Civil judgment of Foshan Intermediate People's Court, Guangdong Province

    Foshan Intermediate People's Court, Guangdong Province

    Written judgment of civil affairs

    (2018) No. 4967 of Minzhong of Yue 06

    Appellant (defendant in the first instance) : Foshan Faliqi Electrical Technology Co., LTD., domicile: One of the two floors, No. 8 Huafu Road, Ronggui Bianjiao Neighborhood Committee, Shunde District, Foshan City, Guangdong Province, with a unified social credit code ××63J.

    Legal representative: Chen Rongxin.

    Agent AD litem: Lai Rongwei, lawyer of Guangdong Sincere (Guangzhou) Law Firm.

    Appelee (plaintiff in the first instance) : Opai Household 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.

    Agent AD litem: Wang Ning, lawyer of Shandong Changping Law Firm.

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

    Defendant zhong Ana, female, Han Nationality, born on December 11, 1986, living in Rucheng County, Chenzhou City, Hunan Province,

    Defendant in the original trial: Shenzhen Oupin Technology Co., LTD., domicile: Suzhou Mingxia 21G1, Nanmao Market, Nanxin Road, Nantou Street, Nanshan District, Shenzhen city, Guangdong Province, unified social credit code ××H4Q.

    Legal representative: Peng Jinchu.

    Mana, foshan city, the appellant's electrical technology co., LTD. (hereinafter referred to as the mana's) with the appellee opie household group co., LTD. (hereinafter referred to as the company), the original defendant clock ana, shenzhen hope technology co., LTD. (hereinafter referred to as the forward company) the infringement trademark rights and unfair competition disputes, refuses to zen city, foshan city, guangdong province (2017), the people's court of the 0604 no. 13172 in the early days of the civil judgment, to file an appeal. The court formed a collegial panel to hear the case on May 3, 2018. The case is now closed.

    1. Request to cancel the third and fifth items of Civil judgment No. 13172, Yu0604, Chancheng District People's Court, Foshan City, Guangdong Province (2017) according to law, and revise the judgment that the appellant Falici Company does not have unfair competition behavior against Opai and does not need to compensate its economic loss of 100,000 yuan. 2. Judge Opai, Zhong Ana and Opal to bear all the litigation costs in the first and second instance of this case. Facts and Reasons: 1. The appellant, Falici Company, shall not assume joint tort liability with Europan Company. The parties have no intention of joint tort. Mana, companies in Europe are commissioned production, have to look forward to the company statement, must be conducted in the name of the owner, and need to be clearly marked its company name, this is the fact of the case, although the mana's lost "produce a power of attorney", but "real" in court opened the notarization, there was an obvious o look forward to the outer packing company "shenzhen a European school of science and technology co., LTD. (producer)", which can be confirmed, mana, company and looking forward to European company said he has no intention of joint tort, tort liability shall be borne by the European look forward to the company. In addition, when faliqi accepts the production commission of Europan company, it requires Europan company to provide its legal and valid registration certificate in the administrative department of industry and commerce. At the same time, it also specifies that the products required to be produced must be "trademarks" owned by Europan Company. In conclusion, mana, company authorized by European look forward to the company for its infringement does not exist in the production of products is not illegal, because of the hope the company has the legal and valid industrial and commercial business licenses of the administrative department for industry and commerce, and has the legal registration of trademarks, even if because of the hope firm responsibility due to the infringement, should be a Shared responsibility. Ii. The first-instance court ascertained that the defendant infringement is serious "belongs to the serious fact error, decision on compensation opie the defendant company is 130000 yuan, the company in the first instance and to provide evidence of their rights of expenses and economic loss of evidence, and the company in the trial evidence for reuse across guangdong zhongshan, foshan, guangzhou court litigation evidence. (1) determination of the first-instance judgment fact: "the defendant infringement is serious mistake of European look forward to the company in 2017 at the end of march in early April to entrust mana for its production, o look forward to the company in early May 2017 because of it, May 15, and in 2017 changed its corporate name, calling for the forward company product changes its new corporate name, immediately terminate its mana, company and immediately stop the production of all products, for its short a month, is considered" the defendant infringement is serious mistakes. "The defendant in the first-instance clock ana sales is accused of infringement product has more than eight thousand sets, and the product quality is poor" is wrong, the company has no evidence to prove that the clock, there are more than 8000 sets of products, but also there is no evidence to prove that besides "opie company", the other products is bound to "product quality is poor. (2) The lack of evidence, such as legal fees and economic losses, as well as the problem of evidence reuse in various lawsuits. For example, opai has not provided the "Commission Contract", "Invoice" and other effective evidence to prove the actual cost of hiring a lawyer. The same evidence, such as travel expenses and notary fees, has all been used by OPai in the recent lawsuits in the courts of Zhongshan, Foshan, Guangzhou and other places of Guangdong province, and even in the national courts, as the cost of rights protection and economic losses. In conclusion, due to the lack of evidence, the court of first instance awarded a compensation of 130,000 yuan, which was too high. There was no evidence to prove that OPai had suffered such a huge loss. At the same time, opai did not submit relevant evidence to prove that it had paid for its rights protection. To sum up, the judgment of the first instance contains errors in ascertaining facts, insufficient evidence, and excessive compensation fee of 130,000 yuan. Please revise the judgment to protect the legitimate rights and interests of the appellant.

