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. 3021, Early Republic of China, Yue 0604

    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: Baoquan Electric Appliance Factory, Dongfeng Town, Zhongshan City, one of The 55 Yufeng Road, Tongle Industrial Zone, Dongfeng Town, Zhongshan City, Guangdong Province. Registration number: 442000000696687.

    Investor: He Yili.

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

    Legal representative: Su Liangzhu.

    Agent AD litem: Lian Yan, lawyer of Guangdong Bodao Jujia Law Firm

    Agent AD litem: Liang Zhengping, lawyer of Guangdong Bodao Jujia Law Firm.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the European group) dongfeng town, zhongshan city of v. the defendant BaiQuan electrical appliance factory (hereinafter referred to as BaiQuan electrical appliance factory), the guangdong opie technology co., LTD. (hereinafter referred to as guangdong opie) the infringement trademark rights and unfair competition disputes, our college on April 7, 2016 to begin, the defendant BaiQuan electric put forward to in our hospital to the jurisdiction of the court and in our hospital in 2016, ruling on May 23, rejected the defendant BaiQuan electric jurisdiction, the defendant BaiQuan electric and refuses to accept, to the intermediate people's court of appeal, foshan city, guangdong province, The Intermediate People's Court of Foshan City, Guangdong Province made a ruling on December 26, 2016, rejecting the appeal against the defendant's jurisdiction. The court formed a collegial panel in accordance with the law and held a hearing in public on August 8, 2017. Wang Ning, the agent AD litem of the plaintiff, and Liang Zhengping, the agent AD litem of the defendant, Guangdong Opai, attended the court proceedings. The defendant, Baiquan Electric Appliance Factory, was legally summoned by the court and refused to attend the court proceedings without justifiable reasons. The case is now closed.

    The plaintiff filed a lawsuit to the court: 1. The defendant Baiquan Electric Appliance Factory was ordered to immediately stop the unfair competition behavior of using the word "Opi" in its online store for false publicity; 2. 2. The defendant baiquan Electric Appliance Factory and the defendant Guangdong Opai were ordered to immediately stop the production and sale of the unfair competition behaviors of range hoods and gas stoves marked with the words "Guangdong Opai Technology Co., LTD"; 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 1 million 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 January 2016, the plaintiff found that the defendant Baiquan Electric Appliance Factory used "Oupai" extensively in its Alibaba online store for false publicity, selling range hoods and gas stoves marked with "Guangdong Oupai Technology Co., LTD", and applied for evidence preservation in the notary office for the aforesaid infringement. After further investigation, the plaintiff found that the above products were manufactured under the supervision of Guangdong Opai Technology Co., Ltd. and produced by Baiquan Electrical factory.

    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" text "guangdong science and 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. 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.

    6. Guangdong Famous Trademark Certificate issued by Guangdong Famous Trademark Recognition Committee, which proves that the registered trademark No. 1128213 "" was recognized as a famous trademark of Guangdong Province in March 2005 and February 2008 respectively.

    7, the state administration of quality supervision, inspection and quarantine issued by the China famous brand product certificate, issued by the bureau of quality and technical supervision of guangdong province famous brand products of guangdong province certificate, issued by the China building decoration association hutch defends project commission in 2012, the China hutch defends top certificate, brand watch magazine in 2014 China's annual evaluation of the plaintiff brand marketing case silver, float subsequently association, guangdong furniture chamber of commerce of guangdong province issued "innovation ability top ten enterprises" and "top ten most valuable brands" honor certificate, issued by the guangzhou city people's government "mayor quality prize" certificate, prove that the plaintiff's brand awareness and gain honor.

    8. There are 11 tax payment certificates and confidential information notices of taxpayers and withholding agents, which prove part of the tax payment of Opai Household Products Group Co., LTD., and prove that the "Opai" brand generates huge profits and benefits, and the brand is of extremely high value.

