Civil judgment of Qingdao Intermediate People's Court in Shandong Province

    Qingdao Intermediate People's Court of Shandong Province

    Written judgment of civil affairs

    (2017) Lu 02, 1621, Early Republic of China

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

    Legal representative: Yao Liangsong, chairman of the board.

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

    Attorney: Yang Fudong, lawyer of Shandong Changping Law Firm.

    Defendant: Chunli Sanitary ware Business Department, Wuqing District, Tianjin, Place of business: Sales Department, C14-106, Huabei City, Xiazhuang Street, Wuqing District, Tianjin, China.

    Operator: Qu Chunli.

    Defendant: Qingdao Opai Fine Electrical Appliance Co., LTD., Room 301, Building 2, No.10 siliu South Road, Sifang District, Qingdao, Shandong.

    Legal representative: Qiu Yaping, Executive Director and General Manager.

    Defendant: Kangjing Electric Appliance Co., LTD., Shunde District, Foshan City, 2 / F, No.6 hefeng Road, Nanan Industrial Zone, Ronggui Bianjiao Residential Committee, Shunde District, Foshan City, Guangdong Province.

    Legal representative: Qiu Hongguang, Executive Director and General Manager.

    Agent AD litem: Qiu Yunzhong, lawyer of Guangdong Ronggui Law Firm.

    The plaintiff opie household group co., LTD. Sanitary ware with the defendant of tianjin wu qing chun arm, Qingdao opie boutique electric appliance co., LTD., kang ching electric appliance co., LTD., shunde district, foshan city, the infringement trademark rights and unfair competition disputes, we adjudicated in accordance with the applicable ordinary procedure, on June 29, 2018, public hearing on the trial. The plaintiff opie household group co., LTD., to entrust agents AD litem FuDong, Yang kang ching electric appliance co., LTD., shunde district, foshan city, the defendant's Qiu Yunzhong entrust agents AD litem to appear in court took part in the litigation, the defendant shop of tianjin wu qing chun set sanitary ware, Qingdao opie boutique electric appliance co., LTD. Through our summons, did not appear in court to participate in the litigation. The case is now closed.

    1. The court ordered the defendant chunli Sanitary Ware Business Department of Wuqing District, Tianjin to immediately stop the sale of range hoods marked with "WWW. Ou Pai Electrical Appliances. Cc" and "Qingdao Ou Pai Boutique Electrical Appliances Co., LTD", and to stop the use of "Ou Pai" in the bills; 2. 2, the defendant opie boutique electric appliance co., LTD., Qingdao kang ching electric appliance co., LTD., shunde district, foshan city, immediately stop production, sales, abuse the plaintiff no. 4378572, no. 1137521 oil absorption behavior of the trademark, at the same time to stop on the product labeling use "Qingdao opie boutique electric appliance co., LTD." on the ACTS of unfair competition; 3. The defendant was ordered to change the enterprise name immediately and the word "Oupai" shall not be used in the changed enterprise name; 4. The defendant was ordered to cancel the domain name of "www.opai. Cc" immediately. 5. Order the defendant to jointly compensate the plaintiff's economic losses and reasonable expenses for safeguarding their rights, totaling RMB 300,000 yuan; 6. The costs of the case shall be jointly borne by the defendants. Facts and Reasons: Founded in 1994, the plaintiff is a comprehensive domestic integrated service provider of modern integrated household, whose products cover the fields of integrated wardrobe, kitchen appliances, integrated bathroom, commercial kitchen utensils and so on. The plaintiff is "Opai" and other registered trademark owners. After decades of painstaking operation, the plaintiff has made "Opai" a household name and well-known brand of household appliances and sanitary ware in China. The brand has won "China famous brand products", "China famous trademark" and other good reputation. "Have a family, have love, have Europe" this slogan has a very high influence in the consumer, and has been fully affirmed. In the eyes of the relevant public, "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, after investigation by the plaintiff, it was found that the defendant, Chunli Sanitary ware Business Department of Wuqing District, Tianjin, sold the range hoods involved in the case in its stores in the premises. The packaging box of the products involved and the lampblack hoods were marked with the words "Qingdao Oupai Fine Electrical Appliances Co., LTD", "WWW. Oupai Electric Appliances. Cc" and other words. The receipt issued on the spot was marked with the words "Oupai B-5 Cigarette machine". Also check, WWW. Ou Pai electrical appliances. Cc is the defendant Qingdao Ou Pai fine electrical appliances Co., LTD. Registered domain name.

