Civil judgment of the People's Court of Changzhou High-tech Industrial Development Zone, Jiangsu Province

    People's Court of Changzhou High-tech Industrial Development Zone, Jiangsu Province

    Written judgment of civil affairs

    (2017) Su 0411, No. 700, Early Republic of China

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

    Attorney: Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Agent AD litem: Wang Yan, lawyer of Shandong Changping Law Firm.

    Defendant: 12-06, 3-40, Changmao Center, Huanghe Road East, Xinbei District, Changzhou City, Jiangsu Province.

    Operator: Wu Jianlan, female, born on September 2, 1971, Han Nationality, living in Xinbei District, Changzhou city, Jiangsu Province.

    Defendant: Zhongshan Opai Happy Kitchen Appliance Co., LTD., 1st floor, Factory building no. 21, Kangtai Road, Huangpu Town, Zhongshan City, Guangdong Province.

    Legal representative: Ouyang Keshu, manager of the company.

    Agent AD litem: Chen Tao, lawyer of Jiangsu Shengdian (Changzhou) Law Firm.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the "European group company") and the new north district dragon pond jian-lan wu building materials sales department (hereinafter referred to as the "shop of jian-lan wu"), zhongshan opie happy kitchen electric appliance co., LTD. (hereinafter referred to as "opie happy kitchen company") the infringement trademark rights disputes and the dispute of unfair competition, in our hospital in 2017 February 13 Hitachi after, in accordance with the applicable ordinary procedure, public hearing on the trial. During the trial, the defendant Opai Happy Kitchen Company raised an objection to the jurisdiction. On April 10, 2017, the court made su 0411 Civil Ruling No. 700 in the early REPUBLIC of China, ruling to reject the objection raised by the defendant Opai Happy Kitchen Company to the jurisdiction of this case. On July 14, 2017, the Intermediate People's Court of Changzhou Issued the civil ruling No. 287, which rejected the appeal and upheld the original ruling. The court held a hearing in public on December 20, 2017. Wang Yan, the agent AD litem of opai Group, the plaintiff, and Chen Tao, the agent AD litem of opai Happy Kitchen, the defendant, attended the lawsuit. The defendant Wu Jianlan business department refused to attend the proceedings without justifiable reasons after being subpoenaed. The case is now closed.

    The plaintiff Opai Group Company files a lawsuit to the court: 1. Request to order the two defendants to immediately stop the production and sale of "Opai" and "OUPAI" which have infringed the trademark of the plaintiff; 2. 2. The defendant, Zhongshan Opai Happy Kitchen Appliance Co., LTD., was ordered to stop unfair competition and change the enterprise name immediately. The word "Opai" shall not be used in the changed enterprise name. 3. Request the defendant, Zhongshan Opai Happy Kitchen Appliance Co., LTD., to stop infringing the plaintiff's trademark right immediately and to stop marking the words "Home, love and OUPAI" on the lampblack machine produced and sold by the defendant; 4. Request the defendant, Zhongshan Opai Happy Kitchen Appliances Co., LTD., to stop unfair competition immediately and to stop labeling the words "Zhongshan Opai Happy Kitchen Appliances Co., LTD." and "You Have Love and OUPAI" on the outer package of the lampblack machines produced and sold by the defendant, as well as on the instructions, warranty CARDS and products; 5. Request to order the two defendants to compensate the plaintiff for economic losses and reasonable expenses for safeguarding their rights in this case, totaling RMB 300,000 only; 6. Request that the two defendants be ordered to bear the costs of the case. Facts and reasons: the plaintiff class 11, "European" and "OPPEIN" registered trademark, the plaintiff since its inception, after decades of operation, has been "Europe" casting become household names, as is known to all of the country's household, electrical appliances, sanitary ware brand, the brand has won the "Chinese famous brand", "China well-known trademark", such as reputation, in the public mind, "Europe" has become not only the plaintiff products and on behalf of the symbol of the enterprise name, also become the instructions of the plaintiff and the plaintiff associated enterprises significant recognition of market main body and the sources of identity. In October 2016, the plaintiff found that the business department of the defendant Wu Jianlan building Materials was selling the "Ou Pai" range hoods with fake European trademarks in the store of "Jian LAN Building Materials". On the outer package of the range hood, the instructions, the warranty card and the products are marked with the words "Home, love and OUPAI", and on the packing boxes are marked with the words "Zhongshan OUPAI Happy Kitchen Appliances Co., LTD" and "OUPAI Strong Overlord series". On the side of the packing box are marked the address, telephone number, website and other information of Opai Happy Kitchen Company. Upon inquiry, XXX is the official website of Opai Happy Kitchen Company. The plaintiff entrusted a notary office to preserve evidence.

