Civil judgment of Qingdao Intermediate People's Court in Shandong Province

    Qingdao Intermediate People's Court of Shandong Province

    Written judgment of civil affairs

    (2017) Lu 02, 1622, Early Republic of China

    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.

    Attorney: Yang Fudong, lawyer of Shandong Changping Law Firm.

    Defendant: Zhang Shaohui, male, Han Nationality, born on November 20,1992, residing in Huaibin County, Henan Province.

    Defendant: Qingdao Oupai Electric Appliance Co., LTD., Room 401, Unit 2, No.128 Shaoshan Road, Licang District, Qingdao city.

    Legal representative: Shu Shichao.

    The plaintiff Opai Home Furnishing Group Co., Ltd. and the defendants Zhang Shaohui and Qingdao Opai Electrical Appliances Co., Ltd. infringed on trademark rights and unfair competition disputes. After the case was filed, the court applied the ordinary procedures according to law and held a public hearing on August 31, 2018. Yang Fudong, the authorized agent AD litem of the plaintiff Opai Household Group Co., LTD., attended the lawsuit. The defendant Zhang Shaohui and Qingdao Oupai Electric Appliance Co., Ltd. were summoned legally by the court and failed to attend the court proceedings, so the court was absent from the trial according to law. The case is now closed.

    1. Judge the defendant Zhang Shaohui to immediately stop infringing the exclusive right to use the registered trademark of Plaintiff No. 4378572 "Europa" in the online store; 2. 2. The defendant Zhang Shaohui was ordered to immediately stop selling water heaters marked with the words "Qingdao South China Oupai Electric Appliance Co., LTD" and "Qingdao Oupai Electric Appliance Co., LTD"; 3. Order the defendant Qingdao Oupai Electric Appliance Co., Ltd. to immediately stop the production and sale of water heaters marked with the words "Qingdao South Oupai Electric Appliance Co., LTD" and "Qingdao Oupai Electric Appliance Co., LTD"; 4. Ordered the defendant Qingdao Oupai Electric Appliance Co., Ltd. to immediately change the enterprise name, and the word "Oupai" shall not be used in the changed enterprise name; 5. Order the defendant to compensate the plaintiff for the economic loss and reasonable expense of safeguarding the rights, totaling RMB 200,000 yuan; 6. Order the costs of the case to be borne by the defendant. Facts and Reasons: Founded in 1994, the plaintiff is a leading brand in the whole cabinet industry. Its products cover the whole wardrobe, kitchen appliances, bathroom and commercial kitchen utensils and other fields. The registered trademarks of the plaintiff, such as "OPPEIN" and "OPPEIN", have become household and well-known brands in China after decades of careful creation and huge investment in advertising and publicity. The brand has won "China famous brand products", "China famous trademark" and other good reputation. In February 2017, the plaintiff was successfully listed in Shanghai, further laying the foundation for the plaintiff's industry-leading brand advantage. In the eyes of the relevant public, "Opai" series of trademarks is not only the representative symbol of the plaintiff's products and enterprise names, but also the significant identification mark indicating the market subject and commodity source of the plaintiff and the plaintiff's affiliated enterprises.

    In June 2017, the plaintiff found that the defendant, Zhang Shaohui, used "OPOPRU" in the online store to sell water heaters, and marked "OPOPRU", "OPOPRU", "OPOPRU", "Oupai" and "Oupai" on the product packaging. The plaintiff entrusts the notary office to preserve the evidence of the above behavior.

    In conclusion, the plaintiff that the defendant to clings to the plaintiff's enjoyment of the "European" "OPPEIN" brand reputation, deliberately in the shop, product illegal use of the "European" "Qingdao south European electric appliance co., LTD." the word "Qingdao opie electric appliance co., LTD.", this behavior is not only the infringement of the right to exclusive use of a registered trademark of the plaintiff, also constitute the encroachment of right to enterprise name to the plaintiff, in violation of the principle of honesty and credit and recognized business ethics, and constitutes unfair competition to the plaintiff, causing great economic losses to the plaintiff, shall bear the corresponding legal responsibility. In order to safeguard their own rights and interests, the plaintiff appealed to the court, asking for judgment as requested.

    The defendant Zhang Shaohui and Qingdao Oupai Electric Appliance Co., LTD did not reply.

