Hangzhou Binjiang District People's Court civil judgment

    Hangzhou Binjiang District People's Court

    Written judgment of civil affairs

    (2017) Zhejiang 0108 1409, Early Republic of China

    Plaintiff: Opai Furniture Group Co., LTD., domicile: No. 366, Guanghua Third Road, Baiyun District, Guangzhou city, Guangdong Province, Unified social credit code: 9144010617404697C.

    Legal representative: Yao Liangsong, chairman of the board.

    Authorized agent: Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Defendant: Zhongshan Hotai Electric Appliance Co., LTD. Domicile: No. 34, Tongji West Road, Shenghui North, Nantou Town, Zhongshan City, Guangdong Province, Unified Social credit Code: 914420005536333500.

    Legal representative: He Chunsheng.

    Authorized agent: Yin Jianping, lawyer of Guangdong Xiangyu Law Firm.

    Defendant: Hangzhou Alibaba Advertising Co., LTD., domicile: 5th Floor, Building 1, 699 Wangshang Road, Binjiang District, Hangzhou City, Zhejiang Province.

    Legal Representative: Ma Yun, Executive Director and General Manager.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the European household company) v. the defendant in zhongshan how too electric appliance co., LTD. (hereinafter referred to as he too electric company), hangzhou alibaba advertising co., LTD. (hereinafter referred to as "alibaba") the infringement trademark rights and unfair competition disputes, in our hospital in 2017 to begin on March 15, summary procedure in accordance with the law, in the same year May 15 public hearing on the trial. Zhai Mingyue, the authorized agent of the plaintiff Ou Pai household Furniture Company, and Yin Jianping, the authorized agent of the defendant He Tai Electric Appliance Company, attended the lawsuit. The defendant Alibaba company was subpoenaed by the court and failed to attend the court proceedings without justified reasons, and the court was absent from trial according to law. The case is now closed.

    Plaintiff opie household company v. says: the plaintiff is 11 classes "European", "" OPPEIN" registered trademark rights, such as 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 brand, the brand has won the "Chinese famous brand" "Chinese famous trademark", etc. In August 2016, the plaintiff found that the defendant He Tai Electric Appliance Co., Ltd. used "OPPAIN" and "OPPAIN" in alibaba's online store for false publicity, and produced and sold range hoods and gas stoves marked with the words "Guangdong OPPAIN Life Appliances Co., LTD.". The plaintiff applied for notary office for evidence preservation for the above-mentioned infringement. After further investigation, the plaintiff found that the Alibaba website is the defendant Alibaba company. To sum up, the plaintiff that the defendant's too electronics company has exclusive rights to clings to the plaintiff, "European" brand reputation, deliberately in the store, the product on the illegal use of "European" "guangdong opie life electric appliance co., LTD." "have a home, have love, have the" "OPPAIN" and other words, the 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. The defendant alibaba as owners of e-commerce platform alibaba net, shall take necessary means to protect the right to exclusive use of a registered trademark, the platform registered sellers release contains higher well-known trademark goods should be administered examination obligation, because the defendant alibaba company did not fulfill the duty of reasonable review infringing facts of the defendant's too electric, also shall bear the corresponding legal responsibility. Accordingly, in order to safeguard the legitimate rights and interests of the plaintiff, the defendant appealed to the court to request the order: 1. The defendant Alibaba Immediately stopped infringing the trademark right of the plaintiff and deleted the infringing link immediately; 2. 2. The defendant, He Tai Electric Appliance Company, immediately stopped the use of "Opai" and "Opai Guangdong" in its online store for infringement of the trademark rights of the plaintiff; 3. Defendant He Tai Electric Co., Ltd. immediately stopped using words such as "Guangdong Opai Living Appliances Co., LTD." and "Youjia · Youai · Youpai" on its production of range hoods, gas stoves and other products to conduct unfair competition; 4. The defendant, He Tai Electric Co., Ltd. immediately stopped the production and sale of range hoods and gas stoves marked with "OPPAIN" and other products that infringed the trademark of the plaintiff; 5. The defendant, He Tai Electric Co., Ltd. shall compensate the plaintiff for economic losses and reasonable expenses for safeguarding rights in this case, totaling RMB 200,000 only; 6. Defendant He Tai Electric Company shall bear the costs of the case. In the trial, the plaintiff withdrew the first and second claims, which were granted by the court. Therefore, the defense and evidence of the defendant Alibaba Company will not be repeated and judged.

