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

    (2018) Yue 0604 early Republic of China No. 1989

    Plaintiff: Opai Furniture Group Co., LTD., domicile: No. 366, Guanghua Third 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: Jinxing Home Electric Department, Guancheng District, Zhengzhou City, Henan Province, No. 17 xinnan District, Zhengzhou Kitchen Utensils and Appliances Market, Unified social credit code ××X6P.

    Operator: Ma Jinding, male, Han Nationality, born on October 17, 1971, living in Yuzhou city, Xuchang City, Henan Province,

    Defendant: Zhongtai Electric Appliance Co., LTD, Shunde District, Foshan City, domicile place: 1st Floor, No. 8, Nandi 2nd Road, Ronggui Rongbian Neighborhood Committee, Shunde District, Foshan City, Guangdong Province, unified social credit code ××95A.

    Legal representative: Ying Yan.

    Agent AD litem: Xie Xiaoyang, lawyer of Guangdong Longhao Law Firm.

    Attorney: Xie Zuobing, lawyer of Guangdong Longhao Law Firm.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the European group) v. zhengzhou city tube city &gold company appliance (hereinafter referred to as &gold company home appliances), zhongtai electric appliance co., LTD., shunde district, foshan city, the defendant (hereinafter referred to as the Thai electrical) the infringement trademark rights and unfair competition disputes, our college on January 22, 2018 to begin, we form a collegial panel in accordance with the law, on March 27, 2018, public hearing on the trial, the plaintiff opie group of entrusted agent wang ning and the defendant zhongtai electronics to entrust agents AD litem xiao-yang xie, 谢祚兵 to appear in court to participate in the litigation. The defendant Jinhang Electrical appliances failed to appear in court after being legally summoned by the court. The case is now closed.

    The plaintiff filed a lawsuit to the court: 1. The defendant was ordered to stop selling the OP-24-A40 range hood which infringed the trademark of the plaintiff; 2. 2. Request the defendant Zotye Electric Co., Ltd. to immediately stop producing and selling the OP-24-A40 range hood which infringed the trademark of the plaintiff; 3. Request to order the two defendants to compensate the plaintiff for economic losses and reasonable expenses for safeguarding their rights in this case, totaling RMB 200,000 only; 4. The costs of this case shall be borne by the two defendants.

    Facts and reasons: the plaintiff class 11 "" 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 "and so on," "trademark has also been the state administration for industry and commerce, well-known trademark protection, in the public mind," ", "OPPEIN" not only has become 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 August 2017, the plaintiff found that the defendant Jinhang Electrical appliances sold a large number of OP-24-A40 lampblack hoods labeled "Opie Electrical Appliances". The plaintiff entrusts the notary office to preserve the evidence of the infringement. After further investigation, the product label manufacturer was accused of Zotye Electric.

    To sum up, the plaintiff believes that the two defendants' production and sales of lampblack hoods involved in the case violate the plaintiff's trademark right and violate the principle of good faith and recognized business ethics, and their behaviors constitute unfair competition for the plaintiff. In order to safeguard the legitimate rights and interests of 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, we hereby appeal 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) Notarial Certificate No. 347 of Laifeng City Certificate No. 675 of Laifeng City Certificate No. 675, proving that the plaintiff has the exclusive right to use the registered trademark No. 4378572 according to law.

    (2016) Notarial Certificate No. 350 and (2017) Notarial Certificate No. 672, proving that the plaintiff has the exclusive right to use the registered trademark No. 1128213.

    (2016) Notarial Certificate no. 346, (2017) Notarial Certificate No. 675, proving that the plaintiff has the exclusive right to use the registered trademark No. 1137521 according to law.

    (2016) The Notarial certificate no. 348 of Laifeng City Certificate certifies that the plaintiff has the exclusive right to use the registered trademark No. 7731876.

    (2016) The Legal notarial certificate no. 352 issued by Laofengcheng testifies that the plaintiff legally owns the copyright of "" fine art fonts. This work, created on August 10, 1996, is completely consistent with the contents of the registered trademarks No. 4378572, 1128213 and 1137521 of the plaintiff, and also proves that the plaintiff's" "brand has certain originality and a long history.

    The trademark [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce proves that the registered trademark "" no. 1128213 enjoyed by the plaintiff had been recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on April 24, 2009.

