", "Guangdong European Kitchen appliances", "Guangdong European kitchen appliances" and other "Guangdong European kitchen appliances" etc. Words and "guangdong opie electric appliance co., LTD." company name, all contains the plaintiff's "European" font size, scope and the plaintiff business scope overlap, the consumer easy to xiang company production of the defendant is accused of infringement of water heater, gas burner, disinfection cabinet, mistaken for the plaintiff's range hood products or that there is a certain correlation. And the defendant xiang companies as household electrical appliances production enterprise, the industry of home appliance brand should be more familiar with the general public, and the prosecution in this case was before the plaintiff's prosecution of trademark right and unfair competition disputes, so the "European" font size for the plaintiff is knowing, but still on its production is accused of infringement product labeling identified as "guangdong opie..." "Guangdong Opai Technology Co., LTD." and other words, while in its www.opaiein.com.cn website title using "Guangdong Opai... "Guangdong opie electric appliance co., LTD." and other words, on its website, the oil absorption of the product in the picture using the word "guangdong opie electric appliance co., LTD.", the above behavior all belong to unauthorized use of the plaintiff "European" font size, easy to confuse the relevant public behavior, has the obvious "free rider" on purpose, the fair market competition principle of honesty and credit, in violation of the recognized business ethics, constitute of unfair competition. As the champions league fox company specialized in sales of kitchen appliance operator, together with the hunan companies in the case against former was the plaintiff's prosecution of trademark right and unfair competition disputes, so the "European" font size for the plaintiff is knowing, but still purchases is accused of infringement product sales, has infringed upon the legitimate rights and interests of the plaintiff, the same form of unfair competition.

    Civil liabilities of the defendants

    According to article 15 of the Tort Liability Law of the People's Republic of China, the main ways to bear tort liability are to stop the infringement and compensate for the loss. Accordingly, the plaintiff requires the defendant Guanhu Company to stop using the word "Oupai" in its "JINGdong", "Suning" and "Gome Online" online stores, and to stop selling water heaters, gas stoves, disinfection cabinets and range hoods whose TWO-DIMENSIONAL code is identified as "Guangdong Oupai Electrical Appliances Co., LTD". Requires the defendant xiang companies to stop production, sales of qr code recognition as "guangdong opie electric appliance co., LTD." on the water heater, gas burner, disinfection cabinets, range hood products and stop in its title and website www.opaiein.com.cn "guangdong" used in the product pictures with the words "guangdong opie electric appliance co., LTD." and so on, and asked the defendant crown fox company, hunan companies compensate for the losses, the reasons that we support.

    As for the amount of compensation, the Trademark Law of the People's Republic of China stipulates in paragraphs 1 and 3 of Article 63: "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 the circumstances are serious, the amount of compensation may be determined between one time and three times of the amount determined according to the above methods. The amount of compensation shall include the reasonable expenses paid by the right to stop the infringement. ... If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests gained by the infringer as a result of the infringement, or the licensing fee 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 infringement." The third and fourth paragraphs of Article 17 of the Anti-Unfair Competition Law of the People's Republic of China stipulate: "The amount of compensation for an operator who is injured due to an act of unfair competition shall be determined according to the actual loss suffered by the operator due to the infringement. Where the actual loss is difficult to calculate, it shall be determined in accordance with the benefits derived by the infringer from the infringement. The amount of compensation shall also include the reasonable expenses paid by the operator to stop the infringing act. If the operator violates the provisions of Article 6 and article 9 of this Law, and it is difficult to determine the actual losses suffered by the obligee as a result of the infringement or the benefits gained by the infringer as a result of the infringement, the people's court shall, in light of the circumstances of the infringing act, make a judgment to compensate the obligee not more than THREE million yuan." In this case, because the parties from the actual damage to the plaintiff because of the infringement, the defendant crown fox company, hunan companies for infringement of the interests such as neither proof confirmed that it is difficult to determine, so considering the nature of the infringement, the degree of subjective fault, the defendant, consequences during the period of the plot, the plaintiff's brand awareness and reasonable expense to stop the infringement, specific as follows: 1. The defendant crown fox company, hunan company has respectively in jingdong, Su Ningyi purchase, gome online stores to use the "guangdong" word "guangdong opie electric appliance co., LTD.", sales marked "guangdong opie electric appliance co., LTD." the kitchen burning gas, oil absorption, disinfection cabinet products and production, sales, marked "guangdong opie electric appliance co., LTD." the kitchen burning gas, oil absorption, disinfection cabinet products by court to stop the infringement and compensate the plaintiff in the trial of the case after the conciliation, we will continue to implement this case is accused of infringement, hence they belong to the repeated infringement, tort of malicious; 2. The defendant, Guanghu Company, set up online stores on several large e-commerce platforms and used the words "Oupai" to publicize and sell the accused infringing products, which had a wide range of infringement, had a great impact, and its sales volume was also considerable. The defendant, Xiangjia Company, used the words "Oupai..." on its website. "Guangdong Oupai Electrical Appliances Co., Ltd." and other words to promote the alleged infringement products, and link to the website page of the TWO-DIMENSIONAL code marked on its production of the alleged infringement products, deliberately make the source of the goods pointing to "Guangdong Oupai Electrical Appliances Co., Ltd." with the intention of confusing with the plaintiff's goods; 3. The plaintiff's "Opai" brand is well-known; 4. The plaintiff to stop the infringing act spending the notarial cost 2000 yuan, buy, is accused of infringement product cost 3898 yuan, the plaintiff attorney's fees, travel is not confirmed, etc, our college has decided the defendant crown fox company to compensate the plaintiff economic losses and reasonable rights of spending a total of 400000 yuan, the defendant xiang companies to compensate the plaintiff economic losses and reasonable costs a total of 400000 yuan to protect their rights.

