Civil judgment of The Intermediate People's Court of Changzhou City, Jiangsu Province

    Changzhou Intermediate People's Court of Jiangsu Province

    Written judgment of civil affairs

    (2018) Su 04 Min Zhong No. 899

    Appellant (defendant in the first instance) : Zhongshan Opai Happy Kitchen Appliance Co., LTD., ground Floor, Factory Building, No. 21, Kangtai Road, Huangpu Town, Zhongshan City, Guangdong Province, unified social credit code ××15Y.

    Legal representative: Ouyang Keshu, manager of the company.

    Agent AD litem: Chen Tao, lawyer of Jiangsu Shengdian (Changzhou) Law Firm.

    Appellant (defendant in the first instance) : Zhongshan Oupai Huandai Electric Appliance Co., LTD., 2nd Floor, No. 21 kangtai Road, Huangpu Town, Zhongshan, Its domicile, unified social credit code ××2X5.

    Legal representative: Ouyang Keshu, executive Director of the company.

    Agent AD litem: Chen Tao, lawyer of Jiangsu Shengdian (Changzhou) Law Firm.

    Appellant (defendant in the first instance) : Nanchang Oupai Electric Appliance Co., LTD., Room 501-516, East of Laotelecom Building, Complex Building, 36 Urzi Road, Xihu District, Nanchang city, Jiangxi Province, its domicile, Unified social credit code ××324.

    Legal representative: Ouyang Keshu, executive Director of the company.

    Agent AD litem: Chen Tao, lawyer of Jiangsu Shengdian (Changzhou) Law Firm.

    Appelee (plaintiff in the first instance) : Opai Household Group Co., LTD., domicile: No. 366, Guanghua Third Road, Baiyun District, Guangzhou city, Guangdong Province, Unified social credit code ××97C.

    Legal representative: Yao Liangsong, 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 in the first instance: Wu Jianlan Building Materials Business Department, Longhutang, New North District, 12-06, 3-40, Changmao Center, Yellow River East Road, New North District, Changzhou City, Jiangsu Province, Registration No. 320407600432470.

    Operator: Wu Jianlan, female, Han Nationality, born on September 2, 1971, living in Xinbei District, Changzhou city, Jiangsu Province.

    The appellant zhongshan opie happy kitchen electric appliance co., LTD. (hereinafter referred to as the European happy kitchen company), zhongshan ou Pai hutch defends electric appliance co., LTD. (hereinafter referred to as the Pai hutch defends electric company), nanchang opie electric appliance co., LTD. (hereinafter referred to as the opie electric company) with the appellee opie household group co., LTD. (hereinafter referred to as the European group co., LTD.), new north district, the original defendant dragon pond jian-lan wu building materials sales department (hereinafter referred to as the shop of jian-lan wu) the infringement trademark, unfair competition disputes, high and new technology industry development zone, changzhou, refuses to accept the people's court (2017) su 0411 no. 718 in the early days of the civil judgment, Appeal to this court. On March 5, 2018, the Court established a collegial panel to hear the case, and on March 28, 2018, it organized the questioning of the parties to the case. The case is now closed.

    1. Cancel the civil judgment No. 718 of Changzhou Hi-tech Industrial Development Zone (2017) su 0411, and amend the judgment to reject the lawsuit of Opai Group Company; 2. The litigation costs of the first trial and the second trial shall be borne by OPai Group. Facts and Reasons: 1. The Appellant does not constitute unfair competition. 1. Opie Has not operated since 2015 and has gone out of business. Besides, it has been listed in the list of abnormal operations by the market supervision department. 2. The enterprise name of Opai Happy Kitchen company is "Opai Happy Kitchen" instead of "Opai", which is different from the name of Opai Group Company, and will not cause confusion to the relevant public; The appellant USES the registered trademark "Opai Happy Kitchen" authorized by Ouyang Keshu, the legal representative of the company, as the name, which does not constitute unfair competition. Therefore, Opai Group Company has no right to ask Opai Happy Kitchen Company to stop using the word "Opai". 3, opie group co., LTD. (2016) submitted word no. 1153 lai FengCheng card people notarial deed sealed plotted on a real kitchen burning gas is involved the appellant company's legal representative ouyang may use the registered trademark of tree licensing "OUPAI", the appellant is a producer, the appellant company name and website shown on the product packaging, the source of the relevant public goods will not confused. 4. The evidence submitted by Opai Group cannot prove the originality and continuous use of the advertising department of "Family, love and Opai". 5. The registrant of the trademark "OUPAI" is Ouyang Keshu, the legal representative of the appellant Company, who has applied for the registration of the trademark "You Jia You Ai You", and now the trademark application is in the substantive examination stage. The appellant used the advertising slogan "Have family, have love, have OUPAI" without any intention to attach the company's goodwill to seek economic benefits, which will not cause confusion among the relevant public and therefore does not constitute unfair competition. 6. In the sales contract signed by the appellant and the Distributor, the Distributor is expressly required not to use the trademark of Opai Group In sales and publicity, which has fulfilled the duty of examination and care. Ii. The court of first instance decided that the appellant should compensate OPai Group for the excessive economic loss of 160,000 yuan (including reasonable expenses for stopping infringement). Opai failed to prove the extent of its losses due to infringement, nor did it issue a legal note for reasonable expenses. The appellant had no unfair competition, and the business department of Wu Jianlan was small in scale and the sales volume was limited. Therefore, the first-instance court decided that the appellant should compensate OPai Group for the excessive economic loss of 160,000 yuan. In addition, su 0411 (early Republic of China no. 700) civil judgment (2017) issued by the court of first instance has ordered the appellant to compensate OPai Group for economic loss of 160,000 yuan (including reasonable expenses for stopping infringement). This case again ordered the appellant to compensate for economic loss of 160,000 yuan (including reasonable expenses for stopping infringement).

