Civil judgment of Shenzhen Luohu District People's Court

    Shenzhen Luohu District People's Court

    Written judgment of civil affairs

    No. 609, Early Republic of Guangdong 0303

    Plaintiff: Optilight Co., LTD., Room 411, Building 1, No. 6111 Longdong Avenue, Pudong New Area, Shanghai, unified social credit code ××58Q.

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

    Attorney: Zhai Mingyue, lawyer of Shandong Changping Law Firm, practicing certificate No. 13701200210920456.

    Attorney: Wang Ning, lawyer of Shandong Changping Law Firm, practicing certificate No. 13701201510521990.

    Defendant: Yu Ao, formerly known as Yu Guangdong, male, Han Nationality, born on April 24, 1987, address: Pingjiang County, Hunan Province.

    Agent AD litem: Yan Yueqing, lawyer of Hunan Riyueming Law Firm, practicing certificate No. 14301201511816276.

    Defendant: Shenzhen Shenhaowei Kitchen Appliances Co., LTD., domicile: 1112 Dongfang Plaza, Jianshe Road, Nanhu Street, Luohu District, Shenzhen (settled in Shenzhen Huayi United Commercial Secretary Co., LTD.), unified social credit code ××11X.

    Legal representative: Xie Zhi.

    Defendant: Wangdian Jinko Integrated Ceiling Factory, Xiuzhou District, Jiaxing City, business place: No.5, Group 5, Fake Hill, Wangdian Town, Xiuzhou District, Jiaxing City, unified social credit code ×××JXJ.

    Operator: Kang Tai Jun.

    Agent AD litem: Chen Xiangui, male, legal affairs of the company.

    The above plaintiff Opu Zhaoming Co., Ltd. sued the defendant Yu Ao, Shenzhen Shenhaowei Kitchen Appliances Co., Ltd. and Wangdian Jinko Integrated Ceiling Factory in Xiuzhou District of Jiaxing for trademark infringement and unfair competition disputes. After the Hitachi case was filed on January 8, 2018, the court held a trial in open session according to the ordinary procedure according to law. Wang ning plaintiffs entrust agents AD litem, the accused yu ao YanYueQing entrust agents AD litem, the defendant shop wang jing in xiuzhou district of jiaxing branch integration ceiling factory entrust agents AD litem Chen Xiangui are to appear in court to participate in the litigation, the defendant deep hao wei kitchen appliances (shenzhen) co., LTD. After the expiration of our college summons to be in court without justifiable reasons not to participate in litigation, absent in our hospital, in accordance with the trial, the case has been end.

    The plaintiff Opu Lighting Co., Ltd. filed a lawsuit against the court: 1. The defendant was ordered to immediately stop using the word "Shenzhen Opu" on the product page of flat-panel lights on Taobao online store; 2. 2. The defendant is ordered to immediately stop the sale of flat lamps marked with the words "Shenzhen Opal Kitchen Appliances Co., LTD"; 3. The defendant, Shenzhen Shenhaowei Kitchen Appliances Co., LTD., and Jinko Integrated ceiling Factory, ×× District, Jiaxing City, immediately stopped the production and sale of flat lamps marked with the words "Shenzhen Oupu Kitchen Appliances Co., LTD."; 4. The court ordered the three defendants to compensate the plaintiff for economic losses and reasonable expenses for safeguarding their rights, totaling RMB 100,000 only; 5. The litigation costs of this case shall be borne by the three defendants. The plaintiff made it clear in court that the trademark that he applied for protection in the dispute of infringement of trademark right was the registered trademark No. 1424486 and No. 7182788 respectively, and the unfair competition dispute he sued was the dispute of infringement of enterprise name right.

