Civil judgment of the Second People's Court of Zhongshan City, Guangdong Province

    The Second People's Court of Zhongshan City, Guangdong Province

    Written judgment of civil affairs

    (2018) No. 1190, Early Republic of Guangdong 2072

    Plaintiff: Opai Home Furnishing 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 Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Zhongshan Futing Kitchen & Bathroom Electric Appliance Co., LTD., domicile: Linglan Road, Huangpu Town, Zhongshan City, Guangdong Province (opposite to Linglan police Station).

    Legal representative: Yan Wangqing.

    Defendant: Yan Wangqing, male, born on June 15, 1985, Han Nationality, residing in Maogang District, Maoming City, Guangdong Province.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the company) and the defendant in zhongshan rich court hutch defends electric appliance co., LTD. (hereinafter referred to as rich family company), YanWang celebrates the infringement trademark rights and unfair competition disputes, 17 Hitachi after in our hospital from January 2017, in accordance with the applicable ordinary procedure, public hearing on the trial. Wang Ning, the authorized agent AD litem of Opai, and Yan Wangqing, the legal representative of Futing, the defendant, attended the proceedings. The case is now closed.

    The plaintiff Opai company filed a lawsuit to the court: 1. The defendant Futing Company was ordered to immediately stop infringing the trademark and stop marking the word "Opai" on the gas stoves it produces and sells; 2. 2. The defendant Futing Company was ordered to immediately stop unfair competition and stop the unfair competition with the words "Youjia Youaiyouopaicn" and "Guangdong Opai Science and Technology Co., LTD" marked on the gas cooker products it produced and sold; 3. The defendant, Futing Company, compensates the plaintiff, Opai Company, RMB 150,000 for economic loss and reasonable expense of safeguarding rights in this case, for which the defendant, Yan Wangqing, is jointly and severally liable. At the hearing, Opp, the plaintiff, withdrew its second suit request that Futing, the defendant, stop its claim that it produces and sells gas stoves with the words "OPAICN" on their products. Facts and Reasons: Plaintiff Opie, founded in 1994, is a leading brand in the whole cabinet industry. Its products cover the whole wardrobe, kitchen appliances, bathroom, commercial kitchen utensils and other fields. After decades of careful creation and huge advertising investment, the "OPPEIN" and other trademarks owned by the plaintiff, OPPEIN, have become well-known and well-known brands of home furnishing, electrical appliances and sanitary ware. They have successively won the reputation of China famous brand products and China well-known trademark. In February 2017, opie, the plaintiff, was successfully listed in Shanghai with the stock code of 603208, which further established its leading brand advantage in the industry. "Opai" is not only the representative symbol of the products and enterprise names of the plaintiff, but also the significant identification mark of the market subjects and commodity sources of the plaintiff and its affiliates. In August 2017, the plaintiff Opai Company found a gas stove marked "Opai" and "Guangdong Opai Technology Co., LTD" in Guancheng District, Zhengzhou city, which was labeled as the production base of the defendant Futing Company. Guangdong Opai Technology Co., Ltd. has been found by Shunde District People's Court of Foshan city to have infringed upon the right of enterprise name of the plaintiff Opai Company, and the court has decided to change the enterprise name. The defendant Futing Company is a one-person limited liability company, and the defendant Yan Wangqing is the sole shareholder of the defendant Futing Company. The plaintiff's company believes that the accused rich division company clings to the plaintiff for the company brand reputation, use the "European" word "guangdong opie technology co., LTD.", not only the infringement of the right to exclusive use of a registered trademark of the plaintiff European company, also constitutes unfair competition, to the plaintiff's company caused great economic losses, shall bear the corresponding legal responsibility, the defendant YanWang as a one-person limited liability company's shareholders, shall be jointly and severally liable to the company's debts. Accordingly, the plaintiff Opie company filed this case to the court.

    The defendant Futing Company and Yan Wangqing argued that the defendant Futing Company had never produced or sold Opai products, nor supplied the champion firm, and the products involved in the infringement were counterfeit products produced by the defendant Futing Company.

