Article source: China Judicial Documents network Release time:2020-07-24 16:55:57 viewed:0time
Chancheng District People's Court, Foshan City, Guangdong Province
Written judgment of civil affairs
(2017) No. 16558, Yue 0604, Early Republic of China
Plaintiff: Opai Home Furnishing Group Co., LTD., No. 366, Guanghua 3rd Road, Baiyun District, Guangzhou City, Guangdong Province. Unified social credit code ××97C.
Legal representative: Yao Liangsong, chairman of the board.
Attorney: Zhai Mingyue, lawyer of Shandong Changping Law Firm.
Defendant: Mingxinfei Decoration Materials Business Department, Xiqing District, Tianjin city; No. 1 and 7, No.8, Wangding Embankment Old Motor Vehicle Trading Market, No.196 Fukang Road, Xiqing District, Tianjin City, its domicile place. Registration number: 120111600290538.
Operator: Liu Fei, male, Han Nationality, born on February 5, 1986, residing in Shan County, Shandong Province,
Defendant: Guangdong Opai Technology Co., LTD., No.313-6, 3rd Floor, 22 Licitang Road, Shangjia, Ronggui Street Office, Shunde District, Foshan City, Guangdong Province. Unified social credit code ×××294.
Legal representative: Li Xingwen.
Defendant: Foshan Shunde Fancao Huwei Living Appliances Co., LTD., No.8-3, Siheng Road, Changbao East Road, Ronggui Huaguo Neighborhood Committee, Shunde District, Guangdong Province. Unified social credit code ×××74J.
Legal representative: Luo Zuhong.
Two were told to jointly entrust the agent AD litem: Liang Zhengping, lawyer of Guangdong Bodao Jujia Law Firm.
The plaintiff opie household group co., LTD. (hereinafter referred to as the European group) v. the defendant of tianjin xiqing district Ming xin fly decoration materials sales department (hereinafter referred to as Ming xin fly decoration), the guangdong opie technology co., LTD. (hereinafter referred to as guangdong opie), outstanding, shunde district, foshan city, hutch defends life electric appliance co., LTD. (hereinafter referred to as outstanding hutch defends electric appliance) the infringement trademark rights and unfair competition disputes, our hospital on December 2, 2017 to begin, we form a collegial panel in accordance with the law, on March 14, 2018, public hearing on the trial, The plaintiff Europe sends the group entrustment agent Zhai Mingyue, the defendant Vansang kitchen defends electric appliance and the defendant Guangdong Europe sends jointly entrustment litigant agent Liang Zhengping to attend a lawsuit, the defendant Ming Xin flies the decoration to be summoned by the court, does not have the justifiable reason to refuse to attend a lawsuit in court. The case is now closed.
1. Request to order the defendant Ming Xinfei Decoration to stop the trademark infringement immediately, stop using the word "Opi" on store signs, and stop selling the gas stoves marked with the word "Opi"; 2. 2. Request the defendant guangdong Opai and Vansheng Kitchen and sanitary appliances to immediately stop the production and sale of gas stoves labeled as "Opai"; 3. Request the defendant guangdong Opai and Vansheng Kitchen and Sanitary appliances to stop unfair competition immediately and to stop marking the words "Guangdong Opai Development Co., LTD" and "You Have home, You have love, you have Guangdong Opai" on the gas stoves they produce and sell; 4. Order the three defendants to compensate the plaintiff's economic losses and reasonable expenses for safeguarding their rights in this case, totaling RMB 200,000 only; 5. Request for a decree that the defendant shall share the costs of the case.
Facts and Reasons: Founded in 1994, the plaintiff is a leading brand in the whole cabinet industry. Its products cover the whole wardrobe, kitchen appliances, bathroom, commercial kitchen and other fields. Plaintiffs have ""," OPPEIN "and other series of registered trademark, after decades of operation, has been" Europe "casting 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, the plaintiff's successful listing in Shanghai, stock code 603208, further to lay the plaintiff in the industry's leading brand advantage. In the public 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 its affiliated enterprises. In July 2017, the plaintiff discovered the defendant Ming xin fly decoration use "Europe" as a storefront signs, and in the name of the European brand of foreign sales of kitchen burning gas, product packaging, specifications and product labeled "European", "home, have love, guangdong", "guangdong science and technology co., LTD.", manufacturer: outstanding hutch defends electric appliance co., LTD., shunde district, foshan city, the plaintiff apply for notarization for the evidence preservation. To sum up, the plaintiff believes that the aforementioned actions of the three defendants infringe upon the plaintiff's right to exclusive use of the registered trademark, violate the principle of good faith and recognized business ethics, constitute unfair competition to the plaintiff, cause great economic losses to the plaintiff, and shall bear the corresponding legal liability. Therefore, the plaintiff, 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, appealed to the court to make a fair judgment in accordance with the law.
