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

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

    Written judgment of civil affairs

    (2017) No. 12532, Early Republic of China 2072

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

    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: Zhang Guixia, female, born on April 23, 1968, Han Nationality, residing in Huaibin County, Henan Province.

    Defendant: Guangdong Huke Oupai Electric Appliance Co., LTD., no. 88, Fupei Road, Nantou Town, Zhongshan City, Guangdong Province.

    Legal representative: Du Xiaodong, General Manager.

    Agent AD litem: Liu Lixia, lawyer of Guangdong General Law Firm.

    Agent AD litem: Jiang Zhidong, legal affairs of the company.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the company) and the defendant Zhang Guixia, guangdong hutch opie electric appliance co., LTD. (hereinafter referred to as the kitchen division of the company) the infringement trademark rights and unfair competition disputes, in our hospital in Hitachi after 25 October, 2017, in accordance with the applicable ordinary procedure, public hearing on the trial. The plaintiff Ou pai company's appointed agent AD litem Zhai Mingyue, the defendant Huke Ou pai company's appointed agent AD litem Liu Lixia to the court to participate in the lawsuit, the defendant Zhang Guixia refused to attend the court without justifiable reasons by summons. The case is now closed.

    The plaintiff Opai Company filed a lawsuit to the court: 1. The defendant Zhang Guixia was ordered to immediately stop using the word "Opai" in the online store to infringe the right to exclusive use of the trademark; 2. 2. Order the defendant Huke Opai Company to immediately stop infringing the trademark and stop marking "OPEIVNI" on the range hood products it produces and sells; 3. Order the defendant Huke Oupai Company to stop unfair competition and to stop marking the words "Guangdong Huke Oupai Electrical Appliances Co., LTD" on the range hood products it produces and sells; 4. Order the defendant Huke Oupai company to change its enterprise name immediately, and the word "Oupai" shall not be used in the changed enterprise name; 5. The judgment ordered the defendant Zhang Guixia and Huke Oupai company to compensate the plaintiff Oupai Company for the economic loss and the reasonable expense of rights protection totaling 300,000 yuan. In the course of the proceedings, the plaintiff Opie company withdrew the second claim. Facts and Reasons: Plaintiff Opie, founded in 1994, is a leading brand in the whole cabinet industry. Its products cover the whole wardrobe, kitchen appliances, bathroom, commercial kitchen utensils and other fields. After decades of careful creation and huge advertising investment, the "OPPEIN" and other trademarks owned by the plaintiff, OPPEIN, have become well-known and well-known brands of home furnishing, electrical appliances and sanitary ware. They have successively won the reputation of China famous brand products and China well-known trademark. In February 2017, opie, the plaintiff, was successfully listed in Shanghai with the stock code of 603208, which further established its leading brand advantage in the industry. "Opai" is not only the representative symbol of the products and enterprise names of the plaintiff, but also the significant identification mark of the market subjects and commodity sources of the plaintiff and its affiliates. In June 2017, Opai, the plaintiff, found that the defendant Zhang Guixia had used the word "OPEIVNI" in his online store to sell range hoods marked with the words "OPEIVNI" and "Guangdong Huke Opai Electrical Appliance Co., LTD". Think two defendants to the plaintiff opie company clings to the plaintiff's company "European" brand reputation, deliberately used on shops and products "guangdong kitchen division opie electric appliance co., LTD." with the words, the behavior of the two defendants not only violated the right to exclusive use of a registered trademark of the plaintiff opie company, also constitute to the plaintiff company enterprise name right infringement, violation of the principle of honesty and credit and recognized business ethics, whose behavior constitutes unfair competition. Accordingly, the plaintiff Opie company filed this case to the court.

    The defendant, Zhang Guixia, made no plea.

    1. Defendant Ciucopai did not produce the alleged infringing products and was not the manufacturer of the alleged infringing products. The plaintiff, Opie, claimed that the defendant, Opie, was the producer of the infringing products only if the company name of the defendant was marked on the outer package. The evidence is insufficient. 2. The defendant hutch European company's main business scope is the production of household electrical appliances, belong to the household electrical appliance industry, and the plaintiff's sent the company's main business scope is production of cabinet furniture and home decoration products, belong to the household furniture industry, the registration of registered address is different, so the kitchen set the company with the plaintiff's company there is no competition, even in the case of infringement product was identified as the defendant hutch opie company production, the defendant hutch opie company does not constitute ACTS of unfair competition; 3. The defendant, Huke Oupai company, is legally registered. Therefore, the use of the word "Guangdong Huke Oupai Electrical Appliances Co., Ltd." on the product is a legitimate use of its name, which will not cause consumers' misidentification or confusion, and does not constitute unfair competition; 4. The plaintiff Opai has sued the defendant Huke Opai Co., Ltd. in 6 cases concerning the same infringing products, facts and causes. The plaintiff opai Company has repeatedly claimed that it has violated the original legal intention and claimed that the compensation amount is too high.

