Civil judgment of Baiyun District People's Court, Guangzhou City, Guangdong Province

    People's Court of Baiyun District, Guangzhou City, Guangdong Province

    Written judgment of civil affairs

    (2017) No.318, Yue 0111, Early Republic of China

    Plaintiff: Opai Home Furnishing Group Co., LTD., No. 366, Guanghua 3rd Road, Baiyun District, Guangzhou.

    Legal representative: Yao Liangsong, chairman of the board.

    Agent: Zhai Mingyue, Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Huamei Electric Appliance Factory, Dongfeng Town, Zhongshan City, Chuangyuan Road, Anle Village, Dongfeng Town, Zhongshan City (1st floor, Workshop of Ganlin Chen).

    Defendant and investor of Huamei Electric Appliance Factory, Dongfeng Town, Zhongshan City: Li Yinxian, male, born on October 1, 1990, Han Nationality, id address: Yunmeng County, Hubei Province,

    Defendant: Liang Zhengping, lawyer of Guangdong Bodao Jujia Law Firm.

    Defendant: Chen Zhaoying, male, born on August 26, 1991, Han Nationality, id address: Yunmeng County, Hubei Province,

    The plaintiff Opai Home Furnishing Group Co., LTD. (hereinafter referred to as Opai) and the defendant, Zhongshan Dongfeng Town Huamei Electric Appliance Factory (hereinafter referred to as Huamei Electric Appliance Factory), Li Yinxian and Chen Zhaoying, infringed the trademark right and unfair competition dispute. After the court accepted the case, it formed a collegial panel and held a trial in public. Zhai Mingyue, the authorized agent of the plaintiff Ou Pai Company, liang Zhengping, the authorized agent of the defendant Cooke American electric appliance factory, attended the lawsuit. The defendants, Lee Yinxian and Chen Zhaoying, were summoned by the court and refused to attend the court proceedings without justifiable reasons. The case is now closed.

    The plaintiff Opai Company claims that the plaintiff is the exclusive owner of the 11th "OPPEIN" and "OPPEIN" series of trademarks. Since its establishment, the plaintiff has cast "OPPEIN" and "OPPEIN" series of trademarks into household, electrical and sanitary brands that are well-known throughout the country. The plaintiff's products and brands have won the reputation of "China famous brand products" and "China well-known trademark" successively. "Opai" has not only become the representative symbol of the plaintiff's products and enterprise names, but also become the significant identification mark indicating the market subject and commodity source of the plaintiff and its affiliated enterprises. In November 2016, the plaintiff found in zhongshan m bo electric appliance co., LTD in "alibaba" extensive use of "European" text online website sales oil absorption, on the product packaging, manuals and other carrier was labeled "guangdong science and technology co., LTD. Producer" word "manufacturer in zhongshan city beauty equipment factory" cooking skills, the online payment for Li Yinxian all alipay account. The plaintiff entrusts the notary office to preserve the evidence of the above behavior. The plaintiff believes that the behavior of Zhongshan Milbo Electric Appliance Co., Ltd. and the two defendants not only violates the trademark right of the plaintiff, but also constitutes unfair competition to the plaintiff. Zhongshan Mibo Electric Appliance Co., Ltd. has been cancelled according to law, and its sole natural person shareholder, namely the defendant Chen Zhaoying, shall bear the liability. To sum up, the court is requested to order: 1. Defendants Chen Zhaoying and Li Yinxian immediately stopped using the word "Opai" in their online store to sell range hood, which violated the trademark right of the plaintiff; 2. 2. The defendant, Kuaimei Electric Appliance Factory, immediately stopped the unfair competition on its production and sales of range hood products marked with the words "Guangdong Opai Technology Co., LTD"; 3. The three defendants shall compensate the plaintiff for economic losses and reasonable expenses for safeguarding their rights, totaling RMB 200,000 yuan; The costs of this case shall be borne by the three defendants.