To prove the claim, the plaintiff provides the court with the following evidence:
1. (2016) The Notarial Certificate of Lai Feng City Certificate No. 347 certifies that the plaintiff has the exclusive right to use the registered trademark No. 4378572.
2. (2016) The Notarial Certificate of Lai Feng City Certificate No. 350 certifies that the plaintiff has the exclusive right to use the registered trademark No. 1128213.
3. (2016) Notarial Certificate No. 346 of Laifeng City Certificate, proving that the plaintiff has the exclusive right to use the registered trademark No. 1137521 according to law.
4. (2016) The Notarial Certificate of Laifeng City Certificate No. 348 certifies that the plaintiff has the exclusive right to use the registered trademark No. 7731876.
5. (2016) Notarial Certificate No. 352 issued by Fengcheng License, which proves that the plaintiff legally owns the copyright of "" fine art fonts. This work, created on August 10, 1996, is completely consistent with the contents of the registered trademarks No. 4378572, 1128213 and 1137521 of the plaintiff, and also proves that the" "brand of the plaintiff has certain originality and a long history.
6. The trademark [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 the plaintiff 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 card people word no. 353 is notarial deed, prove that the plaintiff and the plaintiff brand have high market visibility, content as follows: (1), July 9, 2007, the state administration of quality supervision, inspection and quarantine awarded "China famous brand product certificate", prove that the plaintiff of production European 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 Product" certificate, proving that the Oupai brand cabinet produced by the plaintiff was awarded the "Guangdong famous brand Product" title. (3) In February 2008, the Guangdong Province Famous Trademark Certificate issued by the Guangdong Province Famous Trademark Recognition Committee 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 the plaintiff in 2012 was rated as "2012 China kitchen and sanitation 100", "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 the plaintiff company was awarded the "2012 Guangzhou Mayor quality Award". (6), December 28, 2014, certificate issued by the brand watch magazine, prove that the plaintiff's European 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 that the plaintiff 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 the plaintiff was awarded "Top 10 Enterprises with Innovation Ability" in 2014.
8. (2017) The Notarial Certificate of Laifeng City Certificate No. 260 certifies the latest honor of the plaintiff and the plaintiff's brand, which is as follows:
(1) Guangzhou Famous Trademark Certificate issued by Guangzhou Administration for Industry and Commerce, valid from January 2016 to December 2012, which proves the popularity of plaintiff OPPEIN in sideboard, furniture, range hood and bath equipment.
(2) In May 2016, the Trademark Brand certificate of China industry awarded by China Industry Trademark Brand Review Committee proves that Opie is 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 card people word no. 357 is notarial deed, prove that the plaintiff part of pay taxes, prove that "European" 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 cloud duty five [2014] no. 100014 tax certificate, prove that the plaintiff on January 1, 2013 to December 31, 2013 to the bureau to pay taxes next billion boss thousand hundred suhuang spreading Wan Jiu us $3 and pure Angle and pure. (2) the tax payment certificate no. [2014]100579 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2014 solstice on June 30, 2014 to the bureau seven thousand five hundred and ninety-nine thousand nine hundred and ninety-nine yuan nine cents. (3) the tax payment certificate no. [2015] no. 100174 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid a 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 and December 31, 2014. (4) the tax payment certificate no. [2015] no. 101552 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2015 solstice on June 30, 2015 to the tax bureau seven thousand five hundred and twenty-two thousand six hundred and sixty-seven point four. (5) the tax payment certificate no. [2016]100274 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid a tax of twelve million two hundred and thirty-six hundred and sixty-seven yuan nine cents to the tax 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 plaintiff 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 bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid the tax on July 1, 2014 and December 31, 2014 to the bureau, i.e., the tax amount of three thousand six hundred and fifty-eight thousand nine hundred and seventy-two cents. (8) notice no. 00003448 issued by the tax administration of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax of four thousand two million four hundred and twenty-seven thousand one hundred and forty cents to the bureau on June 30, 2015 on January 1, 2015. (9) notice no. 00004591 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax 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 Legal certificate of Laifengcheng Ziminzi No. 355, which proves that the plaintiff has carried out continuous publicity for the "Opai" brand through CCTV and Hunan SATELLITE TV, and 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), October 30, 2012, the plaintiff 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" propaganda of the plaintiff brand, advertising for wu bai suhuang ten thousand yuan. (2), in July 2014, the plaintiff 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 section is relevant to the plaintiff, brand advertising for above ten thousand yuan. (3) on November 6, 2013, the TV advertisement release contract signed by the plaintiff and zhejiang zhimei auto advertising co., LTD., which stipulates that the plaintiff's brand shall be publicized on CCTV news channel on January 1, 2014 and the advertising fee shall be four thousand four hundred and sixty-three thousand nine hundred and seventy yuan. (4) on November 27, 2014, the sponsorship and cooperation agreement of 2015 "exchange space" home decoration fund signed by the plaintiff and Beijing ontime boiling international advertising co., LTD. The agreement agreed that on April 4, 2015 solstice on March 26, 2016, the plaintiff's brand would be promoted in the second set of "exchange space" column of CCTV, and the advertising fee would be six million yuan. (5) on October 22, 2014, the advertising agency contract signed by the plaintiff and kashgar yinsong culture media co., LTD., the agreement provides that on January 1, 2015, solstice, December 31, 2015, the advertising fee of the plaintiff shall be twenty-three million nine hundred and seventy thousand yuan for promoting the plaintiff's brand on the CCTV news channel.
