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. 890

    Appellant (defendant in the first instance) : Zhongshan Opai Happy Kitchen Appliance Co., LTD., 1st floor, Factory Building no. 21, Kangtai Road, Huangpu Town, Zhongshan City, Guangdong Province.

    Legal representative: Ouyang Keshu, manager of the company.

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

    Appelee (plaintiff in the first instance) : Opai Furniture Group Co., LTD., No. 366, Guanghua 3rd Road, Baiyun District, Guangzhou city, Guangdong Province.

    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, Changmao Center, East Huanghe Road, New North District, Changzhou City, Jiangsu Province, 12-06, 3-40.

    Operator: Wu Jianlan, female, 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) with the appellee opie household group co., LTD. (hereinafter referred to as the European group co., LTD.) to the defendant and the new north district 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. 700 in the early days of the civil judgment, to file an appeal. 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. The people's Court of Changzhou Hi-tech Industrial Development Zone (2017), Su 0411, No. 700, early Republic of China, reversed the judgment and rejected 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: I. Opie Happy Kitchen Company does not constitute unfair competition. 1. 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 registered trademark that Ou Yang can tree of ou Yang of company of happy kitchen of ou PI of company of happy representative authorizes permission to use "Europe PI happy kitchen" for shop name, do not form unfair competition. Therefore, Opie Group Has no right to ask Opie Happy Kitchen To stop using the word "Opie". 2, opie group co., LTD. (2016) submitted word no. 1153 lai FengCheng card people notarial deed sequestration plotted on a real smoke lampblack machine is the company's legal representative ouyang can tree license to use the registered trademark "OUPAI," opie happy kitchen co., LTD. Is a manufacturer, have different advertising spokesperson, marked on the product packaging the opie happy kitchen company name and website, the relevant public not confused for goods source. 3. The evidence submitted by Opai Group cannot prove the originality and continuous use of the advertising department of "Family, love and Opai". 4. The trademark "OUPAI" is registered by OUPAI Happy Kitchen Company legal representative Ouyang Keshu, who has applied for the registration of the trademark "You You love You", now the trademark application is in the substantive examination stage. Opai Happy Kitchen USES the advertising slogan "have a family, have love, have OUPAI" without any intention to seek economic benefits with the goodwill of Opai Group, which will not cause confusion among the relevant public, so it does not constitute unfair competition. 5. Opie Happy Kitchen clearly requires dealers not to use the trademark of Opie Group Company in sales and promotion in the sales contract signed with dealers, which has fulfilled the duty of examination and attention. Ii. The court of first instance decided that Opai Happy Kitchen Company should compensate opai Group company for its excessive economic loss of 160,000 yuan (including reasonable expenses for preventing infringement). Opai has failed to prove the extent of its losses due to infringement and has not issued a legal note for reasonable expenses. Opai happy Kitchen company does not have unfair competition behavior, and Wu Jianlan manages a department small scale, the sale quantity is limited, therefore the court of first instance decides opai happy kitchen company to compensate economic loss 160,000 yuan too high.

    Opai group argued that the production and sale of the infringing products by Opai Happy Kitchen company had constituted unfair competition, and its appeal grounds could not 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, and the judgment of compensation is appropriate. The appeal request of Opai Happy Kitchen Company has no factual and legal basis, so the appeal should be rejected and the original judgment maintained.

