Civil judgment of Baiyun District People's Court, Guangzhou City, Guangdong Province

    People's Court of Baiyun District, Guangzhou City, Guangdong Province

    Written judgment of civil affairs

    (2017) No.343, Yue 0111, 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.

    Agent: Zhai Mingyue, Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Xu Shuqin (formerly known as Xu Jinhua), female, born on March 6, 1975, Han Nationality, id address: Linchuan District, Fuzhou city, Jiangxi Province,

    Defendant: Zhongshan Pu Appliance Co., LTD., 2 / F, Building 1, 3 Kangjing Road, Food Industrial Park, Huangpu Town, Zhongshan, its domicle.

    Legal representative: Liao Weiyi, General Manager.

    Jointly entrusted by the two defendants: Xia Zongyan, lawyer of Guangdong Haoliang Law Firm.

    The plaintiff Oupai Household Appliances Group Co., LTD. (hereinafter referred to as Oupai) and the defendant Xu Shuqin and Zhongshan Pupu Electric Appliances Co., LTD. (hereinafter referred to as Pupu) have infringed the trademark right and unfair competition. After the court accepted the case, it formed a collegial panel and held a trial in public. Wang Ning, the authorized agent of The plaintiff Opai Company, Xu Shuqin, the defendant, and Xia Zongyan, the jointly entrusted agent of General Use Company, attended the lawsuit. The case is now closed.

    The plaintiff Opai Company claims that the plaintiff is the exclusive owner of the 11th "OPPEIN" and "OPPEIN" series of trademarks. Since its establishment, the plaintiff has cast "OPPEIN" and "OPPEIN" series of trademarks into household, electrical and sanitary brands that are well-known throughout the country. The plaintiff's products and brands have won the reputation of "China famous brand products" and "China well-known trademark" successively. "Opai" has not only become the representative symbol of the plaintiff's products and enterprise names, but also become the significant identification mark indicating the market subject and commodity source of the plaintiff and its affiliated enterprises. In November 2016, the plaintiff discovered the defendant shu-qin xu the shop in its extensive use in "European" text sales indicate "guangdong opie technology co., LTD." on the kitchen burning gas, on the product labeled "OPAICN", "the home has love OPAICN", "guangdong science and technology co., LTD.", "zhongshan with electric appliance co., LTD manufacture", the plaintiffs entrust notary office to evidence the defendant's act preservation. The plaintiff think the second defendant unauthorized unauthorized use of "European" words, production, sales, with a "guangdong science and technology co., LTD." with the words "OPAICN" kitchen burning gas, not only violated the trademark rights 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, the behavior constitutes unfair competition to the plaintiff. To sum up, we hereby request the court to order: 1. Defendant Xu Shuqin immediately stopped infringing the plaintiff's trademark right by using the words "Opai" on the name and website of her online store; 2. 2. Defendant Xu Shuqin immediately stopped selling gas stoves with the words "Guangdong Opai Technology Co., LTD", "OPAICN" and "OPAICN with Aio"; 3. The defendant General Motors Immediately stopped producing and selling gas stoves with the words "Guangdong Opai Technology Co., LTD", "OPAICN" and "OPAICN with Aio"; 4. The two defendants shall compensate the plaintiff a total of 200,000 yuan for economic losses and reasonable expenses for safeguarding their rights; The costs of this case shall be borne by the two defendants.