    The parties have provided evidence according to law around the claims, and the court has organized the parties to exchange and cross-examine evidence. The court confirms and supports in the volume the evidence that the parties have no objection. 1.(2016) Notarial Certificate No. 347, (2017) Notarial Certificate No. 675, Laifeng City Notarial Certificate No. 347, and (2017) Laifeng City Notarial Certificate No. 675 have original copies verified, both issued by the notarial office, and are related to this case, so the court confirms them; 2. 2. The word no. 350 (2016) lai FengCheng card people notarial deed and word no. 672 (2017) lai FengCheng card people notarial deed and word no. 346 (2016) lai FengCheng card people notarial deed and word no. 673 (2017) lai FengCheng card people notarial deed and word no. 348 (2016) lai FengCheng card people notarial deed and word no. 352 (2016) lai FengCheng card people notarial deed, no relevance to the case to the facts, we will not be identified; 3. The trademark (2009) No. 7 reply issued by the Trademark Office of the State Administration for Industry and Commerce is issued by the Trademark Office of the State Administration for Industry and Commerce. The plaintiff Opai company has provided the original copy for verification, which is related to the facts to be proved in this case. 4. (2016) Notarial Certificate No. 353, (2017) Notarial Certificate No. 260, issued by the notarial office after checking with the original, and the honor certificate included in the notarial certificate can indirectly reflect the popularity of the plaintiff Opai Company, which is related to this case, which is confirmed by the court; 5. (2016) Notarial Certificate No. 357 of Laifeng City Certificate is issued for the notary office after checking the original, and the tax payment certificate and audit report in it reflect the operating scale of the plaintiff Opai Company to a certain extent, which is related to this case, which is recognized by the court; 6. (2016) Notarial Certificate No. 355 of Laifengcheng Certificate No. 356 of Laifengcheng Certificate no. 356 is issued by the notary office. It reflects the plaintiff's publicity expenses during the operation of Opai Company and the fact that famous movie stars are employed to represent the plaintiff. 7. (2017) The Notarial certificate no. 764 of Laifengcheng Certificate is issued by the notary office and is related to this case. Therefore, the court confirms it. 8. "linchuan evening news", "shenzhen special zone signs up for" anqing daily Shanghai ambry "sales and marketing management version" "ruili household decoration world magazine, is copy, but the fact of the reaction were through TV, print and other media publicity to the society, can prove the plaintiff's case of the company's advertising, is relevant to the case, so we found; 9. The information of the registered trademark of "OPEIVNI" is public information in the society, and the authenticity is confirmed by the Court. As for whether it is relevant to the case, we will comment on it in the part of the Court's opinion; 10. The information of the online shop operator disclosed by Zhejiang Taobao Network Co., Ltd. is mutually verified with the contents of the notarial certificate, and the defendant Zhang Guixia has not raised any objection, so the court confirms it.

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

    Opai is the owner of the registered trademark "Opai" No. 4378572. The approved products are in category 11, including kitchen range hoods, etc., and the trademark is within the term of validity.

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

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

    In 2011, Opai launched advertisements in Linchuan Evening News, ×× Special Zone Newspaper, Anqing Evening News, Ruili Home furnishing and decoration world respectively. The brand spokesperson employed in the above advertisement promotion is Jiang Wenli.

    Huke Oupai Co., Ltd. is a limited liability company established on July 3, 2016 with a registered capital of 10 million yuan. Its business scope covers the production and sales of household appliances and their accessories, hardware products and plastic products.

    The registration right of the trademark "OPEIVNI" no. 16273418 is foshan Jiashili Kitchen and Sanitary Appliance Technology Co., LTD. Zhang Guixia is the shareholder of Foshan Jiashili kitchen and sanitary appliance Technology Co., LTD. Huke Oupai company confirms that it has authorized Foshan Jiashili kitchen and sanitary appliance Technology Co., Ltd. to use its enterprise name on the products.

