Civil judgment of Chancheng District People's Court, Foshan City, Guangdong Province

    Chancheng District People's Court, Foshan City, Guangdong Province

    Written judgment of civil affairs

    (2016) No. 10502, Yue 0604, Early Republic of China

    Plaintiff: Opai Home Furnishing Group Co., LTD., No. 366, Guanghua 3rd 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 Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Zhongshan Hongying Electric Appliance Co., LTD., No. 16-2, Xingye Road, Hetai Village, Dongfeng Town, Zhongshan City, Guangdong Province. Registration number: 442000001077193.

    Legal representative: Emperor Li.

    Defendant: Guangdong Opai Technology Co., LTD., No.313-6, 3rd Floor, 22 Licitang Road, Shangjia, Ronggui Street Office, Shunde District, Foshan City. Unified social credit code: ×××294.

    Legal representative: Su Liangzhu.

    The joint agent AD litem of the two defendants is Lian Yan, a lawyer of Guangdong Bodao Jujia Law Firm

    The two defendants' jointly entrusted litigant agent: Liang Zhengping, lawyer of Guangdong Bodao Jujia Law Firm.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the European group) v. the defendant zhongshan red electric appliance co., LTD. (hereinafter referred to as red cherry electric company), the guangdong opie technology co., LTD. (hereinafter referred to as guangdong opie) the infringement trademark rights and unfair competition disputes, our college on September 27, 2016 to begin, the red cherry electronics company to put forward to in our hospital to the jurisdiction of the court, in our hospital in 2016 October 17 ruled, rejected the defendant red cherry electric company jurisdiction, the defendant red cherry electric company refuses to accept again, to the intermediate people's court of appeal, foshan city, guangdong province, The Intermediate People's Court of Foshan City, Guangdong Province, made its ruling on March 27, 2017, rejecting the defendant Hongying Electric Appliance Company's appeal against jurisdiction. The court formed a collegial panel in accordance with the law, and held a hearing in public on May 11, 2017. Wang Ning, the agent AD litem of the plaintiff Opai Group, Liang Zhengping, the agent AD litem of the defendant Red Ying Electric Co., Ltd. and guangdong Opai, the defendant, attended the hearing. The case is now closed.

    The plaintiff files a lawsuit to the court: 1. The court orders the defendant Red Cherry Electric Appliance Company to immediately stop the unfair competition behavior of using the words "Opai" and "Opai Guangdong" in its online store for false publicity; 2. 2. The defendant was ordered to stop the production and sale of the range hoods marked "Opai" and "Guangdong Opai Technology Co., LTD" in the case of unfair competition; Iii. The court ordered the two defendants to compensate the plaintiff for economic losses and reasonable expenses for safeguarding their rights in this case, totaling RMB 500,000 only; Iv. The two defendants were ordered to bear the costs of the case.

    Facts and reason: the plaintiff is 11 classes, "European" and "OPPEIN" registered trademark, the plaintiff since its inception, after decades of operation, has been "Europe" casting become household names, as is known to all of the country's household, electrical appliances, sanitary ware brand, the brand has won the "Chinese famous brand", "China well-known trademark", such as reputation, in the public mind, "Europe" has become not only the plaintiff products and on behalf of the symbol of the enterprise name, also become the instructions of the plaintiff and the plaintiff associated enterprises significant recognition of market main body and the sources of identity. In August 2016, the plaintiff found that the defendant, Red Cherry Electric Appliance Co., Ltd. used "Oupai" and "Guangdong Oupai" in its Alibaba online store to carry out false propaganda and sell range hood marked with "Oupai" and "Guangdong Oupai Technology Co., LTD.", and applied for evidence preservation in the notary office for the above infringement. After further investigation, the plaintiff found that the above products were produced under the supervision of Guangdong Opai Technology Co., LTD., and produced by Red Ying Electric Appliance Co., LTD.

    To sum up, the plaintiff argues that the two defendants to clings to the plaintiff's "European" brand reputation, deliberately in the shop, product illegal use of the "European" word "guangdong opie technology co., LTD.", this behavior is not only the infringement of the right to exclusive use of a registered trademark of the plaintiff, and violate the principles of honesty and credit and recognized business ethics, constitutes unfair competition to the plaintiff, caused great economic losses to the plaintiff, shall bear the corresponding legal responsibility. Therefore, the plaintiff, in accordance with the Trademark Law of the People's Republic of China, the Law of the People's Republic of China against Unfair Competition and other relevant provisions, appealed to the court to make a fair judgment in accordance with the law.

    To prove the claim, the plaintiff provides the court with the following evidence:

    1. (2016) The Notarial Certificate of Lai Feng City Certificate No. 347 certifies that the plaintiff has the exclusive right to use the registered trademark No. 4378572.

    2. (2016) The Notarial Certificate of Lai Feng City Certificate No. 350 certifies that the plaintiff has the exclusive right to use the registered trademark No. 1128213.

    3. (2016) Notarial Certificate No. 346 of Laifeng City Certificate, proving that the plaintiff has the exclusive right to use the registered trademark No. 1137521 according to law.

    4. (2016) The Notarial Certificate of Laifeng City Certificate No. 348 certifies that the plaintiff has the exclusive right to use the registered trademark No. 7731876.