11. (2016) The Notarial Certificate no. 356 issued by Lifeng City Certificate, which proves that the plaintiff spent a huge amount of money to hire the star Jiang Wenli to speak for "Europa" products, which further proves that the plaintiff spent a huge amount of money to promote Europa 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 that the plaintiff by the print media publicity, "European brand", It also proves that the plaintiff's original advertising slogan of "family, love and Europe" continues to use and publicize.
(3) (2017) The Notarial Certificate of Laifengcheng Certificate No. 974 (including the infringing material object sealed by the notary office) proves the facts of infringement by the defendant.
(3) One notarization fee note. The plaintiff claims 900 yuan in this case, which proves the plaintiff's reasonable expense in safeguarding his rights.
15. A screenshot of the web page, proving that the contact Numbers, faxes and contacts marked on the products involved are in contact with defendant 3.
The defendant Ming Xinfei did not plead, and after being legally summoned by the court, refused to appear in court to answer the lawsuit without justified reasons, deemed as waiving the right to plead.
Defendant Guangdong-European defense said, one, involved in the gas stove is not the defendant's production, sales. 1. Defendant Guang Dong Pai does not have the production capacity of home appliances. The defendant's domicile is No. 313-6, Building 3, No. 22, Liwantang Road, Shangjia City, Ronggui Street, Shunde District, Foshan city. It is only a unit in the office building in the city. The defendant is engaged in the technical research and development of home appliances, but does not actually produce and sell home appliances. The products involved are counterfeit products, not produced by the plaintiff. Without the permission of the defendant, the defendant used the company name of the defendant guangdong Opai without authorization, which is a counterfeit product. 2. There is no supervision relationship between the defendant guangdong Opai and the defendant Foshan Shunde Fancang Kitchen and Sanitary Living Appliances Co., LTD. There is no supervision relationship between the defendant GUANGDONG Opai and the defendant Fancao Company, and no supervision agreement, power of attorney for the use of supervision logo and other legal documents have been signed. 3. Defendant Guangdongbei has no supply relationship with other defendants in this case. Defendant Mingxinfei Decoration and Defendant Guangdong Opai have no contractual agency relationship, payment transactions, purchase documents and invoices. The whole purchasing and sales agency relationship is a process, including: signing the agency contract, payment voucher, stamp receipt and invoice, without the evidence of this process, it is certain that the products are not Of Guangdong Opai Company. Ii. On the accusation that the plaintiff constitutes trademark infringement against the defendant Guangdong Opal: in this case, the products involved are not produced and sold by the defendant, and no trademark infringement is constituted to the plaintiff. 1. The trademark OPAICN on the products involved in this case is the registered trademark No. 12124262 "OPAICN". It obtained the legal trademark right as early as July 21, 2014, and should be protected by law. 2. The enterprise name and trade name of "Guangdong Opai Technology Co., Ltd." used on the products involved in this case were legally obtained by the defendant through industrial and commercial approval and registration. 3, although the plaintiff in 11 goods registration no. 4378572 and no. 1137521, "European" trademark license, but no evidence to prove that the plaintiff in the last three years have actually used the registered trademark, according to article 64 of the trademark law, the use of a registered trademark of people couldn't prove practical used the registered trademark in the previous three years, also cannot prove for infringement by other losses, the alleged infringer is not liable for compensation. Therefore, the products involved do not constitute an infringement of the plaintiff's trademark. Iii. On the allegation that the plaintiff has formed unfair competition against the defendant GUANGDONG Opal: the products involved are not produced and sold by the defendant. Meanwhile, in this case, the plaintiff and the defendant Guangdong Opal belong to two different industries. 1, defendant "guangdong science and technology co., LTD." of the enterprise name is April 30, 2014, guangdong province administration of industry and commerce approved size and formal registration and establishment, the font size for approval department of the enterprise name with the plaintiff belong to guangdong province administration for industry and commerce approved the registration department management, the plaintiff's "European" brand has won the award for the well-known trademark, industrial and commercial bureau of guangdong province have started to its famous trademark name protection, but still province administration of industry and commerce for approval of the defendant's enterprise size, prove the defendant's the company name and not completely to the plaintiff of the well-known trademark of any infringement or unfair competition, otherwise, The same industrial and commercial bureau could not agree to approve the defendant's use of the enterprise name and shop name. 2. The primary factor that constitutes unfair competition is that both parties are engaged in the same industry with competitive relations, while the unfair competition causes damage to the other party due to its unfair competition behavior. If both parties are engaged in different industries, there is no competition at all. In this case, according to the plaintiff's evidence, the plaintiff is engaged in trademark classification class 20 household industry, production and sales of the products are cabinets, wardrobe, and the defendant engaged in the technology industry, the electric equipment product that the product is class 11, both sides of the industry and the products are completely different, there is no peer competition, also not because of the industry and the production and sales of behavior to the plaintiff to the case production sales caused any damage or loss, therefore does not constitute a competitive relationship, nothing more proper or improper. 