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

    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

    The defendant zhongshan Yandi Company argues that our company has never produced or sold the goods accused of infringement, and the goods purchased by the plaintiff through network notarization entrusted by the agent have nothing to do with our company. Even if the goods are marked with the words "Guangdong Oupai", "Shenzhen Yandi Oulow Electrical Appliances Co., LTD. (supervisor), Zhongshan Yandi Energy-saving Kitchen and sanitary Appliances Co., LTD.", it is obviously a fake, and the contact person and company address have nothing to do with our company. We also have no business dealings with North Star Company, and it is wrong for the plaintiff to name us as the defendant. Shenzhen Yandi company is the legal representative of my company registered company, never actual production, business. Our company believes that North Star company has its own production capacity, and the company claims that it was sold by a friend. We should provide evidence for this, and the court should add the subject to find out the source of the goods. Guangdong Opai Technology Co., Ltd. is also the manufacturer of the goods accused of infringement, so we think we should add Guangdong Opai Technology Co., Ltd. to the lawsuit.

    The defendant Shenzhen Yandi Company did not reply and did not submit evidence within the time limit.

    Trial to find out: "the no. 4378572", the trademark registrant is a European hutch ark enterprise co., LTD., shall be used for class 11 goods, including gas furnace, microwave oven (kitchen appliances, bathroom equipment, steam bath, bath with equipment and so on, the 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 Tax Bureau of Baiyun District, Guangzhou City from 2013 to 2015, and the notification issued by the tax Administration bureau of large enterprises of Guangzhou City Local tax Bureau in 2014 and 2015 are submitted to prove that the brand of "Opai" generates huge profits and benefits and has a very high brand value. 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", hunan radio and television advertising corporation co., LTD., hunan downwind media television advertising contracts signed, and zhejiang wisdom beauty car advertising co., LTD., the TV advertising contract signed with kashgar silver pine culture media co., LTD. Signed by the 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. Under the supervision of the notary staff, on November 14 of the same year, Wang Shouzhen bought a water heater in the online store set up by The Alibaba website, Zhongshan Beicheng Precision Mold Co., LTD., using the computer connected to the Internet in the "7 Days Chain Hotel", No. 13, Renhe Town Renhe Street, Baiyun District, Guangzhou. After Wang's payment, alibaba generated an order number of 2681598692974885 (after the order was generated, the supplier was displayed: Zhongshan Beicheng Precision Mold Co., LTD.). On November 16 of the same year, under the supervision of a notary, Wang Shouzhen signed for a package of goods with the outer packing intact and marked "domestic gas water heater" sent by a Courier from "Yuan-Cheng Express" at the gate of "7 Days Chain Hotel", No. 13, Renhe Zhenhe Street, Baiyun District, Guangzhou, with the order number "300024193793". Wang Shouzhen will open the above goods box, there is a water heater, a manual. On November 19 of the same year, under the supervision of the notary staff, Wang Shouzhen confirmed the receipt of the order no. 2681598692974885 on Taobao.com by using the computer connected to the Internet connected by the notary office at "7 Days Chain Hotel", No. 13, Renhe Zhenhe Street, Baiyun District, Guangzhou. On December 26, 2016, Shandong Liaocheng Luxi Notary Office issued a notarial certificate no. 3827 (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: the enterprise name of the store front page involved in the show for "zhongshan north star precision mould co., LTD." the web page, store display has many marked "European" water heater products, among them, the title of "European gas water heater 12 l gas water heater ten strong liquefied gas drainage water heater is hot type" commodity sells for 228 yuan - 458 yuan, according to trading success, 41 purchase number 17, two evaluation; The product introduction page contains a picture, showing the words "Opai energy saving and fast hot money", in which the word "Opai" is bold and enlarged. The OPAICN water heater is marked with the word "OPDNAD" and "Guangdong European Faction" printed on the front of the outer package. All the outer packing are printed with the words "Shenzhen Yindio Low Electric Appliance Co., LTD. (Supervision) Zhongshan Yindio Energy Efficiency Kitchen & Sanitary Appliance Co., LTD. Address: Shenghui Industrial Zone, Nantou Town, Zhongshan City". The company said in court, zhongshan say emperor emperor company and shenzhen company production, sales, is accused of infringing goods packaging was labeled "guangdong", violated the company enjoy "European" use of a registered trademark, no. 4378572 north star company in its business online extensive use of the word "Europe", and sales have been accused of infringing goods, also constitute a trademark infringement. North Star confirmed the fact that it used the word "Opai" in its online store and sold the goods accused of infringement. It also said that it had stopped using the word "Opai" in its online store, which the company confirmed.

