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

    (2016) No. 25496, Yue 0306, Early Republic of China

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

    Yao Liangsong, legal representative, chairman of the board.

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

    Attorney Wang Ning, lawyer of Shandong Changping Law Firm.

    The defendant, Zhang Dian Lanqin Electric Appliance Firm (Operator gao Xinlan, female, Han Nationality, born on April 25, 1974, registered address: Renmin Dong Lu, Zhangdian District, Zibo city, Shandong Province, domicile place: Shandong Province).

    The defendant, Zhang Dian zhengde Xiang Decoration Materials Firm (Operator zhang Feng, male, Han Nationality, born on May 1, 1979, registered address: Zibo City, Shandong Province, domicile: South of Luzhong Decoration Materials, Zibo City, Shandong Province).

    Defendant shenzhen Oupai Electric Appliance Co., LTD., domicile: 1303, Block D, Building 1, Fuyuan Trading Building, Southeast of Xinanban Chuangye West Road, Bao 'an District, Shenzhen.

    Legal representative Zhang Baoguang.

    The defendant, Zhongshan Aiwei Hardware electric Appliance Co., LTD., domicile: Tongji Road, Minle Village, Dongfeng Town, Zhongshan City, Guangdong Province (Building D in the Zuo Tian Industrial Plant), unified social credit code ××898.

    Legal representative Jiang Shuhong.

    The plaintiff opie household group co., LTD. V. the defendant Zhang Dian LanQin electronics firm, Zhang Dian zhengde auspicious decoration materials businesses, shenzhen European faction electric appliance co., LTD., zhongshan love only hardware electric appliance co., LTD., the infringement trademark dispute case, after we accept, form a collegial panel in accordance with the law, apply to ordinary procedure, the public hearing on the trial. The plaintiff entrusted wang Ning to attend the court proceedings, and the defendant Zhang Dian Lanqin Electric appliance firm, Zhang Dian Zhengde Xiang decoration materials firm, Shenzhen Oupai Electric Appliance Co., Ltd. and Zhongshan Aiwei Hardware Electric Appliance Co., Ltd. refused to attend the court proceedings without justified reasons after being legally summoned by the court, and the court was absent from the trial according to law. The case is now closed.

    Founded in 1994, Yuanfang said that it is a comprehensive service provider of modern integrated home furnishing in China. Its products cover the fields of integrated wardrobe, kitchen appliances, sanitary ware, commercial kitchen utensils and so on. The plaintiff is the registered trademark owner of "OPPEIN" and "OPPEIN" in the 11th category. After decades of painstaking operation, the plaintiff has made "OPPEIN" a household, electrical and sanitary brand known throughout the country, which has successively won the reputation of "China famous brand product" and "China Well-known Trademark". In August 2016, the plaintiff, the survey found in shandong city decoration materials in the northeast corner of the 31st floor across 31 b - 21 labeled "vantage integral kitchen" stores, sales on the commodity packaging, instruction manual, warranty card, kitchen burning gas classy place marked with "shenzhen o - send electric appliance co., LTD." on the kitchen burning gas, in the specification, such as commodity packaging sign emblazoned with the plaintiff the public face of the image, on the payment receipt issued by the word "opie stove" and build a "Zhang Dian LanQin electronics firm" seal, pos signed order for display "Zhang Dian zhengde auspicious decoration materials businesses," the plaintiffs entrust notary office for the evidence preservation. Further investigation by the plaintiff found that the gas stove involved was produced by Shenzhen Oupai Electric Appliance Co., LTD and Zhongshan Aiwei Hardware electric Appliance Co., LTD. To sum up, the plaintiff believes that the defendant, without the permission of the plaintiff, highlighted the words "Shenzhen Ou-Payee Electric Appliance Co., Ltd." on the enterprise name and the products involved in production and sales, and used the spokesperson image signed by the plaintiff on the specification and commodity packaging without any justifiable reason. Obviously, the malicious use of the word "Opai" in order to attach the brand awareness of "Opai", especially the receipt issued when selling the products in question marked with the word "Opai stove", is enough to indicate that the behavior involved in the case has caused market confusion. 1. The defendant, Zhang Dian Lanqin Electric appliance firm and Zhang Dian Zhengde Xiang decoration materials firm, immediately stopped selling household gas stoves labeled as "Shenzhen Oupai Electric Appliance Co., LTD"; 2. The defendant, Shenzhen Oupai Electric Appliance Co., LTD., immediately stopped the unfair competition and immediately changed the enterprise name. "Oupai" shall not be used in the changed enterprise name; 3. The defendant, Zhongshan Aiwei Hardware and Electrical Appliances Co., Ltd. immediately stopped the production and sale of household gas stoves marked with the words "Shenzhen Ou-Pai Electrical Appliances Co., LTD"; 4. The defendant, Zhang Dian Lanqin Electric Appliance firm and Zhang Dian Zhengde Xiang decoration materials firm, shall bear the joint and several liability within the limit of 50,000 yuan. 5. The litigation costs of this case shall be borne by the four defendants. After the court accepted the case, the trial was conducted in accordance with the law, and now the trial has ended.