    The appellee Opai argues that, firstly, the judgment of the first instance confirms that the appellant, Faliqi, and Opal have the intention of joint production and should bear the joint responsibility. As a professional water heater manufacturer, the appellant, Faliqi, knows or should know the trademark goodwill of Opai company as a competitor of Opai Company. According to the content of its appeal, the appellant is still producing after receiving the commission of Opai Company. Both parties have formed the intention of joint infringement and shall jointly assume the responsibility. At the same time, the relevant words marked in the description of the product involved by the appellant, Faliqi co., LTD, obviously cannot be used for identification, which may easily make the relevant public mistakenly believe that the product comes from or is associated with OPai company. Its subjective goodwill of Opai company is obvious, and it shall bear the tort liability according to law. Second, the appellant, Falici Company, was established for serious infringement, and the amount determined by the first instance judgment is objective. 1, the original defendant clock, more than eight thousand online comments, means that the sales of more than eight thousand sets, the net sales of the products not only in the case of water heater, so its sales obviously belong to the "serious", at the same time, through the preliminary observation in the case of product appearance, clearly belong to the "poor quality", if appear quality problem, consumers will be in accordance with the "European identity", think that the company's product quality is bad, the serious influence the company's reputation; 2. According to the appellant, Faliqi only produced the products involved from March to May 2017, but there is no evidence to prove it; 3. In the investigation and evidence collection stage, the agent of OPai company usually completes multiple physical evidence at one time due to the large number of cases. The claim of expenses is only for the expenses involved in this case, not all of them. In conclusion, the judgment of first instance should be maintained if the facts are clear and the judgment is appropriate. Request the court of second instance to dismiss the appeal by the appellant, Farwich Co.

    The defendants in the original trial, Ana Chung and Eurovision Company, did not submit their reply opinions.

    Opai filed a lawsuit in the first instance court: 1. Zhong Ana immediately stopped using the word "Opai" in her online store to infringe the trademark right of OpAI; 2. 2. Zhong Ana immediately stopped selling water heaters labeled as "Shenzhen Yiou Yipai Technology Co., LTD"; 3. Shenzhen Oupan Co., Ltd. and Faliqi Co., Ltd. shall immediately stop unfair competition and mark the words "Shenzhen Yioupai Technology Co., LTD" on the water heater products produced and sold by them; 4. Zhong Ana, Oupan Company and Farich Company shall compensate the economic loss and reasonable expense of defending rights of Oupan Company in the case of RMB 300,000 only; 5. Ana Chung, Oupan, and Farwich will bear the costs of the case. During the trial, Opie made it clear that She had infringed its trademark No. 4378572.

    The court of first instance found that Opai was established on July 1, 1994 as a joint-stock company engaged in furniture manufacturing.