    9. Advertising contract and renewal signed by Guangzhou Oupai Kitchen Cabinet Enterprise Co., LTD., Hai Run Qianyi Performing Arts Culture Development Co., LTD., and Jiang Wenli; Guangdong Opai Furniture Group Co., Ltd. and Jiang Wenjuan signed the advertising contract renewal and advertising fee invoice; The Sponsorship and cooperation Agreement of "Exchange Space" home Decoration Fund in 2013 and 2015 signed by Guangdong Opai Home Decoration Group Co., Ltd. and Beijing Punctilious International Advertising Co., LTD. Advertisement release contract of TV project signed by Opai Household Group Co., LTD., Hunan Radio & TV Advertising Corporation and Hunan Shunfeng Media Co., LTD. The TV advertisement release contract signed between Oupai Home Furnishing Group Co., Ltd. and Zhejiang Zhimei Car Advertising Co., LTD. The advertisement release agreement signed by Oupai Household Products Group Co., Ltd. and Zhejiang Zhimei Car Advertising Co., Ltd. and Tianjin Zhimeihua Fu Advertising Co., Ltd. proves that the plaintiff has spent a large amount of money to promote the "Oupai" brand through TV and outdoor advertising.

    10. The special audit report of Guangzhou Famous Trademark recognition issued by Guangzhou Zhiren Accounting Firm for the plaintiff proves the profit and brand value of the plaintiff's "OPPEIN" and "OPPEIN" brands.

    11. (2016) Notarial Certificate no. 195 of Laifeng City Certificate (including the infringing material object sealed by the notary office), to prove the infringement facts of the defendant.

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

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

    After being legally summoned by the court, the defendant Baiquan Electric appliance Factory refused to appear in court to answer the lawsuit without justified reasons, which was deemed as waiver of the right to defend and provide evidence for cross-examination.

    The defendant Guangdong Opai has never produced or sold any products, and the range lampblack machine and gas stove products involved in the case are not produced, sold or authorized by the defendant Guangdong Opai to produce or sell the defendant Baiquan Electric appliance Factory or any third party. The defendant GUANGDONG Opai does not own any online store, nor does it authorize the defendant Baiquan Electric Appliance Factory or any third party to set up an online store and sell the products involved in the case. In this case, the products involved are counterfeit products of the company name and trademark of the defendant Guangdongfang. All the infringement behaviors related to the plaintiff's notarization have nothing to do with the defendant GuangdongFang, who is also a victim in this case. Since the torts in this case were not committed by the defendant Guangdongbei sect, the defendant Guangdongbei sect is not liable. At the same time, the defendant Guangdong Opai reserves the right to pursue legal responsibility for the counterfeiting of the defendant's Factory in Dongfeng Town of Zhongshan City.

    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 the defendant Boquan Electric Appliance Factory used the trademark of the defendant Guangdongfangpai without the permission of the defendant GuangdongFangpai, the trademark is completely different from the trademark of the plaintiff, 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 although BaiQuan electrical appliance factory, 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 "Opie" brand has not formed a unique corresponding relationship in the electrical industry, and is not as well-known as The Opie 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. In the notarization infringement evidence of the plaintiff in this case, it is obvious that the products involved in the case are counterfeit products of the defendant guangdong Europae: although the range hood and gas stove products of the defendant are labeled as being manufactured by the defendant GUANGDONG Europae, they have nothing to do with the defendant Guangdong Europae. The defendant guangdong opie that did not have the defendant BaiQuan electrical appliance factory 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 no substantial evidence to prove that the defendant guangdong sent to production and sales. Therefore, the products involved in this case are counterfeit products of defendant Guangdong Opal. All the notarization behaviors involved have nothing to do with defendant Guangdong Opal. Therefore, defendant Guangdong Opal shall not bear any responsibility.

    In conclusion, in this case, the product is a fake the defendant involved guangdong trademark and enterprise name of counterfeit products, the guangdong opie didn't implement any copyright infringement charges by the case of the plaintiff, neither the infringing act, there is no infringement responsibility, therefore, the defendant guangdong opie does not pose any trademark infringement or unfair competition to the plaintiff, the plaintiff to the defendant the guangdong opie filed for there are also please be all rejected.

    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.