    Facts and Reasons: The plaintiff is a registered trademark of "OPPLE", "Opp", "Feeling", "the charm of light", "concentration", "the value of light" and the corresponding combination of trademark owners. The above trademark by the plaintiff and the plaintiff associated enterprises managed for decades, the company has become household names, as is known to all of the country's lighting brand, the brand has won the "China well-known trademark", "guangdong famous trademark" and so on, in the consumer mind, "OPPLE", "op" brand of lighting and electrical products has established certain connection with the plaintiff, on September 3, 2007 the state administration for industry and commerce trademark review and adjudication board found 1424486 trademark for well-known trademark, the brand is loved by the consumers. In December 2015, the plaintiff, the survey found more than the proud in the taobao shop plate lamp in the commodities of the page title, pictures, brand more than use the word "shenzhen op", and a lot of sales marked "European PuWei kitchen appliances (shenzhen) co., LTD." on the flat light, flat light boxes marked with "shenzhen ou PuWei kitchen electric appliance co., LTD., manufacturer: king of xx district of jiaxing city inn crystal section integration ceiling factory". The plaintiff entrusts a notary office to preserve evidence. In addition, it was found that on February 20, 2017, the enterprise name of Shenzhen Opal Kitchen Appliances Co., Ltd. was changed to be the defendant Shenzhen Shenhao Kitchen Appliances Co., LTD. More than what has been discussed above, the plaintiff argues that the defendant proud to clings to the plaintiff "op" brand reputation, in its online store flat lamp in the commodities of the page title, pictures, brand more use the word "shenzhen op", in violation of the principle of honesty and credit and recognized business ethics, not only infringes the trademark of the plaintiff, and constitutes unfair competition the defendant to the plaintiff deep hao wei kitchen appliances (shenzhen) co., LTD., xx district of jiaxing city shop wang jing department integration ceiling factory in the production of bath bully involved and flat light projection on the outer packing mark the wording "European PuWei kitchen appliances (shenzhen) co., LTD.", enough to cause consumers to product source of mistake, It violates the principle of good faith and recognized business ethics, infringes the right of enterprise name of the plaintiff, and constitutes unfair competition to the plaintiff. Therefore, in order to safeguard its legitimate rights and interests, the plaintiff, in accordance with the trademark Law of the People's Republic of China and the Law of the People's Republic of China against Unfair Competition, hereby files a lawsuit, and requests the court to find out the facts, apply the law correctly, and judge the case according to law as requested.