    On June 7, 2007, guangzhou opie ambry enterprise co., LTD., by the state administration for industry and commerce trademark office (hereinafter referred to as the "trademark office") approved the registration no. 4378572, "" a registered trademark shall be used goods of class 11 gas burner, microwave oven, kitchen utensils), electric cooker, baking equipment, cooking utensils, faucets, bathroom equipment, disinfect cupboard, water filter, wash one's hands basin (sanitary equipment parts), steam bath, sitz bath tub and shower equipment, in the rain compartment, wash tub, sit implement, kitchen smoke lampblack machine machine, lamp (as), The registration shall be valid from June 7, 2007 to June 6, 2017 and shall be renewed until June 6, 2027, after which the name of the trademark registrant shall be changed to Europa home furnishing group co., LTD.

    On December 21, 1997, guangzhou kang jie kitchen equipment co., LTD., approved by the trademark office registered no. 1128213 "" trademark, shall use commodities for 20 kind of furniture, kitchen cabinets, metal furniture, cupboards, tableware, shelves, storage shelves, washstand (furniture), food carrier (furniture), dinner (furniture) car, counter, registered since November 21, 1997, valid until November 20, 2007, renewal will expire on November 20, 2027, after the name of a trademark registrant change to European household group co., LTD.

    On December 21, 1997, guangzhou kang jie kitchen equipment co., LTD., approved by the trademark office registered no. 1137521 "" trademark, shall use commodities for 11 class kitchen stove, gas stove, electric cooker, cooker, refrigeration equipment, drying equipment, hot and cold drinking water filter, electric water bottles, refrigeration container, since December 21, 1997, valid until December 20, 2007, renewal will expire on December 20, 2027, after the name of a trademark registrant change to European household group co., LTD.

    On March 14, 2011, guangdong opie group co., LTD., approved by the trademark office registered no. 7731876 "OPPEIN" trademark, shall use commodities for 11 kinds of oven, cooker, gas stove, water heater, freezer, refrigerator, kitchen smoke lampblack machine, etc., since the March 14, 2011, valid until March 13, 2021, after the name of a trademark registrant change to European household group co., LTD.

    In March 2005 and February 2008, trademark No. 1128213 "" used by Opie on sideboards, storage racks and cupboards was successively recognized as a famous trademark of Guangdong Province. In September 2007, Opai cabinet products were rated as China's famous brand by the General Administration of Quality Supervision, Inspection and Quarantine. In October 2008, Opai cabinet products were rated as guangdong famous brand products by Guangdong Quality Supervision Bureau. On April 24, 2009, the trademark "" used by Opai on category 20 sideboard goods was recognized as a well-known trademark by the Trademark Office; In 2016, the registered trademark no. 4378572 "" used by Opai on kitchen range hood and bath equipment was recognized as a famous trademark of Guangzhou by The Administration for Industry and Commerce of Guangzhou Municipality. In 2013, Opai was awarded the 2012 Guangzhou Mayor Quality Award, and in 2015, opai was awarded the top 10 Most valuable brands and top 10 innovative enterprises in guangdong Pan-household industry. In 2016, Opai was elected as the 6th Iconic brand of Chinese cabinet industry, and was selected as the 10th Top 500 Chinese brand value. From 2013 to 2016, Opai carried out a large amount of advertising on CCTV, Hunan TV and other TV stations, and hired celebrity endorsements for its products including sanitary ware, for which it spent a large amount of advertising expenses.

