Civil judgment of Heze Intermediate People's Court in Shandong Province

    Heze Intermediate People's Court of Shandong Province

    Written judgment of civil affairs

    (2014) Hezhichu Zi No. 162

    Plaintiff: Opple Lighting Co., LTD.

    Legal representative: Wang Yaohai, chairman of the Board of directors of the company.

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

    Attorney: Wang Yan, lawyer of Shandong Changping Law Firm.

    Defendant: Zhang Guoqing, owner of Guoxia Integrated Ceiling Agency, Mudan District, Heze City.

    Defendant: Zhang Xuming, owner of minghao Decoration Materials Management Department, Tianqiao District, Jinan city.

    Defendant: Hangzhou Opu Trading Co., LTD.

    Legal representative: Jin Long, executive Director of the company.

    Attorney: Qian Jianping, lawyer of Zhejiang Haisai Law Firm.

    Defendant: Haiyan Bosch Electric Co., LTD.

    Legal representative: Ren Huorong, executive Director of the company.

    Attorney: Qian Jianping, lawyer of Zhejiang Haisai Law Firm.

    The plaintiff opple co., LTD. (hereinafter referred to as opple company) and the defendant zhang guoqing, zhang at the op trade co., LTD., hangzhou (hereinafter referred to as hangzhou op company), sea salt Bosch electric appliance co., LTD. (hereinafter referred to as the sea salt Bosch) the infringement trademark rights, unfair competition disputes, the plaintiff to Sue to our hospital on September 26, 2014. After the court accepted the case, it formed a collegial panel according to law and held the trial in public on December 10, 2014. Zhai Mingyue and Wang Yan, the authorized agents of the plaintiff, and Qian Jianping, the authorized agents of Hangzhou Opp Company and Haiyan Bosch Company, attended the lawsuit. The defendants Zhang Guoqing and Zhang Xuming did not attend the proceedings without a valid reason. The case is now closed.

    Opple Lighting Co., Ltd. sues that the plaintiff is a well-known lighting enterprise in China and a leading brand in the lighting industry. It has successively obtained honors and qualifications such as "China famous brand product", "National Model Enterprise of satisfied after-sales Products" and "Guangdong Famous Trademark". In 2007, "Op" trademark was identified as a well-known trademark in China and became the first choice for consumers to buy lighting equipment. Therefore, the plaintiff brand has become the target of many counterfeiters. On May 2, 2014, the plaintiff, the survey found the defendant zhang guoqing in its premises without authorization "Bosch integration ceiling" stores selling "op art ceiling" flat light, the lamps and lanterns on the box used the "hangzhou op trade co., LTD.", the plaintiffs entrust notary office for the evidence preservation, upon further investigation, the plaintiff found that the product is the defendant hangzhou op, haiyan Bosch production company, the hangzhou op company, sea salt Bosch company has production, sales, with "hangzhou op trade co., LTD." name "op art ceiling" bath bully, defendant zhang at the flat light, shandong general agent of the bath bully, The scope of infringement is very wide. The defendant hangzhou op company, sea salt Bosch company has exclusive rights to clings to the plaintiff's "op" brand reputation, used in commodity packaging, enterprise size "op" words, not only the infringement of the right to exclusive use of a registered trademark of the plaintiff, also violates the principle of honesty and credit and recognized business ethics, constitutes unfair competition, caused great economic losses to the plaintiff. The defendant zhang guoqing, zhang at knowing "op" brand has a higher visibility, still sell the infringing products, to safeguard the legitimate rights and interests of the plaintiff, filed a lawsuit, request: 1. The ordered four defendants immediately stop the infringement of the plaintiff's 1424486th, 4426527th, 7182788th, 6647616th, 7182780th, 4426523th, 7182791th of a registered trademark, the defendant hangzhou op company, sea salt Bosch immediately stop ACTS of unfair competition; 2. Order the defendant Hangzhou Op Company to change its enterprise name immediately, and the word "OP" shall not be used in the changed enterprise name; 3. The defendant Hangzhou Op Company and Haiyan Bosch Company were ordered to compensate the plaintiff for economic losses of RMB 2 million yuan. The defendant Zhang Guoqing was jointly liable for compensation of RMB 50,000 yuan, and the defendant Zhang Xuming was jointly liable for compensation of RMB 100,000 yuan; 4. The litigation costs shall be borne by the four defendants.