    The parties have provided evidence according to law around the claims, and the court has organized the parties to exchange and cross-examine evidence. The court confirms and supports in the volume the evidence that the parties have no objection. 1.(2016) Notarial Certificate No. 347, (2017) Notarial Certificate No. 675, Laifeng City Notarial Certificate No. 347, and (2017) Laifeng City Notarial Certificate No. 675 have original copies verified, both issued by the notarial office, and are related to this case, so the court confirms them; 2. 2. The word no. 350 (2016) lai FengCheng card people notarial deed and word no. 672 (2017) lai FengCheng card people notarial deed and word no. 346 (2016) lai FengCheng card people notarial deed and word no. 673 (2017) lai FengCheng card people notarial deed and word no. 348 (2016) lai FengCheng card people notarial deed and word no. 352 (2016) lai FengCheng card people notarial deed, no relevance to the case to the facts, we will not be identified; 3. The trademark (2009) No. 7 reply issued by the Trademark Office of the State Administration for Industry and Commerce is issued by the Trademark Office of the State Administration for Industry and Commerce. The plaintiff Opai company has provided the original copy for verification, which is related to the facts to be proved in this case. 4. (2016) Notarial Certificate No. 353, (2017) Notarial Certificate No. 260, issued by the notarial office after checking with the original, and the honor certificate included in the notarial certificate can indirectly reflect the popularity of the plaintiff Opai Company, which is related to this case, which is confirmed by the court; 5. (2016) Notarial Certificate No. 357 of Laifeng City Certificate is issued for the notary office after checking the original, and the tax payment certificate and audit report in it reflect the operating scale of the plaintiff Opai Company to a certain extent, which is related to this case, which is recognized by the court; 6. (2016) Notarial Certificate No. 355 of Laifengcheng Certificate No. 356 of Laifengcheng Certificate no. 356 is issued by the notary office. It reflects the plaintiff's publicity expenses during the operation of Opai Company and the fact that famous movie stars are employed to represent the plaintiff. 7. (2017) The Notarial certificate no. 1486 of Laifengcheng Certificate is issued by the notary office and is related to this case. Therefore, the court confirms it. 8. "linchuan evening news", "shenzhen special zone signs up for" anqing daily Shanghai ambry "sales and marketing management version" "ruili household decoration world magazine, is copy, but the fact of the reaction were through TV, print and other media publicity to the society, can prove the plaintiff's case of the company's advertising, is relevant to the case, so we found; 9. The industrial and commercial inquiry materials and details of administrative punishment are public information, and the defendants Futing Company and Yan Wangqing have not raised any objection to the authenticity, and are related to this case, so the court confirms it.

    According to the statement of the parties and the evidence confirmed by examination, the facts confirmed by the court are as follows: Opie was founded on July 1, 1994, with a registered capital of RMB 373581112, and its business scope is furniture manufacturing industry.

    Opai is the holder of the registered trademark "Opai" No. 4378572 approved for use in class 11. The goods approved for use include gas stoves.

    On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized the trademark of "Opai" on the sideboard of category 20 of the International Classification of Goods and Services as a well-known trademark. In September 2007, the state administration of quality supervision, inspection and quarantine set awarded to the company's brand household cabinet for "China famous brand product". In October 2008, Guangdong Provincial Bureau of Quality and Technical Supervision granted Opai's cabinet products as guangdong famous brand products. In February 2008, "Opai" trademark was recognized as "Famous trademark of Guangdong Province" by Guangdong Famous Trademark Recognition Committee. In December 2012, Opai was identified by China Building decoration Association hutch and sanitation Engineering Committee as "2012 China hutch and sanitation top 100" "overall kitchen leading enterprises top 10", effective term of a year. In September 2013, The Guangzhou Municipal People's Government awarded Opai the title of "2012 Guangzhou Mayor Quality Award". On December 28, 2014, the case evaluated by Brand Watch magazine was selected into the silver Award of 2014 Annual Brand Marketing Case in China. In January 2015, Guangdong Home Furnishings Federation and Guangdong Furniture Chamber of Commerce jointly awarded Opai the title of "Top 10 Most Valuable Brands" and "Top 10 Innovative Enterprises" in 2014 guangdong pan-household industry.