    The defendant Cook-American electric Appliance Factory argued that it did not agree to the plaintiff's claim. The reasons are as follows: 1. We obtained the license of "OPAICN" trademark of Guangdong Opai Technology Co., Ltd. in 2015, but we have not actually produced or sold any products. After obtaining the above trademark authorization, we hereby delegate the authorization to Zhongshan Mibo Electric Appliance Co., Ltd. for use. Zhongshan Mibo Electric Appliance Co., Ltd. pays annual fees to us. 2. We have legally obtained and used the trademark authorization from Guangdong Opai Technology Co., LTD. The trademark has been legally registered and there is no confusion with the plaintiff's trademark. In addition, Guangdong Opai Technology Co., Ltd. is a legally registered company. We cannot judge whether the company infringes the rights of the plaintiff. We are not a professional legal person and have no subjective malice. 3. The plaintiff's failure to use a cited trademark on class 11 goods shall not prove that the trademark is well known on class 11 goods. To sum up, the court is requested to reject all the plaintiff's claims.

    The defendant Lee Yin Yin made no plea.

    The defendant, Chan Siu-ying, made no plea.

    Trial found: no. 4378572 "Europe", the trademark registrant is a European hutch ark enterprise co., LTD., shall be used for class 11 goods, including gas furnace, microwave oven, kitchen utensils), kitchen smoke lampblack machine, etc., registration is valid from June 7, 2007 to 2017 on June 6, after the renewal of registration is valid until June 6, 2027. On January 6, 2011, the registered name of the trademark change was approved to be Guangdong Opai Group Co., LTD., which changed to Opai Company on March 24, 2014.

    On March 24, 2015, Opai, as the copyright owner, applied to Guangdong Copyright Bureau for the copyright registration of "Opai" fine art works. The registration number was Yuezuo-2015-F-00001907. The author was Liang Zhaotang.

    The company submitted a "about that," European "trademark for well-known trademark", China famous brand product certificate, certificate of famous trademarks of guangdong province, 2012 China hutch defends top certificate of integral kitchen top ten leading enterprises, guangzhou mayor award honorary certificate in 2012, 2014, guangdong household field top ten most valuable brands, innovation ability of ten strong enterprise honorary certificate and other evidence, to prove that "European" brand has a high market reputation; The tax payment certificate issued by the State Administration of Taxation in Baiyun District, Guangzhou City from 2013 to 2015, and the notification issued by the tax Administration of large enterprises in Guangzhou City Local Taxation Bureau in 2014 and 2015 were submitted to prove that the brand "Opai" has generated huge profits and benefits, and its brand value is extremely high. Submitted on time boiling with Beijing international advertising co., LTD. Signed the 2013 < space > home outfit funded cooperation agreement ", "2015 < space > home outfit funded cooperation agreement", and hunan radio and television advertising company, hunan downwind media co., LTD. The television advertising contracts signed, and zhejiang wisdom beauty car advertising co., LTD., the television advertising contracts signed, and kashi silver pine culture media co., LTD. Signed advertising agency contract and other evidence, intends to prove that the company "European brand" for the continuous publicity, and has been widely known; Submitted since 2011 "linchuan evening news", "newspaper zhuhai dc anqing daily Shanghai hutch ark" sales and marketing management version "" ruili household magazines such as decorating the world on the publicity of evidence, to prove that the company continues to promote in the print media," European brand ", its original "have a home, there is love, there are" slogan and promote the continuous use.

    On November 12, 2016, Wang Shouzhen, the entrusted agent of Shandong Zhixiang Law Firm, applied for notarization of evidence preservation to Luxi Notary Office of Liaocheng City, Shandong Province. In notarial personnel under the supervision of, the same year on November 14, 13 shou-zhen wang in guangzhou baiyun district and the town and street "7 days inn", using the notary office computer connected to the Internet, in "alibaba" web site "zhongshan m bo electric appliance co., LTD." to open within the store to buy the oil absorption, a shou-zhen wang payment, "alibaba" web site generate the order of the order no. 2681530098834885 a (orders generated after the display supplier: m bo electric appliance co., LTD., zhongshan city, the member login name: zhongshan meters, electric appliances, pay treasure to account: * * * 188 x 0800). On November 19 of the same year, under the supervision of a notary, Wang Shouzhen signed for a package with the label "Guangdong Opai Technology Co., LTD." sent by a Courier from Zto Express at the gate of "7 Days Chain Hotel", No. 13, Renhe Town Renhe Street, Baiyun District, Guangzhou under the supervision of a notary. Wang Shouzhen will open the above goods packing box, packing box has a range hood, a manual. In the same year on November 19, notarial personnel, under the supervision of 13 shou-zhen wang in guangzhou baiyun district and the town and street "7 days inn", using the notary office computer connected to the Internet, into the "alibaba" web site "ali has I buy goods" section, click on the order number 2681530098834885 confirmed receiving the order. On December 26, 2016, Shandong Liaocheng Luxi Notary Office issued a notarial certificate No. 3830 (2016), certifying that the work record attached to the notarial certificate is consistent with the content of the original filed by the notary office, and the signature of Wang Shouzhen on the original is true; The attached photo is taken on the spot by Wang Shouzhen, which is consistent with the actual situation; The attached page screenshot is obtained by The above operation of Wang Shouzhen, which is consistent with the actual situation; The attached CD is made by Wang Shouzhen after the above-mentioned video recording, which is consistent with the actual situation; The material objects sealed by the notary office are obtained as described above and conform to the actual situation.