    7. (2016) the notarial certificate no. 353 issued by the general administration of quality supervision, inspection and quarantine of the People's Republic of China (aqsiq), certifying that the plaintiff and the plaintiff's brand have high market popularity, which is as follows :(1) "China famous brand product certificate" issued by the general administration of quality supervision, inspection and quarantine of the People's Republic of China on July 9, 2007; (2) "Guangdong Famous Brand Product" certificate issued by Guangdong Bureau of Quality and Technical Supervision in October 2008; (3) The "Guangdong Famous Trademark Certificate" issued by guangdong Famous Trademark Recognition Committee in February 2008 proves that the registered trademark No. 1128213 was recognized as a Famous trademark of Guangdong Province in March 2005 and February 2008 respectively; (4) In December 2012, China building decoration Association kitchen and sanitation engineering committee issued by the plaintiff in 2012 was named "2012 Chinese kitchen and sanitation 100", "overall kitchen leading enterprises top 10" certificate; (5) The Certificate of Honor issued by guangzhou Municipal People's Government in September 2013; (6) Certificate issued by Brand Watch magazine on December 28, 2014; (7) In January 2015, the plaintiff issued by Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce was awarded the honor certificate of "Top 10 Most Valuable Brands" in 2014; (8) Certificate of honor issued by Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce in January 2015.

    8, the word no. 260 (2017) lai FengCheng card people notarial deed, prove that the plaintiff and the plaintiff brand latest honor, content as follows: (1), guangzhou city, guangzhou city administration for industry and commerce awarded the famous brand certificate, valid for 2016.1 to 2018.12, prove that the plaintiff ""," "on the sideboard, furniture, take lampblack chance, bathing device profile; (2) In May 2016, the Trademark brand certificate of China industry awarded by China Industry Trademark Brand Review Committee proves that Opie is elected as the trademark brand of China cabinet industry; (3) In May 2016, the Certificate of China Top 500 Brand Value granted by the Review Committee of China Top 500 Brand Value, which proves the brand value of Opai.

    9, (2016), lai FengCheng card people word no. 357 is notarial deed, prove that the plaintiff part of pay taxes, prove that "European" brand benefit huge profits, the brand value is extremely high, the content is as follows: (1) the guangzhou baiyun district issued by the state administration of taxation ear cloud duty five [2014] no. 100014 tax certificate, prove that the plaintiff on January 1, 2013 to December 31, 2013 to the bureau to pay taxes next billion boss thousand hundred suhuang spreading Wan Jiu us $3 and pure Angle and pure; (2) the tax payment certificate no. [2014]100579 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2014 solstice on June 30, 2014 to the tax bureau seven thousand five hundred and ninety-nine thousand nine hundred and ninety-nine yuan nine cents; (3) tax payment certificate no. [2015] no. 100174 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax at nine thousand five hundred and ninety-nine thousand one hundred and twenty-two yuan sixty-eight cents on July 1, 2014; (4) the tax payment certificate no. [2015] no. 101552 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2015 solstice on June 30, 2015 to the tax bureau seven thousand five hundred and twenty-two thousand six hundred and seventy-four cents; (5) the tax payment certificate no. [2016]100274 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax to the tax bureau on July 1, 2015 solstice on December 31, 2015, which was twelve million two hundred and thirty-six hundred and sixty-seven yuan nine cents; (6) notice no. 00000724 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau, certifying that the plaintiff paid tax of four thousand two hundred and two hundred and ninety nine thousand two hundred and seventy-eight yuan eighty sixty cents to the bureau on January 1, 2014; (7) notice no. 00001248 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifying that the plaintiff paid the tax on July 1, 2014 and December 31, 2014 to the bureau, i.e., the tax payment of three thousand six hundred and fifty-eight thousand nine hundred and seventy-two cents; (8) notice no. 00003448 issued by the tax administration of large enterprises of guangzhou local tax bureau, certifying that the plaintiff paid tax of four thousand two million four hundred and twenty-seven thousand one hundred and forty cents to the bureau on January 1, 2015; (9) notice no. 00004591 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax twenty thousand nine hundred and eighty-one thousand nine hundred and thirty-three yuan forty seven to the bureau on July 1, 2015.