    Opai group argues that the appellant's production and sale of the infringing products has constituted unfair competition, and its appeal grounds cannot be established. Opai group company in the media, newspapers, publications in a variety of ways to use the "family, love, opai" advertising slogan, has been known to the public. The amount of compensation determined by the court of first instance is appropriate. To sum up, the judgment of the first instance finds facts clearly, the judgment of the compensation amount is appropriate, and the appellant's appeal request has no factual and legal basis, so he requests to reject the appeal of the second instance and maintain the original judgment.

    The business department of the original defendant Wu Jianlan did not issue a defense opinion.

    Opai Group Company sues to the first instance court: 1. The judgment orders Opai Happy Kitchen Company, Opai Hupai Kitchen Appliance Company, Opai Electric Appliance Company, Wu Jianlan management Department to immediately stop the production and sale of gas stoves that infringe on the trademark rights of Opai Group company and that contain the words "Opai" and "There is a home and love and OUPAI"; 2. 2. Judge Opie Happy Kitchen Co., LTD., Opie Electric Appliances Co., LTD., and Opie Electric Appliances Co., Ltd. to immediately stop the infringement of trademark rights by marking "You Have Love and OUPAI" on the gas stoves they produce and sell; 3. Order Europa Electric Appliance Company to stop unfair competition immediately, change the enterprise name immediately, and the word "Europa" shall not be used in the changed enterprise name; 4, ordered opie happy kitchen, ou Pai hutch defends electric company, the company sent electric company to immediately stop ACTS of unfair competition, stop in its production and sales of kitchen burning gas on the packaging and instruction manual, warranty card and products on "zhongshan opie happy kitchen appliance co., LTD.", "nanchang opie electric appliance co., LTD." and "the home has love OUPAI" and other words; 5. Judge opai Happy Kitchen Co., LTD., Opai Kitchen Appliance Co., LTD., Opai Electric Appliance Co., Ltd. and Wu Jianlan Sales Department to compensate opai Group Company's economic loss and reasonable expense of rights protection for a total of RMB 300,000 in this case; 6. Judge Opai Happy Kitchen Co., LTD., Opai Kitchen Appliances Co., LTD., And Wu Jianlan To bear the legal costs of the case.

    Facts recognized by the court of first instance:

    I. The rights and facts of Opai Group

    Opai Group was founded on July 1, 1994 with a registered capital of RMB 373581112. Its business scope is furniture manufacturing industry.

    On November 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. was approved and registered by the Trademark Office of the State Council as the registered trademark of "Opai" No. 1128213, and approved to be used in the 20th category of goods: furniture; Sideboard; Metal furniture; Cupboards; Plate rack; Storage rack; Washstand (furniture); Food delivery truck (furniture); Dinner cart (furniture); The counter. On April 7, 1999, approved by the national trademark Office, the above trademark change registered name for Guangzhou European cabinet enterprise Co., LTD. On January 6, 2011, approved by the National Trademark Office, the name of the trademark change registration is Guangdong Opai Household Products Group Co., LTD. On January 6, 2011, approved by the State Trademark Office, the name of the trademark change registration is Guangdong Opai Group Co., LTD. On March 24, 2014, approved by the Trademark Office of the State Council, the name of the trademark change registration is Opai Home Furnishing Group Co., LTD.