    Yu Ao, the defendant, argued: first, the respondent has already sued in several courts, and this is the fourth time to file a lawsuit. The case has expired the limitation of action. The respondent should not be listed as the first defendant, but the producer, Defendant 3 and Defendant 2, should be listed as the first defendant. 1. On January 26, 2016, the respondent filed a lawsuit in shenzhen bao 'an district people's court, case no. :(2016) yue0306, no. 6259, early republic of China. 2. On May 26, 2016, the respondent filed a lawsuit in yueyang intermediate people's court, case no. :(2016) xiang 06 minchu no. 29. 3. On April 30, 2017, the respondent filed a lawsuit in xiuzhou district people's court of jiaxing city, case no. :(2017) zhejiang 0411, no. 2987, early republic of China. Ii. The respondent has no products involved available for sale, and its behavior has been stopped before being sued by the respondent. The claims 1 and 2 have no factual basis and should be rejected. The legal source of the respondent's purchase is Wangdian Jinko Integrated Ceiling Factory in ×× District, Jiaxing city. When the respondent purchased the products involved in the case through legal channels, it was not aware that the trademark right of the respondent was violated in the products involved. Before being sued for the first time by the respondent, which was in December 2015, the respondent was not aware of the case. Moreover, the respondent immediately removed the products involved from the shelves, closed the Taobao store, immediately stopped selling the products involved, and will not continue to sell the products involved in the future. Therefore, in the fourth lawsuit, the respondent required the respondent to immediately stop using the word "Shenzhen Opu" on the commodity page of taobao shop and immediately stop selling the tablet lamp marked with the word "Shenzhen Opu Kitchen Appliances Co., LTD", which has no factual basis and should be rejected. Iii. The products sold by the respondent are all legally purchased from Wangdian Jinko Integrated Ceiling Factory, ×× District, Jiaxing city. The respondent has reason to believe that the products sold by Wangdian Jinko Integrated Ceiling Factory, ×× District, Jiaxing City are from legal sources and have performed reasonable duty of care. 1. Wangdian Jinko Integrated Ceiling Factory, ×××0335, Jiaxing City, Contact number: 182×× 0335,QQ Number: 92×× 91,QQ number: 27×× 27, the factory is responsible for network sales staff is Zhao Huan. The products sold by the respondent are processed and shipped by The Jinko Integrated Ceiling Factory authorized by Shenzhen Opouwei Kitchen Appliances Co., LTD., ×× District, Jiaxing city, and are legally purchased from the factory and officially marketed by Shenzhen Opouwei Kitchen Appliances Co., LTD. All goods are shipped directly from Jiaxing, Zhejiang province, as evidenced by chat records, delivery records and transfer records. 2, king of xx district of jiaxing city inn crystal section integration ceiling factory by the local competent administrative department for industry and commerce registration, authorized by the European PuWei kitchen appliances (shenzhen) co., LTD. On behalf of the processing, delivery, etc., xx district of jiaxing city shop wang jing department integration ceiling factory offered the respondent a proud more than shenzhen ou PuWei kitchen electric appliance co., LTD., authorized king of xx district of jiaxing city inn crystal section integration ceiling plant deep processing, such as drop shipping certificate as well as training the PuWei kitchen electric appliance co., LTD., authorized the respondent's sales power of attorney, the respondent executes the reasonable duty of care. According to Article 64, Paragraph 2, of the Trademark Law of the People's Republic of China, a seller who sells infringing products does not know that the products he sells are infringing products and can prove the legitimate source of his products shall be a bona fide seller and shall not be liable for damages. At the same time, the products sold by the respondent indicate that the products sold by the respondent are from legal sources and do not constitute unfair competition and the respondent shall not be liable. 3. Shenzhen Baoan District People's Court (2016) In the case of Trademark Ownership and Infringement dispute of No. 6259 in the early Republic of China, the respondent has admitted in the seventh but last line of the second edition of the Civil complaint: "The product is owned by respondent 1 (Shenzhen Opouwei Kitchen Appliances Co., LTD.), Respondent 2 (Jindian Jinco Integrated Ceiling Factory, ×× District, Jiaxing city)... Manufacturing. 4. The economic losses and reasonable expenses of claim 4 cannot be groundless and should be rejected. The standard for determining the amount of compensation: the amount of compensation for the infringement of the trademark right shall be determined according to the actual loss suffered by the obligee due to the infringement; Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; In this case, the respondent did not make a profit in the sales process, and the respondent did not provide evidence of actual loss, so the economic loss and reasonable expenses of claim 4 cannot be groundless and should be rejected. To sum up: the sources of the respondent products from legitimate sources, also the reasonable review obligation, is a sales person in good faith, and the product early in December 2015 has been stop selling, according to the regulation of the trademark law of the People's Republic of China, the respondent does not bear the liability to pay compensation, please court by the respondent's claim.