    10, (2016), lai FengCheng card people word no. 355 is notarial deed, prove that the plaintiff by CCTV, hunan TV's "European brand" for the continuous publicity, specific content as follows: (1), October 30, 2012, the plaintiff and the Beijing international advertising co., LTD. Signed on time boiling "swap space" domestic outfit funded 2013 cooperation agreement, this agreement is agreed on January 5, 2013 to December 28, 2013, 2 sets in CCTV's "exchange space" brand publicity the plaintiff, advertising is wubai suhuang ten thousand yuan. (2), in July 2014, the plaintiff with hunan, hunan radio and television advertising corporation downwind media television project advertising co., LTD. Signed a contract, the contract on September 28, 2014 to November 12, 2014, in hunan TV's 10th golden eagle festival closing ceremony and awards section is relevant to the plaintiff, brand advertising for above ten thousand yuan. (3) on November 6, 2013, the TV advertisement release contract signed by the plaintiff and zhejiang zhimei auto advertising co., LTD., which stipulates that the plaintiff's brand shall be publicized on CCTV news channel on January 1, 2014 and the advertising fee shall be four thousand four hundred and sixty-three thousand nine hundred and seventy yuan. (4) on November 27, 2014, the sponsorship and cooperation agreement of 2015 "exchange space" home decoration fund signed by the plaintiff and Beijing ontime boiling international advertising co., LTD. The agreement agreed that on April 4, 2015 solstice on March 26, 2016, the plaintiff's brand would be promoted in the second set of "exchange space" column of CCTV, and the advertising fee would be six million yuan. (5) on October 22, 2014, the advertising agency contract signed by the plaintiff and kashgar yinsong culture media co., LTD., the agreement provides that on January 1, 2015, solstice, December 31, 2015, the advertising fee of the plaintiff shall be twenty-three million nine hundred and seventy thousand yuan for promoting the plaintiff's brand on the CCTV news channel.

    11. (2016) The Notarial Certificate no. 356 issued by Lifeng City Certificate, which proves that the plaintiff spent a huge amount of money to hire the star Jiang Wenli to speak for "Europa" products, which further proves that the plaintiff spent a huge amount of money to promote Europa brand.

    April 12, 2011, 21, 22, 25, 26, 28, 29, "linchuan evening news", published on August 26, 2011 issue of the "shenzhen special zone signs up for", on September 20, 2011, published on September 30, anqing daily, published in September 2010 years of the ambry in Shanghai ", published in June 2011, the sales and marketing management edition, published in April 2011 "ruili household", published in April 2014, decorate world magazine, prove that the plaintiff by the print media publicity, "European brand", It also proves that the plaintiff's original advertising slogan of "family, love and Europe" continues to use and publicize. The second group of evidence proves that the plaintiff's trademark has been widely known and well-known by the public.

    13. (2017) Legal notarial Certificate No. 1521 of Laifeng City Certificate (including the infringing material object sealed by the notary office), to prove the infringement facts of the two defendants.

    14. One notarization fee note, which proves the plaintiff's reasonable expenses for safeguarding his rights. This case claims 1,000 yuan for notarization fee.

    In written defense, the defendant said that: 1. Because the business of the defendant's home appliance stores was weak and the profit was small, no actual loss was caused to the plaintiff; 2. 2. The product involved was door-to-door selling by others. The defendant did not know that the product was fake, so it had nothing to do with the defendant's household appliances; 3. Due to the financial difficulties of the defendant, the court is requested to reject the plaintiff's request.

    The defendant did not appear in court. It is deemed to waive its right to produce evidence for cross-examination.

    The defendant zhongtai electronics plea, said zhongtai electronics accused and the defendant &gold company home appliances business, its products in 4000 the information such as telephone, website, qr code and policy are not the defendant zhongtai electronics information, name and address are fake, but the defendant zhongtai electronics business basic registration information is public, anyone can query to, anyone can print, the plaintiff without any evidence to prove that the behavior is associated with the defendant zhongtai electronics, or the defendant zhongtai electric authorized, the plaintiff purchased products are 3 without products, counterfeit products, based on the principle of who advocate who proof, The existing evidence of the plaintiff cannot prove that the defendant Zotye Electric is related to the above products. The defendant Zotye electric believes that the logo of the product notarized according to the plaintiff's evidence is neither the same nor similar to the trademark claimed by the plaintiff, so it does not constitute infringement. In conclusion, the defendant Zotye electric believes that the court should reject the plaintiff's claim.

    The defendant Zotye Electric Provided evidence to the court in the lawsuit:

    1. The screenshot of the domain name filing management system proves that the notarial certificate address ×× was not applied for registration by the defendant Zotye Electric.