    On December 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. was approved by the Trademark Office of the People's Republic of China and registered the registered trademark of "Opai" No. 1137521, which was approved to be used in the 11th category of commodity: kitchen stove; Gas burner. Electric cookers; Cooking utensils; Refrigeration equipment; Drying equipment; Cold and hot drinking water filter; Beverage cooling equipment; Electric water bottle; Refrigerating container. On April 7, 1999, approved by the national trademark Office, the above trademark change registered name for Guangzhou European cabinet enterprise Co., LTD. On January 6, 2011, approved by the National Trademark Office, the name of the trademark change registration is Guangdong Opai Household Products Group Co., LTD. On January 6, 2011, approved by the State Trademark Office, the name of the trademark change registration is Guangdong Opai Group Co., LTD. On March 24, 2014, approved by the Trademark Office of the State Council, the name of the trademark change registration is Opai Home Furnishing Group Co., LTD.

    On June 7, 2007, Guangzhou Opai Cabinet Enterprise Co., Ltd. registered the trademark of "Opai" no. 4378572 approved by the Trademark Office of the State, and approved to be used in category 11 commodity: gas stove; Microwave oven (kitchen utensils); Electric cooker. Baking utensils (cooking utensils); The faucet; Bathroom fixtures; Disinfect cupboards; Drinking water filter; Lavatory basin (sanitary fittings); Steam bath equipment; Sit in the bath; Bathing equipment; Shower stall; Wash tub; Implement; Kitchen range hoods; Light (cut off). On January 6, 2011, approved by the National Trademark Office, the name of the trademark change registration is Guangdong Opai Household Products Group Co., LTD. On January 6, 2011, approved by the State Trademark Office, the name of the trademark change registration is Guangdong Opai Group Co., LTD. On March 24, 2014, approved by the Trademark Office of the State Council, the name of the trademark change registration is Opai Home Furnishing Group Co., LTD.

    On March 14, 2011, Guangdong OpAI Group Co., Ltd. was approved by the Trademark Office of the State Council to register the registered trademark "OPPEIN" No. 7731876, which was approved to be used in category 11 commodity: ceiling lights; The oven; Cooking utensils; Gas burner. The water heater. Ice chest. The refrigerator; Kitchen range hoods; Non-laboratory furnace; The faucet; Bathroom fixtures; Bathing equipment; A flush toilet; Washbasin (sanitary fittings); Disinfect cupboards; Drinking water filter; Electric heater; Cigarette lighter. On March 20, 2012, approved by the State Trademark Office, the name of the trademark change registration is Guangdong Opai Household Products Group Co., LTD. On March 24, 2014, approved by the Trademark Office of the State Council, the name of the trademark change registration is Opai Home Furnishing Group Co., LTD.

    The above trademarks are within the term of validity.

    On April 24, 2009, the registered trademark "Opai" on the category 20 commodity of Opai Group was identified as well-known trademark. Opai Group's trademark No. 1128213 "Opai" has been recognized as a famous trademark of Guangdong Province from 2008 to 2011. In 2007, Opai household cabinet was identified as "China famous brand products" by the State Administration of Quality Supervision. In 2008, Opai cabinet was identified as "Guangdong famous brand products" by Guangdong Quality Supervision Bureau. In 2012, Guangdong Opai Household Group Co., Ltd. was identified as "Top 10 Overall Kitchen Leading Enterprises" by China Building Decoration Association Kitchen and Sanitation Engineering Committee. In 2013, Guangdong Opai Furniture Group Co., Ltd. was awarded the "2012 Guangzhou Mayor Quality Award" by Guangzhou Municipal Government. From 2013 to 2015, Opai Group paid more than 100 million YUAN of VALUE-ADDED tax every year. On brand promotion, opie group respectively with CCTV two set of columns "swap space", hunan radio and television advertising corporation, zhejiang wisdom beauty car advertising co., LTD., and other cooperation, in the CCTV news channel, household decorate a design program, such as awards show ads, and invited actress jiang wenli is opie brand cabinets, wardrobe, bathroom spokesperson in advertising. In addition, the group of companies in the "shenzhen special zone signs up for", "Shanghai ambry", "sales", "ruili household", "the decoration world, such as newspaper, magazine ads, the" European "brand and product promotion, and in Shanghai ambry, ruili household, use on magazines such as decorating the world" with family love opie "slogan.

    Ii. The rights and facts of the appellant and the defendant in the first instance

    Wu Jianlan business department is an individual business, business scope for decorative materials, sanitary ware, hardware, electrical wholesale and retail. Opie Happy Kitchen Co., Ltd. was founded on April 10, 2014 with a registered capital of 100,000 yuan. Its business scope covers the production, processing and sales of household appliances, range hood ventilator, electric water heater, disinfection cupboard, water purification equipment, gas water heater and kitchen utensils. Opai Electric Appliance Co., Ltd. was founded on September 2, 2010 with a registered capital of 500,000 yuan. Industrial investment; Production and processing of kitchen, bathroom products, household appliances.