    Defendant hangzhou op company, sea salt Bosch common reply said: (a) the defendant haiyan Bosch company in the production and sales of the art of condole top box and so on occasion to use the wording "op art ceiling" of the case, but "op" a registered trademark of the plaintiff has not been approved on the ceiling products, USES in the ceiling the plaintiff does not have a right to exclusive use of a registered trademark on the goods. Therefore, the behavior of the defendant hangzhou Op Company and Haiyan Bosch Company does not constitute an infringement on the registered trademark rights of the plaintiff. (2) The defendant Hangzhou Oup Company was established in June 2007, and has continued to use the enterprise name approved by the industry and Commerce Department since its establishment, and the name contains the Oup name, which does not constitute unfair competition to the plaintiff. Before the new Trademark Law comes into effect, the use of other people's registered trademarks or unregistered well-known trademarks on the shop names of enterprises is not prohibited by law. Therefore, the shop names formed before the implementation of the new Trademark Law are legal and may be continued to be used. (3) The defendant Zhang Xuming and the defendant Haiyan Bosch Company did have a distribution agency relationship of suspended ceiling, but the defendant Zhang Xuming was not the general agent of the defendant Haiyan Bosch Company in Shandong. To sum up, the defendant Hangzhou Op Company and Haiyan Bosch Company neither infringed upon the plaintiff's right to exclusive use of the registered trademark, nor formed unfair competition against the plaintiff, and requested to dismiss the plaintiff's claim.

    The defendants zhang Guoqing and Zhang Xuming did not reply.

    In support of his claim, the plaintiff presented the following evidence:

    Evidence 1. (2014) Notarial Certificate Of Laifeng City Certificate No. 3592. It is intended to certify that the plaintiff is the exclusive owner of a registered trademark No. 1424486, which has been approved to use class 11 lamps and daylight lamps and is now in effect.

    Certificate of Trademark No. 4426527, certificate of assignment of approved trademark, certificate of change of registered trademark. To certify that the plaintiff is the owner of the trademark No. 4426527.

    Certificate of trademark No. 7182788, certificate of assignment of approved trademark, certificate of alteration of registered trademark. To certify that the plaintiff is the owner of the trademark no. 7182788.

    Certificate of trademark No. 6647616, certificate of assignment of approved trademark, certificate of change of registered trademark. To certify that the plaintiff is the owner of trademark No. 6647616.

    Evidence 5. (2013) Notarial Certificate No. 5047, 5048 and 5049 of Shanghai Jing Certificate Jing Zi. It is intended to prove that the plaintiff is the owner of trademark No. 7182780.

    Certificate of Trademark No. 4426523, certificate of assignment of approved trademark, certificate of change of registered trademark. To certify that the plaintiff is the owner of the trademark no. 4426523.

    Certificate of trademark No. 7182791, certificate of assignment of approved trademark, certificate of alteration of registered trademark. To certify that the plaintiff is the owner of the trademark no. 7182791.

    Evidence 8. Submit the business registration information of the plaintiff and the four defendants. To prove the principal qualification of the original defendant.

    Evidence 9. (2014) Pingyin Certificate No.185 notarized and sealed by the notary office.

    Evidence 10. (2014) The notarization certificate of Pingyin Certificate No.413 and the sealed object of the notary office.

    Evidence 11. (2014) Notarial certificate No. 404 of Pingyin Certificate and the real object sealed by the notary office.

    Evidence 12. (2014) The public notarial Certificate no. 2848 of Laifeng City certificate and the real object sealed by the public security office.

    Evidence 13. Two copies of trademark details of "OP OP Art Ceiling". It is intended to prove that on June 24, 2010, the defendant Haiyang Bosch Company required trademark registration for the logo used on the products involved in category 6 and Category 11 respectively, which were both recognized as invalid trademarks by the Trademark Office. However, the defendant continued to use the logo thereafter.

    Evidence 9-13 is intended to prove the fact that the four defendants violated the trademark right of the plaintiff and conducted unfair competition.

    Evidence 14. Commission contract and attorney fee invoice, shopping note, notary fee note. The reasonable expenses to be paid by the plaintiff for safeguarding his rights include notary fees, expenses for purchasing infringing products, travel expenses, attorney fees, etc., totaling RMB 100,000 yuan. 2 notarization fee invoices; The bill of purchase of infringing products is 450 yuan in Heze and 800 yuan in Jinan; Hangzhou 500 yuan, 1432.2 yuan, industry and commerce file inquiry fee 200 yuan. Agent contract and attorney fee invoice. Attorney fee is RMB 80,000. For the cost related to the rights protection and evidence collection and litigation, the claim amounts to RMB 100,000. To prove the basis of the plaintiff's claim for damages.

    Evidence 15. (2014) Notarial Certificate No. 9916 of Huhuang Certificate And (2014) Notarial Certificate No. 3593 of Laifengcheng Certificate. To demonstrate the visibility of the plaintiff's company and the trademark in question.

    Evidence 16. (2014) Notarial Certificate No. 3594 of Laifeng City Certificate No. To certify the operating scale of the plaintiff's company.