    I. The respondent's claim against the respondent has no factual basis: The respondent has never produced any products of the respondent's Shenzhen Shenhaowei Kitchen Appliances Co., LTD., nor has he ever had any cooperative relationship with the respondent's Shenzhen Shenhaowei Kitchen Appliances Co., LTD.; The respondent with a proud over the defendant never know, also have no business dealings, by the respondent in a proud over the defendant taobao shop to buy goods is not the respondent unit production, in the case of goods delivery unit as the "top clean ceiling electric appliance", product certification enterprises outside the qr code scanning display information for the case, the case evidence items is someone using the respondent name production sales, has nothing to do with the respondent, relevant personnel infringe on the rights of the respondent leads the respondent has been reported to jiaxing city of xx district market regulatory authority. Second, the respondent will repeat the same infringement facts charged by the behavior of the abuse of litigation, malicious litigation, unreasonable ChanSu behavior: the case has been the guangdong shenzhen baoan district people's court (2016) 0306 6259 in the early days of the civil effective judgment confirmed that "the plaintiff filed for the defendant of xx district of jiaxing city king shop town crystal integration ceiling factory of insufficient evidence of infringement, we shall support." The other two defendants shenzhen Shenhaowei Kitchen Appliances Co., LTD., Yu Ao bear the corresponding liability for compensation; The case has been settled and should be closed; Under the principle of non bis in idem, no new proceedings should be instituted. On July 21, 2017, the respondent sued in Xiuzhou District People's Court of Jiaxing City for the same facts and evidence, then withdrew the lawsuit, and then sued in Luohu District People's Court of Shenzhen City for the same facts and evidence. Therefore, the respondent thinks that once the exercise of the right goes beyond the boundary of the exercise of the right or violates the purpose of the establishment of the system, the exercise of the right also loses its legitimacy and forms the abuse of the right. The purpose of the right of action is to bring a lawsuit to ask the court to protect its private rights. If the subject exercising the right of action ACTS arbitrarily and infringes the interests of others and the society, it is not in accordance with the provisions of the law. Therefore, the proper limits of the exercise of the right of action should not infringe upon the legitimate rights and interests of others as well as social and national interests. On May 21, 2016, the people's Court published an article entitled "To make those who abuse the right of action pay the price". The article pointed out that "the abuse of the right of action will also affect the work and life of the other party and cause direct or indirect losses to the other party. In addition, the abuse of the right of action should be required to compensate for the loss of work lost or the loss of lawyers entrusted by the other party". Specifically, in this case, the respondent, knowing that the case has been settled and there is no new evidence, sues in a row after another, which is an abuse of the right of action. Malicious litigation and unreasonable litigation have a great impact on the work and life of the respondent, causing direct economic losses of tens of thousands of yuan to the respondent. Three, this case has passed the statute of limitations: the respondent in December 2015, obtain evidence, and the guangdong shenzhen baoan district people's court (2016) 0306 6259 cases in the period of evidence at the same time, in the early days of the case, there is no statute of limitations to suspend the interruption of the statutory basis, so the case of the statute of limitations shall be calculated as of the date of from the respondent forensics, according to the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation "of article 18 of infringing the right to exclusive use of a registered trademark of the statute of limitations for two years, the holder of the trademark registrant or interested person knows or should know that as of the date of the infringement. A trademark registrant or interested party more than two years, to prosecute if continues when the tort in prosecuting, during the term of the right to exclusive use of a registered trademark effectively, a people's court shall be the defendant stop the infringing act, the holder of the tort damage compensation amount shall bring a suit in a people's court forward calculation for two years from the date of the calculation." In this case, the limitation of action has exceeded two years prescribed by law. To sum up, the claims made by the respondent against the respondent have no factual and legal basis, and the claims made by the respondent against the respondent for several times are unreasonable claims, and the limitation of action has expired, and all the claims shall be rejected according to law.

    The defendant Shenzhen Shenhaowei Kitchen Appliances Co., LTD. Did not answer the defense nor provide evidence for cross-examination.

    The parties submitted evidence around the claim, and the Court determined the following facts according to the evidence submitted by the parties:

    The registered trademark "" no. 1424486 is registered by lvming energy-saving lighting factory, guzhen town, zhongshan city. The approved products are in category 11, including lamps and fluorescent lamps. The registered trademark on January 28, 2001, October 31, 2003, March 7, 2007, on October 6, 2012 for approval to the zhongshan opple co., LTD., guangdong opple co., LTD, zhongshan opple co., LTD., opple co., LTD., on January 8, 2013 approved changes registered to the plaintiff. The plaintiff submitted the dispute decision no. 6570 (2007) of the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce to prove that the trademark No. 14244886 was recognized as a well-known trademark.

    The registered trademark "" no. 7182788 is registered by zhongshan opu lighting co., LTD., and is approved to be used in class 11, including bath heaters, bathroom fixtures, bath bully, lamps, etc. The registration term of validity is March 28, 2012, solstice, March 27, 2022. The above registered trademark was transferred to Opple Lighting Co., Ltd. on October 6, 2012, and the change of registrant was approved as the plaintiff on January 8, 2013.