    5. (2016) Notarial Certificate No. 352 issued by Fengcheng License, which proves that the plaintiff legally owns the copyright of "" fine art fonts. This work, created on August 10, 1996, is completely consistent with the contents of the registered trademarks No. 4378572, 1128213 and 1137521 of the plaintiff, and also proves that the" "brand of the plaintiff has certain originality and a long history.

    6. The trademark [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce certifies that the registered trademark "" no. 1128213 enjoyed by the plaintiff was recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on April 24, 2009.

    7. (2016) Notarial Certificate no. 353 of Laifeng City Certificate, which proves that the plaintiff and the plaintiff's brand have high market popularity, the content is as follows:

    (1) On July 9, 2007, the General Administration of Quality Supervision, Inspection and Quarantine issued the "China famous brand product Certificate", proving that the Oupai brand household cabinet produced by the plaintiff was awarded the title of "China famous brand product".

    (2) In October 2008, guangdong Provincial Bureau of Quality and Technical Supervision issued the "Guangdong Famous brand Product" certificate, proving that the Oupai brand cabinet produced by the plaintiff was awarded the "Guangdong famous brand Product" title.

    (3) In February 2008, the Guangdong Province Famous Trademark Certificate issued by the Guangdong Province Famous Trademark Recognition Committee proves that the registered trademark No. 1128213 "" was recognized as a Famous trademark of Guangdong Province in March 2005 and February 2008.

    (4), in December 2012, China building decoration association kitchen and sanitation engineering committee issued the certificate, proving that the plaintiff in 2012 was rated as "2012 China kitchen and sanitation 100", "overall kitchen leading enterprises top 10".

    (5) In September 2013, the Guangzhou Municipal People's Government issued the certificate of honor, proving that the quality of the plaintiff company was awarded the "2012 Guangzhou Mayor quality Award".

    (6) On December 28, 2014, brand Watch magazine issued a certificate certifying that the plaintiff's Opai brand strategy was selected in the "Silver Award of 2014 Annual Brand Marketing Case in China".

    (7) In January 2015, Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce issued the certificate of honor, proving that the plaintiff was awarded the "Top 10 Most Valuable Brands" in 2014.

    (8) In January 2015, Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce issued the certificate of honor, proving that the plaintiff was awarded "Top 10 Enterprises with Innovation Ability" in 2014.

    8. (2016) The Notarial Certificate of Laifeng City, Minzi No. 357, certifies part of the tax paid by the plaintiff, and proves the huge profit and benefit generated by the "Opi" brand and its high value. The specific content is as follows:

    (1) the tax payment certificate no.5 [2014]100014 issued by the state bureau of taxation in baiyun district, guangzhou, certifying that the plaintiff paid tax to the bureau on January 1, 2013, solstice, December 31, 2013, at the rate of one hundred and forty four thousand seven hundred and eighty nine thousand five hundred and thirty-three point seven.

    (2) the tax payment certificate no. [2014]100579 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2014 solstice on June 30, 2014 to the bureau seven thousand five hundred and ninety-nine thousand nine hundred and ninety-nine yuan nine cents.

    (3) the tax payment certificate no. [2015] no. 100174 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid a tax of nine thousand five hundred and nine thousand one hundred and twenty-two yuan sixty-eight cents to the bureau on July 1, 2014 and December 31, 2014.

    (4) the tax payment certificate no. [2015] no. 101552 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2015 solstice on June 30, 2015 to the tax bureau seven thousand five hundred and twenty-two thousand six hundred and sixty-seven point four.

    (5) the tax payment certificate no. [2016]100274 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid a tax of twelve million two hundred and thirty-six hundred and sixty-seven yuan nine cents to the tax bureau on July 1, 2015.

    (6) notice no. 00000724 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax of four thousand two hundred and twenty-nine thousand nine hundred and seventy-eight yuan eighty sixty cents to the bureau on January 1, 2014.

    (7) notice no. 00001248 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid the tax on July 1, 2014 and December 31, 2014 to the bureau, i.e., the tax amount of three thousand six hundred and fifty-eight thousand nine hundred and seventy-two cents.

    (8) notice no. 00003448 issued by the tax administration of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax of four thousand two million four hundred and twenty-seven thousand one hundred and forty cents to the bureau on June 30, 2015 on January 1, 2015.

    (9) notice no. 00004591 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax twenty thousand nine hundred and eighty-one thousand nine hundred and thirty-three yuan forty seven to the bureau on July 1, 2015.

    9. (2016) The Notarial Certificate no. 354 of Leifeng City Certificate proves the audit department's audit of the profits obtained by the plaintiff by using the brand "OPPEIN" and "OPPEIN", which proves the high value of the brand "OPPEIN" and "OPPEIN".

    10. (2016) The Legal certificate of Laifengcheng Ziminzi No. 355, which proves that the plaintiff has carried out continuous publicity for the "Opai" brand through CCTV and Hunan SATELLITE TV, and proves that the "Opai" brand has been widely known by the public and has a high brand value. The specific content is as follows:

    (1), October 30, 2012, the plaintiff and the Beijing international advertising co., LTD. Signed on time boiling "swap space" domestic outfit funded 2013 cooperation agreement, this agreement is agreed on January 5, 2013 to December 28, 2013, 2 sets in CCTV's "exchange space" propaganda of the plaintiff brand, advertising for wu bai suhuang ten thousand yuan.