    On April 14, 2005, Ouyang Keshu was approved by the Trademark Office of the People's Republic of China to register the registered trademark "Oupai" combination of characters and pictures no. 3626713, approved for use in category 11 commodity: gas furnace; The water heater. Induction cooker. Electric cooker. Electric fan. Range hood; Disinfection cabinet; Water dispenser. Electric heater; The refrigerator.

    On April 21, 2010, Ouyang Keshu was approved by the National Trademark Office to register the registered trademark of the letter "OUPAI" no. 5149711 and the chart, which was approved to be used in the 11th commodity: gas furnace; Electric POTS; Electric stove; Illuminator; The refrigerator; Kitchen range hoods; Solar water heaters; Disinfect cupboards; Water dispenser. Electric heaters.

    On June 7, 2012, OUPAI was approved by the National Trademark Office to register the graphic trademark No. 94354156 "OUPAI", which was approved to be used in the 11th commodity: water heater; Gas furnace; Bath bully; Lighting apparatus and devices; Electric cooker. Refrigerating equipment and devices; Solar water heaters; Disinfection equipment; Water dispenser. Kitchen range hoods; Heaters.

    On June 7, 2012, OUPAI registered trademark "OUPAI" No. 94354157 approved by the National Trademark Office and approved to be used in category 11 commodity: water heater; Gas furnace; Bath bully; Lighting apparatus and devices; Electric cooker. Refrigerating equipment and devices; Solar water heaters; Disinfection equipment; Water dispenser. Kitchen range hoods; Heaters.

    On December 28, 2013, OUPAI registered the trademark no. 11271069 "OUPAI" approved by the National Trademark Office, and approved to be used in the 11th category: electric cooker; Lighting apparatus and devices; Gas furnace; Refrigerating equipment and devices; Gas water heater; Electric heater; Kitchen range hoods; Electric water heater; Solar water heaters; Disinfecting equipment.

    On July 21, 2015, Ouyang Keshu registered the trademark of "Opai Happy Kitchen" no. 14587315 approved by the Trademark Office of the People's Republic of China, and approved to be used in category 35 commodity: advertising; Providing business information through the Internet; Business management of franchising; Marketing; Personnel management consulting; Computer input service; Accounting; Seek sponsorship; Business management and organizational consulting; Sell for others.

    On September 14, 2015, Ouyang Keshu was approved by the Trademark Office of the People's Republic of China to register the registered trademark no. 12950913 "Opaijianba", which was approved to be used in category 11 commodity: electric cooker; Lighting apparatus and devices; Gas furnace; Refrigerating equipment and machinery; Electric water heater; Gas water heater; Kitchen range hoods; Solar water heaters; The dragon's head; Disinfecting equipment.

    On May 7, 2016, OUPAI Energy-saving Kitchen registered trademark No. 15962569 approved by the National Trademark Office, and approved to be used in category 11: Electric cooker; Lighting apparatus and devices; Gas furnace; Refrigerating equipment and devices; Gas water heater; Gas furnace; Refrigerating equipment and machinery; Sanitary appliances and equipment; Kitchen range hoods; Shower water heater; Disinfection equipment; Electric heater; Lighting apparatus and devices.

    On August 14, 2016, OUPAI Registered trademark "OUPAI" no. 17060018 approved by the State Trademark Office and approved for use in category 11 commodity: water purification device; Kitchen range hoods; Electric cooker. Disinfect cupboards; Shower water heater; Cooking equipment and equipment; Disinfection equipment; Electric heater; Water purification equipment and machinery; Gas furnace.

    On September 14, 2016, Ouyang Keshu was approved and registered by the Trademark Office of the State Council as the registered trademark of "Ouyang Keshu" No. 17441889 and approved to be used in the 11th category of commodity: electric cooker; Lighting apparatus and devices; Gas furnace; Refrigerating equipment and machinery; Water heaters for washing (gas or electric heating); Bath water heater; Kitchen range hoods; Water purification equipment and machinery; The dragon's head; Disinfecting equipment.

    The above trademarks are within the term of validity.

    On March 1, 2017, Ouyang Keshu issues the trademark license certificate, proving that the registrant ouyang Keshu (362122197411206257) is the exclusive owner of the trademark registration Certificate no. 17441889, No. 12950913, 3626713, 14587315, 5149711, 9434157, 11271069, 17060018, 9434156 and 15962569. The registrant agrees to license the above trademarks to Opie Happy Kitchen Co., LTD., Opie Kitchen & Sanitary Co., LTD., and Opie Electric Co., Ltd. for the same period of validity as the registration of the above trademarks.

