Civil judgment of Futian District People's Court in Shenzhen city, Guangdong Province

    Futian District People's Court of Shenzhen City, Guangdong Province

    Written judgment of civil affairs

    (2018) No. 40692, Yue 0304, Early Republic of China

    Plaintiff: Opai Furniture Group Co., LTD., domicile: No. 366, Guanghua Third 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: Shenzhen Opai Pottery Ceramics Co., LTD., Domicile: 1102, Block A, Union Square, No. 5022 binhe Avenue, Futian Street, Futian District, Shenzhen, Guangdong province, Unified social credit code ××38C.

    Legal representative: Chen Qunjun.

    The court accepted the case of plaintiff Opai Household Group Co., Ltd. against defendant Shenzhen Opai Ceramics Ceramics Co., Ltd. on infringement of trademark rights on October 15, 2018, formed a collegial panel according to law, and held the trial in public on March 1, 2019. The plaintiff entrusts the agent AD litem Zhai Mingyue to attend the lawsuit. After being legally summoned by the court, the defendant, Shenzhen Opai Ceramics Co., LTD., failed to attend the court proceedings, and the court tried in absentia according to law. The case is now closed.

    The plaintiff requested the court to order: 1. The defendant immediately stopped the production and sale of the toilet, which was marked with such words as "Shenzhen Oupai Ceramic Ceramics Co., LTD", "C(O)PPIEN", "Oupai Overall Sanitary Ware" and so on; 2. 2. The defendant immediately stopped the unfair competition, that is, immediately changed the enterprise name, and the changed enterprise name shall not contain the word "Eurogroup"; 3. The defendant shall compensate the plaintiff a total of 200,000 yuan for economic losses and reasonable expenses for safeguarding their rights; The costs of this case shall be borne by the defendant. Facts and Reasons: The plaintiff was founded in 1994, is the domestic comprehensive modern integrated home integration service provider, the products cover the whole wardrobe, kitchen appliances, the whole bathroom and other fields. The plaintiff is the registered trademark owner of "Opai". After decades of operation, the plaintiff has turned "Opai" into a household name and well-known brand. 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 September 2017, after investigation by the plaintiff, it was found that the packaging boxes, sealing tapes, fixed straps, product labels, service manuals and accessories packaging of the toilet products produced by the defendant were marked with such words as "Shenzhen Opai Ceramic Ceramics Co., LTD", "C(O)PPIEN", "Opai Integral Sanitary Ware" and so on. The defendant infringed the trademark rights enjoyed by the plaintiff by producing and selling the products involved without the plaintiff's permission. At the same time, the defendant's behavior of labeling the products involved in the production and sale with "OPPEIN" as the enterprise name and similar English logo with the plaintiff's "OPPEIN" without justified reasons is intentionally attached to the plaintiff's OPPEIN company and brand goodwill, which is enough to cause market confusion and constitute unfair competition. The plaintiff went to court and asked the court to judge as requested.

    The defendant failed to submit a reply and was absent in court.

    Trial found that the plaintiff was established in 1994, on July 1, the business scope for household electrical appliances manufacture, kitchen appliances and daily groceries, kitchen equipment and kitchen supplies retail wholesale and so on, the former name for guangzhou kang jie kitchen equipment co., LTD., guangdong opie household group co., LTD., guangzhou opie ambry equipment co., LTD., guangdong opie group co., LTD., guangzhou opie ambry enterprise co., LTD. The defendant was established on August 12, 2015 as a limited liability company. Its business scope covers the sales of sanitary ware, ceramics, sanitary ware, faucets, stone materials, furniture decoration materials, building decoration materials and hardware products. Investment management; Domestic trade; Import and export of goods and technologies.

