Civil judgment of Pengjiang District People's Court, Jiangmen City, Guangdong Province

    People's Court of Pengjiang District, Jiangmen City, Guangdong Province

    Written judgment of civil affairs

    No. 1590, Early Republic of China, Yue 0703

    Plaintiff: Opai Furniture Group Co., LTD., Domicile: 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.

    Defendant: Xu Yanping, male, Han Nationality, born on May 5, 1952, living in Jiedong District, Jieyang City, Guangdong Province.

    Defendant: Jiangmen Jinrunda Gas Appliance Co., LTD. Domicle: One of Mashan Development Zone, Tagang Village, Hetang Town, Pengjiang District, Jiangmen City.

    Legal representative: Chen Xiujin.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the European household company) v. the defendant Xu Yanping, jiangmen Jin Run appliances&gas utensils co., LTD. (hereinafter referred to as Jin Run company) the infringement trademark rights and unfair competition disputes, in our hospital in 2018 to begin on March 5, form a collegial panel in accordance with the law, on June 28, 2018 in open trial, plaintiffs opie household company to entrust agents AD litem ZhaiMingYue to appear in court to participate in litigation, the defendant Xu Yanping, Jin Run company unaccounted for, delivered by our court summons, notice not to appear in court to participate in litigation for another term before it expires. The case is now closed.

    The plaintiff Opai Furniture Company filed a lawsuit to the court: 1. The defendant Xu Yanping was ordered to immediately stop the infringement of the plaintiff's trademark right by using the words "Opai" in the online store; 2. 2. The defendant Xu Yanping was ordered to immediately stop selling gas stoves labeled as "supervised by Guangdong Opai Technology Co., LTD"; Iii. The defendant Jiangmen Jinrun Da Gas Appliances Co., Ltd. immediately stopped unfair competition and stopped producing and selling gas stoves with the words "Guangdong Opai Technology Co., LTD" and "Youjia YouaiyouOpaicn" marked on the products. Iv. The judgment ordered the defendant Xu Yanping and Jiangmen Jinrunda Gas Appliance Co., Ltd. to compensate the plaintiff for economic losses and reasonable expenses for rights protection totaling RMB 200,000 yuan; V. Judge the defendant Xu Yanping and Jiangmen Jinrunda Gas Appliance Co., LTD to bear the costs of the case.

    Plaintiff opie household company charged facts and reason: European furniture company was founded in 1994, is the leading brand of integral ambry industry, product covers the whole wardrobe, kitchen appliances, whole wei yu, commercial kitchen utensils and appliances, and other fields, have ""," "and so on the series of registered trademark, after decades of meticulously and huge investment in advertising, has molded become household names, as is known to all of the country's household, electrical appliances, sanitary brand, the brand has won the" Chinese famous brand ", "China well-known trademark" and so on. In February 2017, Opai Furniture Company was successfully listed in Shanghai with the stock code 603208, which further established its leading brand advantage in the industry. Nowadays, in the public's mind, "Opai" has not only become the representative symbol of the plaintiff's products and enterprise names, but also become a significant identification mark indicating the market subject and commodity source of the plaintiff and the plaintiff's affiliated enterprises.

    In June 2017, European household company found that the defendant Xu Yanping open shops in the extensive use of "European" in text sales indicate "guangdong opie technology co., LTD." on the kitchen burning gas, on the product and its packaging, manuals and other carrier was labeled "the home has love OPAICN", "guangdong science and technology co., LTD.", "manufacturer: jiangmen Jin Run appliances&gas utensils co., LTD.", European household company entrust notarial authority has carried on the preservation of evidence to the infringement.

    , above all, the plaintiff European household company thinks, the defendant Xu Yanping, Jin Run company without authorisation to use "European" words, production, sales, marked "guangdong opie technology co., LTD." on the kitchen burning gas, not only violated European household company's right to exclusive use of a registered trademark, and violate the principles of honesty and credit and business ethics, the behavior of European household company constitutes unfair competition. Therefore, 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, Europa Furniture Company hereby appeals to the court for the above appeal.