    Iii. Facts of infringement

    On October 7, 2016 in laiwu city FengCheng notarization notaries zhang, Ms. Notarial personnel supervision, opie group company entrusted agent shou-zhen wang in the name of ordinary consumers to the new north district, changzhou, jiangsu province, east of the Yellow River (near JinLing north road) "the Yangtze river free trade center" size 12-06 "building materials" facilities.we salesroom, shou-zhen wang in the shop to buy a marked "zhongshan opie happy kitchen appliance co., LTD." the words each one oil absorption, kitchen burning gas, a total of 1380 yuan, On the spot, I got a "Wu Jianlan" business card issued by the shop assistant, a POS card and a "Sales list of Jianlan Building Materials". After Wang Shouzhen took photos of the above items and the shop exterior, the notary sealed up the above range hood and gas stove. The Fengcheng Notary Office of Laiwu issued the notary Certificate of Laifeng City Certificate No. 1153 (2016) for the above process.

    In the first trial, the court opened the seal (2016) of the notarial Certificate No. 1153 in The court of Laifeng City, which contains a packed range hood and a gas stove. Left upper corner of the kitchen burning gas product packaging marked "opie established overlord series", the packaging on the right side was labeled "OUPAI green kitchen" and "the home has love has OUPAI", in the same on the side of the box body with larger font with the annotation, below labeled "zhongshan opie happy kitchen electric appliance co., LTD", website "x" and the information such as address and phone number, label manufacturers to "zhongshan ou Pai hutch defends electric appliance co., LTD.". Open the outer package of the product, there is a gas cooker and a product manual, a member warranty card, a VIP card, the gas cooker frame with "OUPAI" sign. Product specifications, membership warranty CARDS are "have a love have OUPAI", "Zhongshan OUPAI happy Kitchen Appliances Co., LTD." words. The seal of the box and the ATTACHED VIP card are marked with the words "Nanchang Oupai Electric Appliance Co., LTD". , by comparison, European group think on product packaging "opie established overlord series", "Europe" and in the European group co., LTD. No. 4378572 is a registered trademark, constitute the same packaging on the right side, body side, enclose the product manuals and warranty card members marked "OUPAI green kitchen", "the home has love OUPAI", "OUPAI" and "OPPEIN" trademark approximate number 7731876. Because opai group company enjoys no. 1128213 trademark, it is recognized as well-known trademark on ambry. Opie Happy Kitchen Company and Opie Electric Appliance Company use the word "Opie" in their business names, which constitutes unfair competition. Opie happy kitchen, ou Pai hutch defends electric company, the company sent electric company believes that the company USES "OUPAI" brand and "OPPEIN" opie group company trademark does not constitute a approximation, the company's name shown on the product packaging and web sites, products, with European group co., LTD., will not cause confusion to the public, opie group company fails to provide evidence to prove that "there is a love is the" advertising language its original creation and continuous use, opie happy kitchen, ou Pai hutch defends electric company, the company sent electric company not constitute the unfair competition. Wu Jianlan said the business department is not aware of this.

    On August 17, 2017, under the supervision of notaries, notarial personnel Ms. Zhang shou-zhen wang computer login url notarization place connected to the Internet to the use of the "x" web site to browse, and then in the Ministry of Industry and Information Technology ICP/IP address/domain name registration management information system "the website" xx "web site information and" cloud "ali website inquires the" xx "domain name registration information. Wang shouzhen took screenshots of relevant pages and recorded the entire operation using "Screen video Expert" software. On August 18, 2017, Fengcheng Notary Office in Laiwu city, Shandong Province notarized the above process and issued the (2017) Fengcheng Notary Public Certificate No. 922. According to the picture attached to the notarial certificate, "OUPAI energy-saving Kitchen" is marked on the top of the page of "××", and pictures of range hoods, gas stoves, electric water heaters and other products are displayed in the product display section of the website. ICP registration website information shows: Zhongshan Oupaikl.com, homepage address: ××, website domain name oupaikl.com, organizer: Zhongshan Oupaikl.com, Website registration/license no. : 14064426-1, Registration date: August 1, 2014.