    Defendant Xu Shuqin argued that the notarial certificate provided by the plaintiff was illegal and could not be used as a basis for finalization of the case. According to the notarial procedure, the notarial office in this case should be the notarial office in Guangzhou according to law, while the notarial office in Shandong Liaocheng Luxi Notarial Office violates the provisions of notarization jurisdiction and conducts the notarial deed across regions. Its behavior is illegal, so the notarization shall be conducted in Guangzhou, where the party has his domicile. The notarial act of the plaintiff only notarizes the process of purchase and receipt, and does not notarize the process of logistics and transportation. It cannot guarantee that the goods received by the plaintiff have not been transferred midway, that is to say, the notarial act of the goods received cannot confirm that it is the goods sold by the online store. I didn't run an online shop. The trademark of "Guangdong Opai" on the online store and the trademark of "Guangdong Opai Technology Co., LTD", "OPAICN" and "OPAICN with love" in the products in this case did not infringe the trademark right of the plaintiff, nor did they infringe the right of the plaintiff's enterprise name. Plaintiff's complaint no. 4378572 "Opie" is authorized to use the goods in class 11 and does not have any name recognition in this class. The trademark of the well-known trademark obtained by the plaintiff for the approved use of goods belongs to class 20, which is not the same class or similar to the class 11 trademark filed by the plaintiff. Even if "Guangdong Opai" is used on the website, it will not cause consumer misidentification and will not constitute trademark infringement. The plaintiff also has no evidence to prove that he has used the trademark "Opai" No. 4378572 for the production and sale of category 11 electrical products, and shall not be liable for compensation even if the court finds the trademark infringement. Plaintiffs believe that products marked "guangdong science and technology co., LTD." enterprise name right infringement, constitutes unfair competition reason cannot be established, infringing the right of an enterprise name means, without the prior permission of the holder of the unauthorized use of or with the company name, in this case, although guangdong opie technology co., LTD. With the plaintiff company name contain the word "Europe", but the two independent company name, do not constitute a violation of enterprise name right. The plaintiff's claim for compensation of 200,000 yuan is illegal. In this case, even if the court finds that the trademark is infringed, there is no need for compensation. Therefore, it constitutes an anti-unfair competition, there is no need for compensation.

    The defendant General Use Company argues that: regarding the jurisdiction of this case, our company insists that the objection to the jurisdiction is justified. The alleged infringing products are not produced by our company. The seller is fully capable and obliged to provide the relevant proof of the origin of the goods, if it cannot provide proof, the liability for tort shall be borne by the seller, and cannot be judged only by the factory name and address marked on the package. The infringement product labeled "Guangdong Opai Technology Co., Ltd." did not infringe the plaintiff's right of enterprise name. The defense reasons are consistent with the opinions expressed by Xu Shuqin.

    Trial found: no. 4378572 "Europe", the trademark registrant is a European hutch ark enterprise co., LTD., shall be used for class 11 goods, including gas furnace, microwave oven, kitchen utensils), kitchen smoke lampblack machine, etc., registration is valid from June 7, 2007 to 2017 on June 6, after the renewal of registration is valid until June 6, 2027. On January 6, 2011, the registered name of the trademark change was approved to be Guangdong Opai Group Co., LTD., which changed to Opai Company on March 24, 2014.

    On March 24, 2015, Opai, as the copyright owner, applied to Guangdong Copyright Bureau for the copyright registration of "Opai" fine art works. The registration number was Yuezuo-2015-F-00001907. The author was Liang Zhaotang.

    The company submitted a "about that," European "trademark for well-known trademark", China famous brand product certificate, certificate of famous trademarks of guangdong province, 2012 China hutch defends top certificate of integral kitchen top ten leading enterprises, guangzhou mayor award honorary certificate in 2012, 2014, guangdong household field top ten most valuable brands, innovation ability of ten strong enterprise honorary certificate and other evidence, to prove that "European" brand has a high market reputation; The tax payment certificate issued by the State Administration of Taxation in Baiyun District, Guangzhou City from 2013 to 2015, and the notification issued by the tax Administration of large enterprises in Guangzhou City Local Taxation Bureau in 2014 and 2015 were submitted to prove that the brand "Opai" has generated huge profits and benefits, and its brand value is extremely high. Submitted on time boiling with Beijing international advertising co., LTD. Signed the 2013 < space > home outfit funded cooperation agreement ", "2015 < space > home outfit funded cooperation agreement", and hunan radio and television advertising company, hunan downwind media co., LTD. The television advertising contracts signed, and zhejiang wisdom beauty car advertising co., LTD., the television advertising contracts signed, and kashi silver pine culture media co., LTD. Signed advertising agency contract and other evidence, intends to prove that the company "European brand" for the continuous publicity, and has been widely known; Submitted since 2011 "linchuan evening news", "newspaper zhuhai dc anqing daily Shanghai hutch ark" sales and marketing management version "" ruili household magazines such as decorating the world on the publicity of evidence, to prove that the company continues to promote in the print media," European brand ", its original "have a home, there is love, there are" slogan and promote the continuous use.