    To prove the claim, the plaintiff Opai Furnishing Company provides the court with the following evidence:

    1. (2016) Laifengcheng Notarial Certificate No. 347, (2017) Laifengcheng Notarial Certificate No. 675, which proves that Opai Furniture Company has the exclusive right to use the registered trademark No. 4378572, and that the trademark is within the term of validity.

    2. (2016) Notarial Certificate Of Laifengcheng Minzi No. 350 and (2017) Notarial Certificate of Laifengcheng Minzi No. 672, proving that Opai Furniture Company has the exclusive right to use the registered trademark No. 1128213 in accordance with the law and that the trademark is within the term of validity.

    3. (2016) Laifengcheng Notarial Certificate No. 346, (2017) Laifengcheng Notarial Certificate No. 672, proving that Opai Furniture Company has the exclusive right to use the registered trademark No. 1137521 according to law and that the trademark is within the validity period.

    4. (2016) Notarization Certificate No. 348 of Laifeng City Certificate, proving that Opai Furniture Company has the exclusive right to use the registered trademark No. 7731876 according to law.

    5, (2016), lai FengCheng certificate notarial deed, no. 352 people word that European household company owns "fine arts" font copyright in accordance with the law, the work creation on August 10, 1996, with European household company no. 4378572, 1128213, 1137521 registered trademark identical content, also prove that European household company "" brand has a certain originality and brand has a long history.

    6. The trademark No. [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce certifies that the registered trademark "" no. 1128213 enjoyed by Europa Home Furnishing Company was recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on April 24, 2009.

    7, (2016), lai FengCheng certificate notarial deed, no. 353 people word set to prove the home company and the household company brand has high brand awareness, content as follows: (1) on July 9, 2007, the state administration of quality supervision, inspection and quarantine awarded "China famous brand product certificate", proved that opie household company brand household cabinet was awarded "China famous brand product" title. (2) In October 2008, Guangdong Provincial Bureau of Quality and Technical Supervision issued the "Guangdong Famous Brand Products" certificate, proving that opai cabinets produced by Opai Household Company were awarded the "Guangdong Famous Brand products" title. (3) The "Guangdong Famous Trademark Certificate" issued by Guangdong Famous Trademark Recognition Committee in February 2008 proves that the registered trademark "Opai" No. 1128213 was recognized as a Famous trademark of Guangdong Province in March 2005 and February 2008. (4) In December 2012, China building decoration association kitchen and sanitation engineering committee issued the certificate, proving that Opai household company in 2012 was named "2012 China's top 100 kitchen and sanitation", "overall kitchen leading enterprises top 10". (5) In September 2013, the Guangzhou Municipal People's Government issued the certificate of honor, proving that the quality of Opai Furniture Company was awarded the "2012 Guangzhou Mayor quality Award". (6) on December 28, 2014, certificate issued by the brand watch magazine, set to prove the household company's brand strategy to be included in the "2014 China's annual brand marketing case silver" (7) in January 2015, the guangdong province association of float subsequently, honorary certificate issued by the guangdong furniture chamber of commerce, prove the sent home company in 2014 was awarded "top ten most valuable brands". (8) In January 2015, Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce issued the certificate of honor, proving that Opai Home Furnishing Company was awarded "Top 10 Enterprises with Innovation Ability" in 2014.

