The Second Intermediate People's Court of Tianjin Civil Judgment

    Tianjin Second Intermediate People's Court

    Written judgment of civil affairs

    (2018) Jin 02, No. 73, 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.

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

    Defendant: Xuqiang Decoration Materials Sales Department, Hedong District, Tianjin, domicile: No. 166, Zhangguizhuang Road, Hedong District, Tianjin (Pinhe Decoration City).

    Operator: Xu Qiang, male, born on January 12, 1985, Han Nationality, living in Hedong District, Tianjin.

    Defendant: Zhou Weizhong, male, born on March 13, 1965, Han Nationality, former operator of Wangdianyi Electric Appliance Factory in Xiuzhou District, Jiaxing City, Zhejiang Province, residing in Xiuzhou District, Jiaxing City.

    The plaintiff opple co., LTD. (hereinafter referred to as the company) and the defendant hedong district of tianjin penny ur (decorative material (hereinafter referred to as "penny ur (arm), wei-zhong zhou the infringement trademark dispute case, in our hospital from January 2018 Hitachi after 10, in accordance with the applicable ordinary procedure, on March 22, 2018, public hearing on the trial. The plaintiff Ou Pu company entrusts litigant representative Wang Yan, the defendant Xu Qiang manages the department operator Xu Qiang, the defendant Zhou Weizhong attended the lawsuit. The case is now closed.

    Opal filed a lawsuit against the court: 1. The two defendants immediately stopped producing and selling the bath bully which violated the plaintiff's registered trademark right; 2. 2. Order the two defendants to jointly and severally compensate the plaintiff's economic losses and reasonable expenses for safeguarding their rights totaling 200000 yuan; 3. The costs of the case shall be Shared by the two defendants. Facts and Reasons: The plaintiff is the exclusive owner of ""," ", "" and other series of registered trademarks and related combination trademarks. 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 is awarded "China well-known trademark", "guangdong famous trademark" and so on, in the consumer mind "OPPLE" brand in lighting, electrical products has established certain connection with the plaintiff, the brand is loved by consumers. In July 2017, after investigation by the plaintiff, it was found that the business department of the defendant Xu Qiang sold a bath bully that infringed the plaintiff's registered trademark right without authorization in the store of "Bull Decoration switch" where the defendant operated. The bath Bully was marked with the words "OPPOHJKJ" and "WWw. opus Environmental Technology.cn". The packing box is marked with the words "Wangdian Yi Pin Electric Appliance Factory, Xiuzhou District, Jiaxing City". The plaintiff entrusted a notary office to preserve the evidence. After inquiry, Jiaxing Xiuzhou District Wang Dian yi electrical factory has been cancelled, the defendant Zhou Weizhong is its former operator. The plaintiff that the defendant penny ur (arm, king store this product in xiuzhou district of jiaxing city electrical appliance factory, without the consent of the plaintiff to mark on the production, sales, in the case of bath bully "op" behavior, violation of the provisions of the trademark law of the People's Republic of China, that is enough to cause consumers to product source cause misidentification, constitute trademark infringement and caused huge economic loss to the plaintiff. Jiaxing Xiuzhou District Wangdian Yipin electric appliance Factory is an individual industrial and commercial enterprise, the rights and obligations after cancellation should be undertaken by its former operator defendant Zhou Weizhong.

    Defendant Xu Qiang's Business Department argued that if the products involved were sold by the business department, the defendant agreed to stop the sales and did not agree to the joint compensation of 200,000 yuan. Facts and Reasons: a year ago, the salesman sold the products in question door-to-door and said there was nothing wrong with the products. A year later, the plaintiff came to buy the bath bully and sold it to the plaintiff.

    The defendant, Zhou Weizhong, argued that first, wang Dian Yi Electric appliance Factory in Xiuzhou District of Jiaxing city had not produced for more than two years. Second, the evidence submitted by the plaintiff, provided no king store this product in xiuzhou district of jiaxing city electrical appliance factory qualified logo, if the carton is our factory confirmation, from packaging as a whole is king in xiuzhou district of jiaxing city shop one product electrical appliance factory production, but inside it is difficult to prove that is our factory production, because the king in xiuzhou district of jiaxing city shop one product electrical appliance factory have special certificate and operation instruction. In 2016, the plaintiff sued the Xiuzhou District People's Court of Jiaxing city for infringement of trademark rights and unfair competition disputes. During the litigation process, the plaintiff and I reached a settlement, and the Xiuzhou District People's Court of Jiaxing City made (2016) Zhejiang 0411 civil Conciliation Statement No. 2729 in the early Republic of China. If it cannot be proved that the products involved are manufactured by the factory, the plaintiff's claim for full compensation shall be rejected.