    The plaintiff was established on October 21, 2008 with a registered capital of RMB 521,479104. The business scope includes the production, sales, installation services of electric light source, lighting appliances, electrical switches, lighting circuit system design, lighting industry technology research and development. On December 19, 2014, the plaintiff was awarded the sohu focus home furnace-" 2014 most user attention product award ", "2014 outstanding contribution award for social responsibility" and "2014 outstanding contribution award for home furnace-industry". On June 8, 2015, the plaintiff was awarded the honor certificate ranking the third place by the Organizing Committee of "China's Top 100 LED Lighting Industry 2014". The plaintiff was awarded the honor certificate of "2015 Top ten Influential Brands of Integrated Ceiling" by the Jury of Integrated Home Ceremony in November 2015. The plaintiff obtained the certificate of "National Model Enterprise of Product and Service Quality integrity" issued by China Quality Inspection Association on March 16, 2016. On June 7, 2016, the plaintiff was awarded the honor certificate ranking the second place by the organizing Committee of "Top 100 China LED Lighting Industry 2015". In July 2016, the plaintiff and the plaintiff were awarded the title of "2015 China Top 100 Building Materials Home Furnishing Enterprises" by China Building Decoration Association. The plaintiff was awarded the honorary title of "Asian Famous Brand Award" by the joint evaluation of ABAS Expert Committee, Asian Brand Research Institute and Asian Brand Evaluation Center in September 2016.

    Shenzhen Oupu Kitchen Appliances Co., LTD., founded on September 13, 2013, was changed to be the defendant on February 20, 2017. Business scope includes bath Bully, integrated ceiling, lighting and other research and development, production, manufacturing and sales.

    (2015) According to the notarial certificate No. 9237, on December 2, 2015, under the supervision of the notary public, the plaintiff entrusted wang Shouzhen, an agent, to use the computer of the notary office at Block ×× North Financial Building, ×× Youyi Road, Tianjin. In taobao in the name of "li" proud "zi yu" opened "shenzhen op bath bully circuit city" stores in the choose and buy the key word for "shenzhen op OPURELE bath bully integration ceiling triad wind warm embedded heater's bathroom toilet", "shenzhen op OPURELE integration ceiling hutch defends 300600 ultra-thin ceiling light Led flat light panel" bath bully, each a ceiling lamp, generated after payment of the order no. 1292375894194885, 1292375894204885 orders for two pen (orders generated display nickname: after more than a proud son, real name: yu ao). Ms. Wang took screenshots of some of the pages. On December 7, 2015, under the supervision of the notary staff, Wang Shouzhen came to the sales department of "Yunda Express" in Hongxia District, Taishan Road, Hexi District, Tianjin, and picked up a piece of goods (tracking number: 1201940876920) with good packaging. Shou-zhen wang will bring the goods back hexi district of tianjin youyi road to add 5 hanting hotel chain a layer of conference rooms, the open after the outer packing take pictures of the above, there are words "European PuWei kitchen appliances (shenzhen) co., LTD." bath bully, each a ceiling lamp, notarial personnel after the goods packaging, labeled with tianjin teda notarization seals. On December 14, 2015, under the supervision of the notary public, Wang Shouzhen used the computer of the notary office in the column of "My Treasure bought on Taobao.com" in the column of "Check Logistics" and "Order Details" under the order Numbers of 1292375894194885 and 1292375894204885. The key words of the purchase are "Shenzhen OPURELE Integrated Suspended Ceiling, three-in-one Air heating and embedded Toilet heating fan Bathroom", "Shenzhen OPURELE Integrated suspended ceiling Led Flat Light 300600 ultra-thin Panel", and some of the pages are taken as screenshots. After the notarial deed attached screenshot shows into taobao shop search bar enter "shenzhen op bath bully electric city" into the shop, the shop page up display "shenzhen op bath bully electric city", the drop-down page shows one of the goods entitled "shenzhen op OPRUELE integration ceiling hutch 300600 ultra-thin ceiling light led flat light panel prices sold 150, 68 commodity mark" shenzhen op "on the picture, click on the title link to display the goods" shenzhen op OPRUELE integration ceiling hutch defends 300600 ultra-thin ceiling light led flat light panel "taobao price is 68, The product picture is labeled "Shenzhen Opu". The attachment also shows that the store's alipay personal authentication "2011-06-24", and the order information shows that the seller with the number 1292375894204885 has a real name of "Yu Ao", and the goods ordered are flat lamps.

