Civil judgment of Bao 'an District People's Court of Shenzhen City, Guangdong Province

    People's Court of Baoan District, Shenzhen city, Guangdong Province

    Written judgment of civil affairs

    (2018) No. 4996, Early Republic of China, Yue 0306

    The plaintiff Opai Furniture Group Co., LTD., domicile place: No. 366, Guanghua Third Road, Baiyun District, Guangzhou city, unified social credit code ××97C.

    Legal representative Yao Liangsong, chairman of the board.

    Entrusted agent Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Attorney Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant 1: Brother Building Materials Sanitary ware firm, Baisha Town, Zhengdong New District, Zhengzhou City, Henan Province, business location: Sanitary ware market, Baisha Town, Zhengdong New District, Zhengzhou City, Henan Province, unified social credit code ××U88.

    Operator Zhang Yafei.

    Defendant 2: Shenzhen Opai Life Electric Co., LTD., Floor 4-A-419, Comprehensive Building, Yabian Xuewei Industrial Zone, Shajing Street, Baoan District, Shenzhen, unified social credit code ××83J.

    Legal representative Yang Zhiwen, general manager.

    Attorney Li Daohong, lawyer of Guangdong Zhongyi Law Firm.

    Defendant 3, Zhongshan Kangba Living Electric Co., LTD., Jiancheng Road, Dayan Industrial Zone, Huangpu Town, Zhongshan City, Guangdong Province, has its domicile, unified social credit code ××242.

    Legal representative LAN Sibing.

    The plaintiff, Oupai Home Furnishing Group Co., LTD., and the defendant, Baisha Town, Zhengdong New District Brothers Building Materials Sanitary Ware Firm, Shenzhen Oupai Life Electric Co., LTD., Zhongshan Kangba Life Electric Co., LTD. 1, the defendant zhengdong new district baisha town brothers building materials sanitary ware businesses to stop selling immediately marked "shenzhen opie life electric co., LTD.", "shenzhen opie electric life", "WWW. Shenzhen opie life. Com", "Europe", "the home has love OPIAEN" and other words and the use of the plaintiff signing star endorsement image of range hood, gas stoves, involved behavior; 2, the defendant zhengdong new district, baisha town brothers building materials sanitary ware businesses to immediately stop the store signs, in-store advertising decoration, roll up exhibition frame, name card and highlight annotation using "opie hutch", "Europe", "the home has love shenzhen opie", "shenzhen opie life electric co., LTD." and the plaintiff advertising sign star image of tort; 3, the shenzhen opie life electric co., LTD., zhongshan city, the life on the electric co., LTD. Immediately stop the production, the sale marked "shenzhen opie life electric co., LTD.", "shenzhen opie electric life", "WWW. Shenzhen opie life. Com", "Europe", "the home has love OPIAEN" and other words and the use of the plaintiff signing star endorsement image of range hood, gas stoves, involved behavior; 4. The defendant, Shenzhen Opai Life Electric Co., LTD., immediately stopped the unfair competition and immediately changed the enterprise name, which shall not contain the word "Opai" in the changed enterprise name; 5. The defendant shall jointly compensate the plaintiff for the economic loss and reasonable expenses for safeguarding the rights, totaling RMB 200,000 only; 6. The costs of this case shall be borne by the defendants.

    Relevant to the case

    Neither D1 nor D3 appeared in court and did not submit a written reply.

    1. The plaintiff's claims include two improper causes: infringement of trademark right and unfair competition; 2. 2. There is no unfair competition between the defendant and the plaintiff; 3. Even if it constitutes an act of unfair competition, it is unreasonable for the plaintiff to list the cost of notarization as the litigation cost of this case.

    1. Trademark ownership, approved scope of use and term of validity

    The trademark no. 4378572 "" registered by the plaintiff and approved for use in class 11, including gas stoves, kitchen range hoods, disinfecting cupboards, etc., shall be valid for registration from June 7, 2007 to June 6, 2017 and shall be renewed for validity until June 6, 2017.