    The defendant, Ho Tai Electrical Appliances Co., Ltd. argued that the words "You Jia you ai You Ou Pai" printed on its products did not constitute unfair competition. First of all, although the plaintiff applied for or registered on the goods of Class 11 and Class 20, they were rejected by the State Trademark Office, so far he has not obtained the exclusive right to use the registered trademark. Second, the English "OPPAIN" printed on the packaging by the defendant and the trademark rights claimed by the plaintiff do not constitute similar trademarks on similar goods. In summary, the request to dismiss the plaintiff's claim.

    In order to prove its claim, the plaintiff Opai Furniture Company submitted the following evidence to the court:

    1. (2016) Laifengcheng Notarial Certificate No. 347, which intends to prove that the plaintiff has the exclusive right to use the registered trademark "Opai" No. 4378572 according to law;

    2. (2016) The Notarial Certificate no. 350 issued by Laifeng City, which intends to prove that the plaintiff has the exclusive right to use the registered trademark "Opai" No. 1128213 according to law;

    3. (2016) Lifengcheng Notarial Certificate No. 346, which intends to prove that the plaintiff has the exclusive right to use the registered trademark "Opai" No. 1137521 according to law;

    4. (2016) The Notarial Certificate of Laifengcheng Certificate No. 348 intended to prove that the plaintiff has the exclusive right to use the registered trademark "OPPEIN" No. 7731876 according to law;

    5. (2016) Legal Notarial Certificate No. 352 issued by Laifeng City intends to prove that the plaintiff legally owns the copyright of "Opai" fine art fonts. This work was created on August 10, 1996, and the contents of the registered trademarks No. 4378572, 1128213 and 1137521 of the plaintiff are exactly the same.

    6. The trademark [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce intends to prove that the registered trademark of "Eurogroup" 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) The Notarial Certificate no. 353 issued by Laifeng City, intending to prove that the plaintiff and the plaintiff's brand have high market popularity;

    8. (2016) Lifengcheng Notarial Certificate No. 357, intended to prove part of the tax paid by the plaintiff, intended to prove the huge profit benefits generated by the "Opi" brand and the high value of the brand;

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

    10. (2016) The Notarial Certificate no. 355 issued by Laifengcheng Zhuanzi intends to prove that the plaintiff has carried out continuous publicity for the brand of "Oupai" through CCTV and Hunan SATELLITE TV, and the brand of "Oupai" has been widely known by the public and has a very high brand value;

    11. (2016) The Notarial Certificate no. 356 issued by Laifeng City, which intends to prove that the plaintiff has employed the star Jiang Wenli to endorse the "European" products at great cost;

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

    13. (2016) Notarial Certificate No. 943 of Laifeng City, which is intended to prove the tort facts of the defendant;

    14. Notary fee note: the plaintiff claims 700 yuan in this case to prove the plaintiff's reasonable expense in safeguarding his rights.

    The defendant, Mr Ho Tai Electric Company, submitted to the Court the following evidence:

    1. Details of Trademark No. 15503401;

    2. Details of Trademark No. 15503402;

    Evidence 1 and 2 are intended to prove that the plaintiff does not have the right to "have a family, have love and have the exclusive right to register the European trademark" on the products involved.

    3. Company registration Certificate;

    4. Details of Trademark No. 20996545;

    5. Letter of authorization;

    Evidence 3-5 is intended to show that Guangdong Opai Household Electrical Appliances Co., Ltd. authorized the defendant, Ho Tai Electric Co., Ltd. to use the trademark "OPPAIN" No. 20996545.

    6. Screenshot of the website of the case, intending to prove that the products involved have been removed from the shelves.

    7. Purchase quotation sheet of the products involved;

    8. Screenshot of 1688 service market platform fees;

    9. Statistical table of purchase and sales of the products involved;

    Evidence 7-9 intends to prove that the online store involved in the case did not make a profit by selling the products involved, and was still in the state of loss at the time of the crime.