    Other Facts

    On March 10, 2017, Opie Happy Kitchen Company purchased the gas stove produced by Opie Group Company. Opai happy Kitchen company thinks that the decoration, packaging, advertising and so on of its products do not have any similarities with Opai group company, the difference is obvious, will not let the consumer produce confusion and misidentification. Opai Group believes that the pictures of the appellant's products, the packing cases and packing instructions do not prove the actual use of the appellant's products, and the corresponding packing shall be subject to the infringement and unpacking. In this case, opai Group claims trademark infringement and unfair competition, rather than disputes over packaging and decoration, so the evidence is not relevant.

    The court of first instance considers that the focus of the dispute in this case is whether the business department of Wu Jianlan, Opai Happy Kitchen Company, Opai Hupai Huwei Electric Appliance Company and Opai Electric Appliance Company have the behavior of infringing the exclusive right of registered trademark of Opai Group Company. Whether Opie Happy Kitchen Company, Opie Kitchen Appliances Company, Opie Appliances Company constitute unfair competition; If there is a trademark infringement or unfair competition, what kind of civil liability should be borne.

    First of all, about the business department of Wu Jianlan, Opai Happy Kitchen Company, Opai Hupai Kitchen and sanitary appliance Company, opai electric appliance company whether there are violations of the exclusive right to use the registered trademark of opai Group Company.

    Opai Group Is the owner of the registered trademark "OPPEIN" No. 4378572 and "OPPEIN" No. 7731876, whose lawful rights and interests are protected by law. This case, jian-lan wu shop sales of kitchen burning gas products, marked on the product packaging "opie established overlord series", "zhongshan opie happy kitchen appliance co., LTD.", "nanchang opie electric appliance co., LTD.", "OUPAI green kitchen", "the home has love OUPAI" and the product labeled "OUPAI", including "OUPAI" and also "OPPEIN" from the sound, form and meaning, there is a big difference, there is no trademark approximation. According to the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "the provisions specified in the first paragraph of article 1, will be the same or similar registered trademark with others words as enterprise size in use highlights on the same or similar goods, the relevant public could produce misidentification, belong to the infringement of a registered trademark of behavior. This case, although the European happy kitchen, opie electric company "European" font size, with European group co., LTD., "European" word mark is the same, but the European group company notarization evidence of member product packaging, product manuals, warranty CARDS are based on normal fonts, annotation, in the form of an enterprise name full name is not to "European" two words out outstanding use from the enterprise name, "opie established overlord series" "Europe" is not prominent, therefore, Opai Group maintains that opai Happy Kitchen Company, Opai Hupai Kitchen & Sanitary Appliance Company and Opai Electric Appliance Company infringed their exclusive right of trademark by using the word "Opai" on the accused infringing products, which has no factual and legal basis and shall not be accepted. To sum up, Opai Happy Kitchen Company, Opai Kitchen Appliances Company, Opai Electric Appliances Company, Wu Jianlan business department did not infringe the exclusive right of registered trademark of Opai Group Company.

    Secondly, about whether Opie Happy Kitchen Company and Opie Electric appliance company constitute unfair competition.

    Article 2 of the Law of the People's Republic of China against Unfair Competition stipulates that business operators shall abide by the principles of voluntariness, equality, fairness, honesty and credibility and observe universally recognized business ethics in their market transactions. In this case, OpAI Group owns a series of registered trademarks such as "OPPEIN" and "OPPEIN" under its name, and the registered trademark No. 1137521 is recognized as a well-known trademark, and its products and trademarks have also won many honors. As a highly significant fabricated word, "OPPEIN" has gained high popularity. Opie happy kitchen argues that its enterprise name is used with the permission of the authorization of the registered trademark "opie happy kitchen", the enterprise with European group company name "opie household" existence difference, not constitute the unfair competition, the European happy kitchen company with European group company is a competitor in the same industry, should be aware of the "European" opie group company in the industry have high visibility. "Opie happy kitchen" the scope of the use of a registered trademark approved as the class 35, opie happy kitchen company to "zhongshan opie happy kitchen appliance co., LTD." annotation on the class 11 smoke lampblack machine product, beyond the "opie happy kitchen" trademark use of approved scope, so the opie happy kitchen companies use should be the enterprise name rather than a trademark. Opal argues that it is no longer in business and is ready to cancel without changing its name, but it has not provided evidence to support the claim, which is not accepted. In conclusion, "Europe" is clearly identifiable, opie happy kitchen, opie electric company name "opie and domestic group company's name," European "are the same, at the same time opie happy kitchen, ou Pai hutch defends electric company, the company sent electric company on the products involved the use of" the home has love OUPAI "with European group company used" have family love opie "from the sound, form and meaning, basic same, obvious clings to European group company goodwill seek economic interests intentionally, its behavior is enough to make the relevant public confusion, as there is a specific relationship between, constitutes unfair competition, It shall bear the corresponding liability for compensation.

