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

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

    Written judgment of civil affairs

    (2016) No. 5947, Early Republic of China, Guangdong 2072

    Plaintiff: Opai Home Furnishing Group Co., LTD., domicile: Guangzhou, Guangdong.

    Legal representative: Yao Liangsong, chairman of the board.

    Attorney: Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Defendant: Zhongshan Apida Electric Appliance Co., LTD., domicile: Zhongshan, Guangdong.

    Legal representative: Wang Fan.

    Defendant: Guangdong Opai Technology Co., LTD., domicile: Foshan city, Guangdong Province.

    Legal representative: Su Liangzhu, company manager.

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

    The plaintiff opie household group co., LTD. (hereinafter referred to as the company) v. the defendant zhongshan's da electric appliance co., LTD. (hereinafter referred to as "love at company), the guangdong science and technology co., LTD. (hereinafter referred to as the European technology companies) dispute case of unfair competition, our college on 2 June 2016, Hitachi, in accordance with the applicable ordinary procedure, public hearing on the trial. Zhai Mingyue, the agent AD litem of Opai, the plaintiff, and Lian Yan, the agent AD litem of opai, the defendant, attended the lawsuit in court. Epda, the defendant, refused to attend the lawsuit without justifiable reason after being subpoenaed. The case is now closed.

    The plaintiff Opai Company filed a lawsuit against the court: 1. The defendant Epida Company and Opai Technology Company immediately stopped the production and sale of range hoods and gas stoves marked with the words "Guangdong Opai Technology Co., LTD"; 2. 2. The defendant Aptech and ApTECH shall compensate the plaintiff APTECH for economic losses and reasonable expenses of $500,000. Facts and Reasons: Opie, the plaintiff, is the holder of the registered trademark "OPPEIN" and other trademarks of category 11. The plaintiff the company since its inception, after decades of operation, have "European" molded into the household, furniture, electrical appliances, sanitary ware brand known to all, gained the Chinese famous brand, Chinese well-known trademark, such as reputation, in the public mind, "Europe", but not the plaintiff European company products and the representative of the enterprise name symbol, also be instructed the plaintiff company and affiliated enterprise significant recognition of market main body and the sources of identity. In March 2016, Opie, the plaintiff, found that Epda, the defendant, manufactured and sold range hoods and gas stoves marked "Guangdong Opie Technology Co., LTD". To the above infringement, the plaintiff Opai company applied for notary office to carry out evidence preservation. The defendant's company set, the technology company clings to the plaintiff for the company enjoys its reputation as the "European brand", deliberately in the enterprise name of the illegal use of the word "Europe", and highlights to use, not only violate the right to exclusive use of a registered trademark of the plaintiff opie company, also violated the principle of good faith and recognized business ethics, to the plaintiff's company constitutes unfair competition, opie company caused economic losses to the plaintiff. Accordingly, the plaintiff Opie Filed a lawsuit to the court and filed the above claim.

    No plea was entered by apda.

    Defendant European technology companies argue that (1) the defendant opie technology company's name is April 30, 2014, guangdong province administration of industry and commerce approved size and formal registration and establishment, the font size for approval with the approval of the enterprise name registration departments belong to guangdong province administration for industry and commerce management, the plaintiff's company "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 approved the enterprise name opie technology company in the near future, It is proved that the enterprise name and trade name of the defendant Opie Technology Co., Ltd. does not constitute any unfair competition against the well-known trademark of the plaintiff Opie. According to the plaintiff opie firm evidence that the plaintiff's company is engaged in trademark classification class 20 household industry, production and sales of the products are cabinets, wardrobe, and the defendant opie technology company engaged in the technology industry, the two belong to different industries, there is no competition, no evidence shows that because of the products involved in the production and sales behavior to the plaintiff's sent the company's industry and production and sales of any damage or loss. Moreover, all the production, sales, promotion and promotion of the plaintiff Opai company are limited to the cabinet and wardrobe products of category 20, while there is no evidence to show that the plaintiff Opai company has produced, sold and promoted the electrical products. The "Opai" brand of the plaintiff Opai Company has not formed a unique corresponding relationship in the electrical industry and is not well-known. 2. In this case, the defendant Opie Technology Company authorized the defendant Epda company to use the registered trademark No. 12124262 on the products involved and did not authorize it to use the company name. However, this is an internal issue between the two defendants and has nothing to do with the plaintiff Opie Company. From a legal perspective, the defendant's company in product although without the consent of the European technology companies with the "guangdong science and technology co., LTD." company name, but its means of the use of the enterprise name are very formal, without any violation of the place, product, not to the plaintiff European companies involved constitutes unfair competition. To sum up, the plaintiff Opai's claim is unreasonable and groundless, and the claim is rejected.