    The defendant Wu Jianlan business department in the exchange of evidence argued that I received the complaint directly to the factory. The products I sell are all legally registered trademarks.

    Defendant opie happy kitchen companies argue that 1, defendant opie the use of the company are happy kitchen company legal representative ouyang tree licensing the use of a registered trademark, the trademark with the plaintiff has the difference, enough to allow the public to identify that won't cause misidentification, therefore the defendant opie happy kitchen company did not violate the trademark of the plaintiff. Even if a trademark infringement is established, the plaintiff does not provide evidence of economic losses and reasonable expenses. 2, the defendant opie happy kitchen companies use advertising, packaging and the plaintiff no similarities, won't make consumers misunderstanding, not constitute the unfair competition, and the defendant opie happy kitchen company signed in dealer in the process of the use of trademark made clear agreement, request the difference between using avoid confusion, had done a reasonable duty of care. In summary, the request to dismiss the plaintiff's claim.

    The plaintiff Opai Group presents the following evidence to the court around the claim:

    The first set of evidence includes:

    1. (2016) Notarial Certificate No. 347 of Lifengcheng Certificate.

    2. (2016) Notarial Certificate No. 346 of Laifeng City Certificate.

    3. (2016) Notarial Certificate No. 348 of Laifeng City Certificate.

    4. (2016) Notarial Certificate No. 350 of Laifeng City Certificate.

    The above evidence is used to prove that the plaintiff has the exclusive right to use the registered trademark No. 4378572, no. 1137521, No. 7731876 and No. 1128213.

    The second set of evidence includes:

    5. (2016) The reply of Laifeng City Certificate Minzi No. 350 and Trademark Qi Zi [2009] No. 7 is used to prove that the registered trademark No. 1128213 enjoyed by the plaintiff is recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce.

    6. (2016) Laifeng City Certificate No. 353 notarial Certificate, which is used to prove that the plaintiff and the plaintiff's brand enjoy high market popularity and obtain honor.

    7. (2016) Legal notarial Certificate No. 357 of Laifeng City Certificate is part of the tax paid by the plaintiff from 2013 to 2015, which proves that the "Opi" brand has huge profit benefits and high brand value.

    8. (2016) Notarial Certificate No. 354 of Laifeng City, which is used to prove the high brand value of "OPPEIN" and "OPPEIN".

    9. (2016) Notarial Certificate No. 355 of Laifeng City, the plaintiff invested a lot of advertisements on TV and outdoor advertisements to continuously promote the "Opi" brand, which has been widely known by the public and has a high brand value.

    10. (2016) Notarial Certificate No. 356 of Laifeng City Certificate, which is used to prove that the plaintiff spent a huge amount of money to hire the star Jiang Wenli to speak for "Opai" products, which further proves that the plaintiff spent a huge amount of money to promote the opai brand.

    11, "shenzhen special zone signs up for", "linchuan evening news", "Shanghai ambry", "ruili household", "decorating the world" and so on a number of newspaper, magazine, to prove that the plaintiff by the print media publicity, "European brand", the plaintiff's original "have a home, there is love, there are" slogan, promote the continuous use.

    The above evidence proves that the plaintiff's registered trademark has been widely known to the public and "Europa" is a well-known trademark.

    The third set of evidence includes:

    12. (2016) The notarial certificate no. 1153 of Laifengcheng Certificate and the sealed infringement object, used to prove the infringement facts of the defendant and the plaintiff paid a total of 1380 yuan for the purchase of the infringing products.

    The fourth set of evidence includes:

    13. The notary fee invoice is used to prove the plaintiff's reasonable expense in safeguarding his rights. The plaintiff claims 800 yuan in this case.

    The fifth set of evidence includes:

    14. (2017) Legal notarial Certificate No. 922 of Laifeng City Certificate is used to prove that the website on the package involved in the case is owned by the defendant Opie Happy Kitchen Co., LTD. It displays a wide variety of products and has a large sales area, which is sold throughout the country.

    15, the industrial and commercial Bureau website print a copy, to prove that the defendant Opai happy kitchen company's legal representative is Ouyang Keshu, registered in the Trademark Office of a variety of brand trademarks, mostly related to the plaintiff's registered trademarks, subjective malicious obvious.

