Civil judgment of Beijing Intellectual Property Court

    Beijing Intellectual Property Court

    Written judgment of civil affairs

    (2018) Beijing 73Min Zhong No. 540

    Appellant (defendant of first instance) : Beijing Kuntai Wanda Trading Co., LTD., No. 301-579, Floor 3, Building 3, Area 2, Wanfangyuan, Fengtai District, Beijing.

    Legal representative: Zhang Xiangli, General Manager.

    Agent AD litem: Guo Hua, lawyer of Beijing Shangtai Law Firm.

    Appelleted (plaintiff of first instance) : Opai Furniture Group Co., LTD., No. 366, Guanghua 3rd Road, Baiyun District, Guangzhou city, Guangdong Province.

    Legal representative: Yao Liangsong, chairman of the board.

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

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

    The appellant quintiles to Beijing wanda trade co., LTD. (hereinafter referred to as quintiles wanda company) with the appellee opie household group co., LTD. (hereinafter referred to as company) due to the infringement trademark dispute case, leads to Beijing fengtai district people's court (hereinafter referred to as the first-instance court), 0106 (2016) by the Beijing no. 8493 in the early days of the civil judgment (hereinafter referred to as the first-instance judgment), term of battery in our appeal. After accepting the case, the court formed a collegial panel to hear the case in accordance with the law, and organized all parties for questioning on May 14, 2018. The case is now closed.

    The app-opai company filed a lawsuit in the first-instance court: 1. It was ordered to stop the illegal use of the word "opai" in its "opai flagship store" on Tmall, infringing the trademark of opai company; 2. 2. Order Kuntai Wanda To immediately stop the sale of sprinklery that infringes the registered trademark of Opai; 3. Judge Kuntai Wanda Company to compensate Opai company for economic loss and reasonable expenses of rights protection in this case totaling 200,000 yuan; 4. Order Kuntai Wanda Company to bear the costs of the case. Facts and reasons: the company is a kind of "European" 11, "OPPEIN registered trademark", the company since its inception, after decades of operation, has cast them into the national household, known as furniture, electrical appliances, sanitary brand, the brand has won the "Chinese famous brand", "China well-known trademark" and so on. In the eyes of the public, "Opai" is not only a representative symbol of opai's products and enterprise names, but also a significant identification mark indicating the market subjects and commodity sources of Opai and its affiliated enterprises. In December 2015, opie found that quentai wanda used the word "opie" prominently on Tmall to sell sanitary ware and kitchen supplies that infringed the registered trademark of opie. Opie applied for notarization to preserve the evidence. Quintiles to European companies that wanda company as clings to the company enjoys its reputation as the "European brand", deliberately in the shop on the illegal use of "European" text, and sell the infringement opie company trademark products, this behavior violates the company 4378572th of a registered trademark, for the company caused great economic losses, shall bear the corresponding legal responsibility.

    The court of first instance held that:

    Opai is the registrant of the trademark No. 4378572. During the term of validity of the trademark, the exclusive right to use the registered trademark enjoyed by Opai shall be protected by law.

    Quintiles wanda company to open "opai flagship store" in Tmall online store used to handle the sale of faucet, shower shower bathroom products, such as in the online store page multiple name of commodity goods publicity pictures and highlighted in "opie wei yu", "opai opie wei yu", "opai opie", "Hong Kong Europe" and "Hong Kong opie bathroom". At the same time, quintiles wanda company shower shower products sold by the outer packing, certification and installation instructions highlighted in "Europe", the wording "OPAI opie", the word "OPAI" and "OPAI" in English letters, "wei" belongs to the commodity type, "Hong Kong", is a place name, and in the Chinese department of the words "European" substantive recognition part, the way for the use of the word "European", enough to make consumers will "European" close ties with the sanitary ware goods, objectively have played an important role to distinguish the source of goods, belong to the use of trademarks.