    Opai claims that the three defendants should jointly compensate its economic loss and reasonable expenses totaling RMB 200,000 yuan, and has submitted an invoice of notary fees with the amount of RMB 25,000.

    On the website of WWW.guangdongpai.cn, it shows a number of kitchen and bathroom products with the OPAICN logo on them. The column of "About us" in the website reads as follows: "Guangdong Opai Technology Co., Ltd. is a modern enterprise that specializes in the production, development, manufacturing and sales of kitchen appliances..." . The parties have no objection to the court's verification process and facts, but Zhongshan Yandi company said that it had registered the above website, but had not used it for a long time.

    Another check: the applicant for the registered trademark "OPDNAD" no. 14099025 is tan jinghai, and the approved goods are in the 11th class. The term of exclusive right expires on April 28, 2015, solstice, April 27, 2025.

    Opie co., LTD., established on July 1, 1994, is a limited company, whose business scope is furniture manufacturing industry. North Star company is a limited liability company solely owned by natural person with a registered capital of 1.5 million yuan. Its establishment date is May 3, 2016. Its business scope covers the production, design, sales and processing of molds, machinery and equipment and spare parts. Zhongshan Yandi Co., Ltd. is a limited liability company with a registered capital of 500,000 yuan. Its establishment date is July 17, 2014. Its business scope covers the production, processing and sales of household appliances and their accessories, range hood hoods, disinfection cabinets, gas cookware, gas water heater, electric water heater, kitchen and bathroom products, hardware products and plastic products. Shenzhen emperor for natural person sole proprietorship company of limited liability company, the registered capital is 1 million yuan, set up a date for March 18, 2014, the business scope for household electrical appliances, plastic products, hardware accessories, kitchen smoke lampblack machine, gas stove, water heater, electric cooker, electric pressure cooker, induction cooker, sanitary ware, sanitary ware research and development and sales, etc.

    The above facts are supported by the trademark registration certificate, the change certificate of the registered trademark, the notarization certificate, the sealed object, the invoice, the industrial and commercial registration information and the statement of the parties.

    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 should be protected.

    On whether the actions of each defendant constitute trademark infringement and their respective liability for infringement. First of all, according to the notarial certificate of evidence, the online store involved in the case was opened by North Star Company, and the word "Opai" was used in many pages, which is similar to the registered trademark of Opai Company No. 4378572. 4378572, "European" use of a registered trademark approved scope of goods for 11 categories, including gas furnace, microwave oven (kitchen appliances, bathroom equipment, steam bath, bath with equipment, etc., have been accused of infringing goods water heater with the use of a registered trademark approved goods involved range of products such as bathroom, shower equipment on function, purpose, the production department, sales channels, consumption object aspects such as basic same, can be regarded as similar products. Proof within the time limit, the north star company did not proof prove when the shop use the wording "European" highlights on the web page with the holder of the legal license, so we decided that the north star companies on the web page to highlight use word "European" behavior, the infringement of the no. 4378572 of European companies enjoy "European" use of a registered trademark, shall bear tort liability. Now Opai requires North Star to stop using the word "Opai" in its online store and compensate for the loss, which is supported by the court. Northstar said that it had stopped using the word "Eurostar" in its online store, which was confirmed by The company. The court will not repeat its request for the company to stop using the word "Eurostar" in its online store.

    Secondly, the outer package of the goods accused of infringement is marked with the words "Shenzhen Yandi Ouxiao Electric Appliance Co., LTD. (manufacturer) zhongshan Yandi Energy Saving Kitchen and sanitary Appliance Co., LTD.". According to the notarial certificate of evidence, the accused infringing goods are sold by North Star Company, and North Star Company has no objection to this. Therefore, without other evidence to the contrary, Shenzhen Yandi Company can be identified as the producer of the accused infringing goods and North Star Company as the seller of the accused infringing goods. The alleged infringing goods are marked with the words "Guangdong Opai" and the font is enlarged, which is similar to the registered trademark "Opai" no. 4378572 owned by Opai. The types of the alleged infringing goods are similar to those approved by the registered trademark "Opai" no. 4378572. Therefore, shenzhen Yandi Company produces and sells the goods accused of infringement, and North Star Company sells the goods accused of infringement, both of which violate the exclusive right of Europe's registered trademark No. 4378572. Opai requires Shenzhen Yandi Company to stop producing and selling the accused infringing goods, and North Star Company to stop selling the accused infringing goods and compensate for the losses. The court supports the claim based on the law.