    The sixth set of evidence includes:

    16. Renewal certificate and (2017) Notarial Certificate No. 675, 672 and 673 of Laifeng City Certificate to prove that the plaintiff is the owner of the trademark involved and that the trademark is within the validity period.

    The defendant Opie Happy Kitchen Company makes the following cross-examination opinions on the evidence submitted by the plaintiff Opi Group Company: There is no objection to the authenticity, legality and relevance of the first set of evidence, but the trademark used by the defendant Opi Happy Kitchen Company is different from the trademark of the plaintiff, which will not mislead the public; There is no objection to the authenticity of the second set of evidence. However, the materials provided by the plaintiff are all the previous ones, instead of the recent three years, which cannot prove the current value of the plaintiff's product brand. There is no objection to the authenticity of the third set of evidence, but there is an objection to the legality, requiring the court to find out whether the procedure of preserving evidence is lawful; For the fourth group of evidence, because the plaintiff did not submit the original notarization fee and receipt, it cannot prove that it is the expense of safeguarding the rights of the case, so it is not recognized; There is no objection to the authenticity of the fifth set of evidence, but the trademark used by the defendant Opai Happy Kitchen Company is a registered trademark approved by Ouyang Keshu and is not an infringement; There is no objection to the truth of the sixth set of evidence.

    The defendant Wu Jianlan business Department made the following cross-examination opinions on the evidence submitted by the plaintiff Opai Group Company: For the third group of evidence, they thought that the tickets were from my store, and at that time only the lampblack machine was written on it. They asked for the stamp of Opai, and I did it. For the fourth group of evidence, I can't remember the specific sales amount. On the sixth set of evidence, the opinions of other evidence agree with those of the defendant Opie Happy Kitchen Company.

    The defendant, Opai Happy Kitchen Company, submits the following evidence to the court:

    The first set of evidence:

    1, the business license, used to prove the defendant's subject qualification, the defendant's normal use of the right to name should be protected by law.

    The second set of evidence includes:

    2. Trademark Certificate No. 17441889 and Trademark License.

    3. Trademark Certificate No. 12950913 and Trademark License.

    4. Trademark Certificate No. 3626713 and Trademark License.

    5. Trademark Certificate No. 14587315 and Trademark License.

    6. Trademark Certificate No. 5149711 and Trademark License.

    7. Trademark Certificate No. 9434157 and Trademark License.

    8. Trademark Certificate No. 11271069 and Trademark License.

    9. Trademark Certificate No. 17060018 and Trademark License Certificate.

    10. Trademark Certificate No. 15962569 and Trademark License.

    Copy of the trademark Certificate No. 9434156 and the trademark License.

    The above evidence is used to prove that defendant Opie Happy Kitchen Company has obtained the right to use trademark No. 17441889, No. 12950913, No. 3626713, No. 14587315, No. 5149711, No. 9434157, No. 11271069, No. 17060018, No. 15962569 and No. 9434156 according to law.

    The third set of evidence includes:

    12. The products, packaging and shopping invoices of the plaintiff are used to prove that the products, packaging and decoration of the defendant Opie Happy Kitchen Company are obviously different from those of the plaintiff, and do not infringe the exclusive right of the plaintiff to use the trademark, nor do they constitute unfair competition.

    13. The pictures of the defendant's products are used to prove that the products sold by the defendant Opie Happy Kitchen Company do not involve the trademark of the plaintiff, let alone highlight the use of the trademark of the plaintiff, and do not constitute any similarity or similarity with the trademark of the plaintiff, and the defendant does not infringe the exclusive right of the plaintiff.

    14. The defendant's products and product packaging pictures are used to prove that the products sold by the defendant Opie Happy Kitchen Company did not involve the plaintiff's trademark, nor did they highlight the use of the plaintiff's trademark, and did not constitute any similarity or similarity with the plaintiff's trademark, and the defendant did not infringe the plaintiff's exclusive right to use the trademark. The decoration, packaging, advertising and publicity of the defendant's products do not have any similarities and obvious differences with those of the plaintiff, so that consumers will not be confused or misidentified.

    15. OUPAI's sales contract of kitchen and bathroom appliances is used to prove that the defendant Opai Happy Kitchen Co., Ltd. expressly requires the distributor not to use the plaintiff's trademark in the sales and publicity in the sales contract with the distributor, so as to distinguish the use and avoid confusion, and has fulfilled the duty of examination and care.