3, the plaintiff accused the defendant of guangdong opie involved in constituting unfair competition, an enterprise name which demand a ban on using the enterprise name, but through anti-unfair competition law to ban the use of enterprise name, must request the plaintiff's trademark or name in forbidden enterprise name used by industries and products have very high visibility and form the only correspondence. However, the plaintiff is not so well known and forms a unique correspondence. 4. The plaintiff's "Opai" brand and name did not form a unique corresponding very high popularity not only in the electrical appliance industry involved, but also in other industries. The defendant's evidence shows that the "Opai" brand electric car of Opai Technology Co., Ltd. ranks the first in the electric car industry in China. The brand image spokesperson of opai electric car is also Jiang Wenli. The "Opai" brand door industry of Jiangshan Opai Company is a famous trademark in Zhejiang province, as well as the "Opai" brand paint, etc., all have quite high popularity in their respective industries, but they have nothing to do with the plaintiff. Moreover, the term "Eurofaction" was not invented by the plaintiff, but originally meant "European faction, western faction", which is often referred to as the product style of European faction or European and American technology in the industry. As a result, the word "Europe" is not an original and unique from the start, now also at the same time there are a number of different industries, "European brand" and "European" and a number of enterprise size, and popularity is quite high, therefore, the product has nothing to do with the defendant, and the plaintiff's "European" brand did not reach to prohibit the defendant in completely different industries and products using the word as the name of the only corresponding high name recognition, the plaintiff suing for there completely irrational. To sum up, in this case, the defendant Guangdong Opai Technology Co., Ltd. is called legally acquired. The products involved are not produced and sold by the defendant, and the trademark of the plaintiff is not used on the products involved, nor does it constitute any trademark infringement or unfair competition to the plaintiff.
Defendant Vincent Van Gogh kitchen appliances defense said that its defense opinion and the defendant Guangdong European faction. Other supplements as follows, the product is the defendant involved Ming xin fly decoration sales, but the defendant outstanding hutch defends electric appliance and the defendant Ming xin fly decoration does not exist any supply relationship, Ming xin fly decoration have no contact with that of the accused, the accused Ming xin fly decoration sales of the products involved in the supply source of outstanding hutch defends electric appliance is not clear, the defendant in the case of product outstanding hutch defends electric appliance enterprise name on the defendant, the Ming xin fly decoration communication with that of the accused to deal with, but the defendant Ming xin fly adornment didn't give any reply. At present, the defendant Vanas kitchen and sanitary appliances has been related to the court of Tianjin concerning the defendant Ming Xin fei decoration sales involved in the product infringement of the defendant Vanas kitchen and sanitary appliances enterprise name right. Therefore, the product involved in the case is not the production of the defendant Fancao kitchen and sanitary appliances. The plaintiff sues the defendant fancao kitchen and sanitary appliances for the corresponding production and sales responsibility. The defendant Fancao kitchen and sanitary appliances is the victim and does not need to bear the relevant legal responsibility.
Defendant Guangdong Opai and Defendant Van Sang kitchen and sanitary appliances jointly provide the following evidence:
1. Trademark certificate, proving that the plaintiff's trademark is not used on the products involved. The trademark used on the products involved is registered trademark No. 12124262, which obtained the legal trademark right as early as July 21, 2014, and the trademark used on the products involved does not infringe any trademark right of the plaintiff.
2, jiangshan European door industry co., LTD., enterprise information and introduction to prove, "European" trademark is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", the registered trademark of jiangshan European door industry "European" brand wooden door, began in 2006, in 2009 won the title of "Chinese wood door industry 30 strong, brand-name products in zhejiang province in 2010 won the title, won the title of" famous trademark of zhejiang province in 2012, that "Europe" trademark in the market several coexistence is the indisputable fact that, and the plaintiff's sent even if is not the only has a high level of popularity in the industry of household, The popularity of Jiangshan Oupai wooden door in household wooden door is higher than the plaintiff, and the brand image spokesperson of Jiangshan Oupai wooden door is Also Jiang Wenli, the plaintiff's "Oupai" brand has not formed the only corresponding high popularity in the household market, not to mention in the plaintiff has not produced and sold the electrical industry involved. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.