    8, (2017), lai FengCheng certificate notarial deed, no. 260 people word that European household company and brand new European household gain honor, content as follows: (1) guangzhou, the guangzhou city administration for industry and commerce awarded famous brand certificate, valid for 2016.1 to 2018.12, prove the pie on the sideboard, furniture, household company take lampblack chance, bath using the recognition on the device. (2) In May 2016, the Trademark Brand certificate of China industry awarded by China Industry Trademark Brand Review Committee proves that Opie has been 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 certificate notarial deed, no. 357 people word that European household companies pay taxes part, that "Europe" brand benefit huge profits, the brand value is extremely high, specific content as follows: (1) the guangzhou baiyun district issued by the state administration of taxation ear cloud duty five [2014] no. 100014 tax certificate, prove the sent home company on January 1, 2013 to December 31, 2013 to the bureau to pay taxes one $$hk suhuang spreading spreading Wan Jiu us $3 and pure Angle and pure. (2) the tax payment certificate no. [2014]100579 issued by the national tax bureau of guangzhou baiyun district, certifying that the European home furnishment company 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 national bureau of taxation in baiyun district, guangzhou, certifying that the European home furnishment company paid tax of nine thousand five hundred and nine thousand one hundred and twenty-two yuan sixty-eight cents to the bureau on July 1, 2014. (4) the tax payment certificate no.101552 [2015] issued by the national bureau of taxation in baiyun district, guangzhou, certifying that the European home furnishment company paid a tax of RMB seventy-five million two hundred and sixty-seven point forty-three on January 1, 2015. (5) the tax payment certificate no. [2016]100274 issued by the national tax bureau of guangzhou baiyun district, certifying that the European home furnishment company paid a tax of twelve million two hundred and thirty-six hundred and sixty-seven yuan nine cents to this bureau on July 1, 2015. (6) notice no. 00000724 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the European home furning company paid tax of four thousand two hundred and twenty-nine thousand nine hundred and seventy-eight yuan eighty sixty cents to the bureau on January 1, 2014. (7) notice no. 00001248 issued by the tax administration of large enterprises of guangzhou local tax bureau certifies that the Europa home furnishment company paid the tax on July 1, 2014 to the bureau on December 31, 2014, namely the tax amount of 36,558,999 yuan and seventy-two cents. (8) notice no. 00003448 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the European home furnishing company paid tax of four thousand two million four hundred and twenty-seven thousand one hundred and forty four cent to the bureau on June 30, 2015. (9) notice no. 00004591 issued by the tax administration of large enterprises of guangzhou local tax bureau, certifying that eurohome furnishment company paid a tax of 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) The Certificate of Laifengcheng Certificate, Minzi No. 355, proves that Opai household Furnishing Company has carried out continuous publicity for the "Opai" brand through CCTV and Hunan SATELLITE TV, which proves that the "Opai" brand has been widely known by the public and has a high brand value. The specific content is as follows: (1) on October 30, 2012, European furniture company 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" to promote European household brand, advertising for wu bai suhuang ten thousand yuan. (2) in July 2014, the European furniture company 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 October 12, 2014, in hunan TV's 10th golden eagle festival closing ceremony and awards relevant column publicity opie household brand, advertising for above ten thousand yuan. (3) on November 6, 2013, the TV advertising release contract signed between ou pai household furniture company and zhejiang zhimei auto advertising co., LTD. The contract stipulates that on January 1, 2014 and December 31, 2014, the brand of ou pai household furniture company will be publicized on CCTV news channel, and the advertising fee will be four thousand four hundred and sixty-three thousand nine hundred and seventy yuan. (4) on November 27, 2014, European furniture company and the Beijing international advertising co., LTD. Signed on time boiling "swap space" domestic outfit funded 2015 cooperation agreement, this agreement is agreed on April 4, 2015 to March 26, 2016, 2 sets in CCTV's "exchange space" propaganda opie household brand, advertising for ten thousand yuan lu. (5) on October 22, 2014, the advertising agency contract was signed between Europa furniture company and kashgar yinsong culture media co., LTD. The agreement agreed that on January 1, 2015, solstice and December 31, 2015, Europa furniture company's brand would be publicized on CCTV news channel, and the advertising fee would be twenty-three million nine hundred and seventy thousand yuan.

    11. (2016) The Notarial Certificate no. 356 issued by Lifeng City Certificate, which proves that Opai furniture Company has spent a lot of money to hire the star Jiang Wenli to endorse the "Opai" products, which further proves that opai furniture company has spent a lot of money to promote the opai 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 the sent home company through print media for propaganda, "European brand", Also proved that the original "home, love, have Europe" advertising slogan continued to use, publicity.

    13. (2017) Lifeng City Certificate No. 777 (including the infringing material object sealed by the notary office), certifying the defendant's infringement facts.

    14. One notary fee note, which proves the reasonable expense of oupai Household Protection.

    15. The identity information of the online shop operator provided by Zhejiang Taobao Network Co., Ltd. proves that the identity information of the defendant Xu Yanping and that Xu Yanping is the online shop operator have committed infringement.