    2. Certificate and the copy of certifier's ID card, proving that the defendant Zotye Electric Did not produce the infringing products involved and had no business dealings with the defendant's gold Bank household appliances.

    3. Copy of trademark Registration Certificate No. 5347462, which proves that the defendant Zotye Electric has its own trademark and does not need to falsely use others' trademark.

    The court recognizes the authenticity of the evidence provided by the plaintiff as the basis for ascertaining the facts of the case. As for evidence 1 submitted by defendant Zotye Electric, the screenshot fails to show that the website ×× notarized by the notarial certificate is used by a third party, so it cannot be proved that it is not registered by defendant Zotye Electric; Evidence 2. Although the defendant Zhongtai Electric Co., LTD submitted a copy of the id card of the certifier, it failed to submit relevant materials such as the occupation of the certifier, and the witness also failed to testify in court, so it was not accepted; The authenticity of evidence 3 shall be confirmed, but its relevance shall not be confirmed.

    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 hutch ark 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, "" a registered trademark shall use the goods of class 11 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, shower cubicle, taking a bath, basin, toilet, kitchen smoke lampblack 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.

    On December 21, 1997, guangzhou kang jie kitchen equipment co., LTD., approved by the trademark office registered no. 1137521 "" trademark, shall use commodities for 11 class kitchen stove, gas stove, electric cooker, cooker, refrigeration equipment, drying equipment, hot and cold drinking water filter, electric water bottles, refrigeration container, from December 21, 1997 to December 20, 2007. The trademark will be renewed until December 20, 2017 after being approved by the Industrial and Commercial Bureau, and the name of the trademark registrant will be changed to Opai Home Furnishing Group Co., LTD.

    In September 2007, Opai cabinet products were rated as "China famous brand products" 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 Bureau of Quality and Technical Supervision. In February 2008, the plaintiff's trademark "Opi" No. 1128213 was identified as a "famous trademark of Guangdong Province" on the sideboard, storage rack and dish cupboard. On April 24, 2009, the trademark of "Opai" on the category 20 sideboard goods of the plaintiff was identified as "well-known trademark" by the Trademark Office.

    On July 20, 2013, the plaintiff Opai Group signed an Advertising Contract Renewal with Jiang Wenli, agreeing to invite Jiang Wenli to perform for the advertising production of cabinets, wardrobes and bathroom products produced by the plaintiff Opai Group. Subsequently, the plaintiff Opai Group used the advertisement containing Jiang Wenli's image in some magazines and newspapers in China, and also used the propaganda words of "There is a family, there is love and there is Opai".

    (II) On August 27, 2017, wang Shouzhen, the entrusted agent of the plaintiff, applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. On September 15, 2017, under the supervision of a notary, Wang Shouzhen went to the store of henan Branch of Huo Zun Electrical Appliances, No. 17, Xinnan District, Zhengzhou Kitchenware Market, Guancheng District, Zhengzhou City, Henan Province, and bought a gas stove and a range hood each marked "Opai Electrical Appliances". I got a POS card issued by the store on the spot, a special note for National Chain of Huo Zun Kitchen and Bathroom Appliances with the number 0001758, a business card with the word "Ma Jinding" and a brochure with the word "Eu Pai Appliances" printed on it. Wang Shouzhen takes photos of the above articles, then the notary staff seals the above articles with the notary office seal, and delivers the sealed articles and logistics order to Wang Shouzhen for safekeeping. Fengcheng Notary Office of Laiwu City, Shandong Province supervised the whole process and issued the notary Certificate of Laifeng City Certificate Minzi No. 1521 (2017).

    In trial, accuser opened the product that afore-mentioned notarization bought in court, accuser charges the tort product of this case is lampblack machine. Open the packing box there is a range hood and a product operation manual, a security quality warranty card. Packaging and top marks around the "OUPaiDQ", "opie electronics", "opie electronics science and technology r&d center", "European quality, noble life" and other words, in European electricity has "TM" on top right corner, in the name of the side of the product packing has the defendant zhongtai electric appliance co., LTD., shunde district, foshan city, "", address: ronggui, shunde district, foshan city, China let industrial zone, telephone: 0757-26918012, fax: Information such as 0757-29311257, website of xx, and annotations on the instruction for use "OUPaiDQ", "opie electronics", "made in zhongtai electric appliance co., LTD., shunde district, foshan city,", address: ronggui, shunde district, foshan city, should the side for the southern dike for residents' committees road no. 8, 2 telephone: 0757-26918012, fax: 0757-29311257, in the use of the product packing seal, lampblack machine airframe, fuselage antiseptic quality saving, product labeling position such as marked "OUPaiDQ", "opie appliances", etc. In addition on the outer packing and product specification are jiang wenli image advertising, in the packaging box and a China Pacific property insurance co., LTD. Guangdong branch of the products liability insurance policy, the insurance policy according to the address of the company in shunde city, xx xx road, policy generated date will be on November 20, 2014.