    The defendant Hangzhou Op Company and Haiyan Bosch Company have the following opinions on the cross-examination of the evidence submitted by the plaintiff: They have no objection to the authenticity and relevance of evidence 1-7. No objection is raised to the truth of evidence 8. There is no steel seal on the signature of evidence 9 notarization in evidence 9-12, and the legality of the form is disputed. If the form is legitimate, there is no objection to the authenticity of the content. It cannot be confirmed whether the goods purchased from Zhang Guoqing are produced and sold by hangzhou Op Company and Haiyan Bosch Company. The sealed items in Evidence 10 and 11 are indeed produced and sold by hangzhou Op Company and Haiyan Bosch Company. The items mentioned in the notarial certificate in evidence 12 are not consistent with the items seen after unpacking. It is shown in the notarial certificate that four bath bullies are purchased, one is the front light and one is the rectangular flat light, but there are three lights after unpacking, so this evidence cannot be accepted. This paper gives a cross-examination opinion on the infringement performance of the defendant claimed by the plaintiff in evidence 9-12: The infringement performance that the plaintiff thinks is mainly manifested in two aspects: the first is the words "Op Art suspended ceiling" on the package; Second, the words "Hangzhou Oupu Trade Co., LTD". However, what the defendant described was opal ceiling. The plaintiff did not cite any evidence of trademark right to the ceiling, which could not prove the infringement of the defendant. Hangzhou Oupu Trading Co., Ltd. was approved and registered by the administrative department for industry and commerce in 2007. It is legal for the company name to appear the word "Oupu". The legitimacy of the source of evidence 13 cannot be verified, and the authenticity shall not be recognized. There is no objection to the expense of notarization in evidence 14, the expense of purchasing so-called sealed products, and the attorney's fee. There is no objection to the authenticity of evidence 15 and 16.

    To support their defense, the defendants, Hangzhou Op Company and Haiyan Bosch Company, submit the following evidence:

    Exhibit 1. Certificate of Trademark Registration No. 6233954 (copy). To prove that there is no infringement of the plaintiff's right to exclusive use of a registered trademark by the defendant on his own goods.

    Evidence 2. Trademark License Contract (copy). It is intended to prove that trademark No. 6233954 is the registered trademark of defendant Hangzhou Op Co., LTD., and the defendant Hangzhou OP Co., Ltd. gives permission to the defendant Haiyanbosch Co., Ltd. to use the trademark.

    Evidence 3. A copy of the business license of the defendant Hangzhou Op Company. To certify that the defendant Hangzhou Op Company was established on June 13, 2007, and its name has been approved and registered as a legal enterprise name. The defendant Hangzhou Op Company has been using the name of the company.

    After cross-examination, the plaintiff has no objection to the authenticity of evidence 1, but this trademark is approved to use goods such as Bath Bully, and when the logo and "Op Art suspended ceiling" are arranged together, it is Chinese characters that attract the attention of consumers, not the logo. The op trademark is far more well-known than the defendant's trademark. Exhibit 2 is a photocopy and cannot be ascertained as authentic. There is no objection to the authenticity of evidence 3, but the defendant Hangzhou Op Company was founded on June 13, 2007, and the plaintiff's No. 1424486 was identified as a Well-known trademark in China on September 3, 2007. It can be seen that the use of OP's name in the font has obvious malice.

    The defendants, Zhang Guoqing and Zhang Xuming, did not provide rebuttal evidence nor give cross-examination opinions on the evidence submitted by the plaintiff and the defendant, Hangzhou Op Company and Haiyan Bosch Company.

    Based on the evidence, cross-examination and trial investigation of the defendant and the original defendant, the Court confirms the following facts:

    The plaintiff Optilight Company was established on October 21, 2008 with a registered capital of RMB 521,479104 and the company type is a joint stock limited company. The business scope includes electric light source, lighting appliances, lighting circuit system design, lighting industry technology development, etc.

    On July 21, 2000, Zhongshan Guzhen Lvming Energy-saving Lighting Factory registered the trademark of "OPu +OPPLE+ graphics" no. 1424486, and approved the use of commodities as the 11th class, including lamps and daylight lamps. Valid until July 20, 2010 and thereafter until July 20, 2020. On January 28, 2001, the trademark was approved and assigned to Zhongshan Opuilluminating Co., LTD. On October 31, 2003, the name of the trademark registrant was changed to Guangdong Opu Lighting Co., LTD. On March 7, 2007, the trademark was approved and assigned to Zhongshan Opuilluminating Co., LTD. On October 6, 2012, the trademark was approved and assigned to Opuilluminating Co., LTD. On January 8, 2013, the registrant of the trademark was changed to be the plaintiff in this case.