    On June 17, 2017, Wang Shouzhen, the authorized agent of the Service center, applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. On June 20, 2017, in the notarial personnel, under the supervision of the king kept the chastity notary office computer, in taobao shopkeeper called "88" family electrical appliance "opie electric water heater outlet store" within the store to buy the keywords for the "real electric household water storage type electric water heater speed bath water heater shower 40/50 l / 60 l / 80/100 liter" of a water heater, shou-zhen wang payment, taobao production order of the order no. 30289589806074885 a (orders generated after display nickname: family electrical appliances, 88, real name: na) o clock. Wang Shouzhen took screenshots of relevant pages during the operation and recorded the whole process. On June 23, 2017, under the supervision of a notary, Wang Shouzhen signed for a piece of goods sent by a Courier of "Longbang Express", whose outer packing was intact and marked with the words "Shenzhen Yiou Group Technology Co., LTD. (Supervision)", with the tracking number of 688902096762, at the entrance of a lane, East Street, Dagang Village, Shijing Street, Baiyun District, Guangzhou city. Wang Shouzhen will open the above goods packing box, which contains a water heater, a manual for operation and an electronic after-sales warranty card. Then the notary staff sealed the above articles with the seal of the notary office and gave the sealed articles to Wang Shouzhen, who took photos of the above articles and the Courier. On June 24, 2017, under the supervision of the notary staff, Wang Shouzhen connected to the Internet with the computer of the notary office in Room 801, No. 11, Lane 1, East Street, Dagang Village, Shijing Street, Baiyun District, Guangzhou city, and confirmed the receipt of the order no. 30289589806074885 on taobao.com. Wang Shouzhen took screenshots of relevant pages during the operation and recorded the whole process. Fengcheng Notary Office of Laiwu City, Shandong Province supervises the process of purchase and receipt of the goods, and issues a notarial certificate of Laifeng City Certificate No. 751 (2017), which certifies that the photos, web page screenshots, CD videos and sealed objects obtained from the above actions are consistent with the actual situation.

    During the trial, after examination, the notarization sealed the physical preservation evidence the outer packing box is intact and the notarization label is intact. Opai opened and sealed the abovementioned notarized goods in court, including an electric water heater. The 3C label of the product indicates that the product is called "water storage electric water heater", and the product model is DSZF-Y820-40. The certificate on the product indicates that the production date is March 2017. By comparison, the company believes, is accused of infringing goods outer packing boxes marked with "shenzhen - o - send technology co., LTD. (producer)" "manufacturer: foshan mana electronics technology co., LTD., operating instructions marked" shenzhen. Europe. Send technology co., LTD. (producer), after-sale warranty card marked with "shenzhen - o - send technology co., LTD." with the words, the hope, mana, production, sales, the commodity, clock, sell the goods, are in violation of the principle of honesty and credit, enterprise name right infringement opie company at the same time, belongs to the ACTS of unfair competition; In the taobao store run by Zhong Ana, the word "Opai" in the name of the online shop, the web page advertising language and the picture of an electric water heater link are similar to the registered trademark of Opai Company No. 4378572, which violates the exclusive right of the registered trademark of Opai Company and constitutes unfair competition. Mana's confirmation is accused of infringing goods is its production, but is the our company to entrust the production, the thought is accused of infringing goods outer packing mark the wording "shenzhen a European faction technology co., LTD.", use the manual annotation "shenzhen. Europe. Send technology co., LTD.", all outstanding use the trademark "OPPMCOM" at the same time, the combination is not easy to cause confusion, not constitute infringement.

    Another found that the hope for natural person sole proprietorship company limited liability company, was founded in 2016 on June 22, the registered capital is 1 million yuan, the legal representative person Peng Jinchu, scope of business of hardware, electrical appliances, water purifier, home appliances, electronic digital products sales, invested industry, domestic trade, import and export business. The historical name of the company is Shenzhen Yioupai Technology Co., LTD., which was changed to its current name on May 15, 2017. Faliqi Co., Ltd. is a limited liability company established on September 4, 2014 with a registered capital of 1 million yuan and a legal representative of Chen Rongxin. Its business address is one of the two floors, No. 8 Huafu Road, Ronggui Bianjiao Residential Committee, Shunde District, Foshan City. Its business scope covers the research, development and manufacturing of household appliances, domestic commerce, and material supply and marketing.

    After further investigation, the taobao website attached to the (2017) Certificate of Laifengcheng Certificate Minzi No. 751 showed that the product "sold: 2011 pieces" and "comments (8289)" were displayed below the webpage link of the electric water heater notarized by The Taobao shop, and the price of the product was 276 yuan. Opie says it has similar electric water heaters that sell for between 2,000 yuan and 5,000 yuan.

