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. 79, 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: Tianjin Jinghui Lighting Business Department, Domicile: No. 166, Jinbin Avenue, Hedong District, Tianjin (Pinghe Decoration Lighting B108).

    Operator: Yan Shubo, male, born on May 30, 1979, Han Nationality, living in Hedong District, Tianjin.

    Defendant: Shenzhen Longge Electric Co., LTD., Room 610, Development Building, no. 133, Xuegang North Road, Bantian Street, Longgang District, Shenzhen, Guangdong.

    Legal representative: Zhang CAI, executive Director.

    The plaintiff opple co., LTD. (hereinafter referred to as the company) and the defendant of tianjin light city jing hui lamps sales department (hereinafter referred to as crystal fai sales department), the defendant shenzhen lundgren electric co., LTD. (hereinafter referred to as lundgren company) 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. Wang Yan, the plaintiff's agent AD litem, and Yan Shubo, the operator of the defendant's jinghui business Department, attended the lawsuit. After being legally summoned by the court, the defendant Lange Company refused to appear in court to answer the lawsuit without justifiable reasons, and the court tried in absentia according to law. The case is now closed.

    Opp filed a claim against us: 1. Order the two defendants to immediately stop the production and sale of sockets and switches that infringe upon the plaintiff's registered trademark rights; 2. The court ordered the two defendants to compensate the plaintiff for economic losses and reasonable expenses in total of RMB 200,000 yuan; 3. The costs of this case shall be borne by the two defendants.

    Facts and Reasons: The plaintiff is the exclusive owner of "OPPLE", "OPPLE", "Feeling", "The Charm of Light", "OPPLE and Graph" 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, the plaintiff investigated and found that the Operation Department of Jinghui violated the plaintiff's registered trademark right of "OPPALLE OpP series" sockets and switches in the store of "Jinghui Lighting Pinghe No.1 Store", and the packaging box was marked with the words "Shenzhen Longo Electric Co., LTD". The plaintiff thinks that the defendant's behavior of producing and selling the sockets and switches involved without the permission of the plaintiff violates the provisions of the Trademark Law of the People's Republic of China, which is enough to cause consumers to misidentify the product source, constitutes trademark infringement and causes huge economic losses to the plaintiff, so he sues.

    The defendant Jinghui Business Department argues that the English alphabet trademark used on the defendant's products has been registered with the Trademark Office and that the English trademark is different from the Plaintiff's English trademark; The Plaintiff did not register the Chinese trademark "Op" in the switch socket and the Chinese trademark was in the hands of an outsider. Defendant's action does not constitute a tort, request to dismiss all plaintiff's claims.

    The defendant, Lange, did not enter a plea.

    After trial and investigation, OUpu company was established on October 21, 2008, with a registered capital of 579479104 yuan. 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, etc.

    On July 21, 2000, Zhongshan Guzhen Lvming Energy-saving Lighting Factory registered trademark No. 1424486 "OPPLE and Chart", and approved the use of goods 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 Opp Lighting Co., LTD. On October 6, 2012, the trademark was approved and assigned to Opp Lighting Co., LTD. On January 8, 2013, the registrant of the trademark was changed to OpP Co., LTD.

    On October 14, 2008, the plaintiff OPP Company registered the English trademark "OPPLE" No. 4983580 and approved the use of the commodity as class 9, light regulator (electricity); Transformer; Photoelectric switch (electrical); The electric switch; Electrical connectors; Electrical plugs; Plugs, sockets and other contactors (electrical connectors). Valid until October 13, 2018.

    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 "op OPPLE and figure" 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.

    According to lai city committed intellectual property service center application in laiwu city, on July 30, 2017 in laiwu city in shandong province FengCheng notarization notaries zhang, xu notarial personnel supervision, laiwu city, urban shield intellectual property service center entrusted agent shou-zhen wang came to tianjin hedong district in the name of ordinary consumers Zhang Guizhuang road 166 B - 108 "the ping river decorative lamps and lanterns city", "jing hui lighting co" ping river shop, Bought labeled "OPPALLE op series", "shenzhen lundgren electric co., LTD." on the cable outlet of a, a television closed route outlet, and an open "double control" switch ten, ten "three order control" switch, "five hole socket" twenty only, on the spot in the store POS issued a credit card slip, number for 0016061 of the shipping list and a business card. On August 18, 2017, Fengcheng Notarial Office of Laiwu City, Shandong Province issued (2017) Fengcheng Notarial Certificate No. 951.

    The alleged infringing products purchased by notarized include "one-open double-control" switch, "three-open single-control" switch and "five-hole socket". The upper left side of the package box is marked with "OPPALLE", and the lower left is the enterprise name, factory address and website of "Shenzhen Longo Electric Co., LTD". Single product packaging: "OPPALLE" and "OpP series" are marked on the upper left, "household electrical" in the middle and "switch socket lighting" in small words, and the factory name and address of the defendant Langer Company are marked on the lower part. The product itself is labeled "OPPALLE" at the bottom right.