    On July 28, 2007, Zhongshan Opu Lighting Co., Ltd. registered the trademark of "" No. 4426527, and approved the use of commodities in category 11, including lamps; Lampshades. The spotlight. Overhead light. Daylight lamp tube, etc. Valid until July 27, 2017. On September 7, 2007, Zhongshan Opu Lighting Co., Ltd. registered trademark No. 4426523 "", and approved the use of commodities in category 11, including lamps; Lampshades. The spotlight. Overhead light. Daylight lamp tube, etc. Valid until September 6, 2017. On October 21, 2010, Zhongshan Opu Lighting Co., Ltd. registered trademark No. 7182791 "", and approved the use of goods in class 11, including ventilation equipment and devices; Bath heater; Bath bully; Lamp, etc. Valid until October 20, 2020. On December 21, 2010, Zhongshan Opu Lighting Co., Ltd. registered trademark No. 7182780 "", and approved the use of goods in class 11, including bath heaters; Bathroom fixtures; Bath bully; Lamp; Heating device; Electric heating device, etc. Valid until December 20, 2020. On February 21, 2012, Zhongshan Opu Lighting Co., Ltd. registered trademark No. 6647616, and approved the use of commodities in category 11, including lamps; Bath heater; Bathroom fixtures; Bath bully; Lamp; Heating device; Electric heating device, etc. Valid until February 20, 2022. On March 28, 2012, Zhongshan Opu Zhaoming Co., Ltd. registered the trademark "" no. 7182788, and approved the use of the commodity as class 11, bath heater; Bathroom fixtures; Bathroom partition; Solar water heaters; Bath bully; Bathing equipment; Lamps (lighting lamps); Heating device; Electric heating unit. Valid until March 27, 2022. On October 6, 2012, the above six trademarks were approved and transferred to Opple Lighting Co., LTD. On January 8, 2013, the registrant of the above six trademarks was changed to be the plaintiff of this case.

On September 3, 2007, the state administration for industry and commerce trademark review and adjudication board to make the business review word (2007) no. 6570 on "euro Parsley" 3024602 orders of trademark disputes, identified 1424486 trademark for well-known trademark on the lamp, fluorescent tube goods, rule to cancel the case by the applicant in class 9 electric door opener and other commodities registration no. 3024602 "euro Parsley" trademark. On May 28, 2013, Opp Lighting Co., Ltd. ranked the second place in the 2012 Chinese Light Industrial lighting And Electrical appliance Industry Top ten enterprises Evaluation activity. Trademark No. 1424486 was awarded as "Famous Trademark of Guangdong Province" and "Famous brand product of Guangdong Province" for many times. In September 2006, the state administration of Quality supervision, Inspection and Quarantine awarded opu indoor lamps produced by Guangdong Opu Lighting Co., Ltd. as "China famous brand products".

The defendant, Zhang Guoqing, is an individual merchant with the registered name of Guoxia Integrated Ceiling Sales Office in Mudan District, Heze City. The establishment date was September 26, 2013, and the business site is located at C110, Phase I, Jiuzhou Mall, Mudan District, Heze City, Shandong Province. Business scope includes integrated ceiling, hardware accessories sales.

The defendant, Zhang Xuming, is an individual industrial and commercial merchant, registered as Minghao Decoration Materials Business Department, Tianqiao District, Jinan City, established on September 13, 2011, and located at No. 46-6-1, Shuitun Road, Tianqiao District, Jinan City, Shandong Province. The business scope includes the wholesale and retail of suspended ceiling materials and lamps.

The defendant Hangzhou Op Company was a private limited liability company, established on June 13, 2007, with a registered capital of 500,000 yuan, and its business scope included decorative materials, lamps and lanterns and accessories.

The defendant, Haiyan Bosch, was a private limited liability company established on July 3, 2007, with a registered capital of 1.5 million yuan. Its business scope included lamps and lanterns, solar water heaters and metal products.

On June 24, 2010, the defendant Haiyan Bosch Company applied for the registration of the trademark "" with the international classification Numbers 6 and 11 respectively, and the application Numbers were 8421362 and 8421371 respectively. The trademark process shows that the trademark is invalid.

On March 7, 2011, the defendant Hangzhou Op Company registered trademark No. 6233954 "", and approved the use of goods in category 11, including lights, fans, household clothes dryers, heating, etc. Valid until March 6, 2021.

The plaintiff authorizes Pingyin Mingde Intellectual Property Agency Service Co., Ltd. to notarize the preservation evidence for the purchase of goods such as bath ba, lamps and ceiling lamps.