    After cross-examination at the trial, the court finds the evidence of the two original defendants as follows:

I. The evidence submitted by the plaintiff Opai Furniture Co., LTD., and the defendant He Tai Electric Co., Ltd. have no objection to the authenticity of evidence 1-4; There is no objection to the authenticity of evidence 5, but there is no objection to the object of proof, believing that the evidence cannot prove the originality and brand history of The Chinese "Oupai"; There is no objection to the authenticity of evidence 6, and there is no objection to the object of proof. It is believed that the well-known trademark belongs to the case recognition, which was made on April 24, 2009, 8 years ago, and cannot prove the existing brand value and influence of the trademark claimed by the plaintiff; There is no objection to the authenticity of evidence 7, and there is no objection to the object of proof. It is considered that none of the evidence in the recent three years can prove the existing brand value and influence of the trademark claimed by the plaintiff; There is no objection to the authenticity of evidence 8, which has no relevance to the case, and the data content is not from the last three years; There is no objection to the authenticity of evidence 9, and there is no objection to the content of its proof. The audit content is not the data of recent three years, which cannot prove the existing brand value and influence of the trademark claimed by the plaintiff; There is no objection to the authenticity of evidence 10-12, and there is no objection to the content of the proof, which is not formed in the recent three years and cannot prove the existing brand influence of the trademark claimed by the plaintiff; For 13, there is no objection on the authenticity of evidence to object to the content on the proof, the plaintiff has not obtained a "have a home, there is love, there are" right to exclusive use of a registered trademark, the English "OPPAIN" on the outer packing with the plaintiff argued trademark does not constitute a similar products on the same approximation of trademark, and the defendant is a personal online stores, after receiving the plaintiff's complaint is in November 2016, 14 (now the online store has been cancelled; Evidence 14 The authenticity of the notary fee bill cannot be confirmed without the original verification. After examination, the court considers that the authenticity of evidence 1-4, 6, 7 and 10-13 is recognized, and the above evidence has the evidential power to the facts claimed by the plaintiff and confirms it. If evidence 5 is not directly related to the case and cannot prove its claim, the court will not accept it; Evidence 14 shall not be directly confirmed for its evidential force without original verification.

Second, the evidence submitted by the defendant's too electric, the plaintiff opie household company for 1, 2, there is no objection on the authenticity of evidence but that has nothing to do with the case, the defendant's too electric company use "have family love opie" based on unfair competition, has nothing to do with the trademark, the defendant's tagging behavior mainly violates the second anti-unfair competition law and the provisions of the second paragraph of article 5, constitutes unfair competition is not on the premise of whether to obtain registration of trademarks; There is no objection to the authenticity of evidence 3-5. However, the "OPPAIN" registered by Guangdong Opai Life Electric Appliance Co., Ltd. has not passed the examination of the Trademark Office, and the defendant He Tai Electric Appliance Co., Ltd. is authorized to use it without authorization, which has no legal effect. The authenticity and relevance of evidence 6-9 are disputed, and there is no objection to the fact that the goods have been removed from shelves. After examination, the court confirms the authenticity of evidence 1-5, and its content is related to the dispute, and confirms it; The plaintiff has no objection to the removal of the goods from the shelves, so the court confirms evidence 6. Evidence 7-9 is not all the products involved, and the purchase time is January 2016, and there is a big time difference between the plaintiff's application for notarization preservation. Meanwhile, the statistical table is unilaterally made by the defendant He Tai Electric Company, and there is no other evidence to verify each other. Therefore, the proof of evidence 7-9 is not confirmed.