    On June 17, 2017, Opai Applied for evidence preservation at Fengcheng Notary Office in Laiwu, Shandong Province. On June 20, 2017, under the supervision of Zhang Xiuping and Xu Hao of the notary office, Wang Shouzhen, the authorized agent of Opai, used the computer of the notary office to buy a "Opai great suction wall type household double-motor automatic cleaning and smoking machine" from the online store "U [2613760268]" named "Du Xiaoru Sugar" on Taobao. On June 23, 2017, under the supervision of Zhang Xiuping and Xu Hao, Wang Shouzhen signed for a piece of gas hoods with intact packaging near the entrance of Lane 1, East Street, Dazang Village, Shijing Street, Baiyun District, Guangzhou city. The notary sealed the above items with the notary seal, and the sealed items were kept by Wang Shouzhen. On June 24, 2017, under the supervision of Zhang Xiuping and Xu Hao, Wang Shouzhen confirmed the receipt of the order using the computer of fengcheng Notary Office in Laiwu, Shandong Province. On July 18, 2017, Fengcheng Notary Office in Laiwu city, Shandong Province issued the (2017) Fengcheng Certificate Minzi No. 764 Notary Office. Notarial deed, according to the shopkeeper, the shopkeeper called "Du Xiaoru sugar" is "u" [2613760268] of the shop operators Zhang Guixia, store the details of the range hood and other products displayed using the word "European" to describe, including "the big suction side wall lampblack machine type automatic cleaning home two motor smoke absorption" 730 single products trading success.

    After trial inspection, the notarization of the purchase of the hood sealed in good condition, notary office seal and seal integrity. The outer packing box of the range hoods does not show the manufacturer, but only the trademark of "OPEIVNI" and the information such as "Address: 26 Dayan Industrial Park, Huangpu Town, Zhongshan City". Open the outer packing, there is a range hood and a manual inside the packing box, among which the cover of the range hood and the manual is marked with the trademark "OPEIVNI", and the manual is marked with the words "Guangdong Huke Oupai Electric Appliance Co., LTD". Chukeopai does not confirm that the address and telephone number of the said logo and the national service telephone number are its own.

    Trial, the company advocates Zhang Guixia, kitchen European company to compensate the loss of 300000 yuan (including reasonable expense for to stop the infringing act), and called to stop the infringing act, reasonable costs including attorney's fees and spending $18000 cost of the infringing products, notarial cost 1000 yuan, buy 398 yuan to 3000 yuan, travel, but it only provides the notarial fees receipt. Oupai, Zhang Guixia and Huke Aipai failed to provide evidence on the amount of losses suffered by Oupai due to infringement and the profits made by Zhang Guixia and Huke Aipai due to infringement.

    The court believes that the focus of the dispute in this case is: 1. Whether the infringement products involved in the case are sold by Zhang Guixia and whether they are produced and sold by Huke Oupai company; 2. 2. Has Zhang Guixia violated the exclusive right to use the trademark No. 4378572 of Opai Company? 3. Whether The Company constitutes unfair competition; 4. Subject and amount of compensation.

    About the first focus. According to the contents of the Notary No. 764 of Laifeng City Certificate (2017), the products involved in the case were sold by the online store "U [2613760268]" set up by Zhang Guixia, and Zhang Did not raise any objection. The court identified Zhang Guixia as the seller of the products accused of infringement. At the same time, the sealed state of the hoods involved in the case provided by Opai is intact, the seal and seal of the notary office are complete, the outer packing boxes and products of the hoods preserved by this notarized evidence are not marked with the producer information, and only the enterprise name of Hukeopai Company is marked on the product instructions. Product is instructions for consumers to identify the function of product producers or sellers, with a clear point to the nature of the product provider, hutch opie company not confirmed its producers accused of infringing products, but did not provide evidence that did not actively claim their rights, therefore, we decided that range hood products is accused of infringement hutch opie company production and sales.

    About the second focus. Opai is the holder of the registered trademark "Opai" No. 4378572, which is a registered trademark obtained by Opai according to the legal procedures and enjoys the rights. It is now in the period of validity of the registration.

    Opai contends that Zhang violated the exclusive right to use the word "Opai" in the online store's description. After investigation, the online store involved in the case was set up by Zhang Guixia and the word "Opai" was used in the product description, in which the word "Opai" played a role in identifying the source of the goods and constituted the trademark use. Zhang Guixia sales of oil absorption and the company number 4378572 "European" use of a registered trademark approved "kitchen smoke lampblack machine" for the same goods, easy to make the relevant public to mistake the open stores and sales range hood and other products from the company, or contact with the existence of specific its subjective exists obviously intentionally, to the company no. 4378572 "European" registered trademark infringement, Zhang Guixia stop the infringement and compensate for the losses of responsibility.