    Second, the visibility of the plaintiff's brand

    The plaintiff was founded in 1994, the product covers the whole wardrobe, kitchen appliances, whole wei yu, commercial kitchen utensils and appliances, and other fields, has been identified as well-known trademark, the trademark of the plaintiff, 2013, 2014, 2015, and taxes are one hundred million yuan, and through the CCTV, hunan TV TV media brand for the continuous publicity, such as its "have a home, there is love, there are" slogan has a higher influence in the consumer.

    Iii. Facts of infringement

    Entrusted agent on September 14, 2017, the plaintiff in the testimony of notarial personnel down to x zhengdong new district of henan province baisha town west city of the star league (white) hutch defends floor 10-12 "bibcock, flower is aspersed European hutch defends" store bought marked "opie life electric co., LTD. Of shenzhen" on each one oil absorption, kitchen burning gas and marked with "opie electronics (China) co., LTD." the words of the bath bully one. Got the POS machine of the kitchen utensils and appliances of the store on the spot with a card, a list of sales in the market of White Sand Plumbing And Sanitary ware with the number 0005571 and a business card bearing the word "Wang Xiuhua". The notary took photos and sealed the above articles.

    4. Goods that are accused of infringement

    Reviewed by opening the seal items, in machine of oil absorption smoke was labeled "shenzhen opie life electric co., LTD." and jiang wenli image, in the tape surface with words, "shenzhen opie electric life" on the both sides of the outer packing mark "the home has love OPIAEN", manufacturer in zhongshan city kang bully life electric appliance co., LTD., and the second name, url "WWW. Shenzhen opie life. Com", at the top of the outer packing and marking on both sides around "OPIAEN" and "registration number 15835293" logo, In the range hood product energy efficiency identification, product specifications, anti-counterfeiting quality warranty card and other positions are marked "Shenzhen Opai Electric Co., LTD.", the manufacturer for the defendant 3 and Jiang Wenli's image and other signs. In the gas stove outer packing label information and range hood is the same, in the gas stove specification, anti-counterfeiting quality warranty card, energy efficiency label above the label information is the same.

    V. Opinions on the comparison between the sued infringing products and the approved categories of the registered trademark: the store operated by the first defendant mainly sells kitchen and sanitary utensils such as range hood, gas stove, etc.; the goods categories involving the range hood and gas stove are the same as those approved by the plaintiff in the registered trademark.

    Vi. Comparison opinions: the words "OPi" on the outer package of the accused infringing commodities are the same as the registered trademark no. 4378572 of the plaintiff. The name of defendant 2 is on the lampblack machine, and the words "" are highlighted. The accused used the words "Youjia Youai OPIAEN" on the infringing goods, and the words "Youjia Youai Shenzhen OPIAEN" on the billboard outside one of the defendant's shops and the company name of the defendant two.

    The authenticity of the goods accused of infringement: the goods not authorized by the plaintiff to produce.

    8. Another check shows that LAN Sibing, the legal representative of Defendant 3, has registered "" No. 15835293" on the 11th class as its trademark and granted permission to use it to Defendant 2, who submitted the "License Contract for the Use of Celebrity Portraits" to prove that he has the right to use 10 artistic photos of Jiang Wenli in the TV series "Golden Marriage".