After trial, the court found that: On June 7, 2007, guangzhou opie ambry enterprise co., LTD., by the People's Republic of China state administration for industry and commerce trademark office approved registration no. 4378572, "European" trademark, shall use commodities class 11 [gas furnace, microwave oven (kitchenware), electric cookers; baking utensils (cooking utensils); faucet; bathroom equipment; disinfection cupboard; water filter; basin of wash one's hands (sanitary equipment parts); Turkish bath device; sitz bath tub, shower equipment; shower cubicle; wash tub, sit implement, the kitchen smoke lampblack machine; light (as) 】, registration is valid until June 6, 2017, On January 6, 2011, January 6, 2011, and March 24, 2014, the trademark registrants were changed to Guangdong Opai Furniture Group Co., LTD., Guangdong Opai Group Co., LTD., and the plaintiff Opai Furniture Company. On November 21, 1997, guangzhou kang jie kitchen equipment co., LTD. Registration no. 1128213 "European" trademark has been approved, shall use commodities 20 classes (furniture, kitchen cabinets, metal furniture, cupboards; tableware; storage; washstand (furniture); food carrier (furniture); send dinner car (furniture); counter 】, registered by the renewal of valid until November 20, 2017, on April 7, 1999, January 6, 2011, January 6, 2011, March 24, 2014, The registrants of the trademark are respectively Changed to Guangzhou Opai Cabinet Enterprise Co., LTD., Guangdong Opai Group Co., LTD., Guangdong Opai Household Group Co., LTD., and the plaintiff Opai Household Company. On December 21, 1997, guangzhou kang jie kitchen equipment co., LTD., approved the registration no. 1137521, "European" trademark, shall use commodities class 11 [the kitchen stove, gas stove, electric cookers; cooker; refrigeration equipment; drying equipment; hot and cold water filter; drink cooling equipment, electric water bottles; refrigeration container 】, registered by the renewal of valid until December 20, 2017, August 7, 1999, January 6, 2011, January 6, 2011, March 24, 2014, The registrants of the trademark are respectively Changed to Guangzhou Opai Cabinet Enterprise Co., LTD., Guangdong Opai Household Group Co., LTD., Guangdong Opai Group Co., LTD., and the plaintiff Opai Household Company. On March 14, 2011, guangdong opie group co., LTD., approved the registration no. 7731876 "OPPEIN" trademark, shall use commodities class 11 [lamp; oven; cooker; gas burner; water heater; refrigerator, freezer; kitchen smoke lampblack machine; the laboratory furnace; faucet; bathroom device; bath equipment; toilet bowl, wash one's hands pool (sanitary equipment parts); disinfect cupboard; water filter; heaters; lighter (as) 】, registration will be valid until March 13, 2021, March 20, 2012, March 24, 2014, The registrants of the trademark shall be respectively Guangdong Opai Furniture Group Co., LTD and the plaintiff Opai Furniture Company.

On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce issued the Reply on the Recognition of the trademark "Opai" as a well-known trademark (Trademark [2009] No. 7), which recognized the trademark "Opai" as a well-known trademark on category 20 sideboard goods.

In September 2007, The General Administration of Quality Supervision, Inspection and Quarantine of China granted the Opai household cabinets manufactured by Guangzhou Opai Cabinet Enterprise Co., Ltd. as China's famous brand products, and the period of validity was from September 2007 to September 2010. In October 2008, Guangdong Provincial Bureau of Quality and Technical supervision granted The Opai cabinet products produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. as guangdong famous brand products, valid from October 2008 to September 2011. In August 2008, The Guangdong Province Famous Trademark Recognition Committee recognized the trademark "Opai" on the sideboard, ××, bowl ×× goods ×× as the famous trademark of Guangdong Province, with a term of validity of three years. In December 2012, China building decoration association hutch defends project committee to award Guangdong Ou Pai to live in group limited company to be 2012 Chinese hutch defends 100 hundred, period of validity arrives in December 2013. In September 2013, Guangzhou Municipal People's Government awarded Guangdong Opai Furniture Group Co., LTD the 2012 Guangzhou Mayor quality Award. On December 28, 2014, Brand Watch magazine awarded the plaintiff Opai Furniture Co., LTD. The case of "Scientific Planning of Opai Household Strategy leading the second Revolution of furniture Industry" as the Silver Award of 2014 Annual Brand Marketing Case in China, valid until December 27, 2015.

January 5, 2013 solstice December 28, 2013 and April 4, 2015 solstice March 26, 2016, the plaintiff promoted the plaintiff's home decoration brand through two sets of CCTV program "exchange space". September 28, 2014 solstice on October 12, 2014, the plaintiff promoted the plaintiff's home decoration brand through the closing ceremony and award party of the 10th golden eagle festival of hunan satellite TV. January 1, 2014 solstice on December 31, 2014, the plaintiff promoted the plaintiff's home decoration brand through cctv-news channel. January 1, 2015 solstice on December 31, 2015, the plaintiff promoted the plaintiff's home decoration brand through cctv-news "global view". August 1, 2013 solstice from July 31, 2015, the plaintiff hired the actress jiang wenli to shoot advertisements and used the image of the actor jiang wenli in the advertisements of cabinets, wardrobes and sanitary ware produced by the plaintiff. The plaintiff by the linchuan evening news, zhuhai, dc, newspaper anqing daily Shanghai ambry "sales and marketing" "ruili household decoration world continuous publicity" European brand ", "Shanghai ambry" (2010), "ruili household" (April 2011), "decorate world" (April 2014) of advertising in the picture are marked with the "the home has love with European" slogan.