    On the third point of focus. Opai claims that Guangdong Opai Electric Appliance Co., Ltd. infringes on the right of enterprise name and constitutes unfair competition by labeling the products of the company as "Guangdong Opai Electric Appliance Co., Ltd.". According to article 5 of the Anti-Unfair Competition Law of the People's Republic of China (effective December 1, 1993), "Business operators shall not engage in market transactions by the following improper means to the detriment of competitors:... (3) using another person's enterprise name or name without authorization to mislead others into believing that it is another person's commodity; ..." And the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in the first paragraph of article 6 of the regulation:" the enterprise registration authority in accordance with the registered enterprise name, and for commercial use within the territory of China, foreign (regional) enterprise name shall be identified as (3) of article 5 of the anti-unfair competition law "enterprise name" prescribed in item. The shop name of an enterprise that has a certain market popularity and is known to the relevant public may be identified as the "enterprise name" as stipulated in item (3) of Article 5 of the Anti-Unfair Competition Law. In this case, the company since its inception in 1994, on the cabinets and other products continue to use "the" font size, and through advertising and product sales, "European" font size across the country has a higher visibility, known by the relevant public, the company's prior rights by "general principles of the civil law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China". After the establishment of Huke Opai Company, the key word "Opai" in the font name of both companies is the same, and they both produce household appliances, and have a competitive relationship with Opai company. The use of the word "Opai" in the company name obviously has the subjective intention of free-riding and attaching the existing goodwill of Opai, which is easy to cause the related public to misidentify and confuse the source of the product and damage the legitimate rights and interests of Opai. The Company constitutes unfair competition to the company. Therefore, it is fully justified and supported that Opai company advocates that Opai Stop using the enterprise name of "OpAI" and demands that OpAI Company change the enterprise name and make compensation.

    On the fourth point of focus. The parties failed to provide evidence for Zhang Guixia, hutch opie company implementing tort caused by the company's actual loss and Zhang Guixia, kitchen opie company profit situation, we consider the company's brand awareness and Zhang Guixia, hutch opie company during the implementation of the nature of the infringement, degree, consequences and subjective fault, Zhang Guixia business shop sales, hutch opie company scale, the domestic company and entrust a lawyer to appear in court to stop infringement litigation or spending the notarial cost, the cost of buying infringing material, We decide that Zhang Guixia shall pay 20000 YUAN (including reasonable expenses for preventing infringement) to Oupai, and Huke Oupai shall pay 100000 yuan (including reasonable expenses for preventing infringement) to Oupai.

    When Zhang Guixia refuses to appear in court without justifiable reasons after being legally summoned by the court, it shall be deemed that he waives his right to defend and cross-examine, and the adverse consequences arising therefrom shall be borne by himself.

    Above all, on the basis of article 56 of the "general civil law of the People's Republic of China", the first and second paragraph of article one hundred and seventy-nine of the trademark law of the People's Republic of China article 48 and article 57 the second and third paragraph of article sixty-three, the anti-unfair competition law of the People's Republic of China "(come into force as of December 1, 1993) article 2, paragraph 2, article 6, the Supreme People's Court on the trial of civil cases of unfair competition" the explanation of application of law in the first article, article 4, paragraph 1 of article 6, article 7, paragraph 1 of article 17, As stipulated in Article 64, Paragraph 1, and Article 144 of the Civil Procedure Law of the People's Republic of China, the judgment by default is as follows:

    I. Defendant Zhang Guixia immediately stops selling range hood products on his online store by using the word "Opai" on the day when this judgment takes legal effect;

    2, the guangdong hutch opie electric appliance co., LTD on the date when the judgment takes legal effect to immediately stop the production, the sale marked "guangdong kitchen division opie electric appliance co., LTD." the words of the range hood products, and in the judgment takes legal effect within ten days from the date of the change of enterprise name, change the enterprise name shall not be used after "European" words;

    3. Within 5 days from the date of the legal effect of this judgment, the defendant Zhang Guixia shall pay the plaintiff Opai Home Furnance Group Co., LTD 20,000 yuan (including reasonable expenses paid to stop infringement);

    Iv. The defendant guangdong Huke Oupai Electrical Appliances Co., Ltd. shall, within 5 days from the date of the legal effect of this judgment, pay the plaintiff Oupai Household Products Group Co., LTD. 100,000 yuan (including reasonable expenses paid to stop infringement);

    V. Rejecting other claims of the plaintiff opai Furniture 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 case handling fee is 5,800 yuan, 1,160 yuan borne by the plaintiff Oupai Household Group Co., LTD., 580 yuan borne by the defendant Zhang Guixia, and 4,060 yuan borne by the defendant Guangdong Huke Oupai 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 copies of the appeal according to the number of the other party or the representatives, and appeal to the Intermediate People's Court of Zhongshan city, Guangdong Province.

    Chief Judge Ruan Chunli

    People's juror Zhu Huazhong

    People's juror Chen Yan

    July 19, 2008

    Clerk Lin Cuiming