    The plaintiff Opai Group Company makes the following cross-examination opinions on the evidence submitted by the defendant Opai Happy Kitchen Company: No objection is made to the authenticity of the first set of evidence, but the purpose of proof cannot be proved; To 11 in the second set of evidence evidence, verified by the trademark office website, no objection, other evidence the authenticity of all have no objection, but the defendant opie happy kitchen company in the product labeling opie established overlord series, including "opie strong bully" words do not match the words with logo for approval, and weaken the strong bully ", highlights the "European", combined with infringement notes and dealers in the sales, product sales, as the European constitute trademark infringement. For two of the trademark license certificates, the time of certification is March 1, 2017, and the marked term of use is the same as the trademark registration period, but the date of official authorization cannot be proved, so the status of authorization cannot be clear; Evidence of the third group, authenticity of the picture that the plaintiff products have no objection, but this case we advocate is trademark infringement and unfair competition, not dispute of packaging decoration, not the relevance, the authenticity of evidence for 15, has no relevance to the case, was unable to confirm the product in the foreign sales at the time of tip did corresponding obligations.

    The defendant Wu Jianlan business Department has no objection to the evidence submitted by the defendant Opai Happy Kitchen Company.

    The defendant Wu Jianlan business department did not provide evidence.

    On the basis of evidence and cross-examination of both parties, the court confirms and confirms the evidence of the parties without objection. As for the evidence in dispute, the court certifies as follows: The court will not admissible the evidence 13 presented by the plaintiff because it is a copy and both the defendants raise objections. The court confirms the authenticity of the evidence 15 presented by the defendant, because the contract was signed by the defendant Opie Happy Kitchen Company and an outsider, and has no relevance to the case.

    The court found the facts as follows:

    I. The plaintiff's rights and facts

    The plaintiff Opai Group was founded on July 1, 1994 with a registered capital of RMB 373,581,112, and its business scope is furniture manufacturing industry.

    On November 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. was approved and registered by the Trademark Office of the State Council as the registered trademark of "Opai" No. 1128213, and approved to be used in the 20th category of goods: furniture; Sideboard; Metal furniture; Cupboards; Plate rack; Storage rack; Washstand (furniture); Food delivery truck (furniture); Dinner cart (furniture); The counter. On April 7, 1999, approved by the national trademark Office, the above trademark change registered name for Guangzhou European cabinet enterprise Co., LTD. On January 6, 2011, approved by the National Trademark Office, the name of the trademark change registration is Guangdong Opai Household Products Group Co., LTD. On January 6, 2011, approved by the State Trademark Office, the name of the trademark change registration is Guangdong Opai Group Co., LTD. On March 24, 2014, approved by the Trademark Office of the State Council, the name of the trademark change registration is Opai Home Furnishing Group Co., LTD.

    On December 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. was approved by the Trademark Office of the People's Republic of China and registered the registered trademark of "Opai" No. 1137521, which was approved to be used in the 11th category of commodity: kitchen stove; Gas burner. Electric cookers; Cooking utensils; Refrigeration equipment; Drying equipment; Cold and hot drinking water filter; Beverage cooling equipment; Electric water bottle; Refrigerating container. On April 7, 1999, approved by the national trademark Office, the above trademark change registered name for Guangzhou European cabinet enterprise Co., LTD. On January 6, 2011, approved by the National Trademark Office, the name of the trademark change registration is Guangdong Opai Household Products Group Co., LTD. On January 6, 2011, approved by the State Trademark Office, the name of the trademark change registration is Guangdong Opai Group Co., LTD. On March 24, 2014, approved by the Trademark Office of the State Council, the name of the trademark change registration is Opai Home Furnishing Group Co., LTD.

    On June 7, 2007, Guangzhou Opai Cabinet Enterprise Co., Ltd. registered the trademark of "Opai" no. 4378572 approved by the Trademark Office of the State, and approved to be used in category 11 commodity: gas stove; Microwave oven (kitchen utensils); Electric cooker. Baking utensils (cooking utensils); The faucet; Bathroom fixtures; Disinfect cupboards; Drinking water filter; Lavatory basin (sanitary fittings); Steam bath equipment; Sit in the bath; Bathing equipment; Shower stall; Wash tub; Implement; Kitchen range hoods; Light (cut off). On January 6, 2011, approved by the National Trademark Office, the name of the trademark change registration is Guangdong Opai Household Products Group Co., LTD. On January 6, 2011, approved by the State Trademark Office, the name of the trademark change registration is Guangdong Opai Group Co., LTD. On March 24, 2014, approved by the Trademark Office of the State Council, the name of the trademark change registration is Opai Home Furnishing Group Co., LTD.