    In the court hearing, Opai said that it claimed a total of 300,000 yuan in economic losses and reasonable expenses. Two factors were mainly considered in the basis of claiming economic losses: first, "Opai" is both a well-known trademark and the enterprise name of Opai, bearing a very high commercial reputation and having a very high visibility in mainland China; 2, clock, and the hope, mana, infringement if the circumstances are serious, the clock, in its taobao shop name used in the word "Europe", and selling many labeled "European" water heater products, sales of the accused of infringement product has more than eight thousand sets, and poor product quality, low price, for the company's market reputation and market share in great impact. Consider the following factors in claiming reasonable expenses: attorney fees of 15,000 yuan, travel expenses of 3,000 yuan, notary fees of 900 yuan, and purchase of alleged infringement products of 276 yuan.

    The first-instance court held that the case was a trademark infringement and unfair competition dispute case. As for the controversial focus of this case, the court of first instance analyzed as follows:

    I. Whether the accused infringing goods are the goods sold by Zhong Ana and the goods produced by Europan Company. According to the law of the People's Republic of China civil procedure law "the sixty-ninth" after the legal procedures notarial certificate of legal facts and documents, the people's court shall be taken as a basis for ascertaining a fact, but there are evidences that prove the contrary evidence enough to overthrow the notarization "regulation, in the absence of contrary evidence enough to overthrow, under the condition of laiwu city in shandong province FengCheng notarization (2017) lai FengCheng certificate issued by the people of the word no. 751 is notarial deed shall be used as the basis of the infringement of the case facts. According to the notarial deed, is accused of infringing goods from a shopkeeper, called "88" family electrical appliance "opie electric water heater outlet store" taobao shop to buy, the seller real name for na "o" clock, the company advocates the the shop operators for the clock, and the clock, failed to appear in court litigation defense, not proof, bear the adverse consequences of proof cannot, therefore, the first-instance court ascertained that the taobao shop operators for clock ana, is accused of infringing goods bell, sell the goods.

    The outer packing boxes of the accused infringing goods are marked with the words "Shenzhen Ou-Pai Technology Co., LTD. (supervisor)" and "Manufacturer: Foshan Farriqi Electrical Technology Co., LTD.", and Oupai therefore claims that Oupan company and Farriqi Company jointly produce and sell the accused infringing goods. Farwich has argued that it was commissioned by Europan, but has failed to prove this claim. The court of first instance held that, according to the labeling of the outer packing boxes of the accused infringing commodities, it should be presumed that Euhope and Farwich jointly produced the accused infringing commodities. As for the defense of Faliqi company, even if Faliqi did accept the commission of Eurhope Company to produce the accused infringing goods, it shall be deemed as joint production because there is a sense of joint production between them. If Euhope company fails to respond to the lawsuit and provide evidence for rebuttal, it shall bear the adverse consequences of failing to provide evidence. Therefore, the court of first instance finds that the goods accused of infringement are the goods jointly produced by Euhope company and Farwich Company.

Second, whether The act of Zhong Ana constitutes trademark infringement. Article 48 of the Trademark Law of the People's Republic of China stipulates, "The use of a trademark referred to in this Law means the use of a trademark on commodities, packaging or containers of commodities, and transaction documents, or the use of a trademark in advertising, publicity, exhibition and other commercial activities to identify the source of commodities." At the same time, article 57 of this Law stipulates: "Any of the following circumstances shall constitute an infringement of 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 may easily cause confusion..." According to the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation of article 9, the provisions of article 10, in trademark infringement cases that advocate for the rights of accused of infringement identification and whether the registered trademark constitutes approximation, should regard trademark or its constituent elements involved significant degree, market popularity, such as the specific circumstances, in the consideration and comparison form, pronunciation and meaning of the text, graphic composition and color, or on the basis of the combination of elements of the structure, the whole or the major part is the possibility of market confusion to comprehensive analysis and judgment.

According to the facts ascertained in this case, the scope of approved use of opie's registered trademark No. 4378572 includes bathing equipment of category 11 goods, while the goods accused of infringement in this case are electric water heaters, which belong to similar goods. Clock, in the online sales, publicity page USES the word "opie water heater", will be its taobao shop name named "opie electric water heater factory outlet", the word "European" all play a role, to identify the sources of trademark use, advocate for the rights of the words with the European company number 4378572 "registered trademark" contrast, there was no difference in the visual basic, should be the same, its use in electric water heater, make consumers easily confused with the European products, thought that the shop electric water heater is derived from the company or associated with European company, therefore, according to the law, Without the permission of the trademark registrant, Zhong Ana USES the same trademark logo on similar goods as the registered trademark of Opie Company, which constitutes an infringement of the exclusive right to use the registered trademark of Opie Company.

