Civil judgment of Shinan District People's Court in Qingdao City, Shandong Province

    People's Court of Shinan District, Qingdao City, Shandong Province

    Written judgment of civil affairs

    No. 1195, Early Republic of China, Lu 0202

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

    Legal representative: Yao Liangsong, chairman of the board.

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

    Defendant: Zhanglu Sanitaryware Electric Appliance Business, Guancheng District, Zhengzhou City; shop No. 1/12, Building no. 28, Broad Sanitaryware Market, Yao Zhuang Village, Nancao Township, Guancheng District, Zhengzhou City, Henan Province (No. 1, 3, 12, Building no. 28).

    Operator: Zhang Lu.

    Defendant: Chen Jianxiong, male, born on September 18, 1979, Han Nationality, residing in Chaling County, Hunan Province.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the company) tube city of zhengzhou city v. the defendant zhang ware electronics firm (hereinafter referred to as zhang firm), the accused, Qingdao century European electric appliance co., LTD. (hereinafter referred to as "Qingdao century European company), the defendant Kang Shuai electrical technology co., LTD., foshan city, infringement of trademark right and unfair competition disputes for Qingdao century European companies in the process of litigation is the cancellation of registration, the plaintiff in accordance with the law changes the company's sole shareholder chien-hsiung Chen as the defendant, and apply for withdrawal before the trial to the defendant sued Kang Shuai electrical technology co., LTD., foshan city, we shall be allowed. The court held the hearing in public on May 22, 2018, in accordance with the law and in accordance with the ordinary procedures. The plaintiff entrusted the agent AD litem Zhai Mingyue to attend the lawsuit, and the defendant Chen Jianxiong and the defendant Zhang Lu firm failed to attend the lawsuit after being summoned by the court according to law. The case is now closed.

    1. Zhang Lu firm was ordered to immediately stop selling gas stoves labeled as "Qingdao Century Europe Electrical Appliance Co., LTD.", "Youjia Youaioupai", "Qingdao Century Europe", etc. 2. Order Zhang Lu Firm and Chen Jianxiong to jointly compensate the plaintiff's economic loss and reasonable expenditure of rights protection of RMB 200,000 yuan; The costs of this case shall be borne by the defendants. Facts and Reasons: Plaintiff was founded in 1994, is a comprehensive domestic integrated modern home services provider, products covering the whole wardrobe, kitchen appliances, bathroom, commercial kitchen utensils and other fields. The plaintiff is the registered trademark owner of "OPPEIN" and "OPPEIN". After decades of painstaking operation, the plaintiff has turned "OPPEIN" into a well-known household, electrical and sanitary brand in China, which has successively won the reputation of "China famous brand product" and "China well-known Trademark". "Have a home, there is love, there are" the slogan in the consumer has a high influence and obtained the full affirmation, in the relevant 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 September 2017, an investigation by the plaintiff found that Zhang Lu labeled "Oupai" and "Qingdao Century Oupai" in the interior decoration of the store involved, and sold the gas stove products involved. Among them, the gas stove products involved in the case are marked with the words "Qingdao Century Oupai Electric Appliance Co., LTD.", "Youjia Youaioupai", "Qingdao Century Oupai" and other words in the boxes, product panels, product manuals, quality guarantee CARDS and certificates of qualification. The name card that gets another on the spot shows "Appliance of kitchen of Qingdao century Europe sends" wait for word, plaintiff enlists notary office to undertake evidence preservation to the above behavior. After investigation, the shop involved was operated by Zhang Lu Firm, and the products involved were produced by Qingdao Oupai Company and Foshan Kangshuai Electrical Technology Co., LTD. In conclusion, the plaintiff believes that the trademark rights enjoyed by the plaintiff were infringed by the use of the word "Opai" in the commercial publicity and operation activities of Zhang Lu Firm and the sale and production of gas stoves by the defendants. At the same time, Qingdao Century Opai company without a legitimate reason to register the "Opai" brand name, advertising language behavior, enough to produce market confusion. Zhang Lu, as the operator, failed to perform reasonable examination and duty of care in selling the products involved in the above logo, which violated the principle of good faith and recognized business ethics. The behavior of each defendant constituted unfair competition. Because Qingdao Century Europe sent the cancellation procedure in the lawsuit without liquidation according to law, the only shareholder Chen Jianxiong was added as the defendant to participate in the lawsuit and bear the tort liability.