    In conclusion, the plaintiff believes that the defendant's behavior of producing and selling lampblack machine products involved in the case not only infringes the trademark right of the plaintiff, but also constitutes unfair competition. At the same time, the defendant opie boutique electric appliance co., LTD. Qingdao, without any justified reason, contain the words "European" registration of enterprise names and domain name, and kang ching electric appliance co., LTD., shunde district, foshan city, with the defendant in the common annotations on production and sales of the product contain the words "European" enterprise name and domain name, enough to produce market confusion, also violates the principle of good faith and recognized business ethics, constitutes unfair competition. Therefore, in order to safeguard their legitimate rights and interests, the plaintiff appealed to the court, the request to judge as requested. During the court hearing, the plaintiff withdrew the lawsuit against the defendant chunli Sanitary ware Business Department of Wuqing District, Tianjin and the fourth lawsuit against the defendant Qingdao Oupai Fine Electrical Appliances Co., LTD., which was granted by the court.

    The defendant, Foshan Shunde Kangjing Electric Appliance Co., Ltd. replied that the defendant had not committed any trademark infringement and should not be liable for compensation. Defendant 3 was commissioned by Defendant 2 to process and produce a range hood without any trademark or product name. The infringing product sued by the plaintiff does not use the trademark of Opie. The domain name "WWW. Opie. Cc" marked in the product is not a legal domain name and cannot be searched on the Internet.

    The parties submitted evidence according to law, and the court organized the two parties to exchange and cross-examine evidence. As for the evidence that the parties have no objection, the Court confirms and supports in the volume. As for the evidence that the parties have disputes, the Court finds as follows:

    The plaintiff's evidence 13, www.kangjingdq.com web pages to print one copy, proof of product labeling information and kang ching electric appliance co., LTD., shunde district, foshan city, the defendant website annotation information used to verify product manufacturers is the fact that the defendant, at the same time, according to its website propaganda with oil absorption, 200000 sets of production capacity, can prove that the defendant has the strong ability of infringing products, should bear the higher compensation; According to the information, the website was used by the defendant, Foshan Shunde District Kangjing Electric Co., LTD. The defendant, Foshan Shunde Kangjing Electric Appliance Co., LTD., testified that the web page opened was not the web page content presented by the plaintiff, so the authenticity was not confirmed. Evidence to 14, 9641490 trademark registration information printouts, proof of product labeling Oparey logo is kang ching electric appliance co., LTD., shunde district, foshan city, the defendant shareholder zou will Jane registered trademarks, and product registration information at the same time the applicant's address with the address of the consistent, further verify the products involved is the fact that the defendant produced. The defendant, Foshan Shunde Kangjing Electric Appliance Co., Ltd. testified that the authenticity of the printed copy could not be confirmed, but the registered trademark of Oparey was indeed applied for registration by Zou Huizhen, one of our shareholders. The trademark had nothing to do with it and was not its enterprise trademark. Because the evidence is printed, the defendant, Foshan Shunde Kangjing Electric Co., LTD., also does not accept, and there is no other evidence to support, the court does not confirm this.

    Kang ching electric appliance co., LTD., shunde district, foshan city, the defendant a submit processing agreement, prove that the agreement by the defendants commissioned by 2 3 production range hood, gas stoves, water heaters, such as white machine, printed by the defendant 2 product packaging, stick a card, and the sales, such as the defendant 2 branded with the outer packing printing contents involve the infringement of the fact that all the responsibility borne by the defendant 2 has nothing to do with the defendant 3. According to the cross-examination by the plaintiff, the authenticity cannot be confirmed and the content of the proof is disputed. In view of the fact that the defendants 2 and 3 are co-defendants in this case and have interests, it cannot be ruled out that the agreement was made temporarily to avoid responsibility. The court confirms the authenticity of the evidence, which can prove that the two are the relationship of commissioned processing and production. However, the court believes that the disclaimer agreement belongs to the internal agreement of both parties and has no effect against the third party.

    Based on the evidence confirmed by the Court according to law and the statements of both parties, the Court determines the following facts according to law:

    The plaintiff opie household group co., LTD., founded in 1994, on July 1, the registered capital is three hundred and seventy-three million five hundred and eighty-one thousand one hundred and twelve yuan, business scope is: wooden furniture manufacturing, rattan furniture manufacturing, metal furniture manufacturing, household electrical appliances manufacture, kitchen appliances and daily groceries retail, kitchen equipment and kitchen supplies wholesale, etc.