    "European" advocate for the rights of Chinese and European companies compared to no. 4378572, "European" trademark, besides "European" word and simplified to write the difference, call and meaning are consistent, both approximation, and quintiles wanda company involved in online sales of goods for the faucet, shower shower and other sanitary ware products, and involved the use of a registered trademark approved 11 commodities for similar goods, vulnerable to the relevant public confusion or mistake on the sources of goods, so the quintiles wanda company when the website to use the wording "European" involved in the way of behavior have on the company's registered trademark infringement. At the same time, the outer packing, qualification certificate and installation instructions of the goods involved in the case were also marked with the word "Opai". The goods violated the exclusive right to use the registered trademark of Opai company, and Kuntai Wanda's selling of the goods involved in the infringement also constituted the infringement of the exclusive right to use the registered trademark of Opai Company. Therefore, Kuntai Wanda Company should bear the civil liability of stopping the infringement and compensating for the loss for the above behaviors of infringing the trademark right.

    Quintiles bought the infringing goods department involved from Hong Kong wanda company said European defense industrial group co., LTD., wei yu the first-instance court ascertained that the company has a high market visibility, quintiles wanda company as fixed a long time in the large electric business platform to open online store seller and specialized in sanitary ware products, for the same products with high market visibility should be known. Therefore, although quintiles wanda company claims involving infringing goods are bought from Hong Kong opie bathroom industrial group co., LTD., but in the goods from the outer packing, certification and installation instructions are highlighted in "Europe", quintiles wanda company did not provide evidence to prove its European sanitary ware industrial group co., LTD. In Hong Kong whether has the right to authorize to use the word "European" for any audit and review, so the quintiles wanda company sales involved infringing goods did not fulfill the reasonable duty of care. As for the source of the infringing goods involved quintiles wanda company successively in the case of goods delivery location statement is differ, in cash after the delivery of payment condition does not accord with market practice, the authenticated by the notary certificate and submitted the attached outbound order not clear product price, including Hong Kong opie bathroom industrial group co., LTD. About "OPAI8606 products are produced by our company" and the expression of the infringing goods packaging involved contained "producers: The information of "Juhangwei Bathroom hardware Factory" in Kaiping Town of Guangdong province is contradictory, so the existing evidence of Kuntai Wanda Company is insufficient to prove that the transaction of the infringing goods involved has actually taken place. The court of first instance does not recognize the claim of Kuntai Wanda Company that the infringing goods it sells have legitimate sources. To sum up, Kuntai Wanda Company knows or should know that the commodities it sells are infringing commodities and the commodities have no legal source, and it shall bear the corresponding civil compensation liability for the sales behaviors involved.

    Opie company failed to proof to prove the loss due to infringement or quintiles wanda company for infringement of interests, the first-instance court considering the company and its trademark involved in the related industry with high visibility, quintiles wanda companies involved in online store, sold by commodity sales is larger and larger quintiles wanda company involved in tort has the obvious factors such as subjective fault, think that the company claims of compensation is too high, no longer a full support. As for the amount of compensation for reasonable expenses, the court of first instance will decide the reasonable cost of its rights protection based on the fact that it has a lawyer to participate in the lawsuit and attend the trial, and the case is notarized.

    To sum up, the first-instance court in accordance with the "general principles of the civil law of the People's Republic of China" in the first paragraph of the first paragraph of article one hundred and thirty-four and item 7, "trademark law of the People's Republic of China" (hereinafter referred to as the trademark law) of paragraph 2 of article 57, third, and third paragraph of the first paragraph of article sixty-three, article sixty-four of the civil procedural law of the People's Republic of China, the Supreme People's Court about civil action evidence certain provisions prescribed in paragraph 2 of article 11, judgment: I. Quantai Wanda Shall immediately stop using the word "Opai" on the online store (" Opai Flagship Store "on Tmall.com) in the case of infringement as of the first instance judgment takes effect; 2. As of the effective date of the judgment of first instance, Kuntai Wanda Shall immediately stop selling the goods involved in the infringement of the registered trademark No. 4378572; 3. Kuntai Wanda Shall compensate OPai RMB 100,000 for its economic loss within 10 days after the judgment of first instance takes effect; Iv. Kuntai Wanda Shall compensate OpAI with a reasonable expenditure of RMB 5,000 within 10 days from the date of the first instance judgment taking effect; V. Rejecting other claims of OPai.