    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. Request to order Opai Happy Kitchen Company and Wu Jianlan business Department to immediately stop the production and sale of "Opai" and "OUPAI" lampblack machine that infringes on the trademark rights of Opai Group Company; 2. 2. Order Opie Happy Kitchen Company to stop unfair competition and change the enterprise name immediately. The word "Opie" shall not be used in the changed enterprise name. 3. Request Europa Happy Kitchen company to immediately stop infringing the trademark right of Europa Group Company and stop marking the words "There is a home, there is love and OUPAI" on the lampblack machine produced and sold by Europa; 4. Request and order Opie Happy Kitchen Company to stop unfair competition immediately, and to stop labeling "Zhongshan Opie Happy Kitchen Appliance Co., LTD." and "OUPAI happy Kitchen Appliance Co., LTD." on the outer package of the lampblack machine produced and sold by the company and on the instructions, the warranty card and the products; 5. Request to order Opai Happy Kitchen Company and Wu Jianlan Business Department to compensate opai Group Company's economic loss and reasonable expense of safeguarding rights for a total of RMB 300,000 only; 6. Request to make Ou Pai Happy Kitchen Company and Wu Jianlan Operating Department bear the legal costs of this case.

    The court of first instance finds the facts:

    I. The rights and facts of the appellee

    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.

    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 above trademark license certificate, proving that the registrant ouyang Keshu (36XX57) is the exclusive owner of the trademark registration Certificate no. 17441889, 12950913, 3626713, 14587315, 5149711, 9434157, 11271069, 17060018, 9434156 and 15962569. The registrant agrees to license the said trademark to Zhongshan Oupai Happy Kitchen Appliances Co., LTD., Zhongshan Oupai Hupai Kitchen Appliances Co., LTD., and Nanchang Oupai Electric Appliances Co., LTD., and the term of use shall be the same as the registration term of the said trademark.

    3. Facts of infringement by the appellant and the defendant in the first instance

    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.

    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. Set the group think the happy kitchen company product pictures and packing boxes, packaging specifications not prove the actual use of now corresponding packaging, will be subject to infringement opened, this case opie group company claims is trademark infringement and unfair competition, not dispute of packaging decoration, opie happy kitchen not evidence is relevant for the company.

    During the trial, the court of first instance opened the seal of the notarial Certificate no. 1153 (2016) in the court of Laifeng City, which contains a packed range hood and a gas stove. Oil absorption left upper corner of the 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 "xx", address and telephone information, etc. Open the outer package of the product, there is a range hood, a product manual and a member warranty card. The frame of the range hood is marked "OUPAI". Product specifications, membership warranty CARDS are "have a love have OUPAI", "Zhongshan OUPAI happy Kitchen Appliances Co., LTD." words. By comparison, opie group think on product packaging "opie established overlord series", "European" in its 4378572th of a registered trademark, constitute the same packaging on the right side, body side, enclose the product manual, 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 USES the word "Opie" in its business name, which constitutes unfair competition. Opie happy kitchen company believes that its use "OUPAI" brand and "OPPEIN" opie group company trademark does not constitute a approximation, the product packaging marked his name and website, 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 company does not constitute the unfair competition. Wu Jianlan said the business department is not aware of this.

    The court of first instance holds that the focus of the dispute in this case is: 1. Whether The Business Department of Wu Jianlan and Opai Happy Kitchen Company infringe upon the exclusive right of registered trademark of Opai Group Company; 2. 2. Whether Opie Happy Kitchen Constitutes unfair competition; 3. If the Business Department of Wu Jianlan and Opai Happy Kitchen Company have any trademark infringement or unfair competition, what civil liabilities shall they bear respectively?

    First of all, about Wu Jianlan business department, Opai happy Kitchen company whether there is infringement of opai group company registered trademark exclusive right behavior.

    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. In this case, jian-lan wu shop sales of oil absorption products, marked on the product packaging "opie established overlord series", "zhongshan opie happy kitchen appliance co., LTD.", "OUPAI green kitchen", "the home has love OUPAI" and the product labeled "OUPAI", including "OUPAI" and "OPPEIN" also 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. Although European happy kitchen, the company's "European" font size and 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, set the group company claims that the happy kitchen in the alleged infringement product company to use the words "European" violate its trademark, facts and legal basis, we will not be believed. To sum up, Opai Happy Kitchen Company and Wu Jianlan business department have not violated the exclusive right of registered trademark of Opai Group Company.