    Notarial deed attachment shows: alibaba web site, the seller called "zhongshan m bo electric appliance co., LTD." shop called "m bo electrical source manufacturer", including sales, called "steam factory sale wholesale lampblack machine two motor clean lampblack machine big suction side suction type smoke lampblack machine" taobao price of 420 yuan, total review article 8, 113 pieces of trading success. The brand information is displayed as "Opai", and the order details of the seller's information show that the Alipay account is 188××× 0800. The sealed object is notarized and sealed in court. There is a range hood, a manual for use, and the outer package is printed with "Guangdong Opai Technology Co., LTD. (supervision)", "Manufacturer: Zhongshan Cookmei Electric Appliance Factory, address: Chuangyuan Road, Anle Village, Dongfeng Town, Zhongshan city". The instruction shows "Guangdong Ou Pai Technology Co., LTD. (Supervision)", "Manufacturer: Zhongshan Kuaimei Electric Appliance Co., LTD.", "Address: Chuangyuan Lu, Anle Village, Dongfeng Town, Zhongshan City", "Tel: 07603918", "Fax: 0760-23603917" Opai said in court that the sales by Zhongshan Mibo Electric Appliance Co., and the production and sale by Kuaimei Electric Appliance Factory of the alleged infringing goods marked "Guangdong Opai Technology Co., LTD." were ACTS of unfair competition that infringed on opai's right to the enterprise name. Zhongshan Mibo Electric Appliance Co., Ltd. USES the word "Opai" in its online store, which infringes upon the exclusive right of the registered trademark "Opai" no. 4378572 enjoyed by Opai.

    Opai claims that the three defendants should jointly compensate for their economic losses and reasonable expenses totaling 200,000 yuan, and has submitted an invoice for notary fees (the amount is 25,000 yuan). Opai claims in this case that notary fees are 500 yuan, attorney fees are 10,000 yuan, and travel expenses are 4,030 yuan.

    Through our college's inquiry to Alipay (China) Network Technology Co., LTD., the account with the login name of 188××× 0800 is Li Yinxian, and the ID number is.

    In order to prove that the alleged infringing goods are not produced by the company, Kuaimei Electric Appliance Factory submits the power of attorney, trademark registration certificate, trademark transfer authorization, enterprise registration information and other evidence to the court. After cross-examination, the plaintiff believes that the above evidence is irrelevant to the case, which cannot prove that Cook-MEI electric Appliance factory does not produce and sell the accused infringing goods.

    Opai co., LTD., established on July 1, 1994, is a joint stock limited company. Huamei Electric Appliance Factory is a sole proprietorship, the shareholder is Li Yinxian, the establishment date is July 4, 2014, the business scope is the production, the processing, the sale: small household appliances products, hardware products, smoke machine. Zhongshan Mibo Electric Appliance Co., Ltd. is a solely natural person limited liability company. Its legal representative and shareholder is Chen Zhaoying. Its establishment date is July 29, 2016. On October 11, 2017, The Zhongshan Administration for Industry and Commerce approved the cancellation application of Zhongshan Mibo Electric Appliance Co., LTD.

    The above facts are proved by such evidences as trademark registration certificate, change certificate of registered trademark, notarization, sealed object, invoice, industrial and commercial registration information, business license, return receipt of Alipay inquiry, letter of authorization, trademark transfer power of attorney, enterprise registration information and parties' statements.

    The court holds that Opai is the exclusive owner of the registered trademark "Opai" No. 4378572. Until the time of the lawsuit, the registered trademark is still under effective protection, and the exclusive right of opai to use the trademark involved in the case shall be protected.

    On whether the defendant's behavior constitutes trademark infringement and unfair competition and their respective liability for tort.