    Kuntai Wanda Company refused to accept the judgment of the first instance and appealed to the court, saying: If we do not agree with the judgment of the first instance, we have legitimate sources and should not bear the corresponding liability for compensation. Because the other party does not provide the corresponding bill, the reasonable expenditure of the judgment of first instance is not recognized. The judgment is unclear in finding facts and wrong in applying the law. The appellant is requested to cancel the judgment of first instance according to law and amend the judgment to assume no corresponding civil liability.

    The appellee Opai complies with the judgment of the first instance.

    Upon inquiry of the second instance, the court confirms that the parties have no objection to the facts ascertained by the court of the first instance and that the facts are relevant to the case as follows:

    On July 1, 1994, Guangzhou Kangjie Kitchen Equipment Co., Ltd. was established, and then the company successively changed the enterprise name into Guangzhou Oupai cabinet Equipment Co., LTD., Guangzhou Oupai cabinet Enterprise Co., LTD., Guangdong Oupai Group Co., Ltd. and Guangdong Oupai household Group Co., LTD. On August 19, 2013, the company changed its name to Opai.

    On November 15, 2012, Kuntai Wanda Company was established. Its business scope includes selling wujinjiaodian, building decoration materials, metal materials, daily necessities, food cooking utensils, kitchen appliances, toilet appliances, and mechanical equipment.

    On June 7, 2007, Guangzhou Opai Cabinet Enterprise Co., Ltd. was approved to register the trademark "Opai" no. 4378572 on the category 11 commodity, which includes: gas furnace; Microwave oven (kitchen utensils); Electric cooker. Baking utensils (cooking utensils); The faucet; Bathroom fixtures; Disinfect cupboards; Drinking water filter; Lavatory basin (sanitary fittings); Steam bath equipment; Sit in the bath; Bathing equipment; Shower stall; Wash tub; Implement; Kitchen range hoods; The lamp. On March 24, 2014, the name of the trademark registrant was changed to Opai Company. Upon renewal, the trademark registration shall remain valid until June 6, 2027.

    Opai company has another trademark no. 1137521 registered in category 11 "Kitchen Range, gas range"; Electric cookers; On goods such as "cold and hot drinking water filters", trademark No. 1128213 "Opai" is registered in Category 20 "Furniture"; Sideboard; Metal furniture; Cupboards; Washstand (furniture) "and so on. Trademark "OPPEIN" No. 7731876 registered in Class 11 "Dome light"; Ice chest. Kitchen range hoods; The faucet; Bathroom fixtures; Shower equipment; "Toilet" and so on.

    In December 2012, Opai was assessed by China Building Decoration Association kitchen and sanitation Engineering Committee as one of the top 100 Chinese kitchen and sanitation companies in 2012, and the overall kitchen leading enterprises in the top 10. In September 2013, Guangzhou Municipal People's Government awarded Opai the Mayor quality Award of Guangzhou. In January 2015, Opai was awarded the 2014 "Top 10 Innovative Enterprises" and "Top 10 Most Valuable Brands" in guangdong Pan-household industry by Guangdong Home Furnishings Association and Guangdong Furniture Chamber of Commerce. From 2009 to 2015, Opai signed an advertising contract with actress Jiang Wenli, and agreed that Jiang Wenli would act as the spokesperson of opai's cabinets, wardrobes and sanitary ware and perform the advertising production of the cabinets, wardrobes and sanitary ware products produced by Opai. From 2013 to 2015, Opai signed advertising contracts with Beijing On-point Boiling International Advertising Co., LTD., Hunan Radio & TELEVISION Advertising Co., LTD., Zhejiang Zhimei Chewen Advertising Co., LTD., Kashgar Yinsong Cultural Media Co., LTD., etc., to promote the corporate image and its brands.