    Zhang firms did not appear in court, submit a written defense opinions but before the court argued that first, zhang businesses sell products with legitimate source, do not need to bear tort liability, only need to take to stop selling behavior, now there is no product inventory, mark has cleared, as a seller has obligation to kind to review, to stop the sale of the products involved in the sales and promise behavior; Second, there is a huge difference between the products sold by Zhang Lu firm and the trademark of the plaintiff, which does not belong to infringement. Third, zhang lu, businesses for sale to buy product from chien-hsiung Chen, don't know its original Kang Shuai company, there is no business between us, why have Kang Shuai packing also can't know the name of the company, zhang lu, businesses that are likely to be printed by others before the sale, the contact way of the above in this case was found in the past some can get through, I couldn't get through, but are not Kang Shuai company, Kang Shuai company might exist by others may counterfeit production address; Fourth, Zhang Lu firm is a small scale of business, the annual turnover is very small, the main business is not involved in the product, even if there is infringement should also be discretionary compensation.

    Mr Chan did not attend the court and did not submit a written reply.

    The parties submitted evidence in accordance with the law, and the court 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. Based on the parties' statements and the evidence examined and confirmed, the Court finds the following facts:

    Opie was founded on July 1, 1994. On June 7, 2007, guangzhou kang jie kitchen equipment co., LTD., approved by the state administration for industry and commerce trademark office registered 1137521 "European" registered trademark, shall use commodities for 11 kinds of kitchen stove, gas stove, electric cooker, cooker, refrigeration equipment, drying equipment, hot and cold water filter, beverage cooling equipment, electric water bottles, refrigeration container. Then the name of the registrant of the trademark is changed to opie company, and the term of validity of the trademark shall be renewed from December 21, 2007 to December 20, 2017.

    In September 2007, Opai cabinet was rated as "China famous brand product" by general Administration of Quality Supervision, Inspection and Quarantine. In October 2008, Opai cabinet products were rated as "Guangdong famous brand products" by Guangdong Bureau of Quality and Technical Supervision. In February 2008, the trademark "Opi" No. 1128213 of Opi Company was identified as "Famous Trademark of Guangdong Province" on sideboards, storage racks and dish cupboards; On April 24, 2009, the trademark "Opai" on the category 20 sideboard goods of Opai was identified as "well-known trademark" by the Trademark Office.

    Ou Pai company once hired Jiang Wenli as the image spokesperson of Ou Pai brand, and to "have a family have love have Ou Pai" as the advertising slogan for publicity.

    Opai has carried out advertising in a variety of media and gained a certain popularity in the industry.

    Second, on September 7, 2017, the plaintiff client Zhang Shouzhen with FengCheng in laiwu city in shandong province notary office staff to henan province zhengzhou city tube city township south cao village, 28 broad sanitary ware market, but building no. 1/12 "kitchen help appliances" shops, shou-zhen wang in the shop to buy a marked "Qingdao century European electric appliance co., LTD." on the oil absorption, kitchen burning gas in each one. On the spot, wang Shouzhen obtained a POS card issued by the store, a receipt for kitchen Appliances and a business card with "Zhang Lu" printed on it. Wang Shouzhen took three photos of the store inside and outside, and 27 photos of the purchased items. The notary sealed the above items and gave them to Wang Shouzhen for safekeeping. The Fengcheng Notary Office of Laiwu city, Shandong Province supervised the above process and issued the (2017) Fengcheng Notary Office no. 1478. Trial, we opened for notary item in court opened the package, there is a kitchen burning gas a, specification, warranty card a, a certificate of approval, are marked on the outer packing, specification, warranty card, certificate "Qingdao century European electric appliance co., LTD.", on the outer packing and the warranty card, certificate of approval, the instructions are marked with "have family love Europe clique".

    3. Zhang Lu Is an individual industrial and commercial firm, which was registered and established on June 8, 2013. Our business scope covers wholesale and retail of toilet, faucet, electrical appliances and sanitary fittings.

    Qingdao Century Europe Electrical Appliance Co., Ltd. is a limited liability company solely owned by natural persons. It was established on June 7, 2011 with a registered capital of RMB 100,000 yuan and Chen Jianxiong as the sole shareholder. On April 11, 2018, the company's name was changed to Qingdao Century Oju Electric Co., LTD. On June 15, 2018, the company was approved for cancellation.