Iii. Whether the actions of Ana Chung, Europan and Farwich constitute unfair competition. Article 2 of the Law of the People's Republic of China against Unfair Competition (which was adopted on December 1, 1993) states: "In market transactions, business operators shall abide by the principles of voluntariness, equality, fairness, honesty and credibility, and observe generally recognized business ethics." Article 5 stipulates: "Business operators shall not engage in market transactions and harm competitors by the following improper means:... (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods; ..." According to the supreme people's court on the trial of civil dispute cases of unfair competition to explain some issues of applicable law the provisions of article 6, the enterprise registration authority in accordance with the registered enterprise name, and for commercial use within the territory of China, foreign (regional) enterprise name shall be regarded as the third paragraph of article 5 of the anti-unfair competition law "enterprise name", has certain market popularity and is known by the relevant public enterprise name of the font size, can be regarded as the third paragraph of article 5 of the anti-unfair competition law "enterprise name".

This case, "Europe" is the company name of the font size, the company is the domestic famous furniture production enterprise, in the class the sideboard 20 "" trademark by the trademark office identified as well-known trademarks, its enterprise also won many honors, and invested a lot of advertising costs for advertising, visible" European "series of products and the company of" European "font size across the country have high visibility, and by the relevant public know, belong to the anti-unfair competition law of the People's Republic of China" (effective as of December 1, 1993), article 5 of the "enterprise name" prescribed in item 3. O hope, mana, production and sales of accused of infringing goods outer packing marked "shenzhen - o - send technology co., LTD. (producer)" word, use manual marked with "shenzhen. Europe. Send technology co., LTD. (producer), after-sale warranty card with a European faction" shenzhen technology co., LTD. ", "- the -" of "o." "a European faction" to use the punctuation ". "a" - ", failed to play a role recognition, the word "ou" "send" 2 words with European companies, "European" font size but there was no difference in the visual basic, should be the same, O look forward to the company's, the most powerful in using the above wording is accused of infringing goods, objectively easy to make the relevant public to mistake the goods from the company or associated with European company, its subjective clings to European company goodwill, inducing the relevant public deliberately obvious mistakes, obviously violates the "anti-unfair competition law of the People's Republic of China" (effective as of December 1, 1993), article 2 "in the market transaction, an operator shall follow the the principles of voluntariness, equality, fairness, honesty and credit", violated the recognized business ethics in the market transaction, violated the company's right to enterprise name, belongs to the ACTS of unfair competition, Tort liability shall be borne.

Clock, sales have been accused of infringing goods above, easy to make mistake the relevant public for its sales of goods and the company there is a link between, easy to make the relevant public cause confusion or mistake to sources of goods, also violated the "anti-unfair competition law of the People's Republic of China" (effective as of December 1, 1993), the provisions of article 2, damage the legitimate rights and interests of the European company, violated the company's right to enterprise name, also belong to the ACTS of unfair competition, constitute infringement.

Iv. Civil liabilities to be borne by Zhong Ana, Oupan Company and Farich Company. According to the provisions of Article 15 of the Tort Liability Law of the People's Republic of China, the forms of liability for tort include stopping the infringement, eliminating the influence, offering an apology, and compensating for the loss. So the company requires the clock, stop in the taobao store involved using the wording "European" opie company trademark infringement's request, and asked the clock, stop selling marked as "shenzhen a European faction technology co., LTD." on the water heater of ACTS of unfair competition, the hope, mana, stop the production, the sale as a European faction "shenzhen technology co., LTD." on the request of the water heater of ACTS of unfair competition, Yu Fayou according to, the first-instance court support.