    On November 12, 2016, Wang Shouzhen, the entrusted agent of Shandong Zhixiang Law Firm, applied for notarization of evidence preservation to Luxi Notary Office of Liaocheng City, Shandong Province. Under the supervision of the notary staff, on November 14 of the same year, Using the computer connected to the Internet by the notary office, Wang Shou Zhen purchased a gas stove in the online shop named "XusuQin197406" of the "Authentic Guangdong Opai Outlet" in the online shop of the notary office at "7 Days Chain Hotel", No. 13, Renhe Zhenhe Street, Baiyun District, Guangzhou. On November 16 of the same year, under the supervision of a notary, Wang Shouzhen signed for a package of goods labeled "household gas cooking utensils" sent by a Courier from Debang Express at the gate of "7 Days Hotel", No. 13, Renhe Street, Renhe Town, Baiyun District, Guangzhou city, with the package number "6312475188". Wang Shouzhen opened the packing case of the above-mentioned goods. The packing case marked "household gas cooker" contained a gas cooker and a manual. On November 19 of the same year, under the supervision of the notary staff, Wang Shouzhen confirmed the receipt of the order number 2680910712504885 on Taobao.com by using the computer connected to the Internet in the "7 Days Chain Hotel", No. 13, Renhe Town, Renhe Street, Baiyun District, Guangzhou. On December 26, 2016, Shandong Liaocheng Luxi Notary Office issued a notarial certificate no. 3793 (2016), certifying that the work record attached to the notarial certificate is consistent with the content of the original filed by the notary office, and the signature of Wang Shouzhen on the original is true; The attached photo is taken on the spot by Wang Shouzhen, which is consistent with the actual situation; The attached page screenshot is obtained by The above operation of Wang Shouzhen, which is consistent with the actual situation; The attached CD is made by Wang Shouzhen after the above-mentioned video recording, which is consistent with the actual situation; The material objects sealed by the notary office are obtained as described above and conform to the actual situation.

    The attachment of the notarial certificate shows that the seller's shop named "XusuQin197406" is named "Guangdong Oupai Authentic outlet", among which the price of the shop named "Guangdong Oupai Range hood gas stove set set with double motor automatic cleaning range hood stove with three pieces of smoke stove" on Taobao is 1,969 yuan in total, 174 reviews have been accumulated and 23 transactions have been successful. The seller's real name in the order information is Xu Shuqin. The product is sealed and sealed by notarization in court. There is a household gas stove and a manual for use. The outer package of the product is printed with the words "Guangdong Opai Technology Co., LTD. / supervisor" and "Zhongshan Pudai Electric Appliance Co., LTD. / Manufacturer". The instruction shows "Guangdong Oupai Technology Co., LTD. (Manufacturing)", "Zhongshan Pu Appliance Co., LTD. (Manufacturing)", "Address: 3 Kangjing Road, Food Industrial Park, Huangpu Town, Zhongshan City", "Tel :0760-88779800", "Website: ××" Opai said in court that xu shuqin's sales and the production and sale of the products labeled "Guangdong Opai Technology Co., LTD" were unfair competition that infringed on opai's right to the company's business name. Ms Hsu denied that the website was for her; General Use denied the alleged infringement of products for its production. Opie submits to us the domain name information query form and the search page of General Use Company to prove that the above website and telephone are all the facts of General Use Company. General Use Company has no objection to the authenticity of the evidence, but the defense said that the website was approved on October 9, 2017, the infringing goods were notarized in 2016, the infringing goods should not appear on the website, belongs to the counterfeit goods of the company.