3. The enterprise information and profile of Wuxi Shengbao Vehicle Manufacturing Co., Ltd. proves that the registered trademark of the company, "Opai" brand electric vehicle, was started to be produced in 1996, and now ranks the first brand in China's electric vehicle industry for several consecutive years. Proved that the "European" trademark is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market more than coexistence is the indisputable fact that the plaintiff's "European" brand not only corresponds to a high popularity in the market, not to mention in the plaintiff have not production and sales of electrical appliances industry. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.
4, suzhou Sue the European wood industry co., LTD., enterprise information and introduction, prove the registered trademark of the company 2002 "European" brand floor, floor is one of the top ten famous brand for the Chinese household, prove that "European" brand is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market many coexistence is the indisputable fact that, and the plaintiff's pie even in household industry not only has a high visibility, Sue the European wood industry "European" brand floor in the household popularity is on the floor above the plaintiff, the plaintiff's "European brand" in its home market, did not form the corresponding high name recognition, Not to mention the electronics industry in which the plaintiffs did not produce and sell the products. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.
5. The enterprise information and profile of Henan Opai Electric Appliance Co., Ltd. proves that opai electric Appliance Co., Ltd. is a subsidiary of Danone group, a well-known enterprise in the electrical appliance industry, specializing in the production of "Opai" brand washing machines. The brand of "Opai" of this company is far more well-known in the electrical appliance industry than that of the plaintiff. It is proved that "Opai" trademark is not a unique plaintiff, nor is it only the plaintiff's "Opai" famous, it is an indisputable fact that "Opai" trademark coexists in the market. The plaintiff has never carried out production and sales promotion in the electric appliance industry, and has no popularity in the electric appliance industry. The popularity of "Opai" in the electric appliance industry belongs to the "Opai" brand of the Henan Opai Electric Appliance Company. As a result, the appliance store in this industry more than the plaintiff has involved, "European" 2 words of trademark, and other home better-known the plaintiff, as a result, the plaintiff has not formed in the industry of appliance stores involved only corresponds to a high enough profile, the plaintiff asked to unfair competition to ban the use of the defendant on the products of different industries there is unreasonable, to expand the scope of protection.
6, opie paint chemical company, opie leather company, opie machinery company and other enterprise information and introduction, and prove that "European" brand paint, "European" brand leather goods, "European" brand machinery is used, "European" two characters as a product brand, but not all of the plaintiff's trademark, prove that "European" brand is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market more than coexistence is the indisputable fact that the plaintiff's "European" brand not only corresponds to a high popularity in the market, not to mention in the plaintiff have not production and sales of electrical appliances industry. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.
7. A series of enterprise information using the word "Opai" as the enterprise name proves that, in addition to the plaintiff's enterprise name, a large number of enterprises in various industries which have been officially approved and registered by the Industrial and commercial Bureau using the word "Opai" as the enterprise name are legally existing. It is an indisputable fact that "Opai" coexists with many companies on the market as the enterprise name. Even if the plaintiff is a well-known trademark on the cabinet and wardrobe products of home, it can be used legally in different industries and products, and the plaintiff cannot expand the scope of protection without authorization. Therefore, the name involved in the case of the defendant is legal and should be protected by law. The plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless.
8. A series of trademark information that USES the word "Opai" as a trademark and has obtained the exclusive right to register it, proving that in addition to the plaintiff's trademark of "Opai", there are still 58 registered trademarks of various classes that use the word "Opai" as a trademark and are legally existing. Prove "Europe is sent" 2 words serve as trademark to coexist on the market many it is indisputable fact, even if plaintiff is on the ambry that lives in, chest product is well-known trademark, but go up in different industry and product also can be used lawfully, plaintiff cannot expand protection limits without authorization. Therefore, the defendant's font size is legal and should be protected by law. The plaintiff's request to prohibit the defendant from using the font size in different industries is unreasonable and groundless.
9, the plaintiff, "European" brand ambry quality series serious problem, and prove that the plaintiff's "European" brand ambry propaganda for the name of the product, the quality of the products there are serious problems, favored by consumers to boycott, the "European" brand do not have the high reputation of the plaintiff mentioned in his, the defendant without completely to clings to its brand reputation.
10. The Civil Judgment of Guangzhou Intermediate People's Court (2014), which proves that the enterprise name registered and established according to law with the same trade name as the enterprise name registered and established by others, and the standardized use of the enterprise name, does not constitute unfair competition for the enterprise name.
11. Enterprise credit information of Guangdong Opai Technology Co., Ltd. certifies that the defendant guangdong Opai Technology Co., Ltd. is registered at No.313 6-3, No. 22, Liitang Road, Shangjia, Ronggui Street, Shunde District, Foshan City. Its business site is only a commercial office building in a prosperous area, and it does not have the conditions for producing household appliances.
12. Notarial Certificate (2017) No. 33763, Guangdong Foshunde, certifies that the business site of the defendant Guangdong Opai Technology Co., Ltd. is located in Yongan Complex building, which is a new office building and does not have the premises, equipment, materials and other conditions required for the production of home appliances. The products involved are produced by the three defendants.