    We think Qingdao opie electric appliance co., LTD on kitchen burning gas in the outer packing and warranty CARDS, manuals and other marked "have family love the pie", its enterprise name also used the "European" 2 words, enough to make the relevant public confusion of their products, for its product is associated with the plaintiff, this behavior belongs to the use of a registered trademark infringement. In addition, "Opai" is the name of the plaintiff. Opai is a famous furniture manufacturer in China. Its trademark "Opai" on the type 20 sideboard is recognized as a well-known trademark by the Trademark Office. Qingdao century European electric appliance co., LTD as a market operator, when registered enterprise name shall give way to first well-known trademark and name, the company USES "European" font size, its sales of kitchen burning gas and the no. 1137521 "European" brand service category in the kitchen stove, gas burner, and case involving kitchen burning gas on the outer packing USES "the home has love with European" slogan, subjective clings to deliberately, ACTS of unfair competition. Since Qingdao Century Oupai Electric Appliance Co., Ltd. has been cancelled, the corresponding liability for compensation shall be borne by its sole shareholder, Chen Jianxiong.

    Zhang Lu company is the sales unit of the product involved in the case. As an electrical appliance company, it should have some understanding of the "Oupai" brand and the plaintiff company. It has a higher duty of care than ordinary consumers.

    Article 63, paragraphs 1 and 3, of the Trademark Law of the People's Republic of China provide that: "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual loss 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 pay compensation of not more than THREE million yuan ". Meanwhile, article 20 of the Anti-Unfair Competition Law stipulates that if a business operator violates the provisions of this Law and causes damage to the injured business operator, it shall be liable for damages. The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in article 17 of the regulation:" determined in article 5 of the anti-unfair competition law, article 9, article 14 of the regulation of damage compensation of ACTS of unfair competition, can consult to determine the use of a registered trademark infringement damage compensation method ". Under the circumstance that the illegal income of each defendant could not be determined, the court took into account the goodwill and trademark popularity of Opai Company, the subjective intention of each defendant and infringement circumstances and other factors, and decided that Chen Jianxiong should compensate the plaintiff with 85,000 yuan and Zhang Lu should compensate the plaintiff with 15,000 yuan.

    In conclusion, in accordance with article one hundred and twenty of the civil law general principles of the People's Republic of China, the law of the People's Republic of China company law article sixty-three, article 56 of the "trademark law of the People's Republic of China, paragraph 2 of article 57, paragraph 1 of article sixty-three, paragraph 3, the anti-unfair competition law of the People's Republic of China, the first paragraph of article 2, paragraph 2, article 6, article 17, the supreme people's court about apply" the civil procedure law of the People's Republic of China > the interpretation of article ninety, article one hundred and forty-four of the civil procedure law of the People's Republic of China rules, decision is as follows:

    I. The defendant, Zhanglu Sanitaryware electric appliance firm of Guancheng District, Zhengzhou City, immediately stopped the sale of gas stoves marked with the words "Qingdao Century Oupai Electric Appliance Co., LTD.", "You have a home and love Oupai", "Qingdao Century Oupai" and other words on the effective date of this judgment;

    2. The defendant, Zhanglu Sanitaryware Electric appliance firm of Guancheng District, Zhengzhou City, shall compensate the plaintiff, Oupai Furniture Group Co., Ltd. for the economic loss of RMB 15,000 within 10 days from the effective date of this judgment;

    3. The defendant, Chen Jianxiong, shall compensate the plaintiff, Opai Home Furnishing Group Co., Ltd. for the economic loss of RMB 85,000 within 10 days from the effective date of this judgment;

    Other claims of the plaintiff shall be rejected.

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

    The case acceptance fee is 4,300 yuan, which is 800 yuan for Zhang Lu firm, 2,300 yuan for Chen Jianxiong, and the rest is borne by the plaintiff himself.

    If the court refuses to accept this judgment, it may, within 15 days from the date of serving the judgment, file an appeal to the court, and make copies according to the number of the other party, and appeal to the Intermediate People's Court of Qingdao, Shandong province.

    Zhang Yu, Chief judge

    Judge Xiao Wen

    Judge Wang Feng

    July 3, 1920

    Clerk Shi Wei