    After trial, it was found that trademark No. 4378572 was registered as Guangzhou Oupai Kitchen Cabinet Enterprise Co., LTD.; Category 11; The specific content of the logo is "Eurogroup"; The approved scope of goods includes gas stove, microwave oven (kitchen utensils), electric cooker, etc. The registration shall be valid from June 7, 2007 to June 6, 2017, and January 6, 2011 to change the name of the registered person to guangdong opai home furnishing group co., LTD.

    Trademark No. 1137521 is registered as Guangzhou Kangjie Kitchen Equipment Co., LTD. Category 11; The specific content of the logo is "Eurogroup"; Check and approve the scope of commodities for gas stoves; The term of validity is renewed to December 20, 2017, and on January 6, 2011, the name of the registered person is changed to Guangdong Opai Furniture Group Co., LTD.

    Word no. 982 (2016), FengCheng card people notarial deed, August 20, 2016, shandong laiwu city FengCheng notary office personnel entrusted agent with the plaintiff to is located in zibo city of shandong province is shandong decoration materials in the city (31 b - 21 across) the salesroom "vantage whole kitchen", in the name of ordinary consumers to buy the marked "shenzhen o - send electric appliance co., LTD." on the kitchen burning gas a, achieve the store clerk to issue on the spot "high heart LAN" card and a credit card voucher, POS machine a number of 8696895 journal of industrial and commercial service unified payment receipt.

    Through in-court examination, the seal of the seal attached to the notarial Deed No. 982 (2016) is intact. Open the seal in court, the product involved is called domestic gas cooker. Shenzhen Ou-Pai Electrical Appliances Co., LTD. (hereinafter called "Ou-pai"); Product specifications, quality warranty card use spokesperson head and the plaintiff spokesperson Jiang Wenli similar; The outer package of products, quality guarantee CARDS and instructions shall be marked with OPPULI logo; Zhongshan Aiwei Hardware electric Appliance Co., LTD. Unionpay'S POS receipt shows the merchant's name as Zhang Dian Zhengde Xiang Decoration Materials Firm; The receipt issued by the defendant's Zhang Dian Lanqin electric appliance firm showed "Opai stove", on which was the defendant's special seal for invoice. The plaintiff paid 330 yuan for the goods.

    The above facts are supported by the trademark registration certificate, notarial certificate and the attached physical objects, industrial and commercial registration information, trademark inquiry information, bills, and court records.

    In our opinion, the trademark of "Oupai" has been registered and has a high popularity and wide influence. Shenzhen Oupai Electric Appliance Co., LTD., as the operator of the industry, USES "Oupai" as the key name of the enterprise. There is only one word difference between "Eurofaction" and "Eurofaction". In the actual use, the defendant took "Eurofaction" as "Eurofaction", and the face of the spokesperson of the product is similar to that of the plaintiff, which is likely to confuse the public and constitute unfair competition. Therefore, the court supports the plaintiff's claim to change the name of the enterprise and compensate for the loss. The defendant, Shenzhen Oupai Electric Appliance Co., LTD., Zhongshan Aiwei Hardware Electric Appliance Co., LTD., and Zhangdian Lanqin Electric Appliance Firm, as the manufacturers and sellers respectively, shall bear the tort liability of stopping the infringement and compensating for the loss. According to the notarial certificate, the official seal on the receipt shows that it is the defendant Zhangdian Lanqin electric appliance firm, and the business card issued points to the operator of the defendant. Although the defendant Zhang Dian Zhengde Xiang decoration materials firm has collection behavior, but the basis that affirming its is a seller is insufficient.