    (2), in July 2014, the plaintiff with hunan, hunan radio and television advertising corporation downwind media television project advertising co., LTD. Signed a contract, the contract on September 28, 2014 to October 12, 2014, in hunan TV's 10th golden eagle festival closing ceremony and awards section is relevant to the plaintiff, brand advertising for above ten thousand yuan.

    (3) on November 6, 2013, the TV advertisement release contract signed by the plaintiff and zhejiang zhimei auto advertising co., LTD., which stipulates that the plaintiff's brand shall be publicized on CCTV news channel on January 1, 2014 and the advertising fee shall be four thousand four hundred and sixty-three thousand nine hundred and seventy yuan.

    (4) on November 27, 2014, the sponsorship and cooperation agreement of 2015 "exchange space" home decoration fund signed by the plaintiff and Beijing ontime boiling international advertising co., LTD. The agreement agreed that on April 4, 2015 solstice on March 26, 2016, the plaintiff's brand would be promoted in the second set of "exchange space" column of CCTV, and the advertising fee would be six million yuan.

    (5) on October 22, 2014, the advertising agency contract signed by the plaintiff and kashgar yinsong culture media co., LTD., the agreement provides that on January 1, 2015, solstice, December 31, 2015, the advertising fee of the plaintiff shall be twenty-three million nine hundred and seventy thousand yuan for promoting the plaintiff's brand on the CCTV news channel.

    11. (2016) The Notarial Certificate no. 356 issued by Lifeng City Certificate, which proves that the plaintiff spent a huge amount of money to hire the star Jiang Wenli to speak for "Europa" products, which further proves that the plaintiff spent a huge amount of money to promote Europa brand.

    April 12, 2011, 21, 22, 25, 26, 28, 29, "linchuan evening news", published on August 26, 2011 issue of the "shenzhen special zone signs up for", on September 20, 2011, published on September 30, anqing daily, published in September 2010 years of the ambry in Shanghai ", published in June 2011, the sales and marketing management edition, published in April 2011 "ruili household", published in April 2014, decorate world magazine, prove that the plaintiff by the print media publicity, "European brand", It also proves that the plaintiff's original advertising slogan of "family, love and Europe" continues to use and publicize.

    13. (2016) The Notarial Certificate no. 942 of Lai Feng City Certificate (including the infringing material object sealed by the notary office), to prove the infringement facts of the defendant.

    14. One notarization fee note. The plaintiff claims 700 yuan in this case, which proves the plaintiff's reasonable expense in safeguarding his rights.

    15. (2017) Notarial Certificate No. 372 of Laifeng City Certificate. To certify the use of the plaintiff's trademark.

    The court recognizes the authenticity of the evidence provided by the plaintiff as the basis for ascertaining the facts of the case.

    The defendant, Red Cherry Electrical Appliances Co., Ltd. did not sell the products involved. Although taobao was registered and certified as the defendant red Cherry Electrical Appliances Co., LTD., the actual operator was not the defendant Red Cherry Electrical Appliances Co., Ltd. but a friend of the defendant. 2. The products involved were provided by the defendant Red Ying Electric Appliance Company, and produced and sold by the defendant Red Ying Electric Appliance Company. The defendant Guangdong Opai was not the manufacturer or seller of the products involved, and had nothing to do with the defendant Guangdong Opai. 3. The company name of the defendant Guangdong Opai has been legally registered; 4. The plaintiff has the exclusive right to use the registered trademark No. 4378572, but has not actually used the trademark in class 11, and therefore has no right to claim infringement of the trademark.

    The defendant, Red Cherry Electric, did not present evidence to the court in the suit.