    The verdict

    The court holds that the plaintiff's trademark no. 4378572 "" has been used on the plaintiff's products. After years of production, operation and advertising, the plaintiff's" Opai "kitchen utensils and appliances brand has a wide popularity and a high commercial value. Defendant a prominent on sales of goods packaging using the words "European", use the word OPIAEN "have" family love, etc., in the place such as store signs, in-store advertising decoration, business card use "opie hutch", "Europe", "there's a love shenzhen European" behavior, such as printed to be mistaken for the defendant production of a product is the plaintiff, at the same time constitute trademark infringement and unfair competition, so the defendants shall immediately stop selling marked "European", "the home has love OPIAEN" wording, such as product, Immediately stop the use of "Oupai kitchen and Bathroom", "Oupai", "You have a home and love Shenzhen Oupai" and other words prominently in the store signs, store advertising decoration, easy labao display shelf, business CARDS and other places. Defendant II and III used the words "OPIAEN", "WWW. Shenzhen Opia.com" and "OPIAEN" on the products they produced and sold, which could easily cause consumers' misidentification and constituted trademark infringement and unfair competition. The use of the trademark "OPIAEN" on the infringing goods does not affect the establishment of the fact of infringement. Therefore, defendants 2 and 3 should immediately stop the production and sale of the range hoods and gas stoves marked with such words as "OPIAEN", "WWW. Shenzhen OPIAEN Lifestyle.com" and "Having a home and having a love and having OPIAEN". Defendant 2 had the right to use 10 artistic photos of Jiang Wenli in the TV series Golden Marriage, but they could not be used together with the above logo, words and advertising slogans to avoid confusion among consumers.

    An enterprise name is a specific symbolic name owned by an enterprise in accordance with the law to commend itself in business activities. It is composed of administrative divisions, shop names, industry or business characteristics and organizational forms, and can play a role in identifying the source of goods or services and preventing confusion between consumers and the public. According to China's laws and regulations, the enterprise shall use only one name, within the jurisdiction area of the competent registration authority shall not and is identical with or similar to the same enterprise name registration in, in the production and business operation activities of unauthorized use of the enterprise name or the name of others, is mistaken for other goods are ACTS of unfair competition, but here refers to "enterprise name", has certain market popularity and is known by the relevant public enterprise name of font size. In this case, the font name of the plaintiff and the defendant 2 is "European group", the business scope is basically the same, the plaintiff has certain market visibility in kitchen and bathroom appliances, kitchen cabinets and other aspects and is known by the relevant public. , constitute infringement of the right of an enterprise name another key is to "catch mistakes", as mentioned above, the plaintiff and the defendant two same size, objectively by the relevant public. The possibility of the NBA is the perquisite of the plaintiff font size, with subjective intentional of mistakes, and therefore, we believe the two to the establishment of the infringement of the plaintiff the right of an enterprise name shall stop the infringement, the formalities of the change of the enterprise name of the relevant administrative department for industry and commerce, stop using the "Europe" as its shop name.

    About compensation, because the plaintiff did not provide evidence to prove that the defendant infringement suffered losses or the defendant for the interests of the infringement of the specific amount, we consider the plaintiff brand recognition, including the tax payable, advertising, etc., the nature of the infringement, consequences, and the reasonable expenses of the plaintiff for stopping the infringement, the influence factors, such as discretionary three defendants to compensate the plaintiff economic losses (including reasonable expenses to stop the infringement) 100000 yuan.

    In summary, in accordance with the provisions of Article 57 and Article 63 of the Trademark Law of the People's Republic of China, Article 6 (2) of the Law of the People's Republic of China against Unfair Competition, article 64, paragraph 1, and Article 144 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    The zhengdong new district, the defendant baisha town brothers building materials sanitary ware businesses to immediately stop the infringement trademark rights and ACTS of unfair competition, including to stop selling immediately marked "shenzhen opie life electric co., LTD.", "shenzhen opie electric life", "WWW. Shenzhen opie life. Com", "Europe", "the home has love OPIAEN" wording, such as the lampblack machine, gas stove;

    2. The defendant, Baisha Town Brothers Sanitary Ware company of Zhengdong New District, immediately stopped the use of the words "Oupai kitchen and Bathroom", "Oupai", "Youjia Youai Shenzhen Oupai" and "Oupai Shenzhen Life Electric Co., LTD" in store signs, store advertising and decoration, Yilabao exhibition shelf, business CARDS and other places;

    Three, the shenzhen opie life electric co., LTD., the defendant of zhongshan city, the life on the electric co., LTD., to immediately stop the production, the sale marked "shenzhen opie life electric co., LTD.", "shenzhen opie electric life", "WWW. Shenzhen opie life. Com", "Europe", "the home has love OPIAEN" wording, such as in the case of oil absorption, gas cooker behavior;