    On October 30, 2012, opai signed an agreement with Beijing ontime boiling international advertising co., ltd. on the sponsorship and cooperation of home decoration fund. It was agreed that opai would sponsor two sets of "exchange space" home decoration fund of CCTV. The contract was performed from January 5, 2013 to December 28, 2013. On July 20, 2013, Opai hired Jiang Wenli as its spokesperson. On November 11, 2013, opai signed a TV advertisement release contract with zhejiang zhimei chewen advertising co., LTD. It was agreed that opai entrusted zhejiang zhimei chewen advertising co., ltd. to release the advertisement during January 1, 2014 solstice on December 31, 2014, with the media of cctv-news channel, and the cost was RMB 40463970. In July 2014, the company with hunan, hunan radio and television advertising corporation downwind media co., LTD., television advertising project contract, agreed: the company commissioned in hunan province, hunan radio and television advertising corporation downwind media co., LTD., published "the 10th golden eagle festival closing ceremony and awards" project related advertising, distribution medium for hunan broadcast hunan satellite TV channels, release time is on September 28, 2014 to October 12, 2014, cost $18000000, using the slogan of "there is love, there's a, have the pie". On October 22, 2014, Europa signed an advertising agency contract with kashgar yinsong culture & media co., LTD. It was agreed that Europa culture & media co., ltd. would act as an advertising agency for Europa on cctc-news "global view" on January 1, 2015 and December 31, 2015. The agreed fee was 23,970,000 yuan. On November 27, 2014, opai signed an agreement with Beijing ontime boiling international advertising co., ltd. on the sponsorship and cooperation of home decoration fund. It was agreed that opai would sponsor two sets of home decoration fund of CCTV "exchange space". The contract was performed from April 4, 2015 to March 26, 2016 with the sponsorship advertising fee of RMB 6,000,000.

    In 2011, Opai launched advertisements in Linchuan Evening News, ×× Special Zone Newspaper, Anqing Evening News, Ruili Home furnishing and decoration world respectively. The brand spokesperson employed in the above advertisement promotion is Jiang Wenli.

    Founded on November 21, 2011, Futing Company is a limited liability company solely owned by a natural person with a registered capital of 500,000 yuan. Its business scope includes the production and sales of range hood, gas stove, gas water heater, disinfection cabinet and household appliances. Yan Wangqing is the sole shareholder of Futing Company. Yan Wangqing confirms that he is the shareholder of Shenzhen Huadi Intelligent Electrical Appliances Co., LTD., Qingdao Quality Samsung Kitchen & Bathroom Co., LTD., Shenzhen Glico Electrical Appliances Co., LTD., And Shenzhen Aokema Living Electrical Appliances Co., LTD. In 2015, Futing Company was punished by the administrative department for industry and commerce for trademark infringement.

    On August 27, 2017, Opai Applied for evidence preservation at Fengcheng Notary Office in Laiwu, Shandong Province. On September 7, 2017, under the supervision of the notarization xiu-ping zhang, xiho opie company entrusted agent shou-zhen wang in the name of the ordinary consumers sandwiches in henan province of xx district road no. X x x x market "OPAICN opie" stores, including shou-zhen wang in the shop to buy the kitchen burning gas involved a, get the POS credit card slip an inventory, sales and printed with "XiaoJian" card two, notarial personnel to the objects in the seal, seal after the goods under the custody of shou-zhen wang. On October 19, 2017, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2017) Laifeng City Certificate No. 1486 Notary public to notarize the above facts.