    Approved by the state administration for industry and commerce trademark office, the plaintiff's registered trademark: 1. No. 4378572 "" trademark, the use of check and ratify commodity categories for 11 class sit implement, gas furnace, microwave oven, kitchen utensils), faucets, kitchen smoke lampblack machine, etc., the registration is valid from June 7, 2007 to June 6, 2017, after the renewal, will expire on June 6, 2027; 2. Trademark no. 7731876 "", approved for use of class 11 flush toilets, dome lights, ovens, water heaters, kitchen range hoods, etc., valid for registration from March 14, 2011 to March 13, 2021.

    On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized the registered trademark "Opai" used by the plaintiff on the sideboard goods of category 20 of the International Classification of Goods and Services for trademark registration as a well-known trademark. In September 2007, the General Administration of Quality Supervision, Inspection and Quarantine of the People's Government of China granted the Plaintiff the Opai brand household cabinet as "China famous brand product" (valid until September 2010). In October 2008, The Bureau of Quality and Technical Supervision of Guangdong Province granted opai brand cabinet products manufactured by the plaintiff as "Guangdong famous brand products" (valid until September 2011). In February 2008, the Guangdong Famous Trademark Recognition Committee confirmed that the trademark "Opai" used on the sideboard and storage shelf was extended to be a famous trademark of Guangdong Province with a term of validity of three years. In December 2012, China building decoration association kitchen and sanitation engineering committee assessed the plaintiff for 2012 China kitchen and sanitation 100 overall kitchen leading enterprises top 10 (valid until December 2013). In September 2013, the plaintiff was awarded the "2012 Guangzhou Mayor Quality Award" by the People's Government of Guangzhou Municipality. In January 2015, the plaintiff was awarded the top 10 most valuable brands in the field of Guangdong pan-household in 2014 by Guangdong Home Furnishings Federation and Guangdong Furniture Chamber of Commerce. In January 2016, the plaintiff's registered trademark No. 1128213 "" was identified as a famous trademark of Guangzhou city on the sideboard and furniture (wardrobe).

    The plaintiff submitted sponsorship and cooperation agreement of "Exchange Space" home decoration Fund in 2013 and 2015, TV advertisement release contract, TV schedule, advertising agency contract, newspaper and magazine copy, etc., to claim that the plaintiff spent a huge amount of money to carry out continuous promotion of "Eurogroup" brand through multiple channels.

    Wang Shouzhen, agent of Jindun Intellectual Property Service Center in Laicheng District, Laiwu city, Shandong Province, applies for notarization of evidence preservation to Fengcheng Notary Office on August 27, 2017. On September 9, 2017, in the notarization notaries zhang and xu notarial personnel supervision, 1 shou-zhen wang in the name of the ordinary consumers baisha town to the city of henan province zhengdong new district * * * * wholesale center water logistics hall south of xx "CPPIEN" shops, shou-zhen wang in the shop to buy a marked "shenzhen opie some ceramic porcelain co., LTD." on the toilet and marked with "opie the overall sanitary ware co., LTD. Of China" the flower is aspersed a set. Under the supervision of notary Zhang and notary Xu 1, Wang Shouzhen took 19 photos of the above items. The above articles shall be sealed by notary Zhang and notary Xu. Wang Shouzhen shall take two photos of the appearance of the sealed articles and the sealed articles shall be kept by Wang Shouzhen. On October 19, 2017, Fengcheng Notary Office of Laiwu City, Shandong Province issued a notary Certificate of Laifeng City Certificate Minzi No. 1501 to prove that the above process is true. The sales list photo attached to the notarial certificate shows a unit price of 380 yuan for the item named "Euro 6215 Toilet".

    Trial, in our hospital for the notarial deed in court involved seal attached to dismantle, upon check in court, the plaintiff provide notarial material for carton, carton openings posted in laiwu city in shandong province FengCheng notarization seals, "CPPIEN" are printed on the box, "WWW. Opie whole wei yu the.net", "shenzhen opie some ceramic porcelain co., LTD.", the address of shenzhen luohu district south lake street guest haiyan road building, room 2116, printed on the packaging tape "CPPIEN opie whole wei yu Chinese corporation supervision", open the carton, in which ceramic implement a, The toilet seat is branded CPPIEN with a copy of the service manual and accessories, each of which is branded CPPIENwww. European Whole Sanitary Ware. Net.