    According to the tax Payment Certificate submitted by Opai, the actual VAT payment of the company in 2013 was 144789583.77 yuan, 75979899.93 yuan in the first half of 2014, 95009102.68 yuan in the second half, 75202867.43 yuan in the first half of 2015, and 122030667.69 yuan in the second half. According to the Disclosure of Confidential Information concerning Taxpayers and Withholding Agents submitted by OPai, the company paid a total of 42299,278.86 yuan in the first half of 2014, 365,809,907.82 yuan in the second half, 4242,27,001.44 yuan in the first half of 2015, and 30917,096.12 yuan in the second half.

    On December 30, 2015, under the supervision of notary zhang xiuping and notary wang hong of fengcheng notary office in laiwu city, shandong province, Yang jinchao of changping law firm logged on to Tmall by using the computer and searched the online store named "opai flagship store" of the shopkeeper, which was also called "opai flagship store". Click to enter the online store, and check the information of the online store, which shows "company name: Beijing kuntai wanda trading co., LTD" and "shop duration: Tmall 3 years". The business license of the online store operator of Tmall is displayed on the page of "business license information of Tmall". Browse the online store page of "OPAI Flagship Store" and check the "Baby Recommendation". In the product name information under several product pictures, the words "OpAI Sanitary Ware" or "OPAI Sanitary Ware" should be marked first, followed by the specific product name with space space. Click to view the product page of a faucet. The name of the product will be displayed as "All copper single-hole cold and hot single cold faucet on opai bathroom basin table; rotating cold and hot faucet basin with free mail". Accumulated evaluation 131. 264 PCS in stock ", the drop-down page shows the details of the products, and the words "OPAI OPAI" are highlighted in large font in the picture of the products. Click to view a shower shower products page, the commodity name marked as "opai opie bathroom all copper shower shower nozzle can lift shower set headdress flower asperse shower shower nozzle", below the "sales month 1; Cumulative evaluation 57; 268 pieces in stock ". The drop-down page shows the details of the products. The words "Opai Sanitary Ware", "Opai Sanitary Ware in Hong Kong" and "Opai Sanitary Ware in Hong Kong" are highlighted in many pictures of the products. Then, in the online store to place an order to buy the name as "opie bathroom basin stage basin full copper puckering cold heat used by leading rotating hot and cold water tap basin mail" and "opai opie bathroom all copper shower shower nozzle can lift shower set headdress flower asperse shower shower nozzle" two pieces of goods, Tmall generated order number 1512748511667138, according to merchants for the "opai flagship store", real name is "Beijing quintiles wanda trade co., LTD". On January 6, 2015, under the supervision of Notary Zhang Xiuping and notary Wang Hong of Fengcheng Notary Office in Laiwu city, Shandong Province, Yang came to the Yto Express Business Department in Luhuayuan Industrial Park, Laicheng District, Laiwu City, Shandong Province to pick up a piece of goods with good packaging. Subsequently, notaries xiu-ping zhang and notarial personnel wanghong will bring goods back FengCheng notarization in laiwu city in shandong province, Yang today will be on-site unpacking and inspection for the above goods, has assembled a set of flower to asperse number of spare parts, spare parts number to assemble a complete set of faucet, opai sent a product specification, opai opie products a certificate of approval, such as an invoice. Subsequently, the notary office to the above items and express order re-sealed, handed over to Yang Jinzhao custody. On the same day, Yang today in laiwu city in shandong province FengCheng notarization notaries xiu-ping zhang and notarial personnel wanghong, under the supervision of the notary office PC into a web Tmall, in "have buy baby" section, click the number 1512748511667138 order, for the name of the purchased for "opie bathroom basin stage basin full copper puckering cold heat used by leading rotating hot and cold water tap basin mail" and "opai opie bathroom all copper shower shower nozzle can lift shower set headdress flower asperse shower shower nozzle" two to confirm the delivery of the goods, payment of 577 yuan, then page shows "the deal is successful, The seller will receive your payment (Beijing Kuntai Wanda Trading Co., LTD.) ". For the preservation process of the above evidence, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2016) Laifeng City Certificate No. 73 Notary Public (referred to as No. 73).

