Civil judgment of Lianyungang Intermediate People's Court of Jiangsu Province

    Lianyungang Intermediate People's Court of Jiangsu Province

    Written judgment of civil affairs

    (2019) Su 07 No. 74 of the Early Republic of China

    Plaintiff: Optilight Co., LTD., Room 411, Building 1, No. 6111 Longdong Avenue, Pudong New Area, Shanghai.

    Legal representative: Wang Yaohai, chairman of the board.

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

    Attorney: Tang Qichao, lawyer of Shandong Changping Law Firm.

    Defendant: Wang Yuzhen, female, born on June 20, 1951, Han Nationality, residing in Guanyun County, Jiangsu Province.

    The plaintiff Opinlight Co., LTD. (hereinafter referred to as Opinlight Co., LTD.) and the defendant Wang Yuzhen for trademark infringement dispute were filed on April 9, 2019 by the court, and the trial was held in public in accordance with the ordinary procedures. Tang Qichao, the authorized agent AD litem of the plaintiff, arrived at the court to attend the lawsuit. Wang Yuzhen, the defendant, was summoned legally, but refused to attend the court without justified reasons, and the court was absent from the trial according to law. The case is now closed.

    The plaintiff OPPLE Lighting Company filed a lawsuit to the court: 1. The defendant was ordered to immediately stop the infringement of the plaintiff's exclusive right to use the words "OPPLE" and "OPPLE" in the name and store of the defendant; 2. 2. Order the defendant to immediately cease the sale of flat lamps bearing the words "OPp" and "OPPLE"; 3. Order the defendant to compensate the plaintiff for the economic loss and reasonable expenses of safeguarding the rights in this case, totaling RMB 150,000; The costs of this case shall be borne by the defendant.

    Facts and Reasons: Plaintiff Opu Lighting Co., Ltd. is a comprehensive lighting enterprise integrating research and development, production, sales and service. The company's products cover LED and traditional light source, lamps and lanterns, electrical appliances, ceiling products, building materials and other fields. On July 21, 2000, the plaintiff registered the trademark "OPPLE+ OPPLE+ graphics" No. 1424486, and then successively registered the series trademarks of "0PPLE", "OPPLE", "Graphics +OPPLE+ OPPLE Lighting" and so on. After decades of painstaking operation by the plaintiff and the plaintiff's affiliated companies, the above trademark has become a household name and well-known lighting and electrical appliance brand in China, which has successively won the reputation of "China well-known Trademark", "Guangdong Famous Trademark", "China Famous Brand" and so on. "Oupu" brand series products with high quality products and professional services by the majority of consumers love, has a wide range of popularity and influence. In the minds of consumers, "OP" and "0PPLE" brands have established specific links with the plaintiff in lighting, electrician and building materials products.

    In December 2018, according to the plaintiff's investigation, the defendant Wang Yuzhen used the words "Opu Lighting Store No. 1" as the name of the shop on Taobao.com, and used the words "opu" and "0PPLE" to sell flat lights labeled "Opu" and "OPPLE" in her online store. The plaintiff entrusted a notary office to preserve evidence. The plaintiff argues that the defendant trademark reputation malicious clings to the plaintiff, violate the act of the plaintiff's trademark goods sales, without authorization in violation of the "trademark law of the People's Republic of China" and relevant laws and regulations, violated the legitimate rights and interests of the plaintiff, not only caused economic losses to the plaintiff, has caused bad effects to the plaintiff's brand reputation. In order to safeguard the legitimate rights and interests of the plaintiff, we hereby file a lawsuit and judge as requested.

    After being summoned legally, Wang Yuzhen did not attend the court proceedings and did not submit her defense opinion to the court.

    The parties have submitted evidence according to law around the claims. Based on the statements of the parties and the evidence confirmed through examination, the Court finds the following facts:

    Opple Lighting Co., Ltd. was founded on October 21, 2008 with a registered capital of 579,479,104 yuan. Its business scope covers the production, sales and installation services of electric light sources, lighting appliances and electrical switches. On March 28, 2012, zhongshan opple co., LTD. Registration no. 7182788 "op" trademark has been approved and registered validity since March 28, 2012 to March 27, 2022, approved by the goods of class 11 bath with equipment, lamp, lighting lamp and so on, on October 6, 2012, the plaintiff suffered to obtain the trademark ownership. On October 21, 2010, zhongshan OPPLE lighting co., ltd. was approved to register the trademark "OPPLE" no. 7182791, effective period of registration from October 21, 2010 solstice on October 20, 2020, and approved to use the goods as class 11 bathing equipment and lamps (lighting lamps), etc. On October 6, 2012, the plaintiff was granted the ownership of the said trademark. "Opp" trademark and "OPPLE" trademark after many years of use, has a high visibility.