According to the pingyin county mingde intellectual property agency services co., LTD., application, May 2, 2014, 12 points and 15 when 15 when 01, in the shandong pingyin notarization, notarial personnel under the supervision of a sun notaries, pingyin mingde intellectual property agency services co., LTD., the entrusted agent shou-zhen wang in shandong heze peony district kyushu mall decorative materials wholesale market of phase 1, 110 "Bosch integration ceiling" store bought "op art ceiling" rectangle and square each one LED lights, and obtain a statement of sales and with the wording "Bosch integration ceiling zhang guoqing" card. Wang Shouzhen took photos of the above stores, the exterior scene of the market, the goods and bills purchased and the name CARDS (after photocopying the above bills and name CARDS, the originals shall be kept by Wang Shouzhen and the goods purchased shall be sealed by the notary office). On May 21, 2014, Shandong Pingyin County Notarial Office issued the above notarial content (2014) Pingyin Certificate Jing Zi No. 185 notarial.

32 points by July 11, 2014, 15 to 16 24 points, while in the shandong pingyin notarization, notarial personnel under the supervision of a sun notaries, shou-zhen wang in jianggan district, hangzhou city, zhejiang province hardware area BT1 angel market - BT2 "op trade co., LTD. Hangzhou" store bought "op art ceiling" rectangle and square plate LED lights a and "op art ceiling" bath bully, and achieve "op trade co., LTD. Hangzhou sales list" a, "agricultural bank of China credit card voucher a POS machine and with the wording" op appliances jinlong Yang Linmei "a business card, Wang Shouzhen took photos of the above stores and the products she purchased (after photocopying the above bills and business CARDS, the originals shall be kept by Wang Shouzhen, and the purchased products shall be kept by Wang Shouzhen after sealed by the notary office). On July 28, 2014, Shandong Pingyin County Notarial Office issued the above notarial content (2014) Pingyin Certificate Jing Zi No. 404 notarial.

On July 25, 2014, 13 when 45 points to 13 when 59 minutes, in the shandong pingyin notarization notaries Zhu Zhongguo, notarial personnel under the supervision of a, shou-zhen wang flyover district of jinan city in shandong province new crane decoration materials market 18 of 20 "hao top-of-the-line" inside the store to buy the "op art ceiling" bath bully a, rectangle and square "op art ceiling" tablet each one LED lights, and obtain a "shipping list" and with "famous luxury Liu Tianlu top-of-the-line - professional condole top production suppliers" typeface name card. After coming out of the store, Wang Shouzhen took a photo of the exterior scene of the store (after photocopying the above bills and business CARDS, the originals shall be kept by Wang Shouzhen, and the purchased goods shall be sealed up by the notary office and kept by Wang Shouzhen). On August 7, 2014, The Notarial office of Pingyin County, Shandong Province issued the (2014) Pingyin Certificate Jing Zi No. 413 notarial certificate on the above notarization content.

From 15:46 to 16:33 on July 15, 2014, under the supervision of Zhang Xiuping and Wu Xue, notaries of Fengcheng Notary Public Office in Lai Wu city, Shandong Province, wang Shouzhen, the authorized agent of the plaintiff, browsed the website "http://www.jxopu.com/", "http://mhdp.com.cn/" and "HTTP: / / Hzopmy.1688.com/, and through the ICP/IP address/domain name information registration management system of the Ministry of Industry and Information Technology, I checked the registration situation of "MHdP.com.cn" domain name, and then purchased the "Opu Art Suspended Ceiling Exclusive shop" on taobao.com, and the suspended ceiling lights. Wang Shouzhen took screenshots of relevant pages during the operation and recorded the whole process. At 11:09 on July 22, 2014, under the supervision of Notary Zhang Xiuping and Wu Xue of Fengcheng Notary Office in Laiwu city, Shandong Province, Wang Shouzhen picked up two pieces of goods with intact packaging in the business room of yunda Express on Xiangshan Road, Laicheng District, Laiwu City, Shandong Province, with the tracking Numbers of "1201354368026" and "1201354368035" respectively. Wang Shouzhen took a photo of the exterior of the business room. After opening the above goods, there were four "Opu Art Suspended ceiling" Bath Ba, one square flat LED suspended ceiling, one rectangular flat LED suspended ceiling, one "Delivery list" and one "Receipt for Payment" affixed with the financial seal of Haiyan Bosch Electric Appliance Co., LTD. Wang Shouzhen took photos of the above items. The above items will be kept by Wang Shouzhen after they are sealed. From 13:56 to 14:05 on July 22, 2014, under the supervision of Zhang Xiuping and Wu Xue, notaries of Fengcheng Notary Office in Laiwu city, Shandong Province, Wang Shouzhen confirmed the receipt of the commodities sold by the "Opu Art Suspended Ceiling Exclusive shop" on Taobao.com with the computer connected to the Internet in the notary Office. Wang Shouzhen took screenshots of relevant pages during the operation and recorded the whole process. On August 11, 2014, Fengcheng Notary Office of Laiwu City, Shandong Province issued the notarial certificate of Laifeng City Certificate No. 2848 (2014) on the above notarial contents.