    On March 14, 2011, Guangdong OpAI Group Co., Ltd. was approved by the Trademark Office of the State Council to register the registered trademark "OPPEIN" No. 7731876, which was approved to be used in category 11 commodity: ceiling lights; The oven; Cooking utensils; Gas burner. The water heater. Ice chest. The refrigerator; Kitchen range hoods; Non-laboratory furnace; The faucet; Bathroom fixtures; Bathing equipment; A flush toilet; Washbasin (sanitary fittings); Disinfect cupboards; Drinking water filter; Electric heater; Cigarette lighter. On March 20, 2012, approved by the State Trademark Office, the name of the trademark change registration is Guangdong Opai Household Products Group Co., LTD. On March 24, 2014, approved by the Trademark Office of the State Council, the name of the trademark change registration is Opai Home Furnishing Group Co., LTD.

    The above trademarks are within the term of validity.

    On April 24, 2009, the registered trademark of "Europa" on the class 20 goods of the plaintiff was identified as a well-known trademark. Plaintiff's trademark No. 1128213 "Opai" was recognized as a famous trademark of Guangdong Province from 2008 to 2011. In 2007, Opai household cabinet was identified as "China famous brand products" by the State Administration of Quality Supervision. In 2008, Opai cabinet was identified as "Guangdong famous brand products" by Guangdong Quality Supervision Bureau. In 2012, Guangdong Opai Household Group Co., Ltd. was identified as "Top 10 Overall Kitchen Leading Enterprises" by China Building Decoration Association Kitchen and Sanitation Engineering Committee. In 2013, Guangdong Opai Furniture Group Co., Ltd. was awarded the "2012 Guangzhou Mayor Quality Award" by Guangzhou Municipal Government. From 2013 to 2015, Opai Group paid more than 100 million YUAN of VALUE-ADDED tax every year. On brand promotion, the company respectively with CCTV two set of columns "swap space", hunan radio and television advertising corporation, zhejiang wisdom beauty car advertising co., LTD., and other cooperation, in the CCTV news channel, household decorate a design program, such as awards show ads, and invited actress jiang wenli is opie brand cabinets, wardrobe, bathroom spokesperson in advertising. In addition, the plaintiff in "shenzhen special zone signs up for", "Shanghai ambry", "sales", "ruili household", "the decoration world, such as newspaper, magazine ads, the" European "brand and product promotion, and in Shanghai ambry, ruili household, use on magazines such as decorating the world" with family love opie "slogan.

    Ii. The rights and facts of the defendant

    The defendant Wu Jianlan's business department was an individual industrial and commercial household whose business scope included wholesale and retail of decorative materials, sanitary ware, hardware and electrical appliances. Defendant Opie Happy Kitchen Company was founded on April 10, 2014 with a registered capital of 100,000 yuan. Its business scope covers the production, processing and sales of household appliances, range hood ventilator, electric water heater, disinfection cupboard, water purification equipment, gas water heater and kitchen utensils.

    On April 14, 2005, Ouyang Keshu was approved by the Trademark Office of the People's Republic of China to register the registered trademark "Oupai" combination of characters and pictures no. 3626713, approved for use in category 11 commodity: gas furnace; The water heater. Induction cooker. Electric cooker. Electric fan. Range hood; Disinfection cabinet; Water dispenser. Electric heater; The refrigerator.

    On April 21, 2010, Ouyang Keshu was approved by the National Trademark Office to register the registered trademark of the letter "OUPAI" no. 5149711 and the chart, which was approved to be used in the 11th commodity: gas furnace; Electric POTS; Electric stove; Illuminator; The refrigerator; Kitchen range hoods; Solar water heaters; Disinfect cupboards; Water dispenser. Electric heaters.

    On June 7, 2012, OUPAI was approved by the National Trademark Office to register the graphic trademark No. 94354156 "OUPAI", which was approved to be used in the 11th commodity: water heater; Gas furnace; Bath bully; Lighting apparatus and devices; Electric cooker. Refrigerating equipment and devices; Solar water heaters; Disinfection equipment; Water dispenser. Kitchen range hoods; Heaters.

    On June 7, 2012, OUPAI registered trademark "OUPAI" No. 94354157 approved by the National Trademark Office and approved to be used in category 11 commodity: water heater; Gas furnace; Bath bully; Lighting apparatus and devices; Electric cooker. Refrigerating equipment and devices; Solar water heaters; Disinfection equipment; Water dispenser. Kitchen range hoods; Heaters.