    After trial examination, the gas stove purchased by the notarization sealed in good condition, notary seal and seal integrity. The packaging box is marked with the "OPAICN" trademark, the words "Opai" and "Guangdong Opai Technology Co., LTD. (Authorized), Production base: Zhongshan Futing Kitchen & Sanitary Appliance Co., LTD., Address: Linglan Road, Huangpu Town, Zhongshan City, Guangdong Province, website: WWW/GDjunlefu.com, National Service Hotline: 400-026-7297" and other information. The gas cooker panel is marked with the OPAICN trademark, "OPAICN with love" and the words "Guangdong Opai Technology Co., LTD". The product instructions are marked with the words "Oupai" on the front cover and "Guangzhou Oupai Technology Co., LTD" on the back cover and the words "Guangdong Oupai Technology Co., LTD (authorized), production base: Zhongshan Futing Kitchen and Sanitary Appliances Co., LTD" on the back cover, and the same address, website address and national service hotline and other information on the outer packing cases.

    Trial, the company claims that the rich division, YanWang celebrates compensate the loss of 150000 yuan (including reasonable expense for to stop the infringing act), and called to stop the infringing act, reasonable costs including attorney's fees and spending $10000 cost of the infringing products, notarial cost 800 yuan, buy 260 yuan to 3000 yuan, travel, but it only provides the notarial fees receipt. Opai, Futing and Yan Wangqing failed to provide evidence on the amount of losses suffered by Opai and the profits made by Futing and Yan Wangqing due to the infringement.

    The court believes that the focus of the dispute in this case is: 1. Whether the products involved are produced and sold by Futing Company; 2. 2. Whether Futing Company has violated the exclusive right to use opai's trademark No. 4378572; 3. Whether The Futing Company constitutes unfair competition; 4. Subject and amount of compensation.

    About the first focus. The sealed state of gas stoves involved in the case provided by Opai is intact, and the seal and seal of the notary office are complete, which have been confirmed by our hospital. The outside packing box of the gas stove accused of infringement, the name and address of the manufacturer marked in the instruction are all pointed to Futing Company. The production enterprise information marked in the outer package and the product operation manual has the function of enabling consumers to identify the producer or operator of the product, that is, it clearly points to the provider of the product. Although Futing Company argued that it did not produce gas stoves involved in the case, it did not provide evidence to prove it, so it did not accept Futing company's explanation. Therefore, the court concluded that futing Company produced and sold gas stoves accused of infringement.

    About the second focus. Opai is the holder of the registered trademark "Opai" No. 4378572, which is a registered trademark obtained by Opai according to the legal procedures and enjoys the rights. It is now in the period of validity of the registration.

    Opie claims that the infringing product marked with the word "Opi" infringes on the exclusive right of the registered trademark "Opi" no. 4378572. By comparison, the word "Opi" was highlighted on the outer packing boxes and product instructions of the accused products, among which "Opi" played a role in identifying the source of the goods and constituted trademark use. Rich division sales of kitchen burning gas and the company number 4378572 "European" registered trademark approved the use of "gas type" as the same kind of goods, make the relevant public easily mistaken for its opening stores and sales of kitchen burning gas, and other products from the company, or contact with the existence of specific its subjective exists obviously intentionally, to the company no. 4378572 "European" registered trademark infringement, rich family company to stop infringement and compensate for the losses of responsibility.