    The parties have provided evidence according to law around the claims, and the court has organized the parties to exchange and cross-examine evidence. The court confirms and supports in the volume the evidence that the parties have no objection. The disputed evidence, we decided as follows: the plaintiff's company to provide evidence of 1. The word no. 347 (2016) lai FengCheng card people notarial deed and word no. 350 (2016) lai FengCheng card people notarial deed and word no. 346 (2016) lai FengCheng card people notarial deed and word no. 348 (2016) lai FengCheng card people notarial deed, have the original check, and are issued by notary office, and associated with this case, so we found; 2.(2016) No. 352 notarial Certificate of Laifeng City has no connection with the facts to be proved in this case, and the court will not confirm it; 3. The approval of the trademark "Opai" as a well-known trademark is issued by the National Trademark Office. The plaintiff opai company provides the original verification, which is related to the facts to be proved in this case, so the court confirms it; 4. (2016) The Notarial certificate no. 353 issued by the notarial office after checking with the original, and the certificate of honor included in the notarial certificate can indirectly reflect the popularity of the plaintiff Opai Company, which is related to this case, which is confirmed by the court; 5. (2016) Notarial Certificate No. 357 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 357 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 6. (2016) Notarial Certificate No. 355 of Laifengcheng Certificate No. 356 of Laifengcheng Certificate no. 356 is issued by the notary office. It reflects the plaintiff's publicity expenses during the operation of Opai Company and the fact that famous movie stars are employed to represent the plaintiff. 7. (2016) The Notarial certificate no. 433 of Laifengcheng Certificate is issued by the notary office and is related to this case. Therefore, the court confirms it. 8. The brochure, business card, receipt of payment, and labeling of product information, the evidence and (2016) Lifengcheng Certificate No. 433 notarization can reflect each other, and the defendant Epda Company did not put forward a refutation, so the court confirmed it. The evidence provided by the defendant Opie Technology Co., LTD. : 1. The trademark certificate, which the plaintiff Opie Has no objection to its authenticity, is not related to the unfair competition dispute in this case, and the court will not recognize it; 2. 2. Jiangshan European door industry co., LTD., enterprise information and introduction, wuxi saint treasure vehicle manufacturing co., LTD. Enterprise information and introduction, suzhou Sue the European wood industry co., LTD., enterprise information and introduction, henan opie electric appliance co., LTD. Enterprise information and introduction, opie paint chemical company, European leather goods companies, such as European machinery enterprise information and introduction, use "the European" two characters as an enterprise size series of enterprise information, the use of "European" two characters and has been registered as trademarks right to exclusive use of a series of brand information, has nothing to do with the case dispute to be proved, we will not be identified; 3. According to a series of reports of serious quality problems of "Opai" brand cabinet products, the defendant opai Technology Company has no original documents to check, and all of them are from the Internet. Authenticity and legitimacy will not be recognized by the court.

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

    Opai is the holder of the registered trademarks no. 4378572, no. 1137521, No. 1128213 and No. 7731876 "OPPEIN" of Class 11 and Class 20 approved for use. The approved commodities include gas stoves and kitchen range hoods.

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

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

    Epda Company was established on May 11, 2015. It is a limited liability company with a registered capital of 500,000 yuan. Its business scope includes production, processing and sales of household appliances, kitchen appliances and hardware products. The enterprise nature of European science and technology company is a limited liability company (natural person sole proprietorship), April 30, was founded in 2014, the registered capital of 10 million yuan, scope of business of biotechnology products, household appliances, metal products, electrical accessories, water purification equipment, air to water heaters, bathroom supplies, daily necessities, household items, electrical materials, electronic products research and development, processing, manufacturing, sales, etc.