    The defendant Guangdong Opai has never produced or sold any products. The range hood and gas stove products involved in this case were not produced, sold or authorized by the defendant Guangdong Opai to produce or sell red Cherry Electric Appliance Company or any third party. The defendant Guangdong Opai does not own any online store, nor does it authorize the defendant Red Cherry Electric Appliance Company or any third party to set up an online store and sell the products involved in the case. Ii. The trademark used by the defendant GUANGDONG Opo Group on the products involved is the registered trademark "OPAICN" No. 12124262. It obtained the legal trademark right as of July 21, 2014, and should be protected by law. Although defendant Red Ying Electric Co., Ltd. used the trademark of defendant GUANGDONG Opal without the permission of defendant GUANGDONG Opal, the trademark is completely different from the plaintiff's trademark, and both of them have obtained legal trademark rights, which does not constitute any trademark infringement to the plaintiff. Three, in this case the defendant red cherry although electric company, without the consent of the defendant guangdong opie used on product packaging without authorization of the defendant guangdong enterprise name, but the QiYeMing known as the industrial and commercial registration, legal and totally different from the plaintiff's enterprises subordinate to the industry, not constitute the unfair competition, the plaintiffs request stop using and change the company name. In this case, the plaintiff and the defendant belong to two different industries. There is no competitive relationship between the two enterprises, let alone unfair competition. (1) the defendant "guangdong science and technology co., LTD." of the enterprise name is April 30, 2014, guangdong province administration of industry and commerce approved size and formal registration and establishment, the font size for approval department of the enterprise name with the plaintiff belong to guangdong province administration for industry and commerce approved the registration department management, the plaintiff's "European" brand has won the award for the well-known trademark, industrial and commercial bureau of guangdong province have started to its famous trademark name protection, but still province administration of industry and commerce for approval of the defendant's enterprise size, prove the defendant's the company name and not completely to the plaintiff of the well-known trademark of any infringement or unfair competition, otherwise, The same industrial and commercial bureau could not agree to approve the defendant's use of the enterprise name and shop name. (2) The primary factor that constitutes unfair competition is that both parties are engaged in the same industry with a competitive relationship, and the unfair competition causes damage to the other party due to its unfair competition behavior. If both parties are engaged in different industries, there is no competition at all. In this case, according to the plaintiff's evidence, the plaintiff is engaged in trademark classification class 20 household industry, production and sales of the products are cabinets, wardrobe, and the defendant engaged in the technology industry, the electric equipment product that the product is class 11, both sides of the industry and the products are completely different, there is no peer competition, also not because of the industry and the production and sales of behavior to the plaintiff to the case production sales caused any damage or loss, therefore does not constitute a competitive relationship, nothing more proper or improper. (3) the plaintiff accused the defendant of the enterprise name involved constitutes unfair competition, which demand a ban on using the enterprise name, but through anti-unfair competition law to ban the use of enterprise name, must request the plaintiff's trademark or name in forbidden enterprise name used by industries and products have very high visibility and form the only correspondence. However, the plaintiff's evidence shows that all the production, sales, publicity and promotion of the plaintiff are limited to the cabinet and wardrobe products of category 20. The plaintiff has no production, sales and promotion of the electrical products involved, and has not formed any popularity. In addition, the evidence submitted by the defendant shows that what used the word "Opai" as the trademark to produce electrical products in the electrical appliance industry and had certain popularity was the washing machine products of "Opai" brand owned by Danone, which had been used for many years in the other case, but this "Opai" brand was not the "Opai" of the plaintiff. Thus it can be seen that the plaintiff's "Opai" brand has not formed a unique corresponding relationship in the electrical industry, and is not well-known, which is less well-known than The Opai brand of Danone. What qualification does the plaintiff have to ask the defendant to prohibit the use of this name in the electrical industry? (4) The plaintiff's "Opai" brand and name did not form a unique corresponding very high popularity not only in the electrical appliance industry involved, but also in other industries. The evidence of the defendant Guangdong Opai shows that the "Opai" brand electric vehicle of Opai Technology Co., Ltd. ranks the first in the electric vehicle industry in China. The brand image spokesperson of opAI electric vehicle is also Jiang Wenli. The door industry of "Opai" brand of Jiangshan Opai Company is a famous trademark in Zhejiang province. There are also opai paint, opai floor and so on. All of them have quite high popularity in their respective industries, but none of them has anything to do with the plaintiff. Moreover, the term "Eurofaction" was not invented by the plaintiff, but originally meant "European faction, western faction", which is often referred to as the product style of European faction or European and American technology in the industry. As a result, the term "European" is not an original and unique from the start, now also at the same time there are a number of different industries, "European brand" and "European" and a number of enterprise size, and popularity is quite high, therefore, the plaintiff's "European" brand did not reach to prohibit the defendant in completely different industries and products using the word as the name of the only corresponding high name recognition, the plaintiff suing for there completely irrational. 4. The evidence of notarization infringement by the plaintiff in this case clearly shows that the products involved are labeled as the products of guangdong-Eastern Europe Faction of the defendant, but they are not manufactured by Guangdong-Eastern Europe Faction of the defendant. The defendant Guangdong-Eastern Europe Faction did not authorize others to use the company name, and the use of the name is very regular. Defendants guangdong opie does not authorize a case the defendant red cherry electronics companies use the defendant guangdong opie trademark and enterprise name of the production, the sale of any product or open a shop selling products, in addition to the guangdong opie the general information such as company name and trademark, the plaintiff in this case, there is no any substantial evidence to prove that the defendant guangdong sent to production and sales. Therefore, the products involved in the case and all notarization behaviors involved in the case have nothing to do with the defendant Guangdong Opai, and the defendant shall not bear any responsibility. The plaintiff's claim against the defendant Guangdong Opai is groundless and groundless. Please dismiss it all.

The defendant, The Quaker, provided the following evidence in the proceeding:

1. Trademark certificate. It is proved that the trademark of the plaintiff is not used on the products involved. The trademark used on the products involved is registered trademark No. 12124262, which obtained the legal trademark right as early as July 21, 2014. The trademark used on the products involved does not infringe any trademark right of the plaintiff.

2. Enterprise information and profile of Jiangshan Oupai Door Industry Co., LTD. Proved that the "European" trademark is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", the registered trademark of jiangshan European door industry "European" brand wooden door, began in 2006, in 2009 won the title of "Chinese wood door industry 30 strong, brand-name products in zhejiang province in 2010 won the title, in 2012 won the title of" famous trademark of zhejiang province, to prove "European" brand on the market several coexistence is the indisputable fact that, and the plaintiff's pie even if is not the only has a high level of popularity in the industry of household, jiangshan European wood door in the household popularity is higher than the plaintiff on the wooden door, Besides, the brand image spokesperson of Jiangshan Oupai Wooden door is also Jiang Wenli, and the "Oupai" brand of the plaintiff has not formed a unique corresponding high popularity in the household furniture market, not to mention the electrical industry involved in the production and sales of the plaintiff. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.