    The parties submitted evidence according to law around the claim, and the court organized the parties to conduct cross-examination at the trial. Based on the parties' statements and the evidence examined and confirmed, the Court finds the facts as follows:

    The plaintiff OUp Company was founded on October 21, 2008 with a registered capital of RMB 579479104. Its business scope includes the production (limited to branches), sales and installation services of electric light source, lighting appliances and electrical switches. Sales of household appliances, building decoration materials, sanitary ware and furniture, lighting circuit system design, lighting industry technology research and development, urban and road lighting construction project professional construction, engaged in import and export of goods and technologies, self-owned house rental.

    On July 21, 2000, Zhongshan Guzhen Lvming Energy-saving Lighting Factory registered the trademark no. 1424486 "" combination of characters, letters and graphics, and approved the use of commodities as category 11, 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 Opple Lighting Co., LTD. On January 8, 2013, the name of the trademark registrant was changed to that of the plaintiff, OP Company.

    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" trademark dispute an order no. 3024602, concluded that no. 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 March 16, 2016, Oupu was awarded the "National Model enterprise of Product and service quality integrity" by China Quality Inspection Association. In July, 2016, Oupu was awarded the title of "Top 100 Enterprises of Building Materials home Furnishing in 2015" by China Building Decoration Association and other awards of lighting decoration and integrated suspended ceiling.

    On March 28, 2012, Zhongshan Opu Lighting Co., Ltd. registered the trademark "Opu" no. 7182788, and approved the use of goods in category 11, including bath heaters; Bathroom fixtures; Bathroom partition; Solar water heaters; Bath bully; Bathing equipment; Lamps (lighting lamps); Heating device; Electric heating device (cut off). Valid until March 27, 2022. On October 6, 2012, the trademark was approved and assigned to Opple Lighting Co., LTD. On January 8, 2013, the trademark was approved and assigned to the plaintiff, OP Corporation.

    Wang Shouzhen, the agent of Jindun Intellectual Property Service Center in Laicheng District, Laiwu city, Shandong Province, applies to Fengcheng Notary Office for evidence preservation on July 28, 2017. On July 30, 2017 in laiwu city in shandong province FengCheng notarization notaries zhang, xu notarial personnel supervision, laiwu city, the city committed intellectual property service center of the entrusted agent shou-zhen wang came to tianjin hedong district in the name of ordinary consumers Zhang Guizhuang road 166 D - 103 "the ping river decorative lamps and lanterns city" "bull decorative switch" shops, to buy the bath bully of a marked "OPPOHJKJ" (the bath bully panel marked with "WWW. Op environmental science and technology. Cn"), on the spot in the store POS issued credit card slip, receipt and a business card. The notary took photos of the outdoor scenes of the shop and the items obtained on site, sealed the items purchased on site, and entrusted the sealed items to the entrusted agent Wang Shouzhen for safekeeping. On August 18, 2017, Fengcheng Notary Office of Laiwu City, Shandong Province issued (2017) Fengcheng Notary No. 954. The plaintiff, Opal Company, notarized and preserved the purchase of the accused infringing product for 360 yuan.

    On June 14, 2014, defendant Zhou Weizhong registered the character trademark "OPPOHJKJ" No. 11944223, and approved the use of the goods as class 11, including refrigerators; Lamp; Electric heating device; Electric heater; Electric water heater; Air conditioning equipment; The dragon's head; Solar water heaters; Disinfect cupboards; Bath bully. Valid until June 13, 2024.