13, European furniture group co., LTD., foreign publicity pictures, prove that the plaintiff promotion is cabinets, wardrobe, bathroom, furniture, the wooden door, bedding, wallpaper, but does not include kitchen appliance, prove the defendant opie technology co., LTD. Guangdong business industry is not same with the plaintiff, the two sides no competition.
14. The storefront picture of Opai Household Group Co., LTD proves that the plaintiff's storefront is marked with cabinets and closets, and that the defendant guangdong Opai Technology Co., Ltd. and the plaintiff operate in different industries, and there is no competitive relationship between the two parties.
After checking the evidence provided by both the plaintiff and the defendant, the court recognizes the authenticity of the plaintiff as the basis for ascertaining the facts of this case, and makes a comprehensive comment on the relevant evidence of the whole case.
On the basis of admissible evidence and the parties' statements, the Court ascertained and confirmed the following facts:
(I) Opie Group, founded on July 1, 1994, is a joint-stock company engaged in furniture manufacturing.
On June 7, 2007, guangzhou opie ambry enterprise co., LTD., by the state administration for industry and commerce trademark office (hereinafter referred to as the trademark bureau) for approval the registration no. 4378572 "European" registered trademark, shall use commodities for 11 class gas furnace, microwave oven (kitchenware), electric cooker, baking equipment, cooking utensils, faucets, bathroom equipment, disinfect cupboard, water filter, basin of wash one's hands and sanitary equipment (components), steam bath, sitz bath tub and shower equipment, shower cubicle, taking a bath, basin, toilet, kitchen smoke lampblack machine, lamp (as), Registration is valid from June 7, 2007 to June 6, 2017. 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 plaintiff's trademark no. 1128213 "Opai" was a famous trademark of Guangdong Province on the sideboard and was ×× ×. On April 24, 2009, the trademark "Opai" on the category 20 sideboard goods of the plaintiff was identified as a well-known trademark by the Trademark Office.
(2) on August 1, 2017, the plaintiff's attorney shou-zhen wang with FengCheng in laiwu city in shandong province notary office staff to tianjin xiqing district within the road no. 196 "top dike decorative furniture city" king of eight area increase 1 "royal opie bathroom" shops, shou-zhen wang bought a marked with the words "guangdong science and technology co., LTD.", kitchen burning gas a, and marked "royal opie bathroom toilet, a certificate issued by the store number 0015611" delivery note "and marked" royal opie opie bathroom vlon "card each one, FengCheng notarization in laiwu city in shandong province to supervise the purchase process, Issued a notarial certificate (2017) of Laifeng City Certificate No. 974.
Another find out, located in Tianjin Xiqing District Fukang Road 196, "Wang Ding Di decoration furniture city" eight areas add 1 "Royal European sanitary ware" store industrial and commercial registration name for Tianjin Xiqing District Ming Xin fei decoration materials business department, for individual industrial and commercial merchants, shop operator for Liu Fei.
In trial, plaintiff opened the product that afore-mentioned notarization bought in court, plaintiff charges the tort product of this case is gas stove. The advertising slogan of "You have A home and love Guangdong Opai" is marked on the front, back, left and right sides of the product packaging and the prominent position on the top. On the left and right sides of the outer package are marked the words "Made by Guangdong Opai Technology Co., LTD", the manufacturer of Foshan Shunde Fanxiang Kitchen and Sanitary Appliances Co., LTD, telephone and address. On the front and back of the package are white stickers marked "Guangdong Opai R". The OPAICN OPai is marked on the gas cooker panel, and the OPAICN Opai Technology Co., LTD is marked below. The cover and back cover of the product instructions contain the words "OPAICN Europa" and the OPAICN stars' portraits. The plaintiff believes that the products involved and the Chinese characters "Opai" marked on the instructions constitute trademark infringement, and the label "You have love Guangdong Opai" on the outer package is both trademark infringement and similar to our advertising slogan. The product packing cases, the instructions and the words "Guangdong Opai Technology Co., LTD." marked on the products are ACTS of unfair competition that infringe the plaintiff's right of enterprise name. At the same time, the plaintiff believes that the name card, shop sign and storefront decorated by the defendant Ming Xinfei all use the word "Opai", which also infringes the exclusive right of the registered trademark "Opai" of the plaintiff.
(3) the defendant guangdong sent on April 30, 2014, shunde district, foshan city, the registration and establishment, the registered capital is 10 million yuan, scope of business of 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.
(3) Defendant Vansang Kitchen and Sanitary Appliances was registered and established in Shunde District, Foshan City on August 1, 2013 with the registered capital of RMB 1 million. Its business scope covers the production, processing and sales of household appliances, gas appliances, water heater, kitchen equipment, kitchen utensils, stainless steel products, hardware products and hardware building materials.