    Based on the evidence presented by the plaintiff, the Court finds the following facts:

    The plaintiff opie household group co., LTD., founded in 1994, on July 1, the registered capital is three hundred and seventy-three million five hundred and eighty-one thousand one hundred and twelve yuan, business scope is: wooden furniture manufacturing, rattan furniture manufacturing, metal furniture manufacturing, household electrical appliances manufacture, kitchen appliances and daily groceries retail, kitchen equipment and kitchen supplies wholesale, etc.

    Guangzhou Oupai Kitchen Cabinet Enterprise Co., Ltd. obtained the exclusive right to use the registered trademark "Oupai" No. 4378572 on June 7, 2007. The approved products are class 11 gas stoves, microwave ovens, etc. The registration is valid until June 6, 2017. On March 24, 2014, the registered trademark change was Opai Home Furnishing Group Co., LTD.

    On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized guangzhou Oupai Cabinet Enterprise Co., Ltd. as a well-known trademark of the registered trademark "Oupai" on the sideboard goods of category 20 of the International Classification of Goods and Services for trademark registration.

    In September 2007, the General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China awarded the Opai household cabinet produced by Guangzhou Opai Kitchen Cabinet Enterprise Co., Ltd. as "China's famous brand products". In October 2008, Guangdong Provincial Bureau of Quality and Technical Supervision granted Oupai household cabinets manufactured by Guangzhou Oupai Kitchen Cabinet Enterprise Co., Ltd. as "Guangdong famous brand products"; Guangzhou Oupai Kitchen Cabinet Enterprise Co., LTD. No. 1128213, "Oupai", was recognized as a famous trademark of Guangdong province by Guangdong Famous Trademark Recognition Committee. In December 2012, China building decoration Association hutch and sanitation Engineering Committee awarded Guangdong Opai Household Group Co., LTD. "2012 China top 100 hutch and sanitation", "overall kitchen leading enterprises top 10" title; In September 2013, Guangzhou Municipal People's Government issued the "2012 Guangzhou Mayor's Quality Award" certificate to Guangdong Opai Furniture Group Co., LTD. On December 28, 2014, the plaintiff's case of "Scientific Planning of European Group leading the Second Revolution of the furniture Industry through the Strategy of European Group Leading the Furniture Industry" evaluated by Brand Watch magazine was selected as the Silver Award of the 2014 Chinese Brand Marketing Case of the Year. In January 2015, Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce awarded the plaintiff the honor certificate of "Top ten Enterprises with Innovation Ability" and "Top Ten Brands with Most Value".

    On October 30, 2012, the plaintiff and Beijing onspot boiling international advertising co., ltd. signed the sponsorship and cooperation agreement on the home decoration fund of 2013 "exchange space", which agreed that on January 5, 2013, solstice and December 28, 2013, the plaintiff's brand would be promoted in the second set of "exchange space" column of CCTV, with the advertising fee of RMB 5.7 million. On November 6, 2013, the plaintiff and zhejiang zhimei car advertising co., ltd. signed a television advertising release contract, which agreed that the plaintiff's brand would be publicized on CCTV news channel on January 1, 2014 and the advertising fee would be four thousand four hundred and sixty-three thousand nine hundred and seventy yuan. In July 2014, the plaintiff signed a TV project advertising release contract with hunan radio and television advertising corporation and hunan shunfeng media co., LTD. The contract agreed that on September 28, 2014, solstice, November 12, 2014, the plaintiff's brand would be promoted in related columns of the closing ceremony and award evening of the 10th golden eagle festival of hunan satellite TV, with an advertising fee of 18 million yuan. On October 22, 2014, the plaintiff signed an advertising agency contract with kashgar yinsong culture media co., LTD. The agreement agreed that on January 1, 2015, solstice, December 31, 2015, the plaintiff's brand would be publicized on CCTV news channel, and the advertising fee would be 23,970 yuan. The plaintiff carried out publicity for the brand on many print media, including Linchuan Evening News published on April 21, 22, 25, 26, 28 and 29, Shanghai Cabinet published in September 2010, Ruili Home Furnishing published in April 2011 and Decorating the World published in April 2014. The plaintiff still hires Jiang Wenli to produce to the plaintiff "Europe sends" the ambry of the brand, wardrobe, defend bath product to undertake advertisement speaks.