    16. Two copies of civil judgment, proving that the effective judgment finds that the product marked with the words "Guangdong Opai Technology Co., Ltd." is an act of unfair competition, and guangdong Opai Technology Co., Ltd. is ordered to change its enterprise name.

    The defendants Xu Yanping and Jinrunda company did not enter a defense, provide evidence, nor appear in court to answer the lawsuit.

    After trial, the court found out that the plaintiff, Opai Furniture Co., Ltd. was established on July 1, 1994, and is a joint-stock company engaged in furniture manufacturing.

    In November 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. registered trademark No. 1128213 "" with the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office) and approved the use of category 20 furniture. Sideboard; Metal furniture; Cupboards; Plate rack; Storage rack; Washstand (furniture); Food delivery truck (furniture); Dinner cart (furniture); The counter. Registration is valid until November 20, 2027. Then the name of the registrant of the trademark is changed to Opai Home Furnishing Group Co., LTD.

    In December 1997, guangzhou kang jie kitchen equipment co., LTD., approved by the trademark office registered no. 1137521, "" a registered trademark shall be used goods of class 11 kitchen stove, gas stove, electric cooker, cooker, refrigeration equipment, drying equipment, hot and cold drinking water filter, drink cooling equipment, electric water bottles, refrigeration container, registration will expire on December 20, 2027. Then the name of the registrant of the trademark is changed to Opai Home Furnishing Group Co., LTD.

    On June 7, 2007, guangzhou opie ambry enterprise co., LTD., approved by the trademark office registered no. 4378572, "" a registered trademark shall be used goods of class 11 gas furnace, microwave oven (kitchenware), electric cooker, baking equipment, cooking utensils, faucets, bathroom equipment, disinfect cupboard, water filter, wash one's hands basin (sanitary equipment parts), steam bath, sitz bath tub and shower equipment, in the rain compartment, wash tub, sit implement, the kitchen smoke lampblack machine, lamp (as), the registration is valid until June 6, 2027. Then the name of the registrant of the trademark is changed to Opai Home Furnishing Group Co., LTD.

    In September 2007, Opai cabinet products were rated as China's famous brand 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 Quality Supervision Bureau. In February 2008, the trademark no. 1128213 "" of Opai Household Furniture Co., Ltd. was used as a famous trademark in Guangdong Province on the sideboard, ×× and Bowl ××. On April 24, 2009, the trademark "Opai" on the category 20 sideboard goods of Opai Household Was recognized as a well-known trademark by the Trademark Office. In addition, Opai home furnishing company has also won many honors, such as: famous trademark of Guangzhou city, famous trademark of Guangdong Province, 2012 China's top 100 kitchen health, overall kitchen leading enterprises top 10, China's industry iconic brands.

    From 2012 to 2015, Opai Home Furnishing Company promoted the brand of "Opai" by sponsoring CCTV's "Exchange Space", the closing ceremony and award party of the 10th Golden Eagle Festival of Hunan SATELLITE TV, CCTV News Channel and other programs. In the promotion process, the slogan of "There is a family, there is love, there is Opai" was mentioned many times. Europa home furnishing company employs film and television star Jiang Wenli to represent its products, and publishes publicity advertisements in relevant newspapers and magazines. The advertisements are mainly based on the portrait of Jiang Wenli and the trademark of the "Europa" brand, etc., and the slogan of "There is a family with love and Europa" appears many times.

    On June 17, 2017, Ou Pai Furniture Company entrusted Jindun Intellectual Property Service Center in Laicheng District, Laiwu City to carry out evidence preservation. Wang Shouzhen, the entrusted agent of Jindun Intellectual property Service Center in Laicheng District, Laiwu City, Shandong Province, applied for evidence preservation to Fengcheng Notary Office. Under the supervision of the notary staff, Wang Shouzhen operated the computer of the notary office and paid 868 yuan for a range hood and a gas cooker sold by the shop named "Welding Wang Accessories Wholesale" on the website of "Taobao.com". Wang Shouzhen took screenshots of relevant pages in the process of operation and recorded the whole process. On the sales page of the above "Guangdong Opai High-end kitchen and Bathroom" online store, there is the product introduction of "Range hood, side suction, wall-mounted automatic cleaning, double-motor gas stove and gas stove set meal, smoke stove and stove". In the purchase order information above, the seller's real name of "Welding Wang Parts Wholesale" is Xu Yanping.