    (2014) The sealed items attached to the Notarial Certificate No. 185 are two LED flat-panel square lamps with "" printed on the outer package, the size of which are 340 * 30 * 310mm and 640 * 30 * 310mm respectively, and the packaging box is printed with the words" Hangzhou Oupu Trade Co., LTD "and" Manufacturer: Haiyan Bosch Electric Appliance Co., LTD ". The words "" are printed on the square light inside the package and on the certificate of quality.

    (2014) The sealed items attached to the Notarial Certificate No. 413 of Pingyin Syndrome Are two LED flat-panel square lamps printed with "" and one Bath Ba. The package sizes are 340 * 30 * 310mm, 640 * 30 * 310mm and 630 * 235 * 347mm respectively. The three boxes are printed with the words "Hangzhou Oupu Trade Co., LTD" and "Manufacturer: Haiyan Bosch Electric Appliance Co., LTD". The words "Op Art Suspended ceiling" are printed on the LED square lights and the certificate, and the words "Op Art suspended ceiling" are printed on the bag of Bath Bully and the instruction manual.

    (2014) The sealed items attached to the Notary No. 404 of Pingyin Certificate are two boxes of LED flat panel light with "" and one Bath Ba. The words" Opu Art Suspended Ceiling "are printed on the packaging bags and instructions of bath Ba packaging box. The instructions on the flat plate long light packing box are printed with the words "Oupu art suspended ceiling" and "Hangzhou Oupu Trade Co., LTD". The words "Hangzhou Oupu Trading Co., LTD" and "Manufacturer: Haiyan Bosch Electric Appliance Co., LTD" are printed on the three containers.

    Word no. 2848 (2014), FengCheng card people notarial deed storage items, attached with a "bath bully" four sets, a fluorescent lamp, LED flat side with "" light and long light each one, both on a box" op art condole top ", "hangzhou op trade co., LTD.", "manufacturer: sea salt Bosch electric appliance co., LTD.". "Oupu Art Ceiling" and "Hangzhou Oupu Trading Co., LTD" are printed on the instructions of the packaging box. The bag of Bath Bully is printed with the words "Op Art ceiling".

    At the trial, the defendant Hangzhou Op Company and Haiyan Bosch Company recognized (2014) that the sealed items attached to pingyin Certificate No. 413 and No. 404 were produced and sold by the defendant hangzhou Op Company and Haiyan Bosch Company.

    In addition, it is found that the plaintiff pays the following expenses for this case (with vouchers) : purchase cost RMB 3,182.2, notary fee RMB 5,400, attorney agency fee RMB 80,000, industrial and Commercial Bureau file inquiry fee RMB 200, a total of RMB 88782.2.

    The court holds that the plaintiff is the exclusive owner of trademark No. 1424486 "Op +OPPLE+ graphics", trademark No. 4426527 "", trademark No. 7182788" ", trademark No. 6647616 "" ", trademark No. 7182780" "", trademark No. 4426523" "and trademark No. 7182791". The above trademarks are within the valid period of registration and their legitimate rights and interests are protected by law. No individual or enterprise shall in any way infringe upon the exclusive right to use a registered trademark legally enjoyed by the plaintiff. The plaintiff has the right to bring an action against the infringement of the right to exclusive use of the said trademark.

    Pingyin certificate (2014) the attached business card according to the word no. 413 is notarial deed "Liu Tianlu", although the business card web sites with flyover district of jinan city luxury decoration material url is consistent, but the plaintiff address for storage items with the defendant zhang at the flyover district of jinan city house decoration materials sales department for industry and commerce registration address inconsistencies, the collection of the shipping list also lacks the defendant zhang at the operation of the flyover district of jinan city luxury decoration material seal, therefore cannot consider ping Yin (2014) certificate by the word no. 413 is notarial deed seal attached item is the defendant zhang declining sales, Under the circumstance that the plaintiff did not prove that the defendant had infringed the plaintiff's right to exclusive use of a registered trademark, the court would not support the plaintiff's claim that the defendant Zhang Xuming should stop the infringement and compensate for the loss. The name card attached to the Notarial Certificate No. 185 (2014) shows the name of defendant Zhang Guoqing, and the address recorded in the notarial certificate is the same as the business address of defendant Zhang Guoqing. In the absence of evidence to the contrary, the sealed items attached to the notarial certificate can be identified as the sales of defendant Zhang Guoqing.