    On December 20, 2018, laiwu city, the city committed intellectual property service center of entrusted agent Qian Zhen came to liu FengCheng notarization in laiwu city in shandong province, according to opple laiwu city lai city committed intellectual property company authorized service center in the name of the licensee's own evidence preservation to handle the notarization, liu Qian Zhen commissioned to infringe opple company intellectual property rights infringement of forensics, apply for liu Qian Zhen ordinary consumer identity in "taobao", "alibaba" and "many" e-commerce platform to buy infringing products, Browse, operate the process to carry on the video recording and obtain the evidence preservation to the purchased product process. On the same day, under the supervision of notaries at the notary office, Liu qian Zhen used a computer connected to the Internet at the notary office and bought a flat panel lamp in the name of ma Tao, an ordinary consumer, from an online shop named "Opu Lighting No. 1 Jiangsu Shop" on Taobao.com. In the above operation process, Liu Qian Zhen used the "screen video expert" software to record the whole operation process and took screenshots of some pages.

    Under the supervision of notary staff from Fengcheng Notary Office, Laiwu City, Shandong Province, Dec. 25, 2018. Liu Qianzhen comes to the sales department of Laiwu Yunda Fengjialin Service Point, No. 282, Luzhong Street, Laicheng District, Laiwu City, Shandong Province, to pick up a piece of goods with sound packaging. Liu Qian Zhen opened the above goods and found a flat panel lamp marked "OPPLE OPPLE Lighting". The notary staff sealed the above articles with the seal of the notary office, and the sealed articles were kept by Liu Qian Zhen. Liu Qian Zhen took 12 photos of the above items and the sales department. On December 27, 2018, under the supervision of the notary staff of the notary office, Liu Used the computer connected to the Internet at the notary office to confirm the receipt of the order number 302160641707629535 on Taobao. In the process of the above operation, Liu Qian Zhen used the "screen video expert" software to record the whole operation and took screenshots of some pages. On December 30, 2018, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2018) Fengcheng Notary No. 1288 of Lulaiwu Fengcheng Certificate, confirming the above process and facts.

    During the trial, the sealed items attached to the notarial certificate were unsealed after confirming the preservation of the evidence involved. There is one carton inside. After opening the carton, there is one small carton inside, one plate lamp inside after opening, one starter and one product manual. The words OPPLE and OPPLE are marked on the outer packing boxes of the alleged infringing products, the plate lights, the product manuals and the starter. After comparison, Opal believes that the plaintiff has only one shop on Taobao.com, whose name is opal flagship store. The plaintiff does not authorize the defendant to set up a Taobao shop to sell Opal lamps. The alleged infringing product has no production date or specific manufacturer, and the packaging of the product is in vague font, while the flat light product produced by the plaintiff is in clear font. The alleged infringing product has an anti-counterfeiting code on the back, and the owner of the anti-counterfeiting code is a private person according to the ICCP filing, and the flat-panel lamp product produced by the plaintiff does not have an anti-counterfeiting code. Accordingly, OPPLE believes that the alleged infringing products are not produced by OPPLE. The defendant used the words "OPPLE" and "0PPLE" in a large number in its online store, and sold the flat lamp marked with the words "OPPLE" and "OPPLE", infringing the exclusive right of the plaintiff's registered trademark No. 7182788 and 7182791.

    In addition, the online store involved in the case disclosed the following authentication information of its members through Taobao.com: ID: Xinzhiya Lighting, real name wang Yuzhen, RESIDENT ID number, mobile phone number 175×× 2981, address In Guanyun County, Jiangsu Province.

    The focus of this case is as follows: 1. Whether Wang Yuzhen infringed the exclusive right of the registered trademark involved; 2. Second, if The infringement of Wang Yuzhen, it should bear what civil liability.