3. Enterprise information and profile of Wuxi Shengbao Vehicle Manufacturing Co., LTD. This is to certify that the company's registered trademark "Opai" brand electric vehicle, started production in 1996, is now ranked the first brand in China's electric vehicle industry for several consecutive years. Proved that the "European" trademark is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market more than coexistence is the indisputable fact that the plaintiff's "European" brand not only corresponds to a high popularity in the market, not to mention in the plaintiff have not production and sales of electrical appliances industry. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.

4. Enterprise information and profile of Suzhou Suou Wood Industry Co., LTD. Prove the registered trademark of the company 2002 "European" brand floor, floor is one of the top ten famous brand for the Chinese household, prove that "European" brand is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market many coexistence is the indisputable fact that, and the plaintiff's pie even in household industry not only has a high visibility, Sue the European wood industry "European" brand floor in the household popularity is on the floor above the plaintiff, the plaintiff's "European brand" in its home market, did not form the corresponding high name recognition, Not to mention the electronics industry in which the plaintiffs did not produce and sell the products. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.

5. Enterprise information and profile of Henan Oupai Electric Appliance Co., LTD. It is proved that Opai is a subsidiary of Danone, a well-known enterprise in the electrical industry, specializing in the production of "Opai" brand washing machines, whose brand is far more well-known in the electrical industry than the plaintiff's "Opai". It is proved that "Opai" trademark is not a unique plaintiff, nor is it only the plaintiff's "Opai" famous, it is an indisputable fact that "Opai" trademark coexists in the market. The plaintiff has never carried out production and sales promotion in the electric appliance industry, and has no popularity in the electric appliance industry. The popularity of "Opai" in the electric appliance industry belongs to the "Opai" brand of the Henan Opai Electric Appliance Company. As a result, the appliance store in this industry more than the plaintiff has involved, "European" 2 words of trademark, and other home better-known the plaintiff, as a result, the plaintiff has not formed in the industry of appliance stores involved only corresponds to a high enough profile, the plaintiff asked to unfair competition to ban the use of the defendant on the products of different industries there is unreasonable, to expand the scope of protection.

6. Opai coating chemical Company, Opai leather Goods Company, Opai Machinery Company and other enterprise information and introduction. Proved that the "European" brand paint, "European" brand leather goods, "European" brand machinery is used, "European" two characters as a product brand, but is not the plaintiff's trademark, prove that "European" brand is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market more than coexistence is the indisputable fact that the plaintiff's "European" brand not only corresponds to a high popularity in the market, not to mention in the plaintiff have not production and sales of electrical appliances industry. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.

7. Use the word "Opai" as a series of enterprise information. It is proved that in addition to the plaintiff's enterprise name, there are still a large number of enterprises in various industries which have been officially approved and registered by the Industrial and commercial Bureau and use the word "Eurogroup" as the enterprise name, which are legally existing. It is an indisputable fact that "Opai" coexists with many companies on the market as the enterprise name. Even if the plaintiff is a well-known trademark on the cabinet and wardrobe products of home, it can be used legally in different industries and products, and the plaintiff cannot expand the scope of protection without authorization. Therefore, the name involved in the case of the defendant is legal and should be protected by law. The plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless.

8. A series of trademark information that USES the word "Opai" as a trademark and has obtained the exclusive right of registration. It is proved that in addition to the plaintiff's trademark of "Opie", there are still 58 registered trademarks of various classes which use the word "Opie" as trademarks and are legally existing. Prove "Europe is sent" 2 words serve as trademark to coexist on the market many it is indisputable fact, even if plaintiff is on the ambry that lives in, chest product is well-known trademark, but go up in different industry and product also can be used lawfully, plaintiff cannot expand protection limits without authorization. Therefore, the defendant's font size is legal and should be protected by law. The plaintiff's request to prohibit the defendant from using the font size in different industries is unreasonable and groundless.

9. A series of reports on serious quality problems of the plaintiff's "Opai" brand cabinet products. It proves that the publicity of the plaintiff's "Opai" brand cabinet and other products is not worthy of its name, and its product quality has serious problems and is resisted by consumers. Its "Opai" brand does not have the high reputation claimed by the plaintiff, so the defendant does not need to attach its brand reputation.

10. Civil Judgment of Guangzhou Intermediate People's Court (2014) guangzhou Zhongfa Zhi Minchu Zi No. 310. An enterprise name that is certified to be identical with the distinctive logo in another person's registered trademark has been registered and established according to law, and the standardized use of the enterprise name does not constitute unfair competition against the enterprise name.

11. Commercial subject registration information of Guangdong Opai Technology Co., LTD. It is proved that the business site of the defendant Guangdong Opai Technology Co., Ltd. is an office with written words, and there is no production site, equipment and other production conditions for the production of products, and the products involved are not produced by the defendant.

12. OPAICN Trademark Registration Information. It is proved that the OPAICN trademark registrant used in the products involved is an outsider of the case, and the OPAICN products involved are not produced and sold by the defendant guangdong OPp.

The court recognizes the authenticity of the evidence submitted by the defendant guangdong Opai, but its relevance should be comprehensively evaluated.

On the basis of admissible evidence and the parties' statements, the Court ascertained and confirmed the following facts:

(I) Opie Group, founded on July 1, 1994, is a joint-stock company engaged in furniture manufacturing.