    4. The defendant, Shenzhen Opai Life Electric Co., LTD., immediately stopped the unfair competition and immediately changed the enterprise name, which shall not contain the word "Opai";

    V. The defendant, Brother Building Materials Sanitary ware firm in Baisha Town, Zhengdong New District, The defendant, Shenzhen Opai Life Electric Co., LTD., and Zhongshan Kangba Life Electric Co., LTD., shall jointly compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for economic losses and reasonable expenses amounting to RMB 100,000 yuan within 10 days from the effective date of this judgment;

    Vi. Rejecting other claims of the plaintiff Opai Furniture Group Co., LTD.

    If the defendant fails to perform his pecuniary obligation within the period specified in this judgment, he shall, in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China, pay double interest on the debt for the delayed period.

    The handling fee of this case is RMB 4,300, which shall be borne by the three defendants.

    If you are not satisfied with this judgment, you may, within 15 days from the date the judgment is served, 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 Shenzhen, Guangdong Province.

    The presiding judge shall be even

    People's Juror CAI Wenqing

    People's Juror Chen Lifen

    June 6, 2008

    Clerk Zhang Jun (concurrently)

    Clerk Dong Hong

    The relevant legal provisions of this case are as follows:

    Trademark Law of the People's Republic of China

    Article 57 any of the following ACTS shall be an infringement of the right to exclusive use of a registered trademark:

    (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 is likely to cause confusion;

    (3) selling commodities that infringe upon the right to exclusive use of a registered trademark;

    (4) forging or manufacturing, without authorization, signs of a registered trademark of another person, or selling signs of a registered trademark that is forged or manufactured without authorization;

    (5) changing a registered trademark of a trademark registrant and putting the commodities with the changed trademark back on the market without the consent of the trademark registrant;

    (6) intentionally facilitating the act of infringing another person's right to exclusive use of a trademark, and helping another person to commit the act of infringing the right to exclusive use of a trademark;

    (7) causing other damage to the exclusive right to use a registered trademark of another person.

    Article 63 The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined on the basis of the actual losses suffered by the right holder as a result of 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 the circumstances are serious, the amount of compensation may be determined between one time and three times of the amount determined according to the above methods. The amount of compensation shall include the reasonable expenses paid by the right to stop the infringement.

    In order to determine the amount of compensation, the people's court may order the infringer to provide books and materials related to the infringement act, provided that the obligee has tried his best to provide evidence and that the books and materials related to the infringement act are mainly in the possession of the infringer; If the infringer fails to provide false account books or materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided.

    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.

    Law of the People's Republic of China against Unfair Competition

    Article 6 A business operator shall not commit any of the following ACTS of confusion, which may cause it to be mistaken for another person's goods or have a specific connection with another person:

    (1) to use, without authorization, marks that are identical with or similar to the names, packaging and decoration of commodities that have a certain influence on others;

    (2) unauthorized use of the names of enterprises (including shortened names and shop names, etc.) and social organizations (including shortened names, etc.) and names (including pennames, stage names, and translated names, etc.) that have certain influence on others;

    (3) unauthorized use of the body of the domain name, the name of the website, the webpage, etc., which has certain influence on others;

    (4) other ACTS of confusion which are sufficient to cause people to mistake them for goods of others or have a specific connection with others.

    Civil Procedure Law of the People's Republic of China

    Article 64 A party has the duty to provide evidence in support of his claim.

    The people's court shall investigate and collect evidence that the parties and their agents AD litem are unable to collect by themselves for objective reasons, or that the people's court deems necessary for the trial of the case.

    The people's court shall examine and verify evidence in a comprehensive and objective manner in accordance with legal procedures.

    Article 140 If a defendant, having been served with a summons, refuses to appear in court without justified reasons, or if he withdraws during a court session without the permission of the court, the court may make a judgment by default.