    First of all, according to the notarial certificate of evidence, the online store involved in the case was established by Zhongshan Mibo Electric Appliance Co., LTD. The website of the online store USES the word "Opai", which is similar to the registered trademark of Opai Company No. 4378572. The approved scope of use of the registered trademark "Opi" no. 4378572 is category 11, including gas stoves, microwave ovens (kitchen utensils), kitchen range hoods, etc., which are the same as the range hoods of the accused infringing goods. Proof within the time limit, Chen Zhaoying did not proof to confirm zhongshan m bo electric appliance co., LTD in online web page to use the words "European" involved with the holder of the legal license, so we decided that zhongshan m bo electric appliance co., LTD on the web page using the "European" behavior, the infringement of the no. 4378572 of European companies enjoy "European" use of a registered trademark, shall bear tort liability. Zhongshan Mibo Electric Appliance Co., Ltd. has been cancelled on October 11, 2017. Chen Zhaoying, as its legal person and sole shareholder, has no evidence to prove that his personal property is independent of the company's property and shall bear joint and several liabilities for the debts incurred during the normal operation of the company. For Li Yinxian all the online stores pay treasure payment account, in the case of evidence to the contrary, should be presumed Li Yinxian involved in conjunction with zhongshan meters, electric company, now zhongshan m bo electric company has been cancelled in accordance with the law and the company requirements Chen Zhaoying, Li Yinxian immediately stop in its online store using "European" text and compensation for the economic loss claims legitimate and reasonable costs, we support.

    Secondly, the fact of online purchase, online filling in the delivery documents, receiving and payment of the accused infringing goods has been notarized and certified by the court. According to the notarial certificate of evidence, the online store involved in the case was established by Zhongshan Mibo Electric Appliance Co., LTD., and the process of selling the accused infringing goods was confirmed by network screenshots. Therefore, this court confirms the fact that the accused infringing goods were sold by Zhongshan Mibo Electric Appliance Co., LTD.

    Thirdly, the outer packing of the goods accused of infringement is marked with the words "Manufacturer: Zhongshan Huamei Electric Appliance Factory", which basically coincides with the name of Huamei Electric Appliance Factory. At the same time, the address marked on the outer package of the accused infringing goods is consistent with the industrial and commercial registration address of Huamei Electric Appliance Factory. Huamei Electric Appliance Factory has not submitted sufficient evidence to prove that the accused infringing goods are not produced by its company. This court confirms the fact that the accused infringing goods are produced by Huamei Electric Appliance Factory. European company was founded in July 1, 1994, and has been used since the "European" font size, combined with the company submitted the honorary certificate, certificate of tax payment, newspaper and magazine reports, advertising contract, media reports and other evidence about the actual use and popularity, can maintain "European" font size has certain market popularity and is known by the relevant public enterprise name of the font size. The Culinary American Electric Appliance Factory was established on July 4, 2014, far later than the establishment time of Opie. Cooking beauty equipment factory as a production, sales, oil absorption products, should know the company already has a certain reputation of "European" font size and in the case of a registered trademark, although guangdong European science and technology co., LTD. Is the legal registration of enterprise names, but its enterprise name itself has no justification, cooking beauty equipment factory did not fulfill the duty reasonably prudent attention, will be the words "guangdong science and technology co., LTD." mark on the product packaging, manuals, with clings to the company profile of subjective malice, violated the civil activities shall follow the principle of fairness, honesty and credit, and constitutes unfair competition. To sum up, now Oupai company demands That Kuaimei Electric Appliance Factory stop producing and selling the lampblack machine with the words "Guangdong Oupai Technology Co., LTD" and compensate for the loss of the lawsuit, which is supported by the law. Although Cook-Mei Electric Appliance factory believes that Opie did not use the registered trademark involved in the range hood products produced by it, it is not liable for compensation. But combined with the evidence of newspapers and magazines and media publicity reports submitted by Opie company, it can be determined that the lampblack machine products produced by Opie company are embedded in cabinet products and sold as a whole, in line with the general market sales model of this kind of goods. Therefore, this defense opinion of Cook-American electric appliance factory is not accepted by the court. Zhongshan Mibo Electric Appliance Co., Ltd. and Li Yinxian, as the sales party of the products accused of infringement, only need to stop selling the lampblack machine products with the words "Guangdong Opai Technology Co., LTD.", without the liability for compensation for damages. But Li Yinxian as the cook American electric appliance factory investor, for the cook American electric appliance factory enterprise property is not enough to pay off the debt, should be paid with his other personal property.