    The plaintiff considers that the labeling of Opie quality and Opie electric appliances is an infringement of the exclusive right of the plaintiff's registered trademark No. 4378572 and also an act of unfair competition. Defendant zhongtai electronics think the qr code on the packing box and url can't open, can't considered all of its, products are the products liability insurance policy on the November 20, 2014 production, the product production date is on December 9, 2016, 2014 years before November 20 insurance obviously does not conform to the relevant provisions of the above cases, products liability insurance policy, security quality warranty card and instruction manual are not one of the is that the defendant zhongtai electronics, information is recorded in the error, contradiction. The defendant Zotye Electric Believed that OUPaiDQ in pinyin was printed on the package and OUPaiDQ in Chinese was printed below. The logo was a combination of Chinese and pinyin, which was neither the same nor similar to the trademark claimed by the plaintiff.

    (3) The defendant, Jinhang Household Appliances, registered on October 31, 2008, was an individual industrial and commercial merchant, operated by Ma Jinding, and operated at No. 17, Xinnan District, Zhengzhou Kitchen Utensils Market, Guancheng District, Zhengzhou City, Henan Province, with a unified social credit code of 92410104MA41FH2X6P. Its business scope was wholesale and retail: range hoods and kitchen utensils.

    The defendant zhongtai electronics was registered on March 11, 2013, is a limited liability company (the natural person investment or holding), the registered capital is 500000 yuan RMB, the registered address in ronggui, shunde district, foshan city, should the edge for the southern dike for residents' committees through 8 first, scope of business for the production and sales: household appliances and accessories, hardware products, plastic products (excluding waste plastics processing), gas stove, gas water heaters, electric water heater, range hoods, disinfection cabinet, etc.

    The court holds that this case is a dispute over the infringement of the right to exclusive use of trademarks. Combined with the plaintiff's allegations, the court makes the following comments on the disputes between the two parties:

    Whether the products involved are the sales of household appliances by the defendant's bank and the production and sales by the defendant's Zotye Electric Appliance. According to the notarial Certificate No. 1521 of Laifengcheng Certificate (2017), wang Shouzhen, the authorized agent of the plaintiff, purchased a gas stove and a range hood each marked "Oupai Electric appliance" at the store of "Huizun Electric Appliance henan Branch" at No. 17, Xinnan District, Zhengzhou Kitchenware City, Guancheng District, Zhengzhou City, Henan Province. I got a POS card issued by the store on the spot, a special note for National Chain of Huo Zun Kitchen and Bathroom Appliances with the number 0001758, a business card with the word "Ma Jinding" and a brochure with the word "Eu Pai Appliances" printed on it. Therefore, the court confirmed that the products involved in this case were sold by the defendant. Product outer packing, specification, anti-counterfeiting quality warranty card with the defendant zhongtai electronics manufacturing and company address, telephone, etc, the defendant zhongtai electronics is denied a product for its production, the sale, but according to the existing notarization physical as well as the outer packing, specification, quality of anti-counterfeiting reflect the information on the warranty card, their relationship is very close, so we confirm the product for the zhongtai electronics production, sales, this fact.

    The two issues are whether the defendant infringes on the trademark and ACTS of unfair competition.