    Guangzhou Oupai Kitchen Cabinet Enterprise Co., Ltd. obtained the exclusive right to use the registered trademark "Oupai" No. 4378572 on June 7, 2007. The approved products are class 11 gas stoves, microwave ovens, etc. The registration is valid until June 6, 2017. On March 24, 2014, the registered trademark change was Opai Home Furnishing Group Co., LTD. On December 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. obtained the exclusive right to use the registered trademark "Opai" no. 1137521, and approved the use of the goods for the category 11 kitchen stoves, gas stoves, etc. The term of validity of the trademark was renewed until December 20, 2007. On November 7, 2007, the trademark was renewed for a period of validity up to December 20, 2017. On March 24, 2014, the registered trademark change was Opai Home Furnishing Group Co., LTD. On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized guangzhou Oupai Cabinet Enterprise Co., Ltd. as a well-known trademark of the registered trademark "Oupai" on the sideboard goods of category 20 of the International Classification of Goods and Services for trademark registration.

    In September 2007, the General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China awarded the Opai household cabinet produced by Guangzhou Opai Kitchen Cabinet Enterprise Co., Ltd. as "China's famous brand products". In October 2008, Guangdong Provincial Bureau of Quality and Technical Supervision granted Oupai household cabinets manufactured by Guangzhou Oupai Kitchen Cabinet Enterprise Co., Ltd. as "Guangdong famous brand products"; Guangzhou Oupai Kitchen Cabinet Enterprise Co., LTD. No. 1128213, "Oupai", was recognized as a famous trademark of Guangdong province by Guangdong Famous Trademark Recognition Committee. In December 2012, China building decoration Association hutch and sanitation Engineering Committee awarded Guangdong Opai Household Group Co., LTD. "2012 China top 100 hutch and sanitation", "overall kitchen leading enterprises top 10" title; In September 2013, Guangzhou Municipal People's Government issued the "2012 Guangzhou Mayor's Quality Award" certificate to Guangdong Opai Furniture Group Co., LTD. On December 28, 2014, the plaintiff's case of "Scientific Planning of European Group leading the Second Revolution of the furniture Industry through the Strategy of European Group Leading the Furniture Industry" evaluated by Brand Watch magazine was selected as the Silver Award of the 2014 Chinese Brand Marketing Case of the Year. In January 2015, Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce awarded the plaintiff the honor certificate of "Top ten Enterprises with Innovation Ability" and "Top Ten Brands with Most Value".

    On October 30, 2012, the plaintiff and Beijing onspot boiling international advertising co., ltd. signed the sponsorship and cooperation agreement on the home decoration fund of 2013 "exchange space", which agreed that on January 5, 2013, solstice and December 28, 2013, the plaintiff's brand would be promoted in the second set of "exchange space" column of CCTV, with the advertising fee of RMB 5.7 million. On November 6, 2013, the plaintiff and zhejiang zhimei car advertising co., ltd. signed a television advertising release contract, which agreed that the plaintiff's brand would be publicized on CCTV news channel on January 1, 2014 and the advertising fee would be four thousand four hundred and sixty-three thousand nine hundred and seventy yuan. In July 2014, the plaintiff signed a TV project advertising release contract with hunan radio and television advertising corporation and hunan shunfeng media co., LTD. The contract agreed that on September 28, 2014, solstice, November 12, 2014, the plaintiff's brand would be promoted in related columns of the closing ceremony and award evening of the 10th golden eagle festival of hunan satellite TV, with an advertising fee of 18 million yuan. On October 22, 2014, the plaintiff signed an advertising agency contract with kashgar yinsong culture media co., LTD. The agreement agreed that on January 1, 2015, solstice, December 31, 2015, the plaintiff's brand would be publicized on CCTV news channel, and the advertising fee would be 23,970 yuan. The plaintiff promoted the "Opi" brand in the "Decorate the World" published in April 2014. The plaintiff still hires Jiang Wenli to produce to the plaintiff "Europe sends" the ambry of the brand, wardrobe, defend bath product to undertake advertisement speaks.

    The defendant, Foshan Shunde Kangjing Electric Appliance Co., Ltd. was established on November 12, 2007. The legal representative is Qiu Hongguang. The registered capital is 30,000 yuan. The defendant Qingdao Oupai Fine Electrical Appliances Co., Ltd. was established on July 12, 2011. The legal representative is Qiu Yaping. The registered capital is 100,000 yuan.