On August 19, 2016, Wang Shouzhen, the entrusted agent of the plaintiff Opai Furniture Company, came to Fengcheng Notary Office in Laiwu city, Shandong Province to apply for evidence preservation. Under the supervision of the notary, Wang shouzhen used the notary office's computer to log on to Alibaba.com (address: ××) and search for a shop whose "supplier" was "Zhongshan Hotai Electrical Appliances Co., LTD". The product title is "the manufacturer's new wholesale range hood double motor steam cleaning large suction range hood side suction range hood" purchase page shows that the unit price of the product is ￥690-￥850,91 transactions, 116 comments. The product title is "wholesale new fierce furnace gas stove embedded double stove gas stove integrated natural gas liquefied gas stove", the purchase page shows that the unit price of the product is ￥225-￥349,14 transactions, 72 comments. Wang Shouzhen in the above commodity sales page order to buy a gas stove, a range hood, the total amount of goods 1,199 yuan (gas stove 349 yuan, range hood 850 yuan, freight 0 yuan). On August 22, 2016, under the supervision of the notaries, shou-zhen wang came to lai city south bridge road in laiwu city "Ann can ane" logistics business department, in the sales department to extract the outer packing in good condition, with the "guangdong opie life electric appliance co., LTD. Producer manufacturer: zhongshan how too electric appliance co., LTD." the words of "household range hood" each one "household gas stoves, single number is 220004577346, and back to the notary office. Under the supervision of the notary, Wang Shouzhen will open the above goods, the notary will take photos of the above items and seal up, sealed items by Wang Shouzhen declaration. On August 28, 2016, under the supervision of the notary, Wang Shouzhen used the computer of the notary office to confirm the receipt of the order. On September 9, 2016, Fengcheng Notary Office of Laiwu City, Shandong Province made the (2016) Fengcheng Notary No. 943.

Opened in court notarization, kitchen burning gas packing, certification, product face and profile are marked on the label, manual, warranty card "OPPAIN" "guangdong opie life electric appliance co., LTD.", the outer packing and manual tails are labeled "what manufacturer: zhongshan electrical appliance co., LTD.", as indicated on the certificate of approval of manual, warranty CARDS, anti-counterfeiting "have family love the pie", have positive manual actress jiang wenli's image. Smoke lampblack machine packing, certificate, manuals, warranty CARDS are marked on the "OPPAIN" "guangdong opie life electric appliance co., LTD." on the outer packing and manual tails are labeled "what manufacturer: zhongshan electrical appliance co., LTD.", are marked on the certificate of approval of manual, warranty CARDS, anti-counterfeiting "have family love the pie", have positive manual actress jiang wenli's image.

    4. The defendant, Zhongshan He Tai Electric Appliance Co., Ltd. shall compensate the plaintiff for economic losses and reasonable expenses of 120,000 yuan.

    V. Rejecting other claims of the plaintiff opai Furniture Group Co., LTD.

    If the pecuniary obligation is not fulfilled within the period specified in this judgment, the interest on the debt for the delayed period shall be doubled in accordance with article 253 of the Civil Procedure Law of the People's Republic of China.

    The case acceptance fee is RMB 2,150 yuan, 430 yuan borne by the plaintiff Opai Home FurnishGroup Co., LTD., and 1,720 yuan borne by the defendant Zhongshan Hotai Electric Appliance Co., LTD.

    The plaintiff, Opai Home Furnishing Group Co., LTD., shall refund the fee to the court within ten days from the effective date of this judgment. The defendant, Zhongshan He Tai Electric Appliance Co., LTD., shall, within ten days from the effective date of this judgment, pay the court the case acceptance fee payable to it.

    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 copies of the appeal according to the number of the other party, and appeal to the Intermediate People's Court of Hangzhou, Zhejiang Province.

    Judge Ye Wei

    July 31, 2017

    Clerk Wang Ying