Article 8 of the Tort Liability Law of the People's Republic of China stipulates that if two or more persons jointly commit a tort and cause damage to another person, they shall bear joint liability. Euhope company and Faliqi Company jointly produce and sell the accused infringing goods. They have the common intention of carrying out unfair competition and constitute joint infringement. They shall bear joint and several liability for compensation. The evidence on record fails to prove that There is a joint infringement between Zhong Ana and Oupan Company and Faliqi Company, which cannot be deemed as joint infringement. Opai requires Zhong Ana to bear joint liability with Oupan Company and Faliqi Company, which lacks factual basis and the court of first instance does not support it.

In respect of the amount of damages. According to the provisions of Article 63, Paragraph 1, of the Trademark Law of the People's Republic of China, "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the obligee as a result of 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 profits of the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined with reference to..." The third paragraph provides: "If the obligee has suffered actual losses due to infringement, the interests the infringer has gained due to infringement, or the licensing fee of the registered trademark is difficult to determine, the people's court shall make a judgment based on the circumstances of the infringement and pay compensation of less than three million yuan." Meanwhile, article 20 of the Law of the People's Republic of China against Unfair Competition (effective December 1, 1993) stipulates that any business operator who violates the provisions of this Law and causes damage to the injured business operator shall be liable for damages. The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in article 17 of the regulation:" determined in article 5 of the anti-unfair competition law, article 9, article 14 of the regulation of damage compensation of ACTS of unfair competition, can consult to determine the use of a registered trademark infringement damage compensation method ". In this case, Zhong Ana constitutes trademark infringement and unfair competition, while Eurovision And Farwich constitute unfair competition. This case the company's actual loss and clock ana, o look forward to the company, mana's illegal gains are not sure, the first-instance court consider the company reputation profile, comprehensive clock ana, look forward to the company's subjective, the most powerful, intentional torts plot, business scale, is accused of infringing goods sales, and other factors, discretionary clock, to the company compensation of economic loss of 30000 yuan, the hope, mana, common to the company compensation of economic loss of 100000 yuan. The above compensation amount has included the reasonable expenses incurred in the case.

    To sum up, the first-instance court in accordance with paragraph 1 of article 3 of the "trademark law of the People's Republic of China", article 48, paragraph 2 of article 57, paragraph 1 of article sixty-three, paragraph 3, "anti-unfair competition law of the People's Republic of China" (effective as of December 1, 1993) the first paragraph of article 2, article 5, paragraph 3, article 20, article 8 of the "tort liability law of the People's Republic of China" and article 15, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "article 9, 10, The Supreme People's Court on the trial of civil dispute case applicable law of unfair competition to explain some issues of article 6, article 17, and the civil procedure law of the People's Republic of China, article sixty-nine and article one hundred and forty-four of the first paragraph of article sixty-four of the regulations, judgment by default: one, clock, in the judgment takes legal effect from the date of the stop in its "opie electric water heater factory outlet" (called "88" family electrical appliance) seller taobao shop to use the words "European" infringement behavior of company's 4378572th of a registered trademark of Europe; Ii. As of the date of the legal effect of the judgment, Zhong Ana shall immediately stop the sale of the water heater with the words "Shenzhen Yiou Yipai Technology Co., LTD"; Iii. As of the date of the legal effect of the judgment, Oupan Technology Co., Ltd. and Farichi Co., Ltd. shall immediately stop the production and sale of water heaters bearing the words "Shenzhen One Oupai Technology Co., LTD."; 4. Within 10 days from the date of the legal effect of the judgment, Zhong Ana shall compensate THE economic loss of RMB 30,000 to Opai (including the reasonable expenses paid by OPai to stop the infringement in this case); V. Europan company and Farich Company shall, within 10 days from the date when the judgment takes effect, compensate EUROpan Company for the economic loss of 100,000 yuan (including the reasonable expenses paid by Europan Company to stop the infringement in this case); Vi. Dismiss other claims of Opai. If Zhong Ana, Oupan Company and Farwich Company fail to perform the pecuniary obligation within the period specified in the judgment, they shall pay double interest on the debt for the delayed period in accordance with article 253 of the Civil Procedure Law of the People's Republic of China. The handling fee of this case is 5,800 yuan, 500 yuan borne by Opai Company, 1,100 yuan borne by Zhong Ana, and 4,200 yuan borne by Opai Technology Co., Ltd. and Farich Company.