    The plaintiff submitted in court the above-mentioned commodities purchased through Taobao.com. After examination, the alleged infringing goods have both seals of Tianjin Teda Notary Office and Hunan Yueyang Intermediate People's Court. Among them, seals of Tianjin Teda Notary Office have been removed and seals of Hunan Yueyang Intermediate People's Court are intact. The plaintiff's interpretation on the seal is that he had filed a lawsuit to the Intermediate People's Court of Yueyang City, Hunan Province for the flat lamp and bath bar in the accused infringing goods, and the Intermediate People's Court of Yueyang city, Hunan Province re-sealed the seal on the accused infringing goods only after the withdrawal of the lawsuit. After unpacking, there are a plate lamp and a bath bully in the seal. The plaintiff clarifies that the goods accused of infringement in this case are only flat lamps. The picture of the outer packing of the flat lamps is as follows:

    The plaintiff claims that the defendant Yu Ao's actions respectively infringe the plaintiff's trademark right and infringe the plaintiff's enterprise name right. The defendant, Shenzhen Shenhaowei Kitchen Appliances Co., Ltd. and Wangdian Jinko Integrated ceiling Factory in ×× District of Jiaxing City, violated the plaintiff's right of enterprise name. The defendant Yu Ao violated the trademark right by highlighting the word "Shenzhen Oupu" on the trademark title link and product picture on Taobao website, and at the same time, using the word "Shenzhen Oupu Yuba Electric Appliance City" on the webpage header, in which the word "Oupu" is prominent. Defendant deep hao wei kitchen appliances (shenzhen) co., LTD. And king of xx district of jiaxing city shop crystal integration ceiling factory infringe plaintiff's right to enterprise name is accused of infringing goods packaging on a "European PuWei kitchen appliances (shenzhen) co., LTD.", the commodity packaging shows the deep hao wei kitchen appliances (shenzhen) co., LTD. The original name of "shenzhen PuWei kitchen electric appliance co., LTD.", manufacturers for the "king of xx district of jiaxing city inn crystal section integration ceiling factory", a proud over the defendant is accused of infringing goods in sales behavior, its behavior is also violation of plaintiff's right to enterprise name.

    The focus of the dispute in terms of facts in this case is: 1. Whether the accused infringing goods are sold by the defendant Yu Ao; 2. 2. Are the accused infringing goods produced by the defendant's Jinko Integrated Ceiling Factory in ×× District, Jiaxing city?

    Proud for dispute focus, although the defendant argued there was accused of infringing goods be switched, denied that the accused of infringing goods department sales, but the relevant court accused of infringing goods and the notary office seal, a proud over the defendant did not submit rebuttal evidence, as a result, our college for more than the defendant proud about the nestlings excuse accused of infringing goods will not be adopted. For dispute focal point two, is accused of infringing goods although marked with the manufacturer for the "king of xx district of jiaxing city inn crystal section integration ceiling factory", but the accused of xx district of jiaxing city shop wang jing integration ceiling factory denied is accused of infringing goods into its production situation, still should be further proof that the plaintiff, the plaintiff's existing evidence is not enough to prove that is accused of infringing goods is accused of xx district of jiaxing city shop wang jing integration ceiling factory produced.

    The defendant, Yu Ao, does not deny that he is a seller involved in Jinteda Certificate No. 9237 (2015). Therefore, the court confirms that the defendant, Yu Ao, is the operator of taobao website accused of infringement.

    In addition, the plaintiff filed a lawsuit against the three defendants in this case to The People's Court of Shenzhen Bao 'an District on January 26, 2016. The case involved the notarization (2015) of Yueqing Guoxin No. 005347, involving the accused infringing goods as Bath bully. On July 21, 2017, the plaintiff filed a lawsuit against the three defendants at Xiuzhou District People's Court in Jiaxing city. The plaintiff made it clear in court that the case was the same as the lawsuit claim and the goods involved in the alleged infringement.