    On March 17, 2016, Opai Applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. On March 20, 2016 in the notarization two notaries, under the supervision of the company entrusted agent wang mou to ordinary buyers come to lies in dongfeng town, zhongshan city X on the second floor in the name of the dongfeng town, zhongshan city of "love's da electric appliance co., LTD.", wang mou for the price of 1066 yuan to buy the kitchen burning gas, oil absorption one, two and staff the payment receipt issued by a card, two copies, the catalog of product promotion brochures, kitchen burning gas labeling four pieces. The notary affixed the seal of the notary office to seal the purchased gas stove and range hood, sealed, together with business CARDS, brochures, receipts, labels and other originals to Wang Custody. For this reason, Fengcheng Notary Office of Laiwu City, Shandong Province issued the notary Certificate of Laifeng City Minzi No. 433 (2016) to the above facts. It shows that the purchase of the range suction machine outsourcing box has the words "OPAICN", "Guangdong Opai Technology Co., LTD. (Manufacturing)" and "Manufacturer: Zhongshan Apoda Electric Co., LTD., Address: Partner Industrial Park, Xingchang Road, Dongfeng Town, Zhongshan city. Brochure was on the cover of "opie OPAICN guangdong science and technology co., LTD.", the inside pages for the product display, each left upper corner of the inside pages are printed with the word "guangdong opie technology co., LTD.", was on the back cover "dongfeng town, zhongshan city of love's da electric appliance co., LTD., address: partner dongfeng town, zhongshan city xing chang road industrial park, telephone: 0760-87383608, fax: 0760-87373509" information.

    After trial inspection, the gas stove purchased by the notarization is sealed in good condition, and the seal and seal of the notary office are complete; Lampblack machine product has four notary office to add the seal, but three of the seal has been completely broken. After the trial opened the evidence preservation of gas stove evidence, there are gas stove with 1 set, use instructions and product security warranty card, security certificate each 1. The packaging box of the products is marked with "Guangdong Opai Science and Technology Co., LTD. (Supervisor), Manufacturer: Zhongshan Apoda Electric Co., LTD., Address: Companion Industrial Park, Xingchang Road, Dongfeng Town, Zhongshan city, Tel: 0760-87383508" and so on. The OPAICN Guangdong Opai Technology Co., LTD. (Supervisor) is marked on the panel of the gas cooker. The product anti-counterfeiting guarantee card and anti-counterfeiting certificate are marked with the words "Guangdong Opai Technology Co., LTD. (supervision)"; The OPAICN OPAICN "Guangdong Opo Science and Technology Co., LTD" is marked on the front cover, and the OPAICN "Guangdong Opo Science and Technology Co., LTD and" Zhongshan Apo Electric Appliance Co., LTD., Address: Companion Industrial Park, Xingchang Road, Dongfeng Town, Zhongshan City. The information printed on the outsourcing box of range hood products with evidence preservation is consistent with the contents shown in the (2016) Lifengcheng Certificate No. 433 Notarial certificate. There is one range hood, one operation manual, one anti-counterfeiting guarantee card and one anti-counterfeiting certificate. The information marked by the panel, instruction manual and product anti-counterfeiting guarantee card and anti-counterfeiting certificate of the range hood is consistent with the information marked by the evidence of the gas stove above.

    In the trial, Oppa stated that it only authorized Epda to use the registered trademark of "OPAICN" and did not authorize it to use the business name. Opie company claims love company general, European technology companies to compensate for the loss of 500000 yuan (including reasonable expense for to stop the infringing act), and called to stop the infringing act, reasonable costs including attorney's fees and spending $30000 cost of the infringing products, notarial cost 2000 yuan, buy 1066 yuan to 2000 yuan, travel, but it only provides the documents to the cost of purchases infringing products. Opal, Aptech and Opal Technologies have failed to provide evidence on the amount of losses incurred by Opal and the profits made by opal and Apal.

    The court believes that the focus of the dispute in this case is: 1. Whether the products involved are jointly produced and sold by Epda and Opie; 2. 2. Whether Epda and Opie technologies constitute unfair competition; 3. Subject and amount of compensation.

    On the first point of focus. The sealed state of gas stoves involved in the case provided by Opai is intact, and the seal and seal of the notary office are complete, which have been confirmed by our hospital. European companies provide products involved in oil absorption, while its outer packing and the word no. 433 (2016) lai FengCheng card people notarial deed shows evidence of evidence preservation buy appearance consistent, but according to our audit in court, the product labeled with the notarization of seal on three fracture, has been completely evidence exists serious flaws, in our hospital for the company to provide the range hood products will not be involved. The gas stove product accused of infringement is labeled on the packaging and operating instructions of the manufacturer epda Company, product packaging and products, product security warranty card labeled "Guangdong Opai Technology Co., LTD. (supervision)". In addition (2016), the contents of the Notarial Certificate No. 433 of Laifeng City Certificate show that the cover of the product promotion album and the inside page of the product display obtained by Opai from Epida company are marked with the contents of "Guangdong Opai Technology Co., LTD. (supervision)". The trade documents such as production enterprise information, product anti-counterfeiting and warranty card, and operation manual marked on the outer package have the function of enabling consumers to identify the producer or operator of the product, that is, they clearly point to the provider of the product. Accordingly, in the absence of rebuttal evidence provided by Epda and Opie technologies, the court concludes that the gas stoves accused of infringement are jointly produced and sold by EpDA and Opie Technologies.