    No new evidence was presented by any of the parties during the second instance.

    Upon examination, the court confirms the facts ascertained in the first instance judgment.

    The court holds that this case is a trademark infringement and unfair competition dispute. According to the pleadings of both parties, the focus of the dispute in the second instance is as follows: first, whether the appellant, Falici Company, should share the tort liability with Eurovision Company; Whether the amount of compensation determined in the first instance is appropriate.

    I. Whether the appellant, Farwich Company, should jointly assume tort liability with Eurovision Company

    According to the evidence submitted by the appellee Opai Company, the outer packing boxes of the goods accused of infringement are marked with the words "Shenzhen Opai Technology Co., LTD. (producer)" and "Manufacturer: Foshan Farilici Electrical Technology Co., LTD.". In the relationship of "supervision", the supervisor and the supervised person (generally the co-producer of the product) should bear the common responsibility. In this case, the appellant, Farwich Company, protested that it was commissioned by the original defendant, Eurhope Company, to produce the accused infringing products. It fulfilled its duty of care and had no common infringement intention with the original defendant, Eurhope Company. However, this defense of the appellant, Faliqi Co., Ltd. is inconsistent with the form of external joint liability in the relation of "supervision", and relevant evidence has not been submitted. Therefore, the court will not accept this appeal opinion of the appellant, Faliqi Co., LTD.

    Since the appellant, Falici Company, did not appeal against the infringement facts, the first-instance court found that the appellant, Falici Company and the appellee, Europeanhope Company, jointly constituted trademark infringement and unfair competition, and the court upheld it.

    On the adequacy of the amount of compensation determined in the first instance

    Article 63 of the Trademark Law of the People's Republic of China is the main basis for determining the amount of compensation for trademark infringement. In accordance with the provisions of this article, there are three ways to determine the amount of compensation for trademark infringement, namely, the actual loss of the right holder, the profits of the infringer due to infringement, and the trademark licensing fee. For the malicious infringement of the right to exclusive use of a trademark, if the circumstances are serious, the amount of compensation may be determined in the above way 1-3 times the amount of compensation. The regulation of legal article has before and after order, when afore-mentioned means cannot decide compensatory reference, the compensatory way that can apply legal regulation, decide compensatory amount below 3 million yuan namely. The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in article 17 of the regulation:" determined in article 5 of the anti-unfair competition law, article 9, article 14 of the regulation of damage compensation of ACTS of unfair competition, can consult to determine the use of a registered trademark infringement damage compensation method ". Therefore, in determining the liability of the appellant, Farwich Co., for ACTS of unfair competition, it should be dealt with in accordance with the above law.

    In this case, the holder of the court of first instance in didn't get the actual loss of evidence, the infringer for profit evidence of infringement, trademark licensing fee for evidence, under the condition of considering the appellee opie group company goodwill visibility, advertising spending amount is reasonable expense, rights protection, combining the appellant mana company, the original defendant Europe expect the subjective intent of the company, the plot, scale of operation, is accused of infringing copyright product sales and other factors, has decided the appellant mana company, the original defendant's hope company compensate the appellee opie group company for the economic loss of 100000 yuan when none, In addition, although the appellant, Farwich Company, claimed that the amount of compensation was too high, it did not provide relevant accounting books or other valid evidence to prove it. Therefore, the court does not support the appeal of the appellant, Farwich Co.

    To sum up, the appellant, Farwich Co., has no grounds for appeal, and the court will not accept them. In the first instance, the court upheld the fact that the facts were clearly ascertained and the law was correctly applied. In accordance with the provisions of paragraph 1, Article 170 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    Dismiss the appeal and maintain the original judgment.

    The fee for accepting the second instance case is 2300 yuan, which shall be borne by The appellant, Foshan Faliqi Electrical Technology Co., LTD.

    This judgment shall be final.

    Chief Judge Sun Wenbo

    Zheng Zhengjian, judge

    Judge Qiu Chenghui

    May 23, 2008