    On the third point of focus. Opai contends that the labeling of gas stove products accused of infringement by "Guangdong Opai Technology Co., LTD." constitutes unfair competition. According to article 5 of the Anti-Unfair Competition Law of the People's Republic of China (promulgated in 1993), "Business operators shall not engage in market transactions by the following improper means to the detriment of competitors:... (3) using another person's enterprise name or name without authorization to mislead others into believing that it is another person's commodity; ..." And 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 regulation:" the enterprise registration authority in accordance with the registered enterprise name, and for commercial use within the territory of China, foreign (regional) enterprise name shall be identified as (3) of article 5 of the anti-unfair competition law "enterprise name" prescribed in item. The shop name of an enterprise that has a certain market popularity and is known to the relevant public may be identified as the "enterprise name" as stipulated in item (3) of Article 5 of the Anti-Unfair Competition Law. In this case, the company since its inception in 1994, cabinets and other products on "European" font size, the continuous use in the class the sideboard 20 "European" trademark by the trademark office identified as well-known trademarks, its enterprise also won many honors, European companies and in CCTV, hunan TV and other media to a lot of advertising and product sales, the company of "European" enterprise size across the country have high visibility, the company's prior rights by "general principles of the civil law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China". The business scope of Futing company is to produce and sell range hood, gas stove, gas water heater, disinfection cabinet and household appliances. The outer packing of the gas stove products produced and sold by Futing Company and the transaction documents marked with the words "Guangdong Opai Technology Co., LTD" will cause the relevant consumers to mistake Futing Company as the affiliated enterprise of Opai Company, which will easily cause the related public confusion and misidentification of the product source, deliberately obvious beside the famous brand. The behavior of Futing company has taken the market share of Opai, which obviously violates the principle of good faith and violates the recognized business ethics in market transactions, and constitutes unfair competition for Opai company. Therefore, Futing Company shall immediately stop the infringement and compensate Opal company for its economic losses and reasonable expenses incurred to stop the infringement.

    On the fourth point of focus. The parties failed to provide evidence to prove that because of the rich family company implementation of the trademark infringement and unfair competition caused by the company's actual loss as well as the profit of the rich family company, we consider the company's brand awareness and rich division of the company's operating scale, rich family company during the implementation of the nature of the infringement, and consequences and the degree of subjective fault, the company and entrust a lawyer to appear in court to stop infringement litigation or spending the notarial cost, the cost of the physical factors, such as buying infringement, our college has decided the rich division companies to pay compensation to the company 100000 yuan (including reasonable expense to stop the infringement), Futing Company is a one-person limited company, and Yan Wangqing is its sole shareholder. He has not submitted evidence to prove that his personal property is independent of the company's property. Therefore, Opai company claims that Yan Wangqing shall bear joint and several liability for the debts of Futing Company, which is in accordance with the law.

    In accordance with article 56 of the "general civil law of the People's Republic of China", the first and second paragraph of article one hundred and seventy-nine of the trademark law of the People's Republic of China article 48 and article 57 the second and third paragraph of article sixty-three, the anti-unfair competition law of the People's Republic of China "(1993), paragraph 3, article 5 of article 2, article sixty-three of the" company law of the People's Republic of China ", the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the first article, article 4, paragraph 1 of article 6, article 7, paragraph 1 of article 17, As stipulated in paragraph 1 of Article 64 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    I. The defendant, Zhongshan Futing Kitchen & Bathroom Appliance Co., LTD., immediately ceases to produce and sell the gas stove products marked "Opai" on the date of the legal effect of this judgment;

    2. On the date of the legal effect of this judgment, defendant Zhongshan Futing Kitchen and Sanitary Appliances Co., Ltd. immediately stopped the production and sale of gas stove products marked with the words "Guangdong Opai Technology Co., LTD.";

    3. The defendant, Zhongshan Futing Kitchen and Sanitary Appliances Co., LTD., and Yan Wangqing, shall, within 5 days from the date of the legal effect of this judgment, pay compensation of 100,000 yuan to the plaintiff, Opai Home Furnishing Group Co., LTD. (including reasonable expenses paid to stop infringement);

    Iv. Other claims of the plaintiff, Opai Furniture Group Co., LTD., shall be rejected.

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

    The case handling fee is 3,300 yuan, 660 yuan for the plaintiff, Opai Home Furnishing Group Co., LTD., and 2,640 yuan for the defendant, Zhongshan Futing Kitchen and Sanitary Appliances Co., LTD., and Yan Wangqing.

    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 or the representatives, and appeal to the Intermediate People's Court of Zhongshan city, Guangdong Province.

    Chief Judge Ruan Chunli

    People's Juror Tan Siting

    People's juror Chen Yan

    August 3, 2008

    Clerk Lin Cuiming