    Notary to buy two pieces of goods that defend bath, shower shower goods pallets positive with larger font with the wording "opie wei yu Hong Kong industrial group", packing box on the post goods pattern with larger font highlighted above the word "Europe", the marks "model: 8606", panel showed a giant "producers: guangdong kaiping shuikou town navigation sanitary hardware factory", the goods are highlighted in bold font on 6 certificate "OPAI opie", the attached installation instructions page each page are highlighted above the wording "OPAI opie". 'OPAI' was printed on the front of the paper packaging box of faucet products, and the words' Oupai Sanitary Ware Industrial Group Co., LTD. (Manufacturing) in Hong Kong 'was printed on the side, and' Manufacturer: Ju Hang Sanitary Ware in Shuikou Town, Kaiping, Guangdong '.

    In the first trial, opai argued that the company violated its trademark no. 4378572 by using the word "opai" in its online store "opai flagship store" on Tmall and on the packaging, product certificates and specifications of its products. The case trial, quintiles wanda company for the notarial deed to acknowledge the truth of no. 73, recognized it as Tmall net "opai flagship store" online store operators, notary to buy the goods involved in sales, the company also recognized its online store page publicity is used in the word "Europe", but argues that the goods involved only on the outer packing has the wording "European", no "European" in commodity ontology, on the goods used for "opai" logo, the logo for the Hong Kong opie bathroom industrial group co., LTD. In Hong Kong registered trademarks, and commodity packaging has "European" Chinese label, However, the manufacturer of this product is HongKong Oupai Sanitary ware industrial Group Co., LTD., and Kuntai Wanda Company is just an agent for sales, so the infringement of goods has nothing to do with it.

    In first instance trial, quintiles wanda company claims the opie wei yu Hong Kong industrial group co., LTD., agent distributor, bought the goods involved department from Hong Kong opie bathroom industrial group co., LTD., submitted by the Hong Kong special administrative region of China entrust notary public and the Hong Kong lawyer certification documents clearly: Hong Kong opie bathroom industrial group co., LTD was incorporated in Hong Kong on January 3, 2011, the nature of the business for the hardware, sanitary ware, sanitary ware, bathroom accessories, bathroom furniture. The sole director and shareholder of the company is Wu Jianbo, whose nationality is Chinese and id number is ×××. Jian-bo wu on June 27, 2016, said a resolution "OPAI8606 products are produced by our company, product packaging is also produced by our company, the models on the label and certificate of" Europe ", is in response to me the name of the company, and is convenient for consumers in mainland China OPAI has a unified standard pronunciation, this company is not clear that there are similar products in mainland China, Chinese characters trademark, the company is willing to follow up whether infringement of trademark rights of others. All documents provided by the Company, such as shipping documents and contracts, are collected, sent and received by the Company, and the Company confirms that all documents submitted to the court, such as shipping documents and contracts, are true." The above notarial document is attached with the warehouse receipt showing "Product name and specification: OPAI Shower 8606", "Unit: Set; Quantity: 10 ", not showing unit price or total amount of goods.

    In the first trial, Opie argues that the economic loss and reasonable expenses in its claim amount to RMB 200,000, including notary fee of RMB 700, attorney fee of RMB 8,000 and travel expenses of RMB 2,000, and the rest amount is economic loss. However, Opie fails to provide relevant evidence for the above expenses.

    During the second trial of this case, Kuntai Wanda Submitted to the court a set of new evidence allegedly formed after the first trial, including payment demand letters, delivery notes, warehousing notes, receipt of payment, purchase agreements, and so on.

    The above facts are supported by the trademark registration certificate, application for registration of change of enterprise name, notarization certificate, advertising contract, tax payment certificate, honor certificate, notarized certificate, and the opinions and statements of both parties during the first and second trial.

    The Court finds that:

    Article 56 of the Trademark Law stipulates that the exclusive right to use a registered trademark shall be limited to the trademark that has been approved for registration and the commodities that have been approved for use. Thus it can be seen that the holder of the exclusive right to use his registered trademark exclusively on the approved goods and the right to prohibit others from using the same or similar trademark on the same or similar goods without his permission.