    European companies to prove that the company actually use the fact that no. 4378572 "European" registered trademark, gave our its company website page, which indicate the selling commodities include "oven" series, opie integral ambry manufacturer provides straightly meal powder "o" will choose "carnival" packages, "the aurora" menu includes kitchen burning gas. Sunshine 3.15 special kitchen appliances package special price 3999 yuan, including a cooker. General Use Company does not confirm the plaintiff's evidence, but submits to the Court a special Audit Report of Guangzhou Famous Trademark Recognition issued by Opai Company, which lists the income of Opai Company in using the registered trademarks No. 12088111 and no. 1128213 from 2012 to 2014. The report indicates that the application for famous trademark is only for registered trademark No. 12088111 and No. 1128213.

    Opai claims that the two defendants should jointly compensate their economic losses and reasonable expenses totaling 200,000 yuan, and submitted an invoice for notary fees (the amount is 25,000 yuan). Opai claims in this case that notary fees are 500 yuan, attorney fees are 10,000 yuan, and travel expenses are 3,000 yuan.

    Opai co., LTD., established on July 1, 1994, is a joint stock limited company. General Use Co., Ltd. is a limited liability company (solely owned by natural person), established on September 9, 2013, with a registered capital of 100,000 yuan. Its business scope covers the production, processing and sales of household appliances and gas stoves. Guangdong opie technology co., LTD is a limited liability company (natural person sole proprietorship), April 30, was founded in 2014, the registered capital is 10 million yuan, business scope, including biotechnology products, household appliances, metal products, electrical accessories, water purification equipment, air to water heaters, bathroom supplies, daily necessities, household items, electrical materials, electronic products research, development, processing, manufacturing, marketing; Biotechnology research, development and consultation; Enterprise investment consultation; Domestic trade.

    During the trial, Opai withdrew its request to the court that Defendant Xu Shuqin immediately stop using the words "Opai" on her online store and website to infringe upon the trademark rights of the plaintiff. The defendant Xu Shuqin immediately stopped selling gas stoves with the words "OPAICN" and "OPAICN with love". The defendant POPAicN immediately stopped producing and selling the gas stove with the words "OPAICN" and "OPAICN with love", and the Court orally ruled to approve the suit.

    The above facts are supported by evidence such as trademark registration certificate, change certificate of registered trademark, notarization, sealed object, invoice, industrial and commercial registration information, business license, company website page, audit report, domain name information query form, website screenshot and statement of the parties.

    The court holds that Opai is the exclusive owner of the registered trademark "Opai" No. 4378572. Until the time of the lawsuit, the registered trademark is still under effective protection, and the exclusive right of opai to use the trademark involved in the case shall be protected.

    On whether the defendant's conduct constitutes unfair competition and their respective torts.

    First of all, the fact of online purchase, online filling in the delivery documents, receiving and payment of the accused infringing goods has been notarized and certified by the court. General Use argues that the delivery of the goods has not been notarized and that there is a possibility of exchange. However, the carrier of the goods is a third-party freight forwarder, and there is no interest relationship between the parties in this case. General Use Company has not submitted valid evidence to prove the fact that the goods are opened or changed in the process of transportation. Therefore, the court will not accept the opinion that general Use Company protested the notarial certification of the goods that are not accused of infringement. According to the notarial certificate of evidence, the online store involved in the case was set up by Xu Shuqin, and the process of selling the accused infringing goods was confirmed by network screenshots. Therefore, this court confirms the fact that the accused infringing goods were sold by Xu Shuqin.