    First of all, the outer packing boxes, operation instructions and anti-counterfeiting quality guarantee CARDS of the products involved were marked with the word "Opi". Obviously, "Opi" was used as a trademark. 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 packages or containers as well as Commodity Exchange 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 trademark registrant; (2) using a trademark similar to its registered trademark on the same kind of goods or using a trademark identical with or similar to its registered trademark on similar goods without the permission of the trademark registrant, which may easily 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. The case according to find out the fact that the plaintiff 4378572 use the registered trademark on goods is 11 approved scope including the kitchen smoke lampblack machine, and this case is accused of infringement product of oil absorption, both belong to the same kind of goods, is accused of infringement of identity "European" and advocate for the rights of the plaintiff, compared to no. 4378572 "registered trademark" the pronunciation and meaning are the same, while the former is simplified Chinese which is traditional Chinese characters, but for the use of Chinese characters, no substantial difference, the relevant public to general attention easily confused between the two. Therefore, the court finds that the two defendants' use of the "Europa" logo on the products involved constitutes a confusing approximation to the plaintiff's claim of the trademark involved in the case. According to the above legal provisions, without the permission of the trademark registrant, the two defendants' use of trademarks identical to and similar to the plaintiff's registered trademarks has constituted trademark infringement. Second, in the case of product outer packing, specification, anti-counterfeit quality warranty card are marked on the word "opie appliances", using the "jiang wenli" image at the same time, easy to make the relevant public mistakenly assume that its sales of oil absorption and the plaintiff opie group there is a link between, easy to make the relevant public source for products cause confusion and mistakes, in violation of fair and honest credit and the principle of fair competition, the two defendants already constitute ACTS of unfair competition.

    The civil liability of the two defendants.

    In accordance with the provisions of Article 120 of the General Provisions of the Civil Law of the People's Republic of China, where a civil right is infringed, the infringed shall have the right to request the infringer to bear the liability for tort, to demand that the infringement be stopped and to compensate for the loss. Therefore, the court shall support the plaintiff's request that the two defendants desist from infringement.

    On the issue of the determination of the amount of compensation in this case. According to the provisions of Paragraph 1 and Paragraph 3 of Article 63 of the Trademark Law of the People's Republic of China, "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 benefits obtained by 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 ". 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 damages of ACTS of unfair competition, can consult to determine the use of a registered trademark infringement damage compensation method ". The actual loss the plaintiff to the case and cannot be determined both the defendant's illegal income, we consider the reputation of the plaintiff's popularity, the infringement of the defendant's subjective intent, plot, business scale, is accused of infringement product sales, and other factors, has decided the defendant &gold company home appliances to the plaintiff compensation for the economic loss of 30000 yuan, the defendant zhongtai electronics compensate the plaintiff for the economic loss of 70000 yuan, the compensation has been including reasonable expense for the rights to the case.

    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, the anti-unfair competition law of the People's Republic of China, article 2, article 6 of the first item (4), the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation articles 9, 10 and 16, the civil procedure law of the People's Republic of China, the provisions of article one hundred and forty-four of the of the first paragraph of article sixty-four, judgment by default is as follows:

    As of the effective date of this judgment, the home electric Department of the defendant Jinxing Bank in Guancheng District, Zhengzhou City, immediately stopped selling the OP-24-A40 range hood that infringed the trademark of the plaintiff;

    The defendant, Zhongtai Electric Appliance Co., Ltd. of Shunde District, Foshan city, immediately stopped the production and sale of the OP-24-A40 range hoods that infringed the trademark of the plaintiff as of the effective date of this judgment;

    3. Within 10 days from the effective date of this judgment, the home Electrical Department of Zhengzhou Guancheng District Gold Bank shall compensate the plaintiff Opai Home Furnishing Group Co., LTD for the economic loss of RMB 30,000 (including the reasonable expenses paid by the plaintiff Opai Home Furnishing Group Co., LTD to stop the infringement in this case);

    Iv. The defendant, Shunde Zhongtai Electric Appliance Co., Ltd. shall, within 10 days from the effective date of this judgment, compensate the plaintiff, Opai Household Products Group Co., LTD., for an economic loss of 70,000 yuan (including the reasonable expenses paid by the plaintiff, Opai Household Products Group Co., LTD., to stop the infringement in this case);

    V. Rejecting other claims of the plaintiff opai Furniture Group Co., LTD.

    If the defendant, Zhengzhou Guancheng District Home Electrical Department of Gold Bank and Foshan Shunde Zhongtai Electric Appliance Co., Ltd. fail to perform their pecunial obligations within the period specified in this judgment, they 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 receiving fee of this case is 4,300 yuan, 1,000 yuan borne by the home Electrical Department of Jinxing, Guancheng District, Zhengzhou City, the defendant, 1,800 yuan borne by Zhongtai Electric Appliance Co., Ltd. in Shunde District, Foshan City, and 1,500 yuan borne by the plaintiff, Opai Household Group 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 Wing Chun

    People's Juror Chen Huiyu

    July 11, 2008

    Clerk Zhang Shuer