    On July 18, 2016, opus, the plaintiff, filed a lawsuit to Xiuzhou District People's Court of Jiaxing city for infringement of trademark rights and unfair competition disputes with the defendant Zhou Weizhong. In the course of the trial of the case, Ou Pu company and Zhou Weizhong confirmed that Jiaxing Xiuzhou District Wang Dian Yi electric appliance factory has gone through the cancellation registration procedures. After mediation by the court, the two parties voluntarily reached the following agreement on September 6, 2016: "I. Defendant Zhou Weizhong shall compensate the plaintiff OPal Lighting Co., Ltd. a total of RMB 50,000 for economic losses and reasonable expenses for rights protection before September 13, 2016; 2. Opal Lighting Co., LTD., the plaintiff, voluntarily waives the remaining litigation claims, and will not pursue the defendant Zhou Weizhong's other previous infringement ACTS, including trademark infringement and unfair competition disputes; 3. Court costs of 1,050 yuan halved to collect 525 yuan, to be borne by the defendant Zhou Weizhong." On the same day, Jiaxing Xiuzhou District People's Court issued (2016) Zhejiang 0411 Early Republic of China 2729 Civil mediation document, confirming the content of the agreement between the two parties.

    According to the comparison at trial, the all-in-one machine of the accused infringement product purchased by the plaintiff notarized is attached to the rectangular chassis. The left part is the lamp and the right part is the fan. On the frame of the rectangular chassis, words such as OPPOHJKJ trademark and WWw. opp environmental Science. cn shall be printed; LED superconducting circuit diagram, technical parameters, model: LED superconducting, rated voltage, rated frequency, rated power, waterproof grade, circuit diagram, K1: heating, K2: heating 2, K3: blowing, K4 ventilation, K5: lighting and other words are printed on the silver label pasted on the back of the all-in-one machine. The white label is printed with words such as inspector, date of production, approval after inspection, etc. The date of production is stamped with a blue timestamp and the date is June 2017.

    OPPOHJKJ trademark, all-in-one machine, beautiful environment Shared by you and me and other words are printed on the front of the outer packing box of the accused product, and a picture of the bathroom is printed on the picture of the all-in-one machine. All-in-one infringing products packaging side with integral OPPOHJKJ trademarks, product names, product model, product number 1, 220 v - the voltage/frequency 50 hz, packing size 630 * 235 * 347 mm, executive standard GB4706.1-2005 gb4706. 23-2007 gb4706. 27-2008, manufacturer: king in xiuzhou district of jiaxing city shop goods electrical appliance factory, address: China king shop small home appliance industry, telephone: 0573-83303663, fax: 0573-83301007, website: WWW. Op environmental technology. Cn and other content.

    There is also an integrated ceiling operation manual in the packing box of the accused product. On the right side of the cover of the instruction book are printed the integrated Suspended ceiling, OperationInstructions, Heating, lighting IIIuminatiog, Ventilation, Suspended ceiling, etc. Please read the instruction book carefully before using the product, and keep the instruction book properly. Features: 1. Beautiful Shape This series of integrated ceiling perfectly integrates the functional modules of heater, lamp and ventilator, etc. ; Technical parameters; The circuit diagram. Installation instructions; Installation guide; Matters needing attention; Maintenance and maintenance; Service; Ceiling product warranty card.

    The above facts include (2014) The Notarial Certificate no. 3592 of Laifeng City Certificate; (2013) Notarial Certificate of Shanghai Jing Certificate No. 5053, 5054 and 5055; (2014) Notarization certificate of Huhuang Certificate No. 9916; (2017) Notarial Certificate no. 954 of Laifengcheng Certificate and the sealed physical purchase instrument; (2016) The Notarial Certificate of Huxu Certificate No. 8869, (2016) Zhejiang 0411 Civil Conciliation Statement No. 2729 in the early Republic of China and the court statements of the parties are supported on record.

    The court holds that, first, whether the actions of the defendant Xu Qiang and Zhou Weizhong constitute an infringement of the exclusive right to use the registered trademark of the plaintiff OPus.

    The plaintiff, Op Company, is the registered trademark holder of the combination trademark of characters, letters and graphics of No. 1424486 and the registered trademark of No. 7182788, both of which are in the term of validity. The exclusive right of the registered trademark legally enjoyed by the above registered trademark within the approved use scope shall be protected by The Trademark Law of China.