    On June 20, 2017, in laiwu city in shandong province FengCheng notarization notaries zhang, xu notarial personnel supervision, the entrusted agent of the applicant, the shou-zhen wang baiyun district in guangzhou city ishii, big gang village tung street lane 11 801 room, use the notary office computer connected to the Internet, in taobao shopkeeper called "tb0615114-88" "love me or not" bought a water heater in the shop. On June 23, 2017, under the supervision of notary Zhang and notary Xu, Wang Shouzhen signed for a parcel delivered by the Courier whose outer packing was in good condition and marked "Qingdao Huanan Ouai Electric Appliance Co., LTD.". Wang Shouzhen opened the package box of the said goods, which contained a water heater and a operating manual. The notary sealed the items with seals and gave them to Wang Shouzhen for safekeeping.

    On June 24, 2017, under the supervision of a notary named Zhang and a notary named Xu, Wang Shouzhen confirmed the receipt of an order no. 98XX54 on Taobao.com using a computer connected to the Internet connected by the notary office. On July 18, 2017, Fengcheng Notary Office of Laiwu City, Shandong Province issued (2017) Fengcheng Notary Public Certificate No. 745 for the above process.

    In court, when unpacking the product accused of infringement, it can be seen that the outer packing box of the product is marked with the words "Qingdao South China Oupai Electric Appliance Co., LTD". When opening the outer packing, it can be seen that the product involved and the attached operating instructions are marked with the words "Qingdao Oupai Electric Appliance Co., LTD".

    The court believes that the focus of the dispute in this case is: 1. Whether the defendant Zhang Shaohui infringed the plaintiff's right to exclusive use of the registered trademark No. 4378572 by selling the products involved; 2. Ii. Whether the defendant Qingdao Oupai Electric Appliance Co., Ltd. violated the plaintiff's right of enterprise name, and whether it should change the enterprise name; Whether the act of defendant Zhang Shaohui in selling products marked "Qingdao South China Oupai Electrical Appliances Co., LTD" and "Qingdao Oupai Electrical Appliances Co., LTD" constituted unfair competition; If it constitutes a tort, whether the defendant should bear civil liability and how to bear civil liability.

    Focus on one, the trademark law of the People's Republic of China article 57 in the second paragraph: without the permission of the trademark registrant, used on the same kind of goods with similar trademark registered trademark, or on the similar products to use its registered trademark identical or similar trademarks, easy to cause confusion, the use of a registered trademark infringement. Article 3 of the provisions: sales of goods that infringe the right to exclusive use of a registered trademark shall be an act of infringement of the right to exclusive use of a registered trademark. Involved in this case, notarial deed attached pictures showed online stores image displayed in a larger font "new Europe", the word "opie quality", the "European" text with the plaintiff no. 4378572 "European" registered trademark, the font is slightly different, only as a whole is very approximate, and accused of infringing products with the plaintiff enjoys range approved to use the registered trademark of the same, for the same goods, easy to cause consumer confusion or mistake. Therefore, it should be determined that the accused infringing product infringes the plaintiff's right to exclusive use of the registered trademark No. 4378572 and is an infringing product, and that the defendant Zhang Shaohui violated the plaintiff's right to exclusive use of the registered trademark No. 4378572 by selling the infringing product.

    On focus 2, since the infringement in this case occurred before the enforcement of the current Law of the People's Republic of China against Unfair Competition, the Law of the People's Republic of China against Unfair Competition, which took effect on December 1, 1993, should be applied in this case. Article 5 (3) of the Law of the People's Republic of China against Unfair Competition (effective December 1, 1993) stipulates that any unauthorized use of another person's enterprise name, which may be mistaken for another person's goods, shall be an act of fair competition. Article 6 of the Interpretation of the Supreme People's Court on Certain Issues concerning the Application of The Law in The Trial of Civil Cases Against Unfair Competition stipulates that the shop names of enterprises with certain market popularity and known to the relevant public may be identified as the "enterprise names" in paragraph 3 of Article 5 of the Law against Unfair Competition.

    In this case, plaintiff establishs time earlier, obtained a number of honors successively in field of kitchen defend household, and pass long-term extensive publicity, its market popularity is high, already know for relevant public, accordingly, can identify "Europe group" shop name for its enterprise. The defendant Qingdao Oupai Electrical Appliances Co., Ltd. marked the words "Qingdao Oupai Electrical Appliances Co., Ltd." on the products involved in the case, which was enough to make the relevant public mistakenly believe that it had a specific connection with the plaintiff, and then mixed the products of the two into products of the same market subject. Therefore, it should be found that the defendant Qingdao Opai Electric Appliance Co., Ltd. has violated the plaintiff's right of enterprise name, and it should bear the civil liability of stopping the use, changing the enterprise name and compensating for the loss. The behavior of defendant Zhang Shaohui in selling water heaters marked with the words "Qingdao South China Oupai Electric Appliance Co., LTD" and "Qingdao Oupai Electric Appliance Co., LTD" also violated the right of the plaintiff's enterprise name and constituted unfair competition.