On June 7, 2007, guangzhou opie ambry enterprise co., LTD., by the state administration for industry and commerce trademark office (hereinafter referred to as the trademark bureau) for approval the registration no. 4378572 "European" registered trademark, shall use commodities for 11 class gas furnace, microwave oven (kitchenware), electric cooker, baking equipment, cooking utensils, faucets, bathroom equipment, disinfect cupboard, water filter, basin of wash one's hands and sanitary equipment (components), steam bath, sitz bath tub and shower equipment, in the rain compartment, wash tub, sit implement, kitchen smoke lampblack machine machine, lamp (as), Registration is valid from June 7, 2007 to June 6, 2017. Then the name of the registrant of the trademark is changed to Opai Home Furnishing Group Co., LTD.

In September 2007, Opai cabinet products were rated as China's famous brand by the General Administration of Quality Supervision, Inspection and Quarantine. In October 2008, Opai cabinet products were rated as guangdong famous brand products by Guangdong Quality Supervision Bureau. In February 2008, the plaintiff's trademark no. 1128213 "Opai" was a famous trademark of Guangdong Province on the sideboard and was ×× ×. On April 24, 2009, the trademark "Opai" on the category 20 sideboard goods of the plaintiff was identified as a well-known trademark by the Trademark Office.

    (II) On August 19, 2016, wang Shouzhen, the entrusted agent of the plaintiff, applied to Fengcheng Notary Office of Laiwu City, Shandong Province for evidence preservation. Under the supervision of the notary staff, Wang Shouzhen operated the computer of the notary office and bought a range hood sold in an online store set up by Zhongshan Red Cherry Electric Appliance Co., Ltd. on alibaba. During the operation, Wang Shouzhen took screenshots of relevant pages and recorded the whole process. On the promised sales page of the online store opened by Zhongshan Red Cherry Electric Appliance Co., LTD., there is the introduction of guangdong Opai range hood and other products. On August 22, 2016, under the supervision of a notary, Wang Shouzhen received a piece of goods marked "Guangdong Opai Technology Co., LTD. (Supervised manufacture)" at the Logistics Department of "Deppon" on Wenhe Avenue, Leicheng District, Laiwu city, Shandong Province. The order number was 5202182042. After wang Shouzhen took the above items back to the notary office, she opened a box with the words "Household range hood". Inside the box is a range hood OPAICN With the words "Guangdong Opai Science and Technology Co., LTD" and a copy of the OPAICN manual. Then the notary staff sealed the above articles with the seal of the notary office, and delivered the sealed articles and logistics documents to Wang Shouzhen for safekeeping. Fengcheng Notary Office of Laiwu City, Shandong Province supervised the above purchase and receiving process, and issued the Notary Certificate of Laifeng City Certificate No. 942 (2016).

    In trial, accuser opened the product that afore-mentioned notarization bought in court, accuser charges the tort product of this case is lampblack machine. The words "Guangdong Opai Technology Co., LTD. (Supervision)" are marked on the outer packing boxes and instructions of the lampblack suction machine, and the manufacturer is Zhongshan Hongying Electric Appliance Co., LTD. Address: No.16, Zengye Road, Hetai Industrial Zone, Dongfeng Town, Zhongshan city; Telephone: 0760-88773799; In the product packaging, the manual has "Jiang Wenli" image and the manual also has "have a family have love have Europe" advertising slogan. The plaintiff believed that the company names of the defendant Guangdong Opai and the defendant Red Cherry electric Appliance company were marked on the outer packing and instructions of the accused infringing products, so the accused infringing products were manufactured by the defendant Guangdong Opai and the defendant Red Cherry Electric Appliance Company. In the packaging and instructions of the products accused of infringement, the company name of the defendant guangdong Opai is marked, with the design of Jiang Wenli and jiang Wenli's slogan of "Home with love with OpAI", which constitutes unfair competition to the plaintiff. In addition, the operator of the website mentioned in the notarial certificate is the defendant, Red Cherry Electric Appliances Co., LTD., which used the word "Opie" in a large amount in the promotion of its online store, which constitutes infringement and unfair competition against the plaintiff's Trademark no. 4378572.

    Defendant guangdong opie denied is accused of infringement oil absorption system by its production and its think the conversion of oil absorption smoke of notarial purchase packaging is labeled "guangdong science and technology co., LTD." enterprise name, but belong to fake the defendant of guangdong opie products, packaging on the manufacturer of the red electric appliance co., LTD., zhongshan city, with address, telephone number are not the defendant guangdong send address and phone number. At the same time, the defendant Guangdong Opai did not authorize others to produce the accused infringing products, nor did it authorize the defendant Red Cherry Electric Appliance Company to open an online store to sell the accused infringing products. Except for the defendant's general information such as the company name and trademark, the plaintiff has no material evidence to prove that the alleged infringement is related to the defendant's company name and trademark. At the same time, the defendant Red Cherry Electric Appliance company confirmed that the goods involved were produced by it and had nothing to do with the defendant Europa Guangdong.

    In addition, it is also found that the defendant Hongying Electric Appliance Co., Ltd. is a natural person investment or holding limited liability company, with a registered capital of 100,000 YUAN. It was established on October 23, 2014, and its business scope covers the production, processing and sales of range hoods, gas appliances, electric fireplaces and small household appliances.

    The court holds that this case is a case of infringement of the right to exclusive use of trademarks and unfair competition disputes. Combined with the plaintiff's accusations against the two defendants, the court makes the following comments:

    I. Whether the defendant Red Cherry Electric Appliance Company infringed the plaintiff's right to exclusive use of the registered trademark involved in the case and constituted unfair competition.