    Finally, because the company did not proof confirmed bo electric appliance co., LTD., zhongshan m Li Yinxian use the wording "European" on the website as well as the behavior of sales is accused of infringing goods, and cooking beauty equipment factory production, the sale is accused of infringing goods common infringement behavior intentionally, so the requirements for European companies three defendants pay the compensation for the economic losses and the reasonable expenses claims, we shall support the defendant to deal with their own specific tort bear tort liability to pay compensation.

    About the amount of compensation. The cost of purchasing the accused infringing goods claimed by Opie is proved by notarization and supported by the court. Although the notarization fee invoice is provided, it is not proved only for the expenses of this case, and the corresponding bills are not provided for the attorneys' fees and travel expenses. However, considering that Opai does have notarization for obtaining evidence and enlists lawyers to appear in court to answer the lawsuit, the court supports the reasonable part of the above expenses as appropriate. Proof within the time limit, because the parties thereto have not been submitted to admissibility of evidence of the company's actual loss, the situation of profit or the defendant infringement, so we consider the popularity of the registered trademark involved in the attitude, the infringer's subjective fault and error correction, the types of tort forms, is accused of infringing goods, price and sales quantity, during the period of infringement, consequences, and the reasonable expenses of the rights in stopping the infringement behavior, etc., determined Chen Zhaoying, Li Yinxian infringement trademark rights behavior damages totaling 50000 yuan (including the reasonable expenses), cooking electric compensation amount is RMB 130000 (including the reasonable expenses).

    The defendants Li Yinxian and Chen Zhaoying were summoned by the court, but refused to attend the court proceedings without justified reasons, and the court made a judgment by default according to law.

    To sum up, in accordance with the law of the People's Republic of China tort liability law article 15 subparagraph (a) (6), the trademark law of the People's Republic of China article 48 and article 56, article 57 (2) (3), article sixty-three, the anti-unfair competition law of the People's Republic of China, the first (2) of article 6, article sixty-three of the "company law of the People's Republic of China" and "the sole proprietorship enterprise law of the People's Republic of China" article 31, the civil procedure law of the People's Republic of China article sixty-four, article sixty-four of the act, the decision is as follows:

    1. As of the effective date of this judgment, the defendants, Jonathan Chan and Denise Lee, immediately stopped using the words "Opai" on the website of their stores on Alibaba.com;

    2. As of the effective date of this judgment, defendants Chen Zhaoying and Li Yinxian immediately stopped selling range hood products bearing the words "Guangdong Opai Technology Co., LTD";

    2. On the effective date of this judgment, the defendant, Zhongshan Dongfeng Town Huili Mei Electric Appliance Factory, immediately stopped the production and sale of range hood products with the words "Guangdong Opai Technology Co., LTD";

    3. Defendants Chen Zhaoying and Li Yinxian shall, within 10 days from the effective date of this judgment, pay compensation

    The economic loss of the plaintiff, Opai Home Furnishing Group Co., LTD., is RMB 50,000 yuan (including reasonable expenses);

    Iv. Within 10 days from the effective date of this judgment, the defendant, Zhongshan Dongfeng Town Huamei Electric Appliance Factory, shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of 130,000 yuan (including reasonable expenses);

    5. Li Yinxian shall assume supplementary responsibility for the debts which are insufficient to be paid by The Humei Electric Appliance Factory in Dongfeng Town of Zhongshan City as determined in paragraph 4 of this judgment;

    Vi. Rejecting other claims of the plaintiff Opai Furniture Group Co., LTD.

    If the pecuniary obligation is not performed within the time limit 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.

    4300 yuan, the fees for accepting the case shall be borne by the plaintiff opie household group co., LTD. 350 yuan, dongfeng town, zhongshan city of cooking beauty equipment factory burden of 2900 yuan, the defendant Li Yinxian 525 yuan, the defendant Chen Zhaoying burden of 525 yuan (the fee has been appointed by the plaintiff's household group co., LTD to prepay, we don't refund, the plaintiff agreed to each part of the burden of the defendant to perform the plaintiff direct payment within the time limit stipulated in the above).

    If the parties are not satisfied with this judgment, they 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 Guangzhou Intellectual Property Court.

    Chief Judge Duan Jingnan

    People's juror He Li and

    People's Juror Chen Xiu-e

    February 13, 2008

    Clerk Ma Xuedan