    On June 23, 2016, under the supervision of a notary, Wang Shouzhen signed for two pieces of goods marked "Side range hood" and "household gas stove" sent by a Courier from dagang Primary School, Dagang Village, Shijing Street, Baiyun District, Guangzhou city. Wang Shouzhen opened the two items and took pictures. Marked "household kitchen burning gas" to be packed in cartons have "guangdong opie technology co., LTD." on the instruction for use of a, product warranty card a, drink one, kitchen burning gas, a certificate of approval, kitchen burning gas marked with the word "guangdong opie technology co., LTD.", the kitchen burning gas and instructions are shown on the outer packing carton with "the guangdong opie technology co., LTD., a manufacturing base: jiangmen Jin Run appliances&gas utensils co., LTD., address: jiangmen pengjiang wealth purifying pond town of mashan tower hillock village industrial zone, contact phone number: 0760-22608600". Then the notary staff sealed the above articles with the seal of the notary office, and delivered the sealed articles and logistics documents to Wang Shouzhen for safekeeping. Fengcheng Notary Office of Laiwu City, Shandong Province supervised the above purchase and receiving process, and issued the (2017) Fengcheng Notary Office of Laiwu City, Minzi No. 777. The notarization fee of 900 yuan was paid by Jindun Intellectual Property Service Center of Laicheng District, Laiwu city.

    According to the certificate issued by Zhejiang Taobao Network Co., LTD provided by Opai Household Furniture Co., LTD, the proprietor of the shop named "Welding Wang Accessories Wholesale" is the defendant Xu Yanping.

    During the trial, Opai household company opened the products purchased by the notarization in court and accused the infringing products of this case to be gas stoves. The carton packing the gas cooker involved in the case contains the words "Guangdong Opai Science and Technology Co., LTD" and "OPAICN", and the side picture shows the words "Guangdong Opai Science and Technology Co., LTD (supervisor). The manufacturing base is Jiangmen Jinrun Da Gas Appliance Co., LTD. Address: One of the Mazan Development Zone, Tagang Village, Hetang Town, Pengjiang District, Jiangmen City. 0760-22608600 ", open the carton after see a kitchen burning gas, with one copy of instruction manual, product warranty card a, drink a certification, kitchen burning gas is marked on the lower left corner "opie OPAICN guangdong science and technology co., LTD.", use manual front and rear, both on a product warranty card, drink digital certificate "opie OPAICN guangdong science and technology co., LTD.", the specification and also carry on the back of positive "has a home. There is love. Have OPAICN" words, positive use jiang wenli portrait. The instruction is printed in small font on the back and bottom of the instruction: "Guangdong Oupai Technology Co., LTD. (Supervision), Manufacturing base: Jiangmen Jinrun Da Gas Tools Co., LTD. The plaintiff Opai Furniture Co., Ltd. believes that the enterprise name of Guangdong Opai Technology Co., Ltd. is infringed on the right of opai furniture Co., Ltd. on the outer package, warranty card and certificate of the accused product, which is an act of unfair competition. The OPAICN slogan in the operation manual is similar to the OPAICN slogan of The OPAICN furniture company, and the OPAICN slogan is also used with the portrait of Jiang Wenli, which is unfair competition. In addition, the owner of the taobao website named "Welding Wang accessories Wholesale" recorded in the notarial certificate is the defendant Xu Yanping, who used the word "Eu Pai" in a large number in the online publicity of "Guangdong European High-end kitchen and sanitary point", infringing the exclusive right of registered trademark no. 4378572 and No. 1137521, and also constituted unfair competition.