    Liu Wurong also advocated a case should be together with the hunan companies shall bear the liability for compensation, because the case involved in online stores, is accused of infringing products, web pages were involved in the alleged infringement is involved the crown fox company, hunan companies implement, guangdong opie electric appliance co., LTD., authorized the defendant xiang companies use the fact that "OPAIEIN" brand is not enough to prove the existence of both common production is accused of infringement product behavior, cannot prove the defendant Liu Wurong more involved, so the plaintiff the lack of facts and legal basis, we shall not be supported.

    To sum up, in accordance with paragraph 1 of article 3 of the "trademark law of the People's Republic of China" and article 57 the first second, and third paragraph of the first paragraph of article sixty-three, the anti-unfair competition law of the People's Republic of China, paragraph 2, article 6, article 17, the tort liability law of the People's Republic of China, article 15 and article sixty-four of the civil procedural law of the People's Republic of China the provisions of the first paragraph, the sentence is as follows:

    A, crown fox business trade co., LTD., shunde district, foshan city, the defendant in the judgment takes legal effect from the date of the stop in its "jingdong" "Su Ningyi purchase" gome "online shop" word "Europe", to stop selling qr code identification for "guangdong opie electric appliance co., LTD." on the water heater, oil absorption, kitchen burning gas, disinfection cabinet products.

    Second, the defendant in zhongshan xiang home electric appliance co., LTD., in the judgment takes legal effect from the date of the stop in its title and website www.opaiein.com.cn "guangdong" used in the product pictures with the words "guangdong opie electric appliance co., LTD." and so on, stop the production, sales of qr code recognition for the wording "guangdong opie electric appliance co., LTD." water heater, oil absorption, kitchen burning gas, disinfection cabinet products.

    3. The defendant, Foshan Shunde Guanhu Trading Co., LTD., shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., a total of RMB 400,000 for economic losses and reasonable expenses for safeguarding rights within 10 days from the date of the legal effect of this judgment;

    Iv. The defendant, Zhongshan Xiangjia Electric Appliance Co., LTD., shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., a total of RMB 400,000 for economic losses and reasonable expenses for safeguarding rights within 10 days from the date of the legal effect of this judgment;

    V. Rejecting other claims of the plaintiff opai Furniture Group Co., LTD.

    If the defendant fails to perform his pecuniary obligation within the time limit specified in this judgment, he shall, in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China, pay the plaintiff double interest on the debt for the delay period.

    The receiving fee of this case is 15,600 yuan, and the property preservation fee is 2,520 yuan, which is 18,120 yuan in total. The plaintiff, Opai Home Furnishgroup Co., Ltd. bears 1,120 yuan, the defendant, Foshan Shunde Guanhu Trading Co., Ltd. bears 8,500 yuan, and the defendant, Zhongshan Xiangjia Electric Appliance Co., Ltd. bears 8,500 yuan.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal to this court, and make copies according to the number of the other party, and appeal to foshan Intermediate People's Court, Guangdong Province.

    Chief Judge Lin Yanping

    People's Juror Ho Shao-li

    People's Juror Huanhong Huang

    November 29, 1920

    Clerk Luo Jiadong