    Also found out, op company notarization preservation purchase product cost RMB 313 yuan.

    Above facts have a trademark registration certificate no. 4983580 and transfer changes certificate, certificate of trademark registration certificate no. 1424486 and transfer changes, the word no. 951 (2017) lai FengCheng card people notarial deed and storage physical buying tickets, the state administration for industry and commerce trademark review and adjudication board "about 3024602" euro Parsley "orders" of trademark disputes, prove that the plaintiff awards (2016) Shanghai xu certificate by the word no. 8869 is notarial deed evidence documented evidence.

    The court holds that, after years of production, operation and advertising, the trademark of OUp has been well known to the relevant public, and has a high reputation and reputation in the field of household electrical appliances such as lighting fixtures. Its trademark "OPPLE and Graph" was recognized as a well-known trademark by the State Administration for Industry and Commerce in 2007. In October 2008, OPPLE registered "OPPLE" on the 9th class switch, socket and other commodities. The above trademarks are all within the validity period, and the exclusive right of the trademark is protected according to law. Questions about whether the product constitutes trademark infringement involving lawsuit, we believe that (1) the defendant lundgren in its production and sales of products of the company and use "OPPALLE" logo on the package, is used as a trademark, and use the same as the plaintiff's registered trademark "OPPLE" font, easy to make consumers produce mistakes, belong to the provisions of the trademark law on the same commodity using approximate trademark infringement. The defendant Jinghui Business Department protested that the trademark was registered. Upon examination, the registration information provided by the defendant Jinghui Business Department was a copy, and the registrant was an outsider of the case. Moreover, even if the content was true, the registered trademark was different from the trademark actually used by the defendant Lunge Company, so the defendant's claim was not supported. 2. The defendant Lange company marked "Opp series" on the product packaging. The use of "Opp" could identify the source of the product and was a trademark. Considering that the plaintiff's registered trademark "OPPLE and graph" has a high popularity, and that "OPPLE", which has a significant identification function in the trademark, is not a fixed phrase and has strong originality and distinctiveness, the court finds that the two marks constitute an similarity. About products involving lawsuit and whether the plaintiff use trademark approved goods form similar problems, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation 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 plaintiff "op OPPLE and figure" use of a registered trademark approved goods of class 11 lamp, fluorescent tubes, products involving lawsuit usually used, switch and lamp switch and outlet as household electrical sales, along with all the same products and lighting products involving lawsuit on function, purpose, sales channels, sales object is a particular link, easy to confuse consumers, therefore, we decided that the act of the defendant lundgren company belong to the trademark law regulations used on similar products similar mark and easy to cause confusion infringement, the defendant lundgren company shall assume the tort stop the infringement, compensate for the loss of civil liability. If the defendant jinghui Business Department, as the operator of the infringing commodities, fails to provide evidence of the legitimate source of the commodities, it shall, in accordance with the provisions of the Trademark Law, also bear the responsibility of stopping the infringement and compensating for the losses. However, the court does not support the plaintiff's claim that the two defendants bear joint tort liability. As for the amount of compensation, in view of the plaintiff's failure to provide the actual loss suffered by the infringement and the interests gained by the defendant due to the infringement, the court comprehensively considers the plaintiff's trademark and enterprise's popularity, the nature and circumstances of the infringement, the price of the infringing products and the reasonable expenses for stopping the infringement.

    In conclusion, on the basis of the trademark law of the People's Republic of China the first (2) of article 57, the first item (3), article sixty-three, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation article 10, paragraph 1 of article 11 and article 12, 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-four of the sentence is as follows:

    I. The defendant, Shenzhen Longo Electric Co., Ltd. immediately stopped the production and sales of switches and sockets that infringed upon the exclusive right to use the registered trademark of the plaintiff, Opple Lighting Co., LTD.;

    2. The defendant, Tianjin Jinghui Lighting Business Department, has immediately stopped selling switches and sockets that infringe upon the exclusive right to use the registered trademark of the plaintiff, Opple Lighting Co., LTD.;

    3. The defendant, Shenzhen Longo Electric Co., Ltd. compensated the plaintiff, Opal Lighting Co., Ltd. for economic losses and reasonable expenses totaling 150,000 yuan within 10 days after the judgment took effect;

    4. The defendant, Tianjin Jinghui Lighting Business Department of Tianjin Lighting City, 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 handling fee was 4,300 yuan, 430 yuan borne by the plaintiff Opu Lighting Co., LTD., 570 yuan borne by the defendant Jinghui Lighting Business Department in Tianjin City, and 3,300 yuan borne by the defendant Shenzhen Longo Electric Co., LTD.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal petition to the court, and make copies according to the number of parties or representatives 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

    March 29, 2008

    Judge assistant Pang Zhen

    Clerk Bai Chaoxia