    Case involving storage goods packaging are printed with "hangzhou op trade co., LTD.", "manufacturer: sea salt Bosch electric appliance co., LTD.", the hangzhou op company, sea salt Bosch recognised (2014) pingyin certificate by the word no. 413, no. 404 notarial deed attached storage items op the defendant hangzhou company, sea salt Bosch company production and sales. (2014), Yin ping card by the word no. 185 is notarial deed and word no. 2848 (2014) lai FengCheng card people notarial deed attached storage goods and ping Yin (2014) certificate by the word no. 413, no. 404 notarial deed attached storage goods packaging decoration, business name, address, telephone and other information are the same, and the word no. 2848 (2014) lai FengCheng card people notarial deed with the sea salt Bosch company financial seal, it can assume case involved seal items are the hangzhou op company, sea salt Bosch company production and sales.

    The trademark law of the People's Republic of China the first (2) of article 57 respectively, the first item (3) regulation: "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", "sales infringement of registered trademark" all belong to the use of a registered trademark infringement. The Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "as prescribed in paragraph 1 of article 11 of similar products, refers to the function, purpose, the production department, sales channels, consumption object is the same, or the relevant public generally think that the existence of a specific connection, easy to cause confusion. Article 12 stipulates that whether a commodity or a service is similar or not shall be judged comprehensively on the basis of the general understanding of the relevant public on the commodity or service; The International Classification of Goods and Services for Trademark Registration and the Classification of Similar Goods and Services may serve as a reference for the determination of similar goods and services. The LED flat lamp involved in the case belongs to the same kind of commodity as the lamp in the 11th class approved with trademark No. 1424486 OP +OPPLE+ graphics, trademark No. 4426527 "", trademark No. 7182788" "and trademark No. 6647616" "; The "Op Art Suspended ceiling" of the sealed items involved in the case belongs to the same category of goods as the "Bath Bully" of the trademark No. 7182788 "" and the trademark No. 6647616" "approved for use in terms of use, sales channels and consumers.

    The "LED flat panel light" and "Op Art Suspended ceiling" involved in the case used the logo of "+ OP Art suspended ceiling". The defendant Hangzhou OP Art Suspended ceiling has registered the trademark No. 6233954 and admitted that it has granted permission to the defendant Sea Salt Bosch Company to use "", so the defendant Hangzhou OP Art Suspended Ceiling and Sea salt Bosch Company did not use" "improperly. But the defendant did not obtain trademark ", "Chinese characters" op art ceiling "as part of the logo is easy to identify, Chinese characters between the same size, but the" ceiling "is in the habit of people for certain goods, so the" op "in which the word has higher recognition, with functions of product source of trademarks. After years of publicity and use, the oup series trademarks, which the plaintiff enjoys the right to exclusive use of trademarks, have gained extensive popularity and influence. The word "Oup" is not a fixed phrase, but has strong originality and significance. The defendant, Hangzhou Oup Company and Haiyanbosch Company, as the lighting appliance operators, should know it. Products involved with the wording "op art ceiling" combination of logo, easy to make the relevant public mistaken for a euro products in the production of the plaintiff or there is a special relationship with the plaintiff, with the plaintiff's 1424486th "op + OPPLE + graphics" trademark, no. 4426527, no. 6647616 is a trademark, trademark constitutes a similar, 7182788 infringed the plaintiff is the trademark shall enjoy the rights to exclusive use of trademarks. When the defendant Zhang Guoqing purchased the products involved in the case, he did not fulfill the duty of reasonable examination and did not provide the purchase contract, invoice and other evidence, so he could not be exempted from the liability for compensation. The plaintiff requests that the defendant Zhang Guoqing, Hangzhou Opp Company and Haiyan Bosch Company be ordered to immediately stop the infringement of the plaintiff's exclusive right to use the trademark and compensate the plaintiff's economic loss and reasonable expense of safeguarding the rights. The facts are clear and the evidence is sufficient, which should be supported.

    According to the provisions of Article 2 of the Law against Unfair Competition, operators should abide by the principles of voluntariness, equality, fairness, honesty and credibility in market transactions, and abide by recognized business ethics. The plaintiff's 1424486th "op + OPPLE + graphics" trademark on September 3, 2007 was identified as the lamp, daylight lamp well-known trademark on goods, "op" Chinese character has a high degree of recognition in the trademark, the defendant hangzhou op company removed the enterprise name of geographic name, organization form phrases, such as "op" two characters in the enterprise name has important function of separation and identification. The plaintiff's "op" series of trademark, the defendant hangzhou op company "op" right to enterprise name though with different legal procedures established, but the defendant "op" font size on your company's name and the plaintiff's "op" series of brand in the Chinese characters "op" consistent, easy to cause the relevant public to the plaintiff and the defendant hangzhou op company as a link or the same market main body, making others confused on the service source. The defendant hangzhou op company was founded in 2007 on June 13, the plaintiff 1424486 trademarks have high visibility, can be concluded that the defendant hangzhou op company in the market transaction behavior, improperly use the trademark reputation, others disturb the social economic order, constitute the unfair competition, the plaintiff asked the defendant hangzhou op company which changes its company name the claims shall be supported. At the same time, the defendant hangzhou Op Company and Haiyan Bosch Company, as operators in a competitive relationship with the plaintiff, violated the exclusive right to use a registered trademark in the plaintiff's case, which also constitutes the unfair competition act in the first paragraph of Article 5 of the Anti-Unfair Competition Law of the People's Republic of China.