    The court holds that this case is a trademark infringement and unfair competition dispute. The focus of the dispute in this case is: 1. Is this case a duplicate lawsuit? 2. Has the statute of limitations expired in this case? 3. Whether the actions of the three defendants in this case infringe the trademark right, constitute unfair competition and bear relevant responsibilities.

    About duplicate litigation. First of all, although the original defendant in the case filed by the plaintiff in Shenzhen Bao 'an District People's Court is exactly the same as the original defendant in this case, the case involves different goods accused of infringement, so it is not a duplicate lawsuit. Secondly, although the original defendant in the case filed by the plaintiff in Xiuzhou District People's Court of Jiaxing city is exactly the same as the original defendant in this case, and the case involves the accused infringing goods that are also the same as this case, the plaintiff in this case has withdrawn the lawsuit, and the court has not made a substantial judgment on this dispute. Therefore, this case is not a duplicate lawsuit.

    About the limitation of action. According to the provisions of the law, the limitation of action is interrupted when the obligee brings a lawsuit, and the limitation of action shall be recalculated. In this case, the plaintiff once filed a lawsuit in Xiuzhou District People's Court of Jiaxing City on July 21, 2017 for the same case. Accordingly, this case did not exceed the limitation of action due to the reason of interruption of the limitation of action.

    About the infringement of trademark rights. The plaintiff is the registrant of the registered trademark No. 1424486 and No. 7182788, and enjoys the exclusive right to use the said two registered trademarks according to law. According to the provisions of Article 57 of the Trademark Law of the People's Republic of China, any use of the same or similar trademark on the same or similar commodities without the permission of the trademark registrant may easily lead to confusion or sale of commodities that infringe the exclusive right to use a registered trademark shall be an act of infringement of the exclusive right to use a registered trademark. It can be seen that trademark use and easy to cause confusion are the two major components of trademark right infringement. In this case, the plaintiff claims that yu Ao, the defendant, used the word "Shenzhen Opu" and the word "Shenzhen Opu Bath Ba Electric Appliance City" on the website title link and product picture of the taobao store he operated without permission to constitute trademark infringement. First of all, the core of trademark use is that it can play the role of identifying the source of goods. In this case, the title link of the taobao store run by the defendant Yu Ao and the words on the product picture are "Shenzhen Opu", in which Shenzhen is the regional name. The defendant's use of this method has already played a role in distinguishing the source of the product for the relevant public, and it belongs to trademark use. "Shenzhen op" compared with the no. 7182788, no. 1424486 is a registered trademark, no. 7182788, no. 1424486 is a registered trademark of the most significant feature is that "op" 2 words, and shenzhen as the name, do not have to identify the source of goods for the relevant public role, "op" two characters and registered trademarks are exactly the same, no. 7182788 and no. 1424486 registered trademark approximation. The defendant Yu Ao used the words "Shenzhen Oupu Yuba Electric Appliance City" on the title of the web page. The content of the words indicated the category of the goods sold. The word "Oupu" did not highlight the use of the word and did not distinguish the source of the goods. To sum up, the defendant Yu Ao's use of the words "Shenzhen Opu Bath Ba Electric Appliance City" on the webpage title does not constitute trademark infringement. Without permission, the defendant Yu Ao used the word "Shenzhen Opu" in the title link and product pictures of the taobao store he operated, which infringed the plaintiff's exclusive right to use the registered trademark no. 7182788 and No. 1424486, and shall bear the corresponding tort liability.