    On July 29, 2017 in laiwu city in shandong province FengCheng notarization notaries zhang, xu notarial personnel supervision, the entrusted agent of the applicant, the shou-zhen wang in the name of the ordinary consumers came to tianjin wu qing zhu chuang down street north China city of C14-106 "good wife hutch defends" shop, shou-zhen wang in the shop to buy a marked with "WWW. Opie appliances. Cc" "Qingdao opie boutique electric appliance co., LTD." on the oil absorption of a, also bought a kitchen burning gas (has nothing to do with the case), On the spot issued by the shop number is 7266876 "Industrial and commercial services unified payment receipt" and "good wife zhang Hongsheng" a business card. Wang Shouzhen took two photos of the shop inside and outside. After the end of the aforesaid act, Under the supervision of the notary, Wang Shouzhen took 19 photos of the above-mentioned articles, which were sealed by the notary, and Wang Shouzhen took two photos of the appearance of the sealed articles, which were kept by Wang Shouzhen. Fengcheng Notary Office of Laiwu city, Shandong Province issues (2017) The Notary Certificate of Laifengcheng Certificate Minzi No. 933 for the above process.

    Opened in court accused of infringing products, visible on both sides of the outer packing box marked "WWW. Opie appliances. Cc," at the bottom of the side and side labeled with the product label with the defendant opie boutique electric appliance co., LTD. Qingdao enterprise name, manufacturer in kang ching electric appliance co., LTD., shunde district, foshan city, the defendant, and marked with business address, telephone number and other information. The product panel involved in the case was marked with the logo "WWW. Opai Electrical Appliances. Cc", and the product label attached was marked with the name of the defendant Qingdao Opai Fine Electrical Appliances Co., LTD.

    The court believes that the focus of the dispute in this case is: 1. Whether the product involved infringes the exclusive right of the plaintiff to use the registered trademark No. 4378572 and No. 1137521; 2. Ii. Whether the behavior of the defendant Qingdao Opai Fine Electrical Appliances Co., Ltd. constitutes unfair competition, and whether it should change the name of the enterprise; If it constitutes an infringement, whether the defendants should bear and how to bear civil liability.

    Focus on one, the trademark law of the People's Republic of China article 57 in the second paragraph: without the permission of the trademark registrant, used on the same kind of goods with similar trademark registered trademark, or on the similar products to use its registered trademark identical or similar trademarks, easy to cause confusion, the use of a registered trademark infringement.

    In this case, is accused of infringement product outer packing box as well as the product of the front panel was labeled "WWW. Opie appliances. Cc" logo, the "European" text with the plaintiff "European" registered trademark, no. 4378572 no. 1137521 "European" registered trademark, the only different fonts, other aspects are very approximate, and was accused of infringing products with the approved and registered trademark product category is the same, for the same goods, to average consumer's opinion, easy to cause confusion, therefore, the product infringes the plaintiff no. 4378572, 1137521th of a registered trademark, For infringing products.

    Concerning the second focus, article 58 of the Trademark Law of the People's Republic of China stipulates that: where a registered trademark of another person or an unregistered well-known trademark is used as the shop name of an enterprise, thus misleading the public and constituting an act of unfair competition, the case shall be dealt with in accordance with the Law of the People's Republic of China against Unfair Competition. Since the infringement in this case occurred before the enforcement of the current Law of the People's Republic of China against Unfair Competition, the Law of the People's Republic of China against Unfair Competition, which took effect on December 1, 1993, shall be applied in this case. Article 2, paragraph 1, of the Anti-Unfair Competition Law of the People's Republic of China (which came into force on December 1, 1993) stipulates that business operators shall abide by the principles of voluntariness, equality, fairness, honesty and credibility and observe generally recognized business ethics in their market transactions. In this case, the plaintiff is the holder of the "European" registered trademark, the trademark has certain market popularity, the Qingdao opie boutique electric appliance co., LTD will be the same as the plaintiff's registered trademark words "Europe clique" for the enterprise name registration in the font size, and used on the same commodity, its behavior is enough to make the relevant public to mistake the there is a specific relationship with the plaintiff, then the product mix of the two for the same product market main body, harmed the plaintiff to "European" trademark rights, violates the principle of good faith, has violated the recognized business ethics, unfair competition, It shall bear the civil liability for ceasing to use or changing the enterprise name according to law.