    The trademark law of the People's Republic of China (hereinafter referred to as the trademark law) article 48 states: "the use of trademark referred to in this law refers to the trademarks to commodities, commodity packaging or containers and trading documents, or the trademarks used in advertising, exhibitions and other commercial activities, behavior" is used to identify the sources of. (1) Using a trademark identical with a registered trademark on the same kind of goods without the permission of the registered trademark owner; (2) using, without the permission of the trademark registrant, a trademark similar to its registered trademark on the same good s or a trademark identical with or similar to its registered trademark on similar good s, which is liable to cause confusion... ." According to the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation of article 9, the provisions of article 10, in trademark infringement cases that advocate for the rights of accused of infringement identification and whether the registered trademark constitutes approximation, should regard trademark or its constituent elements involved significant degree, market popularity, such as the specific circumstances, in the consideration and comparison form, pronunciation and meaning of the text, graphic composition and color, or on the basis of the combination of elements of the structure, the whole or the major part is the possibility of market confusion to comprehensive analysis and judgment.

    In this case, according to the facts found out, the plaintiff no. 4378572 registered trademark in the 11th category of goods is approved for use, including kitchen lampblack machine, etc., and the case is accused of infringement products for lampblack machine, both belong to the same kind of goods, accused of infringement products by the defendant Red ying electric appliance company opened the online store sales. The defendant red cherry electronics company in website shop promises to sell oil absorption, kitchen burning gas is used in the product page "guangdong opie oil absorption" wording, such as product introduction, is accused of infringement of identity "European" and advocate for the rights of the plaintiff compared to no. 4378572 "European" registered trademark, the pronunciation and meaning are the same, while the former is simplified Chinese which is traditional Chinese characters, but for the use of Chinese characters, no substantial difference, the relevant public to general attention easily confused between the two. Therefore, the court finds that the use of the "Opie" logo on the website of the defendant Red Cherry Electric Appliance Company constitutes a confusing similarity with the trademark involved in the plaintiff's claim. According to the above legal provisions, without the permission of the trademark registrant, the defendant, Red Cherry Electric Appliances Co., Ltd. used the same and similar trademarks in the promised product sales and sales, which constituted trademark infringement.

    The plaintiff also believes that the defendant, Red Cherry Electric Appliance Company, used the word "Opai" on its website, the word "Guangdong Opai Technology Co., Ltd." on the product packaging and instructions, and the image of the star "Jiang Wenli", which constituted the unfair competition behavior of false publicity. Article 2, Paragraph 1, of the Law against Unfair competition stipulates that in market transactions, operators shall follow the principles of voluntariness, equality, fairness, good faith and abide by generally recognized business ethics. Article 9 The first paragraph stipulates that an operator shall not, by advertising or other means, falsely publicize the quality, sufficiency, performance, use, producer, term of validity or place of origin of the commodity, which is misleading.

    The business scope of the plaintiff opie group for furniture manufacturing, in September 2007, European brand of ambry of products by the state administration of quality supervision, inspection and quarantine rated as China famous brand product, in October 2008, European brand ambry products by quality supervision bureau of guangdong province famous brand products of guangdong province, in February 2008, the plaintiff's 1128213th "European" trademark in the sideboard, is x x x x for famous trademarks of guangdong province, on April 24, 2009, the plaintiff on the sideboard commodity 20 "European" brand were identified as the famous trademark, the trademark office so we decided that after many years of product sales and advertising, The cabinet products produced and sold by the plaintiff have higher popularity in the relevant public. Although the plaintiff was once identified as a well-known trademark, it was not the trademark involved in this case, but because the name of the plaintiff was also "Europa", the good goodwill carried by the trademark of "Europa" was inseparable with the enterprise, and it was unquestionable that the logo of "Europa" had established a specific connection with the plaintiff. The accused Red Cherry Electric Appliance Company produces and sells the accused infringing product as the range hood, which is generally used in the kitchen and usually embedded into the cabinet to form a whole, so the accused infringing product has a certain correlation with the plaintiff's cabinet products, and the accused Red Cherry Electric appliance Company has a competitive relationship with the plaintiff. According to find out the fact that the plaintiff is used in the advertisement "have family love the pie", and hired star "jiang wenli" as a propaganda image spokesperson, the plaintiff's "European" series of products as well as the "European" font size across the country has a higher visibility, "OPAICN" similar to the plaintiff's "European" pronunciation, and the plaintiff has the plaintiff has no. 7731876 "" the right to exclusive use of a registered trademark in accordance with the law, the defendant red cherry electronics company is also accused of infringement product outer packing, specification used in the" OPAICN "and" guangdong science and technology co., LTD. (producer) ", And using the star "jiang wenli" image, easy to make the relevant public mistakenly assume that its production and sales of smoke lampblack machine and there is a link between the plaintiff opie group, easy to make the relevant public source for products cause confusion and mistakes, so its subjective malicious clings to the plaintiff's reputation is very obvious, also known as "fake", the defendant red cherry electric company to relevant consumer confusion and mistakes, improperly obtaining competitive advantage, in violation of fair and honest credit and the principle of fair competition, has constituted unfair competition.

    Ii. Whether the defendant violated the exclusive right to use the registered trademark of the plaintiff and constituted unfair competition.