    Second, is accused of infringing goods packaging and instruction manual are marked as "zhongshan's use electric appliance co., LTD. (manufacturing)", operating instructions on the address and telephone and general industrial and commercial registration with the company address and the contact page shows all consistent, general with company not submit sufficient evidence is accused of infringing goods, not the department of production, can maintain is accused of infringing goods is with company's fact. European company was founded in July 1, 1994, and has been used since the "European" font size, combined with the company submitted the honorary certificate, certificate of tax payment, newspaper and magazine reports, advertising contract, media reports and other evidence about the actual use and popularity, can maintain "European" font size has certain market popularity and is known by the relevant public enterprise name of the font size. General Use was founded on September 9, 2013, much later than Opai. Tome with company as production, sales, gas appliance product enterprise, is supposed to know the company already has a certain reputation of "European" font size and in the case of a registered trademark, although guangdong European science and technology co., LTD. Is the legal registration of enterprise names, but its enterprise name itself has no justification, general use company did not fulfill the duty reasonably prudent attention, will be the words "guangdong science and technology co., LTD." mark on the product packaging, manuals, with clings to the company profile of subjective malice, violated the civil activities shall follow the principle of fairness, honesty and credit, and constitutes unfair competition. To sum up, now Opai company requires General Use Company to stop production and sale of gas stove products with the name "Guangdong Opai Technology Co., Ltd." and compensate for the loss of the lawsuit, which has legal basis and the court supports. Although General Use believes that Opie did not use the registered trademark involved in the gas stove products produced by it, it is not liable for compensation. But the evidence such as newspaper magazine and media publicity report submitted by Opai company can affirm that the gas stove product produced by Opai company is embedded in the cabinet product as a whole sales, in line with the general market sales model of this kind of product, so to the general company's this defense opinion, the court also does not accept. As the seller of the goods accused of infringement, Xu only needed to stop selling gas stove goods bearing the name "Guangdong Opai Technology Co.," without being liable for damages.

    About the amount of compensation. The cost of purchasing the accused infringing goods claimed by Opie is proved by notarization and supported by the court. Although the notarization fee invoice is provided, it is not proved only for the expenses of this case, and the corresponding bills are not provided for the attorneys' fees and travel expenses. However, considering that Opai does have notarization for obtaining evidence and enlists lawyers to appear in court to answer the lawsuit, the court supports the reasonable part of the above expenses as appropriate. Proof within the time limit, because the parties thereto have not been submitted to admissibility of evidence of the company's actual loss, the situation of profit due to the infringement or at the company, so we consider the popularity of the registered trademark involved in the attitude, the infringer's subjective fault and error correction, the types of tort forms, is accused of infringing goods, price and sales quantity, during the period of infringement, consequences, and the reasonable expenses of the rights in stopping the infringement behavior, etc., determined with company's compensation amount is RMB 130000 (including the reasonable expenses).

    To sum up, in accordance with article 15 (1) (6) of the Tort Liability Law of the People's Republic of China, Article 5 (2) (3) of the Law of the People's Republic of China against Unfair Competition, article 9 and Article 64 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    I. Defendant Xu Shuqin, as of the effective date of this judgment, immediately stops selling gas stove products with the words "Guangdong Opai Technology Co., LTD";

    2. On the effective date of this judgment, the defendant, Zhongshan Puye Electric Appliance Co., LTD., immediately stopped the production and sale of gas stove commodities bearing the words "Guangdong Opai Technology Co., LTD.";

    3. Within 10 days from the effective date of this judgment, the defendant, Zhongshan Pupu Electric Appliance Co., Ltd. shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of 130,000 yuan (including reasonable expenses);

    Iv. Other claims of the plaintiff, Opai Furniture Group Co., LTD., shall be rejected.

    If the pecuniary obligation is not performed within the time limit 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.

    4300 yuan, the fees for accepting the case shall be borne by the plaintiff opie household group co., LTD. 1505 yuan, the burden of the defendant's use of zhongshan city electric co., LTD., 2795 yuan (the fee has been appointed by the plaintiff's household group co., LTD to prepay, we don't refund, the plaintiff agreed to the defendant's use of zhongshan city electric co., LTD., the burden of part by performance of the plaintiff's direct payment within the time limit stipulated in the above).

    If the parties are not satisfied with this judgment, they 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 and appeal to the Guangzhou Intellectual Property Court.

    Chief Judge Duan Jingnan

    People's juror Su Shaoping

    People's Juror Li Liwen

    November 22, 2017

    Clerk Ma Xuedan