    On the second point of focus. Opai contends that the labeling of gas stove products accused of infringement as guangdong Opai Technology Co., Ltd. constitutes unfair competition for the right to its enterprise name. According to paragraph 3 of article 5 of the anti-unfair competition law of the People's Republic of China, "business operators shall not engage in market transactions by the following unfair means to harm competitors :(3) unauthorized use of another person's enterprise name or name to mislead others into believing that it is another person's commodity". In this case, the company since its inception in 1994, cabinets and other products on "European" font size, the continuous use in the class the sideboard 20 "European" trademark by the trademark office identified as well-known trademarks, its enterprise also won many honors, European companies and in CCTV, hunan TV and other media to a lot of advertising and product sales, the company of "European" enterprise size across the country have high visibility, the company's prior rights by "general principles of the civil law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China". Epda and Opie Technologies inc., whose business scope includes household appliances, compete with opie. Love company, European science and technology company collective production and sales of kitchen burning gas mark on the product, outer packing and trading documents "guangdong science and technology co., LTD.", will cause the relevant consumers for European science and technology for European companies affiliated enterprise, easy to make the relevant public source for products cause confusion and mistakes, free-ride deliberately is obvious. Epda and Opie technologies have taken the market share of Opie, which obviously violates the principle of good faith and violates the recognized business ethics in market transactions, and constitutes unfair competition for Opie. Therefore, Epda and Opie Shall immediately stop the infringement and compensate Opie for its economic losses and reasonable expenses incurred to stop the infringement.

    On the third point of focus. The parties failed to provide evidence for love's company, European technology companies implementing ACTS of unfair competition and lead to the company by the actual losses and love company, European science and technology company's profitability, we consider the company's brand awareness and love company, European science and technology company's scale of operation, love's company, European technology companies during the implementation of the nature of the infringement, and consequences and the degree of subjective fault, the company and entrust a lawyer to appear in court to stop infringement litigation or spending the notarial fees, the cost of buying infringing material, The court determines that Epda and Opie Technologies shall pay an indemnity of 100,000 YUAN (including reasonable expenses for the purpose of preventing infringement) to Opie.

    In accordance with the "general principles of the civil law of the People's Republic of China, paragraph 2, of the first paragraph of article one hundred and thirty-four of the People's Republic of China against unfair competition", to in paragraph 3, article 5 of the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in article 1 and article 4, paragraph 1 of article 6, article 7, paragraph 1 of article 17, the civil procedure law of the People's Republic of China, article sixty-nine and article one hundred and forty-four of the first paragraph of article sixty-four of the act, the default judgment is as follows:

    I. The defendant, Zhongshan Apida Electric Appliance Co., Ltd. and Guangdong Opai Technology Co., Ltd. immediately stopped the production and sale of gas cooking utensils marked with the words "Guangdong Opai Technology Co., Ltd." on the date of the legal effect of this judgment;

    2. The defendant, Zhongshan Apida Electric Appliance Co., Ltd. and Guangdong Opai Technology Co., Ltd. shall, within 5 days from the date of the legal effect of this judgment, pay the plaintiff Opai Home Furnishings Group Co., LTD. 100,000 yuan (including reasonable expenses paid to stop infringement);

    3. Other claims of the plaintiff, Opai Home Furnishing Group Co., LTD., were rejected.

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

    The case handling fee of 8,800 yuan shall be borne by the plaintiff Opai Household Group Co., LTD, 1,760 yuan, and by the defendant, Zhongshan Apida Electric Appliance Co., LTD and Guangdong Opai Technology Co., LTD, 7,040 yuan.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal to the court, and make copies of the appeal according to the number of the other party or the representatives, and appeal to the Intermediate People's Court of Zhongshan city, Guangdong Province.

    Chief Judge Ruan Chunli

    He Haiyan, people's Juror

    People's juror Wu Hongmei

    March 2, 2017

    Clerk Zhang Jing

    Pan Jiamin