The court holds that this case is a case of infringement of trademark rights and unfair competition disputes. At issue in this case are: 1. Whether the defendant has committed the alleged infringement; 2. 2. Whether the ACTS of the three defendants constitute trademark infringement and unfair competition; 3. The responsibility that should be borne.
Focus on 1, according to industrial and commercial registration materials, located in tianjin xiqing district within the road no. 196 of the "top dike decorative furniture city" king of eight area to add 1 "royal opie bathroom" shop for industrial and commercial registration name of tianjin xiqing district Ming xin fly adornment material, fly in the defendant Ming xin decoration business card, shop signs and the stores are using the word "Europe", and is accused of infringement by its product sales.
Is accused of infringement product outer packing was labeled "have family love the pie", "guangdong science and technology co., LTD. Producer", words, and write a manufacturer: outstanding hutch defends life electric appliance co., LTD., shunde district, foshan city, and the information such as telephone, on the product specification has marked "guangdong science and technology co., LTD.". Therefore, it can be determined that the defendant guangdong European group and the defendant Common kitchen and sanitary appliances were charged with infringement.
On Focus 2, whether the actions of the three defendants constitute trademark infringement and unfair competition.
Article 48 of the Trademark Law; "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, without the permission of the trademark registrant, a trademark similar to its registered trademark on the same good s or a trademark identical with or similar to its registered trademark on similar good s, which is liable to cause confusion... ." 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 the facts found in this case, plaintiff no. 4378572 registered trademark in the 11th class of goods is approved to use the scope of the gas stove, and this case is accused of infringement products for gas stove, both belong to similar goods. The defendant Ming xin fly decoration business card, shop signs and stores to use the word "European", and sales on the product packaging and instruction of "the home has love with European" "guangdong science and technology co., LTD.", the word "OPAICN opie", "European" two words highlight use, is accused of infringement identification "European" and advocate for the rights of the plaintiff compared to no. 4378572 "European" registered trademark, the pronunciation and meaning are the same, the relevant public to general attention easily confused between the two, therefore, The court concludes that the "Opi" logo used by the defendant Mingxinfei decoration and the "Opi" logo in the case products sold by the defendant are similar to the trademark OPAICN OPi in the anti-counterfeiting marks. According to afore-mentioned legal regulation, without the permission of trademark registrant, defendant Ming Xin flies decoration to use the trademark that is similar with plaintiff's registered trademark on same commodity, already constituted trademark infringement. Therefore, the defendant Guangdong Opai and the defendant Van Sang kitchen and sanitary appliances produced and sold products involved in the case, which also constituted trademark infringement.
Article 2 of the Law of the People's Republic of China against Unfair Competition: "Business operators shall abide by the principles of voluntariness, equality, fairness and good faith in their production and business operations, and abide by the law and business ethics." . Article 6 stipulates: "A business operator shall not commit the following confusing ACTS that may cause it to be mistaken for another person's goods or have a specific connection with another person: (3) unauthorized use of the names of enterprises (including shortened names and shop names, etc.), of social organizations (including shortened names, etc.) and names (including pennames, stage names, and translated names, etc.) that have certain influence on others; ." . This case, "Europe" is the font size in the plaintiff opie group enterprise name, the plaintiff opie group is the domestic famous furniture production enterprise, in the class the sideboard 20 "European" trademark by the trademark office identified as well-known trademarks, its enterprise also won many honors, such as China famous brand product, guangdong well-known trademark, top 2012 China hutch defends, integral kitchen top ten leading enterprises, the 2012 guangzhou mayor quality prize, in 2014, guangdong generic household field top ten most valuable brands, innovation ten strong enterprise honorary title, In CCTV, hunan TV station and other print media for advertising, pay a lot of advertising costs, visible "European" series of products and the plaintiff opie group "European" font size across the country have high visibility, and by the relevant public know, belong to the first (3) of article 6 of the anti-unfair competition law "enterprise name" prescribed in item. The prior rights enjoyed by the plaintiff Eurogroup are protected by the General Provisions of the Civil Law of the People's Republic of China and the Law of the People's Republic of China against Unfair Competition. In the registration of enterprise name, in order to comply with the good faith and recognized business ethics, should have the obligation to give the prior well-known trademark and name to avoid. But the defendant guangdong was founded in 2014, the plaintiff's "European" font size has higher visibility, in the plaintiff's "European", under the status of well-known trademark, the defendant guangdong opie when applying for a registered enterprise name will remain "Europe" as its enterprise name recognition in different market main body core identity size of enterprise, its subjective has obvious clings to plaintiff intentionally goodwill, objectively make the confusion or association errors, easy to make a relevant public services provided by the source to its confusion, induce the public for the link. Its behavior constitutes unfair competition and infringes upon the prior enterprise name right of the plaintiff.
Concerning focus 3, the civil liabilities to be borne by the three defendants.