    Focus on three, we think, in the case of product outer packing side at the bottom and side labeled with the product labels are marked with the defendant in Qingdao opie boutique electric appliance co., LTD., enterprise name, manufacturer in kang ching electric appliance co., LTD., shunde district, foshan city, the defendant, and marked with the information such as address, telephone, and kang ching electric appliance co., LTD., shunde district, foshan city, according to the defendant submit evidence, also showed the relations for processing production. , therefore, be held to product department the defendant opie boutique electric appliance co., LTD., Qingdao kang ching electric appliance co., LTD., shunde district, foshan city, the production and sales together, their behavior violated the plaintiff no. 4378572, no. 1137521 of a registered trademark, at the same time the product on the wording "Qingdao opie boutique electric appliance co., LTD." also constitutes unfair competition behavior. Therefore, the two defendants should bear the civil liability to stop the infringement and compensate the loss for their torts.

    On the question of the amount of compensation for the loss. Article 63 of the Trademark Law of the People's Republic of China provides that 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 as a result of the infringement. Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; The amount of compensation shall include the reasonable expenses paid by the right to stop the infringement. If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests gained by the infringer as a result of the infringement, or the licensing fee of the registered trademark, the people's court shall, in light of the circumstances of the infringing act, make a judgment to pay compensation of not more than THREE million yuan. The Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "stipulated in article 16, when determining the amount of compensation, the people's court should consider the nature of the infringement, during the period, the consequences, the reputation of the trademark, the trademark license fee amount and type of trademark licensing, time, scope and to stop the infringing act reasonable expenses of the factors such as comprehensive. Article 20 of the Law of the People's Republic of China against Unfair Competition 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. If it is difficult to calculate the losses of the injured business operator, the amount of compensation shall be the profits made by the infringer during the period of infringement. It shall also bear the reasonable expenses paid by the injured operator for investigating the ACTS of unfair competition committed by the operator which infringe upon its lawful rights and interests.

    This case, the plaintiff failed to proof to prove the loss of its situation, also failed to prove the defendant's tort profit amount of proof, as a result, according to the law, the value of our college in view of the plaintiff's trademark, the defendant's subjective fault, tort, period, consequences, and the properties of the plaintiff reasonable expense for stopping the infringement of the defendant and other factors, determined the defendant Qingdao opie boutique electric appliance co., LTD., kang ching electric appliance co., LTD., shunde district, foshan city, the defendant to compensate the plaintiff economic loss of 100000 yuan.

    In conclusion, according to the law of the People's Republic of China civil law article one hundred and eighteen, article one hundred and thirty-four, paragraph 1 (1) and (7), the trademark law of the People's Republic of China article sixty-three, article 57 and article 58, "anti-unfair competition law of the People's Republic of China" (come into force as of December 1, 1993) the provisions of article 2, article 20, the decision is as follows:

    A, the defendant opie boutique electric appliance co., LTD., Qingdao kang ching electric appliance co., LTD., shunde district, foshan city, the defendant in the day of the enforcement of the judgment to immediately stop the production, the sale infringement of the plaintiff opie household group co., LTD. No. 4378572, no. 1137521 of a registered trademark and marked as "Qingdao opie boutique electric appliance co., LTD." products.

    Ii. The defendant Qingdao Opai Boutique Electric Appliance Co., Ltd. immediately stopped using the word "Opai" in its enterprise name as of the effective date of this judgment, and changed its enterprise name within 10 days from the effective date of this judgment. The changed enterprise name shall not contain the same or similar words as "Opai";

    3. The defendant, Qingdao Opai Fine Electrical Appliances Co., LTD., and the defendant, Shunde District, Foshan city, Kangjing Electrical Appliances Co., LTD., shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of RMB 100,000 within ten days from the effective date of this judgment;

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

    If the pecuniary obligation is not performed 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 of 5,800 yuan shall be borne by the plaintiff Opai Household Group Co., Ltd. and 3,867 yuan by the defendant Qingdao Opai Fine Electrical Appliances Co., Ltd. and the defendant Foshan Shunde Kangjing Electrical Appliances Co., LTD.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal to the court and make a copy according to the number of the other party and appeal to the Shandong Higher People's Court.

    Wang Yan, Chief judge

    People's Juror Li Hongbin

    People's Juror Yang Yulin

    September 20, 2008

    Clerk Chen Dong

    Clerk Zhang Qi