    The court holds that Wang violated the exclusive right to use the registered trademark involved in the case. First of all, according to the trademark law of the People's Republic of China (hereinafter referred to as the "trademark law") article 48 regulation, the use of trademark referred to in this law refers to the trademark for goods, goods packaging, or containers as well as Commodity Exchange documents, or the trademarks used in advertising, exhibitions and other commercial activities, is used to identify the source of goods. Supplies vendors, in this case, the king Yu Zhen as lamps and lanterns, without the consent of the plaintiff, within its taobao shop name and store the use of "op" and "OPPLE logo," is a trademark use behavior, king Yu Zhen can be inferred from the above actions have tried to make consumers for its franchise, joining with the plaintiff, monopoly and other specific business relations clings to deliberate, objectively also creates such effect, king Yu Zhen behavior is improper with the aid of the plaintiff the goodwill of the trademark involved, also divided the trademark involved to some extent corresponding relation with the plaintiff itself, interferes with the plaintiff of the trademark functions involved in the full play, To sum up, Wang Yuzhen's behavior infringed on the exclusive right of the plaintiff's trademark involved in the case.

    Second, OPPLE company is involved in "op" and "OPPLE" registered trademark holder, it shall be entitled to enjoy the rights to exclusive use of trademarks shall be protected by law, without their permission, no one shall be on the same kind of goods or similar goods to use its registered trademark identical with or similar to the identity of the, or infringement of the right to exclusive use of a registered trademark of the goods. In this case, the (2018) Notarization Certificate No. 1288 submitted by Opple Lighting Has made a detailed record of the online store purchased by notarization of the goods involved in the alleged infringement as well as the labeling of the brand of the flat lamp purchased, which is sufficient to prove that Wang Yuzhen sold the alleged infringing products. The alleged infringing product is the flat light, which is the same as the goods approved for use in the case of the trademark involved. Moreover, the logo of "OPPLE" and "OPPLE" are used on the packaging box and the flat light of the alleged infringing product. Compared with the case of the registered trademark involved, there is basically no visual difference, constituting the same trademark. Since the product is not from Opp Lighting Company, it should be a commodity that infringes the exclusive right to use the registered trademark of Opp Lighting Company. Wang Yuzhen violated the exclusive right to use the registered trademark by selling the alleged infringing product without permission.

    Wang Yuzhen, who infringed the plaintiff's right to exclusive use of the registered trademark, should bear the civil liability to stop the infringement and compensate for the loss. As for the determination of the specific amount of compensation, opal failed to provide evidence to prove the actual losses suffered by it due to infringement or the benefits gained by Wang Yuzhen due to infringement, nor did it provide the standards of licensing fees of the registered trademark involved for reference. Therefore, it is requested to apply the legal compensation, which is granted by the court according to law. Comprehensive consideration of the registered trademark involved in the popularity, in the case of infringement product sales price, sales, sales amount, the local economic development level, online business scale, operating time, subjective fault, as well as opple company to stop the infringement of reasonable expenses related factors, discretionary king Yu Zhen opple company economic loss compensation and reasonable rights of spending a total of 150000 yuan.

    In conclusion, according to the provisions of the trademark law of the People's Republic of China article 57 (3), (7), paragraph 1 of article sixty-three, paragraph 3, the supreme people's court on some issues of applicable law in trademark civil dispute cases interpretation of the first paragraph of article 9, article 10, the second paragraph of article 16 and article 17, paragraph 1 of article 21, the civil procedure law of the People's Republic of China the provisions of article one hundred and forty-two, the decision is as follows:

    I. As of the effective date of this judgment, Wang Yu-jen shall immediately stop the infringement of the exclusive right of the registered trademark of OPPLE No. 7182788 and OPPLE No. 7182791 of OPPLE in the name and use of the words "OPPLE" and "OPPLE" in her shop;

    2. As of the effective date of this judgment, Wang Yuzhen will immediately stop selling the goods that infringe the exclusive right to use the registered trademark of OPPLE No. 7182788 and OPPLE No. 7182791 of OPPLE co., LTD.;

    Iii. Wang Yuzhen shall, within 10 days from the effective date of this judgment, compensate OPp Light Co., Ltd. for economic losses and reasonable expenses of safeguarding rights, totaling RMB 150,000.

    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 was 3,300 yuan, which was borne by the defendant, Wang Yuzhen.

    If refuses to accept the verdict, can be delivered within 15 days from the date of the judgment we submit the petition, and according to the number of the other party to submit a copy of the appeal in jiangsu province higher people's court, at the same time, according to the relevant provisions of the "litigation cost method", the jiangsu province higher people's court accepting the appeal court costs, collection unit: jiangsu province higher people's court, bank: agricultural bank of China to visit nanjing branch, account 10 x x x 75, after remittance to hand in a copy of the remittance voucher in our hospital with volume transferred).