    About compensation, because the plaintiff cannot provide all the actual loss by infringement of the defendant or the defendant infringement evidence of income from interest, so we consider the trademark awareness, the involved factors such as the nature of the infringement, tort scope, has decided the defendant shenzhen European faction electric appliance co., LTD., zhongshan love only hardware electric appliance co., LTD. The plaintiff economic loss compensation reasonable rights charges totaling 120000 yuan. The defendant, Zhang Dian Lanqin Electric appliance firm, was jointly and severally liable for compensation of 40,000 yuan. The court will not support the excessive part of the economic loss claimed by the plaintiff.

    In accordance with the trademark law of the People's Republic of China, paragraph 1 of article sixty-three and article 58 of the third paragraph, the anti-unfair competition law of the People's Republic of China "in article 5, the Supreme People's Court on the trial of civil cases of unfair competition" the explanation of application of law in article 17, article sixty-four of the civil procedural law of the People's Republic of China, the provisions of article one hundred and forty-four, the decision is as follows:

    I. Defendant Zhangdian Lanqin Electric Appliance firm immediately stopped selling household gas stoves labeled as "Shenzhen Oupai Electric Appliance Co., LTD";

    2. The defendant, Shenzhen Oupai Electric Appliance Co., LTD., immediately stopped the unfair competition and immediately changed the enterprise name. The word "Oupai" shall not be used in the changed enterprise name;

    3. The defendant, Zhongshan Aiwei Hardware and Electrical Appliances Co., Ltd. immediately stopped the production and sale of household gas stoves marked "Shenzhen Ou-pai Electrical Appliances Co., LTD.";

    4. The defendant, Shenzhen Oupai Electrical Appliances Co., LTD., and Zhongshan Aiwei Hardware Electrical Appliances Co., LTD., indemnify the plaintiff, Oupai Home Furnishing Group Co., LTD., for economic losses and reasonable expenses for rights protection of a total of RMB 120,000. The defendant, Zhang Dian Lanqin Electrical appliance Firm, shall bear the joint and several liability within RMB 40,000.

    V. 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 the case was RMB 4,300, which was borne by the defendant Zhang Dian Lanqin Electric Appliance Firm, Shenzhen Oupai Electric Appliance Co., LTD., and Zhongshan Aiwei Hardware Electric Appliance Co., LTD., and RMB 2,000 by the plaintiff Oupai Home FurnishGroup Co., LTD.

    If you are not satisfied with this judgment, you may, within 15 days from the date when the judgment is served, file an appeal to this court, and submit a copy of the appeal according to the number of the other party, and appeal to shenzhen Intermediate People's Court.

    Li Haibo, chief judge

    People's juror Zhang Nenghan

    People's Juror Chen Lifen

    December 13, 2017

    Clerk Zhou Min (concurrently)

    Clerk Wen Yanyun

    The relevant legal provisions of this case are as follows:

    Trademark Law of the People's Republic of China

    Article 58 Anyone who USES a registered trademark of another person or an unregistered well-known trademark as the shop name of an enterprise, thus misleading the public and constituting an act of unfair competition, shall be dealt with in accordance with the Law of the People's Republic of China against Unfair Competition.

    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 5 A business operator shall not engage in market transactions by the following improper means to the detriment of competitors:

    (1) counterfeiting another person's registered trademark;

    (2) to use, without authorization, the names, packaging or decoration peculiar to a well-known commodity, or to use names, packaging or decoration similar to that of a well-known commodity, so as to cause confusion with the well-known commodity of another person and cause buyers to mistake the well-known commodity for the well-known commodity;

    (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods;

    (4) forging or falsely using on a commodity quality marks such as authentication marks, famousand superior marks, forging the origin of a commodity or making false and misleading representations concerning the quality of the commodity.

    Interpretation of the Supreme People's Court on Some Issues concerning the Application of Law in The Trial of Civil Cases of Unfair Competition

    Article 17 The amount of compensation for damage caused by ACTS of infringing trade secrets as stipulated in Article 10 of the Law against Unfair competition may be determined with reference to the method of determining the amount of compensation for damage caused by ACTS of infringing patent rights. The determination of the amount of damages for ACTS of unfair competition as provided for in Article 5, article 9 and Article 14 of the Law against Unfair competition may be carried out with reference to the determination of the amount of damages for infringement of the right to exclusive use of a registered trademark.

    If the trade secret has become known to the public due to the infringement, the amount of damages shall be determined on the basis of the commercial value of the trade secret. The commercial value of a trade secret shall be determined according to such factors as the research and development cost, the income from the implementation of the trade secret, the available benefits and the time for maintaining the competitive advantage.

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