    On December 28, 2013, OUPAI registered the trademark no. 11271069 "OUPAI" approved by the National Trademark Office, and approved to be used in the 11th category: electric cooker; Lighting apparatus and devices; Gas furnace; Refrigerating equipment and devices; Gas water heater; Electric heater; Kitchen range hoods; Electric water heater; Solar water heaters; Disinfecting equipment.

    On July 21, 2015, Ouyang Keshu registered the trademark of "Opai Happy Kitchen" no. 14587315 approved by the Trademark Office of the People's Republic of China, and approved to be used in category 35 commodity: advertising; Providing business information through the Internet; Business management of franchising; Marketing; Personnel management consulting; Computer input service; Accounting; Seek sponsorship; Business management and organizational consulting; Sell for others.

    On September 14, 2015, Ouyang Keshu was approved by the Trademark Office of the People's Republic of China to register the registered trademark no. 12950913 "Opaijianba", which was approved to be used in category 11 commodity: electric cooker; Lighting apparatus and devices; Gas furnace; Refrigerating equipment and machinery; Electric water heater; Gas water heater; Kitchen range hoods; Solar water heaters; The dragon's head; Disinfecting equipment.

    On May 7, 2016, OUPAI Energy-saving Kitchen registered trademark No. 15962569 approved by the National Trademark Office, and approved to be used in category 11: Electric cooker; Lighting apparatus and devices; Gas furnace; Refrigerating equipment and devices; Gas water heater; Gas furnace; Refrigerating equipment and machinery; Sanitary appliances and equipment; Kitchen range hoods; Shower water heater; Disinfection equipment; Electric heater; Lighting apparatus and devices.

    On August 14, 2016, OUPAI Registered trademark "OUPAI" no. 17060018 approved by the State Trademark Office and approved for use in category 11 commodity: water purification device; Kitchen range hoods; Electric cooker. Disinfect cupboards; Shower water heater; Cooking equipment and equipment; Disinfection equipment; Electric heater; Water purification equipment and machinery; Gas furnace.

    On September 14, 2016, Ouyang Keshu was approved and registered by the Trademark Office of the State Council as the registered trademark of "Ouyang Keshu" No. 17441889 and approved to be used in the 11th category of commodity: electric cooker; Lighting apparatus and devices; Gas furnace; Refrigerating equipment and machinery; Water heaters for washing (gas or electric heating); Bath water heater; Kitchen range hoods; Water purification equipment and machinery; The dragon's head; Disinfecting equipment.

    The above trademarks are within the term of validity.

    On March 1, 2017, Ouyang Keshu issues the trademark license certificate, proving that the registrant ouyang Keshu (362122197411206257) is the exclusive owner of the trademark registration Certificate no. 17441889, No. 12950913, 3626713, 14587315, 5149711, 9434157, 11271069, 17060018, 9434156 and 15962569. The registrant agrees to license the said trademark to Zhongshan Oupai Happy Kitchen Appliances Co., LTD., Zhongshan Oupai Hupai Kitchen Appliances Co., LTD., and Nanchang Oupai Electric Appliances Co., LTD., and the term of use shall be the same as the registration term of the said trademark.

    3. Facts of infringement by the defendant

    On October 7, 2016 in laiwu city FengCheng notarization notaries zhang, Ms. Notarial personnel supervision, the plaintiff's attorney shou-zhen wang in the name of ordinary consumers to the new north district, changzhou, jiangsu province, east of the Yellow River (near JinLing north road) "the Yangtze river free trade center" size 12-06 "building materials" facilities.we salesroom, shou-zhen wang in the shop to buy a marked "zhongshan opie happy kitchen appliance co., LTD." the words each one oil absorption, kitchen burning gas, a total of 1380 yuan, On the spot, I got a "Wu Jianlan" business card issued by the shop assistant, a POS card and a "Sales list of Jianlan Building Materials". After Wang Shouzhen took photos of the above items and the shop exterior, the notary sealed up the above range hood and gas stove. The Fengcheng Notary Office of Laiwu issued the notary Certificate of Laifeng City Certificate No. 1153 (2016) for the above process.

    On August 17, 2017, under the supervision of notaries, notarial personnel Ms. Zhang shou-zhen wang computer login url notarization place connected to the Internet to the use of the "x" web site to browse, and then in the Ministry of Industry and Information Technology ICP/IP address/domain name registration management information system "the website" xx "web site information and" cloud "ali website inquires the" xx "domain name registration information. Wang shouzhen took screenshots of relevant pages and recorded the entire operation using "Screen video Expert" software. On August 18, 2017, Fengcheng Notary Office in Laiwu city, Shandong Province notarized the above process and issued the (2017) Fengcheng Notary Public Certificate No. 922. According to the picture attached to the notarial certificate, "OUPAI energy-saving Kitchen" is marked on the top of the page of "××", and pictures of range hoods, gas stoves, electric water heaters and other products are displayed in the product display section of the website. ICP registration website information shows: Zhongshan Oupaikl.com, homepage address: ××, website domain name oupaikl.com, organizer: Zhongshan Oupaikl.com, Website registration/license no. : 14064426-1, Registration date: August 1, 2014.