    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 January 20, 2016, wang Shouzhen, the entrusted agent of the plaintiff, applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. Under the supervision of the notary staff, Wang Shouzhen operated the computer of the notary office and purchased the range hood and gas stove sold by the online store "Baiquan Electric Appliance Factory, Dongfeng Town, Zhongshan city" on the Alibaba website. Wang Shouzhen took screenshots of the relevant pages during the operation and recorded the whole process. In the above "Zhongshan Dongfeng Town Baiquan electric appliance Factory" opened the online store promise sales page, there are "Guangdong Opai flagship store", "factory direct wholesale Opai side suction type range hood special double motor range hood", "factory direct Guangdong Opai gas stove double stove toughened glass liquefied gas stove" and other products. On January 28, 2016, under the supervision of a notary, Wang Shouzhen received 10 pieces of goods marked "embedded gas stove" and 5 pieces marked "household range hood" at the Logistics Department of "Debang", No. 208, Wenhe Avenue, Leicheng District, Laiwu city, Shandong Province. The order number was 321764430. After taking the above items back to the notary office, Wang Shouzhen opened a box with the words "Embedded gas Cooker", which contains a gas cooker with the words "OPAICN Guangdong Opai Technology Co., LTD" and a copy of the OPAICN manual. Then open the box of the goods with the words "Household range Hood". Inside the box is a range hood with the words "OPAICN Guangdong Opai Science and Technology Co., LTD", a copy of the OPAICN manual, and a security guarantee card for the product. 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. 195 (2016).

    In trial, accuser opened the product that afore-mentioned notarization place buys in court, accuser charges the tort product of this case is lampblack machine, gas stove. The words "Guangdong Opai Technology Co., LTD. (Supervised manufacture)" are marked on range hoods, gas stoves outer packing boxes, instructions, product warranty CARDS, certificates and products. Address: No. 55, Yufeng Road, Dongfeng Town, Zhongshan City; Telephone: 0760-22775516; There are pictures of "Jiang Wenli" on the outer packing and manual of the products. The plaintiff thinks that the company name of the defendant GUANGDONG Opal is marked on the outer package, specification, certificate and warranty card of the accused product, so the accused product is produced by the defendant Guangdong Opal. The outer packing, specification, certificate and warranty card of the alleged infringing products are marked with the company name of the defendant Guangdong Opal, and also with the design of Jiang Wenli, which constitutes unfair competition to the plaintiff. In addition, the operator of the website mentioned in the notarial certificate is the defendant Baiquan Electric Appliance Factory, which used the word "Opai" in a large number in the promotion of the online store, which constitutes infringement and unfair competition against the plaintiff's trademark no. 4378572.

    The defendant guangdong opie denied is accused of infringement of oil absorption, kitchen burning gas is produced by its, its thought notary to buy oil absorption, kitchen burning gas packaging is marked as "guangdong science and technology co., LTD." of the enterprise name, but belong to fake the defendant of guangdong opie products, on the outer packing label maker is dongfeng town, zhongshan city BaiQuan electrical appliance factory, not the defendant guangdong opie, with address, telephone number are not the defendant guangdong send address and phone number. Meanwhile, the defendant guangdong Opai did not authorize others to produce the accused infringing products, nor did it authorize the defendant Baiquan Electric Appliance Factory 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.

    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, Zhongshan Dongfeng Town Baiquan Electric Appliance Factory, 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.

    According to the facts identified in this case, the plaintiff no. 4378572 registered trademark in the 11th category of goods is the approved scope of use, including kitchen lampblack machine, gas stove, etc., and the case is accused of infringement products for lampblack machine, gas stove, both belong to the same kind of goods, accused of infringement products by the defendant Baiquan electric appliance factory opened by the online store sales. The defendant BaiQuan electrical appliance factory sold on the website shop promised oil absorption, kitchen burning gas is used in the product page "opie flagship stores in guangdong", "direct manufacturers, wholesale European side suction type smoke lampblack machine special double motor smoke lampblack machine", "direct manufacturers in guangdong opie kitchen burning gas double tempered glass liquid gas stove oven" 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, although the former is simplified Chinese which is traditional Chinese characters, but for the use of Chinese characters, no substantial difference, It is easy to confuse the two with the general attention of the public concerned; The words "Opi" on the outer package, instruction manual and warranty card of the products accused of infringement are exactly the same as the registered trademark of the plaintiff. Therefore, the court finds that the defendant Baiquan Electric Appliance Factory USES the logo of "Europa" on its website, and USES the logo of "Europa" on the range hoods and gas stoves sold by the defendant. According to the above legal provisions, without the permission of the trademark registrant, the defendant Boquan Electric Appliance Factory used the same and similar trademarks in the promised product sales and sales, which constituted trademark infringement.