    In this case, opie, as the registrant of trademark No. 4378572, enjoys the right of legal protection of the trademark on the commodities approved for use since the date of approval of the trademark registration. As for whether OpAI Hong Kong sanitary Ware Industrial Group Co., Ltd. enjoys the exclusive right to use the trademark "OPAI" in Hong Kong, it cannot fight against the right of opAI Hong Kong to forbid others to use the same or similar trademark on the same or similar goods without its permission.

    Article 48 of the Trademark Law stipulates that the use of a trademark referred to in this Law means the use of a trademark on commodities, commodity packaging or containers, and commodity trading documents, or the use of a trademark in advertising, publicity, exhibition and other commercial activities to identify the source of commodities. The function of a trademark is to distinguish the source of goods or services. Therefore, whether the use of a corresponding logo belongs to the use of corresponding goods should be based on whether the relevant public can distinguish the source of goods through the use of the corresponding logo.

    In this case, quintiles wanda company Tmall open online shop "opai flagship store" is used to handle the sale of faucet, shower shower bathroom products, such as in the online store page multiple name of commodity goods publicity pictures and highlighted in "opie wei yu", "opai opie wei yu", "opai opie", "Hong Kong Europe" and "Hong Kong opie bathroom". At the same time, quintiles wanda company shower shower products sold by the outer packing, certification and installation instructions highlighted in "Europe", the wording "OPAI opie", the word "OPAI" and "OPAI" in English letters, "wei" belongs to the commodity type, "Hong Kong", is a place name, and in the Chinese department of the words "European" substantive recognition part, the way for the use of the word "European", enough to make consumers will "European" close ties with the sanitary ware goods, objectively have played an important role to distinguish the source of goods, as used in the sense of belonging to trademark.

    The trademark law, article 57 (1) the first paragraph (2), (3), without the permission of the trademark registrant, used on the same kind of goods with similar trademark registered trademark, or to use its registered trademark in the similar products of the same or similar trademark, easy to cause confusion, or to sell the goods to the exclusive use of a registered trademark has been infringed, all belong to the exclusive use of a registered trademark has been infringed.

    According to the Supreme People's Court on the trial of trademark civil dispute case to explain some issues of applicable law (hereinafter referred to as the trademark civil dispute law explanation ") set forth in paragraph 2, article 9 of the trademark, refers to the accused of infringement of trademark compared with the plaintiff's registered trademark, the glyph, pronunciation and meaning of the text or graphic composition and color, or the combination of whole structure similar to that of all the elements or the stereo shape, color combination, easy to make the relevant public to mistake the source of the goods and/or think of its source and the plaintiff's registered trademark commodities have a specific contact.

    According to the provisions of article 10 of the legal interpretation of civil disputes over trademarks, the recognition of trademarks shall be conducted in accordance with the following principles :(1) the standard shall be the general attention of the relevant public; (2) A comparison shall be made on both the whole and the main parts of a trademark, and shall be made separately under the condition that the objects of comparison are isolated; (3) To judge whether a trademark is similar or not, consideration shall be given to the significance and popularity of the registered trademark which is requested to be protected.

    According to article 11 of the Legal Interpretation of Trademark Civil Disputes, similar commodities refer to those that are identical in functions, USES, production departments, sales channels and consumption objects, or those that are generally believed by the relevant public to have specific connections and are likely to cause confusion.

    In this case, the "European" in Chinese and European companies, compared to 4378572 advocate for the rights of trademark except and simplified writing is the difference between "oh" word, call and meaning are consistent, both approximation, and quintiles wanda company involved in online sales of commodities for faucet, shower shower and other sanitary ware products, and involved the use of a registered trademark approved 11 commodities for similar goods, vulnerable to the relevant public confusion or mistake on the sources of goods, so the quintiles wanda company when the website to use the wording "European" involved in the way of behavior have on the company's registered trademark infringement. At the same time, the outer packing, qualification certificate and installation instructions of the goods involved in the case were also marked with the word "Opai". The goods violated the exclusive right to use the registered trademark of Opai company, and Kuntai Wanda's selling of the goods involved in the infringement also constituted the infringement of the exclusive right to use the registered trademark of Opai Company.