    The question of whether Zhongshan Yandi company produces the goods accused of infringement. According to the existing evidence, the "Zhongshan Yandi Energy Saving Kitchen and Sanitary Appliance Co., Ltd." on the outer package of the goods accused of infringement is inconsistent with the enterprise name of Zhongshan Yandi Company, and the enterprise address marked is not the registered address of Zhongshan Yandi Company. Although Zhongshan Yandi Company confirms that the website "www.Guangdong Opai.cn" is registered by the company, the company name displayed on the website "about us" is Guangdong Opai Technology Co., Ltd. and not Zhongshan Yandi Company. In the absence of further evidence, the fact that Zhongshan Yandi company has registered "www. guangdong.cn" is not enough to confirm that Zhongshan Yandi company is the manufacturer of the accused infringing goods. Opai's proof that Zhongshan Yandi Company is not sufficient to prove that Zhongshan Yandi company is the manufacturer of the accused infringing goods cannot be accepted by the court.

    Finally, because the company was not proof confirm north star company use the wording "European" on the website, and sales have been accused of infringing goods, and shenzhen emperor company production, sales, is accused of infringement product common infringement behavior intentionally, so the requirements for European companies two defendants jointly bear reasonable expenses and compensation for the economic loss of the claims, we shall support north star company, shenzhen say emperor company deal with their own specific tort bear tort liability to pay compensation. In accordance with the provisions of Article 13 of the Tort Liability Law of the People's Republic of China, where the law provides for joint liability, the infringed shall have the right to claim part or all of the joint liability. Opai only chooses to Sue the three defendants in this case, and does not Sue other subjects, which is its right to punish itself, which is granted by the court. This case does not omit any interested party who should participate in the lawsuit, and the court will not accept the opinion of Zhongshan Yandi Company that additional subjects should participate in the lawsuit.

    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. The claim for notary fees, while provided with an invoice for notary fees, does not confirm that the expenses were incurred only in the case. The lawyer's fee and travel expenses of the claim are not supported by the corresponding bills. However, considering that Opai does notarize to obtain evidence and entrust a lawyer 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 two defendants for 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 north star company's compensation amount is RMB 50000 (including the reasonable expenses), shenzhen said emperor company's compensation amount is RMB 120000 (including the reasonable expenses). Shenzhen Yandi company served lawsuit copy and court summons by the court notice, the notice expires without attending the court to participate in the lawsuit, it is deemed as the waiver of its defense right, the court judgment by default according to law.

    To sum up, in accordance with article 13 of the tort liability law of the People's Republic of China, the first (1) of article 15 (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 "(3) of article 5 of the, article 9, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain" article 9, article 10, article 11, article 16 and article 17, In accordance with the provisions of Articles 64, 92 and 144 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    I. As of the effective date of this judgment, the defendant, Zhongshan Bestar Precision Mold Co., Ltd. immediately ceases to sell water heater products bearing the words "Guangdong Opai";

    2. As of the effective date of this judgment, the defendant Shenzhen Yandi Ouxiao Electric Appliance Co., Ltd. immediately stopped the production and sale of water heater products with the word "Guangdong Oupai";

    3. The defendant, Zhongshan Bestar Precision Mold Co., LTD., shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for an economic loss of RMB 50,000 yuan (including reasonable expenses) within 10 days from the effective date of this judgment;

    Iv. Within 10 days from the effective date of this judgment, the defendant shenzhen Yandi Ouxiao Electric Appliance Co., Ltd. shall compensate the plaintiff Oupai Household Products Group Co., Ltd. for the economic loss of 120,000 yuan (including reasonable expenses);

    V. 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. 550 yuan, the burden of zhongshan north star precision mould co., LTD. 1050 yuan, the shenzhen said emperor the burden of low electric appliance co., LTD. 2700 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 is its direct payments) within the time of performance.

    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 Liu Guiying

    People's juror Xiao Qun

    February 2, 2008

    Clerk Ma Xuedan