    The plaintiff accuses the defendant Guangdong Opai of infringement fact lies in: the accused infringement lampblack machine outside the package carton, the product manual contains the words "Guangdong Opai technology Co., Ltd. supervised manufacture", therefore the defendant Red cherry electric appliance company sells the lampblack machine by the defendant Guangdong Opai and the defendant Red cherry electric appliance company produces and sells. However, the defendant Guangdong Opal denied being accused of infringement of the range hood by its production and sales, that others falsely used its enterprise name and trademark. The defendant red Cherry Electric Appliance Company confirmed that the products involved were produced and sold by the defendant and had nothing to do with the defendant GUANGDONG Opai. Therefore, the court believes that the outer package of the product accused of infringement is marked with the words "produced by Guangdong Opai Technology Co., LTD". Although the company name of the accused is the same as that of guangdong Opai Technology Co., LTD., the company name belongs to the information known to the public, so it is possible to be copied by others. At the same time, the manufacturer, address and telephone number marked on the outer packing had no connection with the defendant GUANGDONG Opai. Moreover, the defendant Red Cherry Electric Appliances Company confirmed that the products involved were produced and sold by the defendant and had no connection with the defendant Guangdong Opai. Therefore, directly in the plaintiff failed to prove the defendant guangdong opie production sales is accused of infringing products and the guangdong opie, red cherry electronics companies have denied the defendant and the defendant under the condition of guangdong has relevance, we cannot only according to the accused of infringement product labeling information and it is concluded that the product is the guangdong opie production sales. In other words, with existing evidence only, cannot affirm the product that accuses infringement to absorb lampblack machine to be by defendant wide east Europe sends production to sell, cannot affirm the defendant wide East Europe sends to carry out to be accused tort. Therefore, the plaintiff's accusation that the defendant Guangdong Opiates infringed the plaintiff's right to exclusive use of the registered trademark and unfair competition lacked factual basis, and the court did not support it.

    The civil liability of the two defendants.

    According to Article 118 of the General Principles of the Civil Law of the People's Republic of China, a citizen or legal person whose right to exclusive use of a registered trademark has been infringed upon shall have the right to demand that the infringement be stopped and that the loss be compensated for.

    Based on the above analysis and demonstration on whether the two defendants constitute infringement, the plaintiff requests the defendant Red Cherry Electric Appliance Company to immediately stop using the word "Opai" on its website and stop producing and selling the lampblack machine marked with the word "Guangdong Opai Technology Co., LTD". The court supports the request based on the law. The plaintiff sued the defendant Guangdong Opai to stop producing the lampblack machine marked with the words "Guangdong Opai Technology Co., LTD.". As mentioned above, the court will not support the plaintiff's accusation because of its lack of factual basis.

    On the issue of the determination of the amount of compensation in this case. According to the provisions of The first and third paragraphs of Article 63 of the Trademark Law, "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the right holder due to the infringement; Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; Where it is difficult to determine the losses of the right holder or the profits of the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests gained by the infringer as a result of the infringement, or the licensing fee of the registered trademark, the people's court shall, in light of the circumstances of the infringing act, make a judgment to compensate the obligee not more than THREE million yuan ". This case the plaintiff not proof to prove the actual loss and the defendant illegal income red electric, we consider the plaintiff brand well-knownness, the subjective intent of the red cherry electric company, the plot, scale of operation, is accused of infringing copyright product sales and other factors, has decided the defendant red cherry electric company compensate the plaintiff for the economic loss of 100000 yuan, the compensation has been including reasonable expense for the rights to the case. The court does not support the plaintiff's claim that the defendant Guangdong Opai compensates for the economic loss.

    In conclusion, according to paragraph 1 of article 3 of the "trademark law of the People's Republic of China", article 57, paragraph 1 of article sixty-three, paragraph 3, the anti-unfair competition law of the People's Republic of China, the first paragraph of article 2, article 9, article 20, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation articles 9, 10 and 16, the civil procedure law of the People's Republic of China article sixty-four the provisions of the first paragraph, the sentence is as follows:

    On the effective date of this judgment, the defendant Zhongshan Red Cherry Electric Appliance Co., Ltd. immediately stopped using the word "Opi" on the sales website for publicity and stopped producing and selling range hoods containing the word "Opi";

    The defendant in zhongshan red electric appliance co., LTD within 10 days from the date of this decision, compensate the plaintiff European household group co., LTD. Economic loss of 100000 yuan (the plaintiff is included in the European furniture group co., LTD. To stop the infringing act to the case any reasonable expense incurred by, including the notarial fees, legal fees, investigation expenses, etc., but not limited to);

    Other claims of the plaintiff Opai Household Group Co., LTD. Were rejected.

    If the defendant Zhongshan Red Cherry Electric Appliance Co., Ltd. fails to perform its pecusary obligation within the period specified in this judgment, it shall pay double interest on the debt for the delayed period in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China.

    The handling fee of this case is 8,800 yuan, 2,800 yuan borne by the defendant Zhongshan Hongying Electric Appliance Co., LTD., and 6,000 yuan borne by the plaintiff Opai Home Furnishgroup 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 to the court, and make a copy according to the number of the other party, and appeal to the Intermediate People's Court of Foshan, Guangdong.

    Chief Judge Wu Zhanhong

    People's Juror Chen Huiyu

    People's Juror Ho Wing Chun

    August 28, 2017

    Clerk Yan Yongyu