    Xu Feng, chief judge

    Judge B bin

    Judge Liu Ning

    December 2, 1920

    Assistant judge Cohen

    Clerk Wang Xuezhu

    Legal Provisions and Appendix to Appeal Notes

    Provisions on legal and judicial interpretation

    (1) Trademark Law of the People's Republic of China

    Article 57 any of the following ACTS shall be an infringement of the right to exclusive use of a registered trademark:

    ...

    (3) selling commodities that infringe upon the right to exclusive use of a registered trademark;

    ...

    (7) causing other damage to the exclusive right to use a registered trademark of another person.

    ...

    Article 63 The amount of compensation for the infringement of the exclusive right to use a trademark specified in Paragraph 1 shall be determined on the basis of the actual losses suffered by the right holder as a result of the infringement. Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; Where it is difficult to determine the losses of the right holder or the benefits obtained by the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. If the circumstances are serious, the amount of compensation may be determined between one time and three times of the amount determined according to the above methods. The amount of compensation shall include the reasonable expenses paid by the right to stop the infringement.

    Article 63 In case it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests gained by the infringer as a result of the infringement, or the licensing fee of the registered trademark, the people's court shall make a judgment to compensate the obligee not more than three million yuan according to the circumstances of the infringement.

    (2) Interpretation of the Supreme People's Court on Some Issues concerning the Application of Law in the Trial of Trademark Civil Disputes

    Article 9 If a trademark is identical in the provisions of Article 52 (1) of the Trademark Law, paragraph 1, it means that the trademark accused of infringement is compared with the registered trademark of the plaintiff, and there is basically no visual difference between the two.

    Article 10 The people's court shall, in accordance with the provisions of Article 52, item (1), of the Trademark Law, determine that a trademark is identical or similar in the following principles:

    (1) based on 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.

    Article 16 In determining the amount of compensation, the people's court shall take into account such factors as the nature, period and consequences of the infringing act, the reputation of the trademark, the amount of the trademark license fee, the type, time and scope of the trademark license, and the reasonable expenses for stopping the infringing act.

    Article 17 The reasonable expenses paid to stop an infringing act as provided for in paragraph 1 of Article 56 of the Trademark Law shall include the reasonable expenses incurred by the right holder or the agent entrusted to investigate and collect evidence of the infringing act.

    The people's court may, on the basis of the litigant's claim and the specific circumstances of the case, calculate the lawyer's fee in conformity with the provisions of the relevant departments of the state within the scope of compensation.

    Paragraph 1 of article 21 of the people's court in the trial of a registered trademark infringement dispute case, on the basis of article one hundred and thirty-four of the general principles of the civil law, the provisions of article 53 of the trademark law and the specific circumstances of the case, may the infringer to stop the infringement, eliminate the obstruction, eliminate the danger, compensate for the losses, eliminate the influence, such as civil liability, still can make a fine, confiscate the infringing goods and counterfeit trademark and infringing goods for the production of specialized materials, tools, equipment and other property of civil sanctions. The amount of the fine may be determined by reference to the relevant provisions of the Regulations for the Implementation of the Trademark Law of the People's Republic of China.

    (3) Civil Procedure Law of the People's Republic of China

    Article 142 At the end of a court debate, a judgment shall be made according to law. If mediation can be conducted before a judgment, mediation may also be conducted; if mediation fails, a judgment shall be made without delay.

    "Article 253 If the person subjected to execution fails to perform his obligations with respect to pecuniary payment within the period specified in a judgment or written order or any other legal document, he shall pay double interest on the debt for the delay in performance." If the person subjected to execution fails to perform his other obligations within the period specified in the judgment, written order or any other legal document, he shall pay a fee for late performance.

    Ii. Notice of Appeal

    In accordance with the provisions of relevant laws, regulations and judicial interpretations, the relevant matters of appeal are hereby notified as follows:

    The parties concerned shall enjoy the rights and obligations relating to appeal as prescribed in Article 164 of the Civil Procedure Law of the People's Republic of China and Articles 22 and 48 of the State Council's Measures for payment of Litigation Costs.

    If the appellant fails to pay the appeal fee at the time of appeal, he shall pay the fees for accepting the appeal case within seven days from the date of submitting the appeal petition, and submit the payment voucher to the court at the same time. If the court fails to pay or submit the payment voucher within the time limit, the court shall submit the case to the higher people's court of jiangsu province for an order to automatically withdraw the appeal and handle the case in accordance with article 2 of the supreme people's court's notice on the application of the method of payment of litigation expenses >.

    The notice of Appeal has the same legal effect as notice of Appeal Fee.