    In this case, the defendant Hangzhou Op Company and Haiyan Bosch Company have carried out trademark infringement and unfair competition. For the part of competition and cooperation, the trademark Law of the People's Republic of China can be directly applied to regulate, and the amount of compensation shall not be double-counted. According to the provisions of Article 63 of the Trademark Law of the People's Republic of China, if it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests obtained 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 on the circumstances of the infringement and pay compensation of not more than THREE million yuan. The supreme people's court on some issues of applicable law in trademark civil dispute cases to explain "in paragraph 2, article 16 when determining the amount of compensation, the people's court should consider the nature of the infringement, during the period, the consequences, the reputation of the trademark, the trademark the amount of royalties, the types of trademark licensing, time, scope and to stop the infringing act reasonable expenses of the factors such as comprehensive. In view of the actual loss of the plaintiff for infringement, the benefit (received by the defendant for infringement and the registered trademark license fee are difficult to determine, in our comprehensive consideration involved trademark awareness, the two defendants' scale, the action of tort, fault degree and the plaintiff's rights must be reasonable cost factors, reasonably determine the compensation amount. As the producers of the products involved, the defendant Hangzhou Op Company and Haiyan Bosch Company, without the permission of the plaintiff, used trademark marks similar to the trademark that the plaintiff had the exclusive right to use on the same or similar products on a variety of products produced by the defendant, and the scope of infringement was far greater than that of the retailer. The defendant, Zhang Guoqing, as the seller of the goods, did not fulfill the reasonable duty of examination and care and sold the goods that infringed the plaintiff's right to exclusive use of the trademark in his business premises. He also had some subjective faults and should bear certain liability for compensation. Based on the above factors, the court decided according to law that the defendant Hangzhou Op Company and Haiyan Bosch Company should compensate the plaintiff a total of 380,000 yuan for economic losses and reasonable expenses, and the defendant Zhang Guoqing should compensate the plaintiff a total of 20,000 yuan for economic losses and reasonable expenses. The excessive portion of the plaintiff's claim is not supported.

    In conclusion, on the basis of the general principles of the civil law of the People's Republic of China the first item (7) of the first paragraph of article one hundred and thirty-four, article 57 "trademark law of the People's Republic of China" in the first (2), the first item (3), article sixty-three, the law of the People's Republic of China on anti-unfair competition law "article 2, paragraph 1 of article 5 of the first, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation of paragraph 1 of article 11, article 12, article 16 and article 17, paragraph 1 of article 21 of the act, the decision is as follows:

    1. The defendant hangzhou Oupu Trading Co., Ltd. shall cease to use (change or cancel) the enterprise name with the name of "Oupu" within 10 days after this judgment takes effect;

    2. The defendant Zhang Guoqing, Hangzhou Opu Trading Co., Ltd. and Haiyan Bosch Electric Appliance Co., Ltd. immediately stopped infringing the exclusive right to use the registered trademark of the plaintiff Opu Lighting Co., LTD. No. 1424486, 4426527, 7182788 and 6647616;

    3. The defendant, Hangzhou Opu Trading Co., Ltd. and Haiyan Bosch Electric Appliance Co., Ltd. shall compensate the plaintiff, Opu Lighting Co., Ltd. for economic losses and reasonable expenses totaling RMB 380,000 yuan within 10 days after this judgment takes effect;

    Iv. Defendant Zhang Guoqing shall, within 10 days after this judgment takes effect, compensate the plaintiff OPl Light Co., Ltd. for economic losses and reasonable expenses totaling RMB 20,000 yuan;

    V. To reject the other claims of opp Light Co., LTD.

    If the pecuniary obligation is not performed within the period specified in this judgment, the interest on the debt for the delayed period shall be doubled in accordance with article 253 of the Civil Procedure Law of the People's Republic of China.

    The case handling fee is RMB 22,800, which shall be borne by the plaintiff Opp Lighting Co., LTD., RMB 15,500, by the defendant Hangzhou Opp Trading Co., LTD., and Haiyan Bosch Electric Co., LTD., RMB 7,000, and by the defendant Zhang Guoqing, RMB 300.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal petition with seven copies to the Court and appeal to the Shandong Higher People's Court.

    Zhang Fuhe, Chief judge

    Acting judge Wang Huadong

    People's Juror Kong Baohua

    March 17, 2015

    Clerk Zhu Yanting