    Finally, about opie happy Kitchen company, Opie electric company should assume civil liability.

    According to the provisions of Article 15 of the Tort Liability Law of the People's Republic of China, the right holder has the right to require the tortfeasor to stop the infringement and compensate for the loss, so Opai Happy Kitchen Company and Opai Electric Appliance Company should stop the unfair competition and compensate for the loss. Opai Group company has claimed to ask Opai Happy Kitchen Company to change its business name in another case, and has not claimed the above lawsuit, so this case is not to be dealt with. About compensation, set as the group of companies failed to prove that the happy kitchen, opie electric company interests obtained for the infringement has not proved that the loss from infringement, so consider this case the nature of the infringement, the degree of subjective fault, and European group company reasonable expense to stop the infringement to the case, determined shall bear the compensation liabilities.

    First Instance Judgment: 1. Nanchang Oupai Electric Appliance Co., Ltd. shall change its enterprise name within three months from the effective date of the judgment, and the enterprise name after the change shall not contain the word "Oupai"; 2. Ii. Zhongshan OUPAI Happy Kitchen Appliances Co., LTD., Zhongshan OUPAI Hupai Kitchen Appliances Co., LTD., Nanchang OUPAI Electric Appliances Co., LTD., shall immediately stop labeling "OUPAI" and "You have love and OUPAI" on the packaging and instructions, warranty CARDS and products of the lampblack machines produced and sold by them on the effective date of the judgment; 3. Zhongshan Oupai Happy Kitchen Appliance Co., LTD., Zhongshan Oupai Hupai Kitchen Appliance Co., LTD., Nanchang Oupai Electric Appliance Co., LTD., shall compensate The Economic loss of Oupai Home Appliance Group Co., Ltd. of 160,000 yuan (including reasonable expenses for preventing infringement) within 10 days after the judgment takes effect; Iv. Rejecting other litigation claims of Opai Home Furnishing Group Co., LTD. If the obligation to pay money is not fulfilled within the period specified in the judgment, the interest on the debt for the delayed period shall be doubled in accordance with article 253 of the Civil Procedure Law of the People's Republic of China. The case handling fee is 5,800 yuan, 1,353 yuan borne by Oupai Household Group Co., LTD., and 4,447 yuan borne by Zhongshan Oupai Happy Kitchen Appliances Co., LTD., Zhongshan Oupai Huowei Appliances Co., LTD., and Nanchang Oupai Appliances Co., LTD.

    In the second instance, the parties did not submit new evidence, and there was no objection to the facts ascertained in the first instance, and the court also confirmed the facts ascertained in the first instance. After consulting the files of the second instance and questioning the parties of the case, the following facts were found out:

    According to existing evidence, opie group co., LTD was started in September 2010 in Shanghai ambry, "sales and marketing management version", "ruili household", "linchuan evening news, anqing daily," decorating the world "and so on a variety of newspapers and periodicals published in advertising or promotion articles, which use" have family love opie "slogan.

    The Court finds that:

    I. The enterprise names of Opie Happy Kitchen Company and Opie Electric Appliance Company contain the word "Opie", which constitutes unfair competition to Opie Group Company.

    The appellant Opai Happy Kitchen believes that the enterprise name of its company is "Opai happy Kitchen" instead of "Opai", which is derived from the registered trademark of its legal representative Ouyang Keshu, and the relevant public will not be confused or mistakenly believe that there is a specific connection between the two enterprises. The Court's opinion thereon is as follows:

    First of all, it is not legitimate for the latter user to use the registered trademark in the enterprise name, and the use of the enterprise name should still be judged according to the legal provisions to determine whether the infringement of the prior rights and interests of others; It is known, "opie happy kitchen" trademark shall be used in class 35 advertising, business management and organizational consulting and related services, belong to the service trademark, and European happy kitchen company's business scope is the production, processing and sales of household electrical appliances, smoke lampblack machine, kitchen is provided, such as the service trademark for the name of commodity production and sales enterprises hardly as inevitably.

    Second, European group company submit more evidence to prove that set in the happy kitchen, inc., the electric company was founded the "European" word trademark, the production of products, which has gained the honor of the enterprise itself, also submitted several influential media platform for brand promotion agreement, opie group company of "European" trademark and enterprise name text font size of the overlap, both belong to commercial logos, and are used by opie group company, so for the same main body, should not be awarded by mechanical distinguish whether it is simply a well-known trademark or name famous, "Europe" has the recognition of the dual role of goods source and identify the operator and trademark and strengthening its relationship with font size will generally increase the brand awareness, after all, all market reputation will eventually be accumulative belongs to the group company, we hereby concluded that "Europe" as a trademark or as the name of the company, European group have considerable market popularity and is known by the relevant public.