    Other Facts

    On March 10, 2017, the defendant Opie Happy Kitchen Company purchased the gas stove produced by the plaintiff. The defendant Opie Happy Kitchen company thinks that the decoration, packaging, advertising and so on of the defendant's products have no any similarities with those of the plaintiff, and the difference is obvious, which will not make consumers confused and mistaken. The plaintiff believes that the pictures of the defendant's products, the packing cases and packing instructions do not prove the actual use of the products, and the corresponding packing shall be subject to the infringement and unpacking. In this case, we advocate trademark infringement and unfair competition, not a dispute over packing and decoration, and the evidence of the defendant is not relevant.

    During the court hearing, the court unsealed the physical seal of the notarial Certificate no. 1153 (2016) in Laifeng City, containing a packed range hood and a gas stove. Oil absorption left upper corner of the product packaging marked "opie established overlord series", the packaging on the right side was labeled "OUPAI green kitchen" and "the home has love has OUPAI", in the same on the side of the box body with larger font with the annotation, below labeled "zhongshan opie happy kitchen electric appliance co., LTD", website "xx", address and telephone information, etc. Open the outer package of the product, there is a range hood, a product manual and a member warranty card. The frame of the range hood is marked "OUPAI". Product specifications, membership warranty CARDS are "have a love have OUPAI", "Zhongshan OUPAI happy Kitchen Appliances Co., LTD." words. By comparison, the plaintiff believes on product packaging "opie established overlord series", "European" in the 4378572th of a registered trademark with the plaintiff constitute the same packaging on the right side, body side, enclose the product manual, warranty card members marked "OUPAI green kitchen", "the home has love OUPAI", "OUPAI" and "OPPEIN" trademark approximate number 7731876. Because the plaintiff enjoys trademark No. 1128213, it is recognized as well-known trademark on the cabinet. The defendant used the word "Opai" in the name of his enterprise, which constituted unfair competition. The defendants opie happy kitchen that opie happy kitchen company use "OUPAI" brand and "OPPEIN" trademark of the plaintiff does not constitute a approximation, the defendant indicated on the packaging of the defendant company name and website, the products are different from the plaintiff company, will not cause confusion to the public, the plaintiff did not provide evidence to prove that "there is a love is the" advertising language its original creation and continue to use, the defendant opie happy kitchen company does not constitute the unfair competition. The defendant Wu Jianlan said that the business department is not aware of this.

    The court believes that the focus of the dispute in this case is whether the defendant Wu Jianlan Business Department and Opai Happy Kitchen Company infringe upon the plaintiff's right to exclusive use of the registered trademark. Whether the defendant Opai Happy Kitchen Company constitutes unfair competition; If the defendant has trademark infringement or unfair competition, what civil liability should he bear respectively?

    First of all, about the defendant Wu Jianlan business department, Opai happy kitchen company whether there is infringement of the plaintiff's registered trademark exclusive right behavior.

    The plaintiff is the owner of the exclusive right of the registered trademark "OPPEIN" No. 4378572 and "OPPEIN" No. 7731876, whose lawful rights and interests are protected by law. In this case, the defendant jian-lan wu shop sales of oil absorption products, on the product packaging label "opie established overlord series", "zhongshan opie happy kitchen appliance co., LTD.", "OUPAI green kitchen", "the home has love OUPAI" and the product labeled "OUPAI", including "OUPAI" and "OPPEIN" also from the sound, form and meaning, there is a big difference, there is no trademark approximation. According to the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "the provisions specified in the first paragraph of article 1, will be the same or similar registered trademark with others words as enterprise size in use highlights on the same or similar goods, the relevant public could produce misidentification, belong to the infringement of a registered trademark of behavior. , in this case, although the European happy kitchen "European" font size of the company with the plaintiff, "European" word mark is the same, but the plaintiff notarial evidence of member product packaging, product manuals, warranty CARDS are based on normal fonts, annotation, in the form of an enterprise name full name is not to "European" two words out outstanding use from the enterprise name, "opie established overlord series", "European" nor prominent, therefore, the plaintiff claims opie happy kitchen in the alleged infringement product company to use the words "European" violate its trademark, facts and legal basis, we will not be believed. In summary, the defendant Opai Happy Kitchen Company, Wu Jianlan business department did not infringe the plaintiff's right to exclusive use of the registered trademark.