    Concerning focus 3, the court holds that, in accordance with article 118 of the General Principles of the Civil Law of the People's Republic of China, the defendant Zhang Shaohui shall bear the civil liabilities of stopping infringement and compensating for loss respectively in respect of his sales behavior and the defendant Qingdao Oupai Electric Appliance Co., LTD., in respect of its production and sales behavior.

    On the question of the amount of compensation for the loss. Article 63 of the Trademark Law of the People's Republic of China provides 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 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; The amount of compensation shall include the reasonable expenses paid by the right to stop the infringement. 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 some issues of applicable law in trademark civil dispute cases to explain "stipulated in article 16, when determining the amount of compensation, the people's court should consider the nature of the infringement, during the period, the consequences, the reputation of the trademark, the trademark license fee amount and type of trademark licensing, time, scope and to stop the infringing act reasonable expenses of the factors such as comprehensive. Article 20 of the Law of the People's Republic of China against Unfair Competition 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. If it is difficult to calculate the losses of the injured business operator, the amount of compensation shall be the profits made by the infringer during the period of infringement. It shall also bear the reasonable expenses paid by the injured operator for investigating the ACTS of unfair competition committed by the operator which infringe upon its lawful rights and interests.

    In this case, the plaintiff failed to evidence to prove that the loss of its situation, also failed to prove the defendant's tort profit amount of proof, as a result, according to the law, our college in view of the plaintiff's trademark value degree, the defendant's subjective fault, tort, period, consequences, and the properties of the plaintiff reasonable expense for stopping the infringement of the defendant, determined the defendant shao-hui zhang to compensate the plaintiff economic loss of 20000 yuan, the defendant Qingdao opie electric appliance co., LTD., the plaintiff economic loss of 80000 yuan for compensation.

    In conclusion, according to the law of the People's Republic of China civil law article one hundred and eighteen, article one hundred and thirty-four, paragraph 1 (1) and (7), the trademark law of the People's Republic of China article sixty-three, article 57, "anti-unfair competition law of the People's Republic of China" (come into force on December 1, 1993), article 5, article 20, the Supreme People's Court on the application of law against unfair competition civil cases to explain some issues of article 6 of the act, the decision is as follows:

    I. Defendant Zhang Shaohui shall, as of the effective date of this judgment, immediately cease his infringement of the exclusive right to use the registered trademark of the plaintiff, Opai Home Furnishing Group Co., LTD. No. 4378572.

    2. As of the effective date of this judgment, defendant Zhang Shaohui immediately stops the unfair competition behavior of selling the water heater involved;

    3. The defendant, Zhang Shaohui, shall compensate the plaintiff, Opai Home Furnishing Group Co., Ltd. for the economic loss of RMB 20,000 within 10 days from the effective date of this judgment;

    Iv. The defendant Qingdao Oupai Electric Appliance Co., Ltd. immediately stopped the production and sale of the water heater involved in the unfair competition on the effective date of this judgment;

    V. The defendant Qingdao Opai Electric Appliance Co., Ltd. immediately stopped using the word "Opai" in its enterprise name on the effective date of this judgment, and changed its enterprise name within ten days from the effective date of this judgment. The changed enterprise name shall not contain the same or similar words as "Opai";

    6. The defendant Qingdao Opai Electric Appliance Co., Ltd. shall compensate the plaintiff OPai Home Furnishing Group Co., Ltd. for the economic loss of RMB 80,000 within ten days from the date of the judgment becoming effective;

    Vii. Rejecting other claims of the plaintiff opai Home Furnishing Group Co., LTD.

    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 handling fee of the case is 4,300 yuan, 1,075 yuan borne by the plaintiff Opai Home FurnishGroup Co., LTD., 645 yuan borne by the defendant Zhang Shaohui, and 2,580 yuan borne by the defendant Qingdao Opai Electric Appliance 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 Shandong Higher People's Court.

    Wang Yan, Chief judge

    Judge Guo Jing

    Mou Dunrong, people's juror

    September 20, 2008

    Clerk Chen Dong

    Clerk Li Youjia