    The plaintiff also believes that the defendant Baiquan electric appliance Factory used the word "Oupai" on its website, the word "Guangdong Oupai Technology Co., Ltd." and the image of the star "Jiang Wenli" on the product packaging, instructions and warranty CARDS produced and sold by the defendant, which constituted the unfair competition behavior of false propaganda. 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 Baiquan electric appliance factory produces and sells the accused infringing products as range hood and gas stove, which are generally used in the kitchen and usually embedded into the cabinet to form a whole. Therefore, the accused Baiquan electric appliance factory has a certain correlation with the plaintiff's cabinet products. The accused Baiquan electric appliance factory 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 no. 7731876 "" the right to exclusive use of a registered trademark in accordance with the law, the defendant BaiQuan electrical appliance factory is also accused of infringement product packaging and specifications 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 took its production and sales of oil absorption, kitchen burning gas 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 BaiQuan electrical appliance factory 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 infringement fact lies in: the accused infringement lampblack machine, the gas stove outer packing carton, the warranty card, the product specification contains "Guangdong Opai technology Co., LTD. Supervision manufacture" the word, therefore the defendant Baiquan electric appliance factory sells the range hood, the gas stove by the defendant Guangdong Opai production sales; The defendant Guangdong Opai denied being charged with infringement of the range hood, gas stove by its production and sales, that others falsely used its enterprise name and trademark. The defendant Baiquan electrical factory and refused to state the relevant situation in court. 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 marked on the outer packing: Zhongshan Dongfeng Town Baiquan Electrical Factory; Address: No. 55, Yufeng Road, Dongfeng Town, Zhongshan City; Telephone: 0760-22775516 is no correlation with the defendant in guangdong opie, therefore, directly in the plaintiff failed to prove the existence of the guangdong opie production sales have been accused of infringing products and the guangdong opie denied that its production and sales of the case, we can't 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, only with the existing evidence, cannot identify the accused of infringement lampblack machine, gas stove products by the defendant guangdongfang production sales, cannot identify the accused guangDongFang fang to carry out the accused infringement ACTS.

    Therefore, the plaintiff fails to prove that the defendant Guangdong Opiates has committed the ACTS of producing and selling the alleged infringing products, so the plaintiff's allegation of unfair competition against the defendant Guangdong Opiates lacks factual basis, which the court does not support.

    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 sued the defendant Baiquan Electric Appliance Factory to immediately stop using the word "Oupai" on the website and stop producing and selling the range hoods and gas stoves marked with the word "Guangdong Oupai Technology Co., LTD". The court supports the request based on the law. The plaintiff sued the defendant Guangdong Opai to stop producing and selling the range hood and gas stove marked with the words "Guangdong Opai Technology Co., LTD". As mentioned above, the court does 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 did not evidence to prove that its actual losses and the illegal income derived therefrom and the defendant BaiQuan electrical equipment factory, we consider the plaintiff brand well-knownness, the subjective intent of the BaiQuan electrical appliance factory, infringement plot, business scale, is accused of infringement product sales, and other factors, he has to the plaintiff and the defendant BaiQuan electrical compensation for the economic losses of RMB 150000 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, "Chinese anti-unfair competition law" in paragraph 1 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, article sixty-four of the civil procedural law of the People's Republic of China, the provisions of the first paragraph, the provisions of article one hundred and forty-four of the judgment by default is as follows:

    On the effective date of this judgment, the defendant, Zhongshan Dongfeng Town Baiquan Electric Appliance Factory, immediately stopped using the word "Opi" on the sales website for publicity and stopped producing and selling range hoods and gas stoves containing the word "Opi";

    Dongfeng town, zhongshan city of defendant BaiQuan electric compensation within 10 days from the date of this decision, the plaintiff European furniture group co., LTD., economic loss of 150000 yuan (the plaintiff is included in the European furniture group co., LTD. To stop this case any reasonable expense incurred by the torts, 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 Dongfeng Town Baiquan Electric Appliance Factory, fails to perform its pecusical obligation within the time limit 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 13,800 yuan, 5,000 yuan borne by the defendant, Dongfeng Town Baiquan Electric Appliance Factory, and 8,800 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 Ho Shao-li

    People's Juror Ho Wing Chun

    August 18, 2017

    Clerk Yan Yongyu