    In January, 2018, (2017) the intermediate people's court, foshan city, guangdong 6 people of no. 11042 of the civil judgment, the judgment concluded that: "European" number and "European" series of products throughout the country has a high visibility, and by the relevant public know, "European" font size is known by the relevant public enterprise name, shall be protected by the anti-unfair competition law. Guangdong opie technology co., LTD. The use of an enterprise name of "European" violated European household company's right of name, form of unfair competition, ruling denied opie technology co., LTD., guangdong, maintain foshan city zen (2016), the people's court of the seventh in the 0604 no. 11589 of the civil judgment in the early days of ruling, the ruling specific content is: guangdong opie technology co., LTD shall take effect judgment within 30 days from the date of enterprise name industrial and commercial registration of change, change after the enterprise name shall not be used in the word "Europe".

    The court holds that this case is a case of infringement of trademark rights and unfair competition disputes. The key questions of this case are as follows: 1. Whether the accused infringement product was produced by the defendant Jinrunda Company, and whether it was sold by the defendant Xu Yanping; 2. 2. Whether the defendant Xu Yanping constitutes trademark infringement and unfair competition, and whether the defendant Jinrunda Company constitutes unfair competition; 3. If it constitutes infringement, how to determine the amount of compensation?

    I. Whether the products involved in the alleged infringement were produced by the defendant Jinrunda Company and sold by the defendant Xu Yanping. According to zhejiang taobao network co., LTD., issued by the shopkeeper called "king of welding accessories wholesale" "guangdong opie high-end hutch defends shop" taobao shop operators for the defendant Xu Yanping, therefore, we confirm the shopkeeper involved called "king of welding accessories wholesale" "guangdong opie high-end hutch defends shop" taobao shop is run by the defendant Xu Yanping. In addition, according to the evidence provided by Opai household Company, the notarial certificate can prove that the online shop operated by Xu Yanping USES the word "Opai" in a large number in the publicity, and is accused of infringing products sold by its fact. The above notarial certificate, the outer package of the accused infringing product, the operating instructions and other evidences prove that the accused infringing product is produced by Jinrunda Company, and the enterprise name and address of Jinrunda company are marked. In the absence of other evidences to refute, the fact that the accused infringing product is produced by Jinrunda Company can be basically verified.

    Ii. Whether the defendants Xu Yanping and Jinrunda constitute infringement.

    (I) Whether Xu Yanping constitutes trademark infringement. Article 48 of the Trademark Law of the People's Republic of China; "The use of trademarks as mentioned in this Law means the use of trademarks on commodities, packages or containers of commodities and trade documents, or the use of trademarks in advertising, publicity, exhibitions and other commercial activities to identify the sources of commodities." (1) Using a trademark identical with a registered trademark on the same kind of goods without the permission of the registered trademark owner; (2) using a trademark similar to its registered trademark on the same good s or using a trademark identical with or similar to its registered trademark on similar good s without the permission of the trademark registrant, which is likely to cause confusion; (3) selling goods that infringe the right to exclusive use of a registered trademark... ." 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.

    According to this case to find out the fact that European household company 4378572th of a registered trademark in the scope of verification using 11 goods including gas type, etc., no. 1128213 registered trademark in the scope of verification using 20 goods such as furniture, sideboard, "European" trademark in class 20 sideboard commodities by the state administration for industry and commerce trademark office identified as well-known trademarks. And this case is accused tort product is household gas stove, with 4378572, 1137521 trademark approved use range "gas stove", "gas stove" belong to same kind of commodity. The defendant Xu Yanping sold on the website page using the word "Europe", is accused of infringement identification, "Europe" and European household advocate for the rights of the company no. 4378572, no. 1137521 "registered trademark", the font is different, but the pronunciation and meaning are the same, to the general attention, the relevant public confusion between the two, and the "European" registered trademark on the sideboard commodity 20 was identified as well-known trademarks, therefore, we decided that Xu Yanping website using "European" logo with European household advocate for the rights of the company constitute a trademark involved approximation, is not the same trademark. According to the above legal provisions, without the permission of the trademark registrant, Xu Yanping's use of a trademark similar to the registered trademark of Opai Household Furniture Company on the same commodity has constituted trademark infringement and shall bear the civil liability for stopping the infringement.