    Secondly, whether the defendant Opie Happy Kitchen Company constitutes unfair competition.

    Article 2 of the Law of the People's Republic of China against Unfair Competition stipulates that business operators shall abide by the principles of voluntariness, equality, fairness, honesty and credibility and observe universally recognized business ethics in their market transactions. In this case, the plaintiff has a series of registered trademarks such as "OPPEIN" and "OPPEIN" under his name, and the registered trademark No. 1137521 has been identified as a well-known trademark, and its products and trademarks have also won a number of honors. "OPPEIN", as a highly significant fabricated word, has gained high popularity. Defendant argues that the enterprise name is used with the permission of the authorization of the registered trademark "opie happy kitchen", the enterprise size with the plaintiff "opie household" existence difference, not constitute the unfair competition, we believe that the defendant opie happy kitchen with the plaintiff in the same industry competitors, company should know the plaintiff's "European" in the industry have high visibility. "Opie happy kitchen" the scope of the use of a registered trademark approved as the class 35, the defendant opie happy kitchen company to "zhongshan opie happy kitchen appliance co., LTD." annotation on the class 11 smoke lampblack machine product, beyond the "opie happy kitchen" trademark use of approved scope, so the defendant opie happy kitchen should be used company enterprise name rather than a trademark. And "European" have clear identification, the defendant's name "Europe" and the plaintiff's enterprise name, "European" are the same, at the same time the defendant opie happy kitchen companies use of "the home has love OUPAI" with the plaintiff used "the home has love with European" from the sound, form and meaning, basic same, obvious clings to the economic interests of the plaintiff's reputation for deliberately, its behavior is enough to make the relevant public confusion, as there is a specific relationship between, constitutes unfair competition, shall bear the corresponding liability for compensation.

    Finally, the defendant Opai Happy Kitchen Company should bear civil liability.

    According to the provisions of Article 15 of the Tort Liability Law of the People's Republic of China, the right holder has the right to require the tortfeasor to stop the infringement and compensate for the loss. Therefore, the defendant Opai Happy Kitchen Company should stop the unfair competition and compensate for the loss. About compensation, because the plaintiff failed to prove the defendant opie happy kitchen company interests obtained for the infringement has not proved that the loss from infringement, so we consider the nature, degree of subjective fault, tort to the case and the plaintiff reasonable expense to stop the infringement to the case, the discretion to determine the defendant shall bear the compensation liabilities. In conclusion, according to the provisions of article 58 of the "trademark law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China" in article 2, article 5 of the first item (3), paragraph 1 of article 20, the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law and the first paragraph of article 6 of the civil procedure law of the People's Republic of China, the provisions of article one hundred and forty-four of the sentence is as follows:

    I. Defendant Zhongshan Opai Happy Kitchen Appliance Co., Ltd. shall change its enterprise name within three months from the effective date of this judgment, and the changed enterprise name shall not contain the word "Opai";

    2. As of the effective date of this judgment, defendant Zhongshan Opai Happy Kitchen Appliances Co., Ltd. immediately stopped labeling "Opai" and "OUPAI" on the packaging and instructions, warranty CARDS and products of its lampblack machines;

    3. The defendant, Zhongshan Opai Happy Kitchen Appliance Co., LTD., shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of RMB 160,000 (including reasonable expenses for stopping the infringement) within 10 days from the effective date of this judgment;

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

    If the obligation to pay money is not fulfilled 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 was 5,800 yuan, 1,353 yuan for the plaintiff, and 4447 yuan for the defendant, Zhongshan Oupai Happy Kitchen Appliances Co., LTD. (The plaintiff agrees that the part of the case acceptance fee paid by the defendant in advance shall be paid by the defendant directly to the plaintiff, which will not be refunded by the court, but shall be paid by the defendant directly to the plaintiff within ten days from the date of the effective date of this judgment).

    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 according to the number of the other party, and appeal to the Intermediate People's Court of Changzhou. At the same time, according to the relevant provisions of the "method of payment of litigation costs", the court to pay the appeal case acceptance fees.

    Chen E, chief judge

    Judge Qiu Hongguang

    People's Juror Ju Jianqiu

    December 20, 2017

    Assistant judge Fontane

    Clerk Ning Jie