    About unfair competition. The alleged act of unfair competition in this case occurred before the revision of the Anti-Unfair Competition Law of the People's Republic of China in 2017, so the revised Law should be applied. Article 5 (3) of the Law of the People's Republic of China against Unfair Competition (1993) stipulates that any unauthorized use of another person's enterprise name or name, which may be mistaken for another person's goods, shall be an act of infringement of the right to an enterprise name. In this case, according to plaintiff and defendant Shenzhen deep hao wei kitchen appliance limited company registers business scope, can affirm both to have competition relation between. Is accused of infringing goods shown on the outer packing "European PuWei kitchen appliances (shenzhen) co., LTD.", department of the shenzhen shen hao wei kitchen electric appliance co., LTD. Before the change of company name, deep in the shenzhen hao wei kitchen electric appliance co., LTD fails to submit the evidence rebutting the rest enough cases, we found the goods for the shenzhen hao wei kitchen electric appliance co., LTD produces. Defendant deep hao wei kitchen appliances (shenzhen) co., LTD., formerly known as "shenzhen PuWei kitchen electric appliance co., LTD.", the enterprise name for "op", the completely same size with the plaintiff, the plaintiff company was founded in 2008, its approved at the same time as the font size to use commodity categories for bath heaters, bathroom equipment, light etc of the registered trademark "op" for 2012, "op" identified by the plaintiff's use for a long time, has certain market popularity and is known by the relevant public. And the defendant deep hao wei kitchen appliances (shenzhen) co., LTD. Was set up for 2013, later than the plaintiff company was set up and "op" trademark registration time, is accused of infringing goods for flat light, belong to the plaintiff's business scope approved and registered trademark and "op" using the category of the same, the defendant deep hao wei kitchen electric appliance co., LTD. Shenzhen will "op" as the enterprise name used for the use of flat light goods, easy to cause the relevant public to produce false goods source, at the same time, the defendant deep hao wei kitchen electric appliance co., LTD. Shenzhen nor submit evidence that it would "op" as enterprise size with reasonable reason, on this basis, The court finds that the defendant Shenzhen Shenhaowei Kitchen Appliance Co., LTD. 's use of "Oupu" as the enterprise name constitutes unfair competition, and it shall bear the civil liability of stopping the infringement and compensating for the loss. The evidence submitted by the plaintiff is insufficient to prove that the goods accused of infringement are produced and sold by the defendant's Wangdian Jinko Integrated Ceiling Plant in ×× District, Jiaxing city. The plaintiff's lawsuit that the behavior of the defendant's Wangdian Jinko Integrated ceiling plant in ×× District, Jiaxing city constitutes unfair competition has requested the court not to support it. The defendant Yu Ao sold the accused infringing goods, and the evidence he submitted is insufficient to prove that he has done his duty of reasonable care in selling the accused infringing goods. Therefore, yu Ao shall also bear the civil liability of stopping the sale of the accused infringing goods and compensating for the losses.

    In summary, in accordance with article 57 of the Trademark Law of the People's Republic of China, Article 5 (3) of the Law of the People's Republic of China against Unfair Competition (1993), Article 64, Article 142 and Article 144 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    I. Defendant Yu Ao shall immediately stop highlighting the word "Shenzhen Op" on the title link and product pictures of the taobao store he operates.

    2. Defendant Yu Ao shall immediately stop the sale of flat-panel lights marked "Shenzhen Opal Kitchen Appliances Co., LTD".

    The defendant Shenzhen Shenhaowei Kitchen Appliances Co., Ltd. shall immediately stop the production and sale of flat-panel lights marked "Shenzhen Oupu Kitchen Appliances Co., LTD."

    4. Defendant Yu Ao shall, within ten days from the effective date of this judgment, indemnify the plaintiff OPl Light Co., Ltd. for its economic losses and reasonable expenses of RMB 20,000 yuan.

    5. The defendant, Shenzhen Shenhaowei Kitchen Appliances Co., LTD., shall compensate the plaintiff, Opal Lighting Co., LTD., for economic losses and reasonable expenses of RMB 80,000 yuan within 10 days from the effective date of this judgment.

    6. Other claims of Opal Lighting Co., LTD were rejected.

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

    The receiving fee of this case is RMB 2,300, which is borne by the defendant Yu Ao, RMB 460, and borne by the defendant Shenzhen Shenhaowei Kitchen Appliances Co., LTD, RMB 1840.

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

    Chief Judge Pan Yanqing

    People's Juror Zhong Yue-huan

    People's Juror Deng Zizuo

    May 29, 2008

    Clerk Jiao Enby