    (2) Whether the defendants Jinrun Da Company and Xu Yanping marked the words "Guangdong Opai Technology Co., LTD" on the products they produced and sold constituted unfair competition. Since the infringement in this case took place in June 2017 and the newly amended Law of the People's Republic of China against Unfair Competition came into effect on January 1, 2018, the Law of the People's Republic of China against Unfair Competition (1993 amendment) should be applied in this case. According to article 2 (1) and (2) of the Law of the People's Republic of China against Unfair Competition, "in market transactions, operators shall follow the principles of voluntariness, equality, fairness, honesty and credibility, and abide by recognized business ethics. "Unfair competition" as mentioned in this Law refers to the ACTS of business operators that, in violation of the provisions of this Law, harm the lawful rights and interests of other business operators and disrupt the social and economic order." Article 5 stipulates: "Business operators shall not engage in market transactions and harm competitors by the following improper means:... (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods; ..." The supreme people's court on the trial of civil cases of unfair competition "the explanation of application of law in 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' in item (3) of Article 5 of the Anti-Unfair Competition Law." In this case, the court confirms that the name "Eurogroup" has certain market popularity, is known by the relevant public, and is a "company name" protected by the anti-unfair competition law. The defendant Xu Yanping in its online store page marked "Europe", in the sales of products and packaging used on the word "guangdong opie technology co., LTD.", and the defendant Jin Run company in the production of products, operating instructions, warranty card, certificate on the wording "guangdong opie technology co., LTD.", easy to make the relevant public mistaken for its products with European companies there is a link between household, make relevant public confusion to product source, damage the legitimate rights and interests of European household company, the behavior of the defendant Xu Yanping, Jin Run violated European household company's right of name, belongs to the ACTS of unfair competition, It shall bear the civil liability for stopping the use of the words "Guangdong Opai Technology Co., LTD".

    (3) As for Opai's claim that the gas cooker products manufactured by Jingrunda should be marked with the words "OPAICN and OPAICN", whether it constitutes unfair competition. Under certain conditions, the slogan created for the promotion of well-known commodities can be used as the protection object of the anti-unfair competition law. Whether the slogan can be used as the protection object of the anti-unfair competition law shall be mainly examined as follows: 1. 2. Whether the slogan already has the function of identifying the source of goods or services; 3. The degree of correlation between the meaning of the slogan and the function, material and other attributes of the advertised commodity or service.

    In our opinion, the above slogan also constitutes unfair competition, for the following reasons :(1) the slogan is a publicity statement used by the operators to promote their products or services, and it is an important means for the operators to improve the popularity of the products or services, transmit the corporate image, and stimulate consumers to buy the products or services. According to the documented evidence to the case, 20 classes on the sideboard goods "European" brand has been the trademark as well-known trademarks, "European" series of products won the famous brand products of guangdong province, China famous brand products and so on many honors, foshan city intermediate people's court has made legally effective civil judgment also decided that European household company "European" type and "European" series of products across the country have high visibility, known by the relevant public, so the "European" series of products can be identified as well-known goods; (2) "the home has love with European" slogan for the use of propaganda opie household products, European furniture company in the process of its brand, invested a lot of money, the "have family love opie" slogan contains opie trademarks and trade names, over the years, after a lot of publicity to the AD, make consumer can intuitive feel about public product is associated with European household products, therefore, the slogan has been able to recognize the source of goods; (3) the "have family love opie" slogan inherent meaning emphasis on family, love, such as concept, and the concept of family, love, combined with European trademark and products, the inherent meaning and function of kitchen burning gas products involved in the commodities to the AD, purpose, material goods such as itself attribute difference is very big, so have a certain originality to the AD, which belongs to the "European" brand image is an important part of. As a result, "there is a love, a European" slogan opie household company original design, has certain creativity, and after years of promotion and use, "European" series of products has become a well-known goods in our country, the public is known, the slogan as a whole has a role to identify the sources of, is the scope of the protection of anti-unfair competition law of our country. According to the law of the People's Republic of China against unfair competition "in paragraph 2, article 2 (1), in this case, Jin Run company in the instruction manual annotation" the home has love OPAICN ", at the same time use the portrait of jiang wenli, this behavior is enough to make the public consumption is accused of infringement product goods source cause confusion, mistake is accused of infringing products from European household company, his behavior is unfair competition, damage the legitimate rights and interests of the European household company, it shall be liable to stop infringement, tort liability of compensation for the damage.