    (1) Using a trademark identical with a registered trademark on the same kind of goods without the permission of the trademark registrant; (2) using a trademark similar to its registered trademark on the same kind of goods or using a trademark identical with or similar to its registered trademark on similar goods without the permission of the trademark registrant, which is likely to cause confusion; (3) selling commodities that infringe upon the right to exclusive use of a registered trademark; (4) forging or manufacturing, without authorization, signs of a registered trademark of another person, or selling signs of a registered trademark that is forged or manufactured without authorization; (5) changing a registered trademark of a trademark registrant and putting the commodities with the changed trademark back on the market without the consent of the trademark registrant; (6) intentionally facilitating the act of infringing another person's right to exclusive use of a trademark, and helping another person to commit the act of infringing the right to exclusive use of a trademark; (7) causing other damage to the exclusive right to use a registered trademark of another person." The supreme people's court on some issues of applicable law in trademark civil dispute cases interpretation of article 11 of the first paragraph: "the trademark law (revised in 2001) the first paragraph (a) of article 52 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." As well as the second paragraph of article 9 of the regulations, "trademark law (revised in 2001) the first paragraph (a) of article 52 trademark approximation, is refers to the accused of infringement of trademark compared with the plaintiff's registered trademark, the glyph, pronunciation and meaning of the text or graphic composition and color, or the combination of whole structure similar to that of all the elements or the stereo shape, color combination, easy to make the relevant public to mistake the source of the goods and/or think of its source and the plaintiff's registered trademark commodities have a specific contact."

    In this case, the infringed product is an all-in-one machine, which is an integrated ceiling with functions such as heater, lighting and ventilation fan. The goods approved for use under the registered trademark "OP" no. 7182788 of the plaintiff'S OP Company include bath heaters, bathroom devices, heating devices and electric heating devices, both of which belong to the same kind of goods. In the process of use, the all-in-one machine of the accused infringing product has the function of lighting, and the consumer groups it faces are overlapped with those of lamps to some extent, and the relevant public will also think that there is a specific connection between the two. Therefore, the product is similar to the goods approved by the plaintiff's trademark No. 1424486.

    The plaintiff op the company's 7182788th and 1424486th of a registered trademark of "op" two words in Chinese is not a fixed phrase, "oh" word are connected to the word "at" use doesn't have any meaning, but because of the use of the plaintiff op company, make ordinary consumers see "op" 2 words, can relate to the plaintiff in the use of approved products within the scope of registered trademark "op".

    The logo "www. opp environmental sci-tech. Cn" used by defendant Zhou Weizhong on the all-in-one machine and the outer packing boxes of the accused infringing products can play the role of identifying the source of the goods and constitute the use in the sense of trademark. The word "OP" in the logo of the accused infringing product is the same as the registered trademark of plaintiff No. 7182788 "OP" and the important part of the registered trademark of no. 1424486 "OP". Under the circumstance that "OP" has more recognition ability, it is easy for the relevant public to misidentify the source of the accused product. Therefore, the "www. op environmental technology. Cn" used by the defendant Zhou Weizhong is similar to the trademark of "OP" no. 7182788 and the trademark of "OP" no. 1424486.

    "Op", as the trademark of the plaintiff, op company, enjoys the exclusive right. After years of use by the plaintiff, OP company has gained good reputation. Wei-zhong zhou the defendant in the case of without the consent of the plaintiff authorized use, unauthorized use of op with the plaintiff company is a registered trademark of the same word "op" as a brand, its behavior can easily lead to the relevant public source for products produce mistakes, caused the market confusion, constitutes a violation of the plaintiff op company ", "no. 1424486 and no. 7182788" op "registered trademark.

    Defendant Zhou Weizhong protested that the all-in-one machine of the accused infringing product was not produced by the all-in-one machine, but according to the information in the packing box of the all-in-one machine, it could be confirmed that the manufacturer of the accused infringing product was Wangdian Yi Electric Appliance Factory in Xiuzhou District, Jiaxing city, and the electric appliance factory was operated by Zhou Weizhong. At the same time, the trademark of "OPPOHJKJ", approved and registered by Zhou Weizhong, is printed on the integrated machine and outer packing boxes of the accused infringing products. To sum up, it is possible to confirm that the accused product is produced by the defendant Zhou Weizhong. The court believes that, first of all, the civil mediation document No. 2729 (2016) of Zhejiang 0411 submitted by the defendant Zhou Weizhong was made on September 6, 2016, and the agreed content is for the products produced before the signing of the civil mediation document. In this case, the contents of the outer packing boxes of the infringing products are pointed to the defendant Zhou Weizhong. The date of production of the product accused of infringement is June 2017, which is later than the (2016) Zhejiang 0411 (Early Republic of China no. 2729 Civil mediation document dated September 6, 2016. It can prove that the alleged infringing product was produced by the defendant Zhou Weizhong in June 2017. Secondly, (2016) Opp, the plaintiff agreed in The civil mediation no. 2729 in the early Republic of China of Zhejiang 0411, will no longer pursue the infringement behaviors of the defendant Zhou Weizhong, including trademark infringement and unfair competition. The production time of the products sued for infringement is June 2017, which does not belong to the infringement before September 6, 2016 as agreed in the settlement agreement. The court does not support the defense of defendant Zhou Weizhong.