    Secondly, about whether Opie Happy Kitchen company constitutes 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. Opai Group has a series of registered trademarks such as "OPPEIN" and "OPPEIN" under its name, and the registered trademark No. 1137521 has been identified as a well-known trademark. Its products and trademarks have also won many honors. Opie happy kitchen company argues that its enterprise name is used with the permission of the authorization of the registered trademark "opie happy kitchen", and European group company's name "opie household" existence difference, not constitute the unfair competition, the first-instance court think opie happy kitchen company and 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. And "European" has clearly identifiable, opie happy kitchen company name "European" and domestic group company's name, "European" are the same, at the same time opie happy kitchen companies use of "the home has love OUPAI" with European group co., LTD. Use "there is a love is the" basic same, from the sound, form and meaning, the 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, and shall bear the corresponding liability for compensation.

    Finally, about opie happy Kitchen 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 should stop the unfair competition and compensate for the loss. About compensation, set as the group of companies failed to prove that the happy kitchen company interests obtained for the infringement has not proved that the loss from infringement, so the court of first instance considers the nature of the infringement case, the degree of subjective fault, and European company reasonable expense for stopping the infringement, the discretion to determine opie happy kitchen company shall bear the compensation liabilities.

    First Instance Judgment: i. Zhongshan Opai Happy Kitchen Appliance Co., Ltd. shall change its enterprise name within three months from the effective date of the judgment, and the modified enterprise name shall not contain the word "Opai"; Ii. Zhongshan Opai Happy Kitchen Appliances Co., Ltd. shall immediately stop labeling "Opai" and "OUPAI" on the packaging and instructions, warranty CARDS and products of the lampblack machines produced and sold by the company on the effective date of the judgment; 3. Zhongshan Opai Happy Kitchen Appliance Co., Ltd. shall compensate Opai Home Appliances Group Co., Ltd. for economic loss of 160,000 yuan (including reasonable expenses for stopping infringement) within 10 days from the date of the judgment taking 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, 1353 yuan borne by Opai Group Company, and 4447 yuan borne by Opai Happy Kitchen Company.

    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 name of Opie Happy Kitchen Company contains the words "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, opie group company submit more evidence before opie happy kitchen company set up the "European" word trademark, the production of products, the enterprise that has obtained the honor of itself, also submitted several influential media platform for brand promotion agreement, opie group company of the "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" is to identify sources of goods and identification of operators of the dual role, And trademark and strengthening its relationship with 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.

    Ii. Opai Happy Kitchen used the slogan "There is a Loving family and OUPAI" on the products involved and their instructions and warranty CARDS to constitute unfair competition against Opai Group

    According to find out the fact that before the company was founded in opie happy kitchen, opie group co., LTD. Is widely used "the home has love with European" this slogan, the slogan is the core part of the European group company's name and trademark "Europe", now European happy kitchen 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 registered enterprise name also use the plot, "European" can maintain its clings to European group company goodwill intentionally, Is easily mistaken for the link between goods and European group company, lead to goods source of confusion, so this behavior belongs to use advertising to commodity producers to be misleading false propaganda, and according to the law of the People's Republic of China against unfair competition law "the provisions of the first paragraph of article 9, also constitute ACTS 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 infringement nature, subjective fault rate of the company and the send any reasonable expense incurred by the group company to stop infringement, the court of first instance 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.

    To sum up, the appellant, Opai Happy Kitchen Co., LTD., cannot hold the ground of appeal, and its 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 (4447 yuan has been paid in advance by the appellant) according to the amount of appeal against the judgment of the first instance, which shall be borne by the appellant, Zhongshan Opai Happy Kitchen Electrical Appliances Co., LTD.

    This judgment shall be final.

    Zhang Jianwen, Chief Judge

    Judge Lu Fuqing

    Judge Liu Ying

    May 7, 2008

    Assistant judge Liu Baiyu

    Clerk Chen Yuxue