    Iii. 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 profits of 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 compensate the obligee not more than THREE million yuan ". At the same time, article 20 of the Anti-Unfair Competition Law 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. 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 damage compensation of ACTS of unfair competition, can consult to determine the use of a registered trademark infringement damage compensation method ". The defendant Xu Yanping constituted trademark infringement and unfair competition, and the defendant Jinrunda Constituted unfair competition. This case failed to confirm the home of the company's actual loss and the defendant Xu Yanping, Jin Run company of the illegal income, therefore, we consider the plaintiff goodwill profile, comprehensive Xu Yanping, Jin Run company degree of subjective fault, tort plot and consequences, the scale of operation, the household company brand and product awareness, rights of European household company has be notarized and appoint lawyers involved in litigation, discretionary Xu Yanping compensation for economic losses to the European household company 20000 yuan, Jin Run company compensation for economic losses to the European household company 80000 yuan. The above compensation amounts have included the reasonable expenses incurred in the case.

    In conclusion, according to the provisions of article one hundred and eighteen of the "general principles of the civil law of the People's Republic of China" and the "tort liability law of the People's Republic of China, article 15 of the trademark law of the People's Republic of China the first article 57 (2), item (3), paragraph 1 of article sixty-three, paragraph 3, the anti-unfair competition law of the People's Republic of China, the first and second paragraph of article 2, (3) of article 5 of the, article 20, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain" article 9, 10, The judgment of the Supreme People's Court on Certain Issues concerning the Application of Law in The Trial of Civil Cases involving Unfair Competition, as provided for in Article 6, paragraph 1, and Article 17, and in Article 64, Paragraph 1, and Article 144 of the Civil Procedure Law of the People's Republic of China, is as follows:

    I. On the effective date of this judgment, defendant Xu Yanping immediately stopped the trademark infringement behavior of using the word "Oupai" on the taobao.com store of "Guangdong Oupai High-end kitchen and bathroom Shop" operated by the shopkeeper named "Welding Wang Accessories Wholesale";

    2. On the effective date of this judgment, defendant Xu Yanping immediately stopped selling the gas stoves containing the words "Guangdong Opai Technology Co., LTD";

    Iii. Defendant Xu Yanping shall, within 10 days from the effective date of this judgment, compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of 20,000 YUAN (including the reasonable expenses paid by the plaintiff, Opai Home Furnishing Group Co., LTD., to stop the infringement in this case);

    Iv. The defendant, Jiangmen Jinrun Da Gas Appliances Co., Ltd. immediately stopped the production and sale of gas stoves bearing the words "Guangdong Opai Technology Co., LTD." as of the effective date of this judgment;

    V. Defendant Jiangmen Jinrun Da Gas Appliances Co., LTD., as of the effective date of this judgment, immediately stopped the unfair competition behavior of the gas stove marked with the word "OPAICN" in the product operation manual;

    Vi. Within 10 days from the effective date of this judgment, the defendant jiangmen Jinrun Da Fuel Appliances Co., Ltd. shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of RMB 80,000 (including the reasonable expenses paid by the plaintiff, Opai Home Furnishing Group Co., LTD., to stop the infringement in this case);

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

    If the defendant Xu Yanping and Jiangmen Jinrun Da Fuel appliances 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 handling fee of this case is 4,300 yuan, 430 yuan borne by the defendant Xu Yanping, 1,720 yuan borne by the defendant Jiangmen Jingrun Da Gas Appliance Co., Ltd. and 2,150 yuan borne by the plaintiff Oupai Home Furnishgroup 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 Jiangmen, Guangdong province.

    Presiding Judge Qiu Qijie

    People's Juror Liu Xiaoying

    People's Juror Liang Deyi

    August 17, 2008

    Assistant judge Kaili Wang

    Clerk Rong Liping