    Article 64, Paragraph 2, of the Trademark Law stipulates that whoever sells a commodity that he does not know is an infringement of the right to exclusive use of a registered trademark shall not be liable for compensation if he can prove that the commodity was legally acquired by himself and that the supplier is the supplier.

    In the case, Kuntai Wanda claimed that the infringing goods were purchased from HongKong Oupai Sanitary Ware Industrial Group Co., LTD. In this regard, the court believes that, first of all, the outer package, certificate and installation instructions of the goods involved in the infringement are highlighted with the word "Opi". Secondly, the documented evidence can prove that trademark No. 4378572 has a high market visibility in the relevant goods; Thirdly, as a seller of similar products on the e-commerce platform, Kuntai Wanda Company should obviously have a higher inspection obligation for the infringing products involved. However, there is no evidence on the record to prove that Kuntai Wanda company has conducted any form of verification and review on whether HongKong Oupai Sanitary Ware Industrial Group Co., Ltd. has the right to authorize it to use the word "Oupai". Therefore, Kuntai Wanda Company apparently did not fulfill its reasonable duty of care in selling the infringing goods. The first-instance court does not recognize The claim of Kuntai Wanda that the infringing goods sold by the company have legitimate sources. The conclusion is correct, and the court supports it according to law. Kuntai Wanda Company shall bear the corresponding civil compensation liability for its sales activities involved in the case.

    According to paragraph 3 of Article 63 of the Trademark Law, if it is difficult to determine the actual loss suffered by the obligee due to the infringement, the interests obtained by the infringer due to the infringement, or the licensing fee of the registered trademark, the people's court shall make a judgment on the circumstances of the infringement and pay compensation of less than RMB 3 million yuan.

    In this case, on the other hand, for the appellant shall bear the specific compensation, thanks to the failure of the parties thereto is the loss due to infringement of interests or to provide evidence to prove it in our hospital, and there is no actual trademark licensing fees for reference, so the court of first instance considers the nature of the infringement, during the period, the consequences, the reputation of the trademark, and other factors, such as plot, the compensation of the case to pay discretionary, and when all things. On the other hand, the appellant should compensate the appellant for the reasonable expenses paid by the appellant for the lawsuit of this case, which the first-instance court should support to a reasonable extent.

    Article 323 of the supreme people's court's interpretation of the application of the civil procedure law of the People's Republic of China > provides that the people's court of second instance shall hear the appeal of the party concerned. In the absence of a request, no trial shall be held, except in the case where the judgment of first instance violates the prohibitive provisions of the law, or damages the interests of the state, the social and public interests or the lawful rights and interests of others.

    In this case, because the appellant to other contents involved in the first-instance judgment not object, and there is no evidence that the first-instance judgment in violation of the law prohibitions or damage the interests of the state, social public interests and legitimate rights and interests of others, so the scope of the trial of the case in our hospital is limited to the appellant to the objection of the first-instance judgment, the first-instance judgment of other content will no longer be involved in the review.

    To sum up, the facts are clear in the judgment of first instance, and the law is applied correctly. All the reasons for appeal of Beijing Kuntai Wanda Trading Co., Ltd. cannot be established, which the court does not support. In accordance with paragraph 1 (1) of Article 170 of the Civil Procedure Law of the People's Republic of China, the court made the following judgment:

    Dismiss the appeal and maintain the original judgment.

    The handling fee of the second instance case is 2,400 yuan, which shall be borne by the Appellant, Beijing Kuntai Wanda Trading Co., LTD. (already paid).

    This judgment shall be final.

    Li Bingqing, Chief Judge

    Judge Yang Xiao

    Judge Zhao Ling

    September 15, 2008

    He Yang, assistant judge

    Clerk Zhang Jingsi