    Finally, according to the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the first paragraph of article 6 of the provisions of the" European "font size can be identified as the" anti-unfair competition law of the People's Republic of China "enterprise name" prescribed in item 3, article 5 of the European happy kitchen as the competition, the company in its use in the registered enterprise name, with the well-known opie group company has the size of "European" text as its shop name part of the same, but the "kitchen" and "electric" closely integrated, easier to make the relevant public cognition for the enterprises subordinate to the industry, "Happy" two words for common modification, therefore in its shop name "Europe" two words is still a core part with distinguishing and identifying meaning, so Europe happy kitchen company belongs to unauthorized use of other people's enterprise name, people mistakenly think it is the goods provided by others, constitute unfair competition behavior according to law.

    As for the appellant's claim that Opie electric company is no longer in production and is preparing for cancellation, so there is no need to change the name of the enterprise, as it has not provided evidence to prove it, the court will not accept it.

    Ii. Opai Happy Kitchen Co., Ltd. and Opai Electric Appliance Co., Ltd. used the slogan "There is a loving family and OUPAI" on the products involved and their manuals and warranty CARDS, which constituted unfair competition against Opai Group Co., LTD.

    According to the facts found out, as early as before the establishment of Opai Happy Kitchen Company and Opai electric appliance Company, opai Group company widely used the slogan "there is a family with love and Opai", the core part of the slogan is the name and trademark of Opai Group company "Opai". Now set the happy kitchen, inc., the electric company slogan is not only using the same sentence, and the slogan "OUPAI" is the core part of the "European" Chinese pinyin, and European group co., LTD. The font size of approximation, combined with European happy kitchen, opie electric company registered enterprise name also use the "European" this plot, can maintain its clings to European group company goodwill intentionally, is easily mistaken for the goods and European group co., LTD. A link between cause confusion on the sources of reason this behavior belongs to use advertising to commodity producers to make misleading false propaganda, Article 9, paragraph 1, of the Law of the People's Republic of China against Unfair Competition, also constitutes an act of unfair competition.

    3. The amount of compensation decided at the discretion of the court of first instance does not violate the law

    Considering the appellant opie happy kitchen, opie electric company's infringement nature, subjective fault degree and the European group company for any reasonable expense incurred by the stop the infringement, the first-instance court applicable statutory compensation determined opie happy kitchen company economic loss compensation opie corporation and stop ACTS of unfair competition of spending 160000 yuan is not in violation of the provisions of laws, nor beyond reasonable scale, we think that the amount have no adjustment is necessary.

    As for prosecutors thought in su (2017) 0411 by the first-instance court early case no. 700 has been set judgment the happy kitchen company to compensate for the group company economic loss of 160000 yuan, is this case again awarded the 160000 yuan in violation of the principle of anymore about the combination of European group co., LTD. In both cases the claims, opie happy kitchen company's plea opinion, court of first instance to find out to the fact of the case and determined, the su (2017) 0411 in the early 700 case involving the accused of infringement product of oil absorption, and the case involves products for kitchen burning gas is accused of infringement, Therefore it does not violate the principle of non bis in idem. First-instance judgment running "zhongshan opie happy kitchen electric appliance co., LTD., zhongshan city ou Pai hutch defends electric appliance co., LTD., nanchang opie electric appliance co., LTD. In the day of the enforcement of the judgment to immediately stop in its production and sales of the outside packaging and manual, warranty card and the product of oil absorption smoke that says' Europe 'and' there's a word OUPAI 'love" in the "oil absorption" should belong to a slip of the pen, shall be the "kitchen burning gas," we have to be clear.

    To sum up, the appellant's appeal is untenable, and his appeal should be rejected; The facts are clearly ascertained in the judgment of the first instance, the law is applied correctly, and the judgment result is not unreasonable, which should be maintained. In accordance with the provisions of paragraph 1, Article 170 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    Dismiss the appeal and maintain the original judgment.

    The handling fee of the second instance case shall be determined as 3500 yuan according to the amount of appeal against the judgment of the first instance (the appellant has paid 4447 yuan in advance, and the excess part shall be returned), which shall be jointly borne by the Appellant, Zhongshan Oupai Happy Kitchen Electric Appliances Co., LTD., Zhongshan Oupai Huowei Electric Appliances Co., LTD., and Nanchang Oupai Electric Appliances Co., LTD.

    This judgment shall be final.

    The chief judge is firm

    Judge Jiang Xiaoying

    Judge Liu Ying

    May 21, 2008

    Clerk Deng Lanming