The defendants guangdong opie and outstanding hutch defends electric appliance is defense think it has nothing to do with the case is accused of infringement product, but on the product outer packing mark with the defendants guangdong opie enterprise name and outstanding hutch defends electric information such as company name and telephone number, in the guangdong opie contrary to the defendant outstanding hutch defends electric appliance has failed to submit evidence of cases, we confirm the product involved to guangdong opie the defendant and the defendant outstanding hutch defends electric appliance production and sales together. Article 8 of the Tort Liability Law of the People's Republic of China stipulates that if two or more persons jointly commit a tort and cause damage to another person, they shall bear joint liability. In this case, respondent Guangdong Europe sends the common intention that he Wei appliance has to carry out trademark tort and unfair competition behavior, form joint tort, answer plaintiff to assume joint and several liability for compensation.
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 defendants constitute trademark infringement and unfair competition. The actual loss the plaintiff to the case and the defendant of the illegal income derived therefrom are not sure, we consider the reputation of the plaintiff's awareness and comprehensive three infringement of the defendant's subjective intent, plot, business scale, is accused of infringement product sales, and other factors, has decided the defendant Ming xin fly decoration from the plaintiff compensation for the economic loss of 35000 yuan, the outstanding hutch defends electric appliance compensate the plaintiff for the economic loss of 85000 yuan, the defendants guangdong party outstanding kitchen appliances shall bear the liability for compensation shall be jointly and severally liable. The above compensation amounts have included the reasonable expenses incurred in the case.
In accordance with the provisions of Article 120 of the General Provisions of the Civil Law of the People's Republic of China, where a civil right is infringed, the infringed shall have the right to request the infringer to bear the liability for tort, to demand that the infringement be stopped and to compensate for the loss. Therefore, the court should support the plaintiff's request to the three defendants to stop the infringement.
In conclusion, in accordance with the law of the People's Republic of China on the general civil law "article one hundred and twenty, article 8 of the tort liability law of the People's Republic of China, article 56 of the" trademark law of the People's Republic of China, paragraph 2 of article 57, paragraph 1 of article sixty-three, paragraph 3, "anti-unfair competition law of the People's Republic of China" in article 2 of the first paragraph, the first (2) of article 6, article 17 and article sixty-four of the civil procedural law of the People's Republic of China, the provisions of article one hundred and forty-four of the judgment by default is as follows:
(3) As of the effective date of this judgment, the defendant, Mingxinfei Decoration Materials Business Department, Xiqing District, Tianjin City, immediately stopped the trademark infringement, immediately stopped the use of the word "Oupai" on store signs, and immediately stopped the sale of gas stoves marked with the word "Oupai";
Second, the defendant guangdong opie technology co., LTD., the defendant, shunde district, foshan city, outstanding hutch defends life electric appliance co., LTD., since the day of the enforcement of this decision immediately stop trademark infringement and unfair competition, namely to immediately stop the production, the sale marked "have family love opie" "guangdong science and technology co., LTD.", "European" kitchen burning gas;
Iii. The defendant, Mingxinfei Decoration Materials Business Department, Xiqing District, Tianjin 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 RMB 35,000 (including the reasonable expenses paid by the plaintiff, Opai Home Furnishing Group Co., LTD., to stop the infringement in this case);
Iv. The defendant, Foshan Shunde Vansang Kitchen and Sanitary Appliances Co., Ltd. shall compensate the plaintiff, Opai Home Furnishing Group Co., Ltd. for the economic loss of RMB 85,000 within 10 days from the effective date of this judgment (including the reasonable expenses paid by the plaintiff, Opai Home Furnishing Group Co., Ltd. to stop the infringement in this case);
V. Defendant Guangdong Opai Technology Co., Ltd. shall assume joint and several liabilities for the compensation liability borne by defendant Foshan Shunde Fansheng Kitchen and Sanitary Appliances Co., Ltd. in the fourth judgment mentioned above;
Vi. Rejecting other claims of the plaintiff Opai Furniture Group Co., LTD.
If the defendant fails to perform his pecuniary obligation within the period specified in this judgment, he shall, in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China, pay double interest on the debt for the delayed period.
4300 yuan, the fees for accepting the case shall be borne by the plaintiff opie household group co., LTD. 1000 yuan, the defendant of tianjin xiqing district Ming xin fly decoration material burden of 1000 yuan, the burden of outstanding hutch defends electric appliance co., LTD., shunde district, foshan city, 2300 yuan, the defendant opie technology co., LTD. Guangdong outstanding hutch defends electric appliance co., LTD., shunde district, foshan city, to the defendant should pay the fees for accepting bear joint liability to pay.
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 Foshan, Guangdong.
Chief Judge Wu Zhanhong
People's Juror Ho Shao-li
People's Juror Li Ruifen
August 2, 2008
Judge assistant Tao Liang
Clerk Shao Hangsheng
Clerk Tan Yingsi