    If the defendant, Xu Qiang's business Department, as the seller of the infringing goods, fails to provide evidence of the legal source of the accused infringing products, and sells the goods that infringe the exclusive right to use a registered trademark in accordance with paragraph 3, Paragraph 1, article 57 of China's Trademark Law, it shall also be an act of infringement upon the exclusive right to use a registered trademark. Therefore, the defendant Xu Qiang's sales also infringe upon the plaintiff's right to exclusive use of the registered trademark.

    Ii. On the issue that defendants Zhou Weizhong and Xu Qiang's Business Department should bear legal liability for the infringement.

    First of all, the defendant wei-zhong zhou in the case of without the consent of the plaintiff's op company, do STH without authorization to use with the plaintiff shall enjoy the right to exclusive use of a registered trademark of no. 1424486 "trademark and" 7182788 "op" trademark identical or similar characters as logos, the infringement of the right to exclusive use of a registered trademark of the plaintiff op company, to cause damage to the plaintiff's company, the defendant wei-zhong zhou shall undertake to immediately stop the infringement of the plaintiff op the civil liability of the company registered trademark. The defendant, Xu Qiang's business department, as the seller of the infringing commodities, shall also bear the civil liability of stopping the infringement and compensating for the losses. However, the court does not support the plaintiff's claim that the two defendants are liable for joint tort. Second, given the plaintiff op company did not provide by the actual loss of the infringement and the benefit (received by the defendant for infringement, we consider the plaintiff the reputation of the trademark, the defendant wei-zhong zhou again violations of the plaintiff's right to exclusive use of a registered trademark of the degree of subjective malice, 2 during the period of the nature of the infringement, the defendant, the consequences of the plot, the price of the infringing products, and to stop the infringing act of determining reasonable expenses and other factors.

    In conclusion, on the basis of the trademark law of the People's Republic of China, paragraph 2 of article 57, paragraph 3, article sixty-three, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "in the second paragraph of article 9, paragraph 1 of article 10, article 11, article 12 and article 16 and article 17, article sixty-four of the civil procedural law of the People's Republic of China the provisions of the first paragraph, the sentence is as follows:

    I. Defendant Zhou Weizhong immediately stopped producing and selling products that infringed upon the exclusive right to use the registered trademark of the plaintiff OPshine Co., LTD. No. 1424486 and No. 7182788.

    2. The defendant, Xuqiang Decoration Materials Sales Department of Hedong District, Tianjin, stopped selling the products that infringed the exclusive right to use the registered trademark of the plaintiff opu Lighting Co., LTD., No. 1424486 and No. 7182788;

    3. Defendant Zhou Weizhong shall, within 10 days after the judgment takes effect, compensate the plaintiff OPal Lighting Co., Ltd. for economic losses and reasonable expenses totaling 150,000 yuan;

    4. The defendant, Xuqiang Decoration Materials Business Department of Hedong District, Tianjin, shall compensate the plaintiff, Opal Lighting Co., Ltd. for economic losses and reasonable expenses totaling RMB 30,000 within 10 days after the judgment takes effect;

    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 acceptance fee is 4,300 yuan, 215 yuan borne by the plaintiff Opu Lighting Co., LTD., 3,391 yuan borne by the defendant Zhou Weizhong, and 694 yuan borne by the defendant Xu Qiang Decoration Materials Business Department in Hedong District, Tianjin.

    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 the court, and make a copy according to the number of the other party, and appeal to the Tianjin Higher People's Court.

    Chief judge Wang Jiaozhu

    Acting Judge Yan Ping

    People's juror Zhou Yikuan

    June 12, 2008

    Judicial assistant Andrea Jung

    Clerk Bai Chaoxia