    The above facts are supported by the trademark registration certificate, notarial certificate and the attached material object, the industrial and commercial registration information and the transcripts of the trial of this case.

    We think in this case, is accused of infringement sit implement the defendant company name was on the outer packing and service manual, in case the defendant fails to submit the contrary evidence, according to the cases of infringement of the supreme people's court about products all the victim to the product, whether the trademark as the defendant filed civil lawsuits reply "regulation, we decided that the accused infringing toilet producer involved.

    The plaintiff, having been approved by the State Trademark Office, obtained the exclusive right to use the registered trademark No. 4378572 and No. 7731876. The above trademarks are within the period of protection stipulated by law and shall be protected by law according to law.

    The alleged infringing toilet seat belongs to the same category as the toilet seat with the registered trademark No. 4378572 "" and the toilet seat with the registered trademark No. 7731876" ". The trademark "OPi" logo on the packaging, packing tapes, service manuals and accessories of the alleged infringing goods is identical to that of "CPPIEN" and similar to that of "CPPIEN". Without the plaintiff's permission, the defendant used the same mark of the plaintiff's no. 4378572 "" registered trademark and similar mark of the plaintiff's No. 7731876" "registered trademark on its production toilet, which may easily lead to confusion and infringe upon the plaintiff's exclusive right to the said registered trademark. The defendant shall bear the civil liability of stopping the infringement and compensation for losses according to law.

    Article 6 of the Law of the People's Republic of China against Unfair Competition stipulates that business operators shall not commit any of the following confusing ACTS that may cause them to be mistaken for other people's goods or have specific connections with others:... (2) unauthorized use of the names of enterprises (including shortened names and shop names, etc.) and social organizations (including shortened names, etc.) and names (including pennames, stage names, and translated names, etc.) that have certain influence on others; ..." After the plaintiff to carry out business activities, to promote their products across the country, after years of operation, won many honors, in the sanitary ware industry have high visibility, known by the relevant public, "Europe" as the plaintiff's size, can be regarded as the second paragraph of article 6 of the anti-unfair competition law has some impact on the enterprise name. As sanitary ware industry operators, the defendant ought to to the plaintiff the font size of "Europe", but it is still in its corporate name using the word "Europe", and its enterprise name highlight the use in the production of products, the subjective existence clings to the reputation of others, for yourself to get market competition advantage and more market trading opportunities of malicious, objectively can cause confusion, be mistaken for the infringing goods involved are the plaintiff's goods, there is a specific relationship with the plaintiff or the defendant, in violation of the principle of good faith and recognized business ethics, disturbed the normal competition order, constitute ACTS of unfair competition, It shall bear civil liabilities such as stopping the infringement and compensating for the loss.

    In conclusion, the actual loss by the plaintiff is unable to provide the defendant infringement, the defendant is obtained for the infringement of interests, or evidence of the registered trademark license fee involved in comprehensive consideration of the plaintiff and the fame of the trademark involved in the range, the nature of the infringement behavior, infringement, factors such as the infringement behavior person's subjective fault degree and economic loss of 100000 yuan control-determine the defendant to compensate the plaintiff. Although the plaintiff did not submit relevant evidence to prove that any reasonable costs as the case, but considering the plaintiff a lawyer to participate in the litigation to the case, does the notarization of evidence, in fact for the costs and expenses the rights of the case in our discretion to determine the reasonable expenses for the plaintiff in this case, 8000 yuan, the plaintiff filed for the economic loss and reasonable spending is too high, part does not support.

    To sum up, In accordance with the trademark law of the People's Republic of China the first (1), the first article 57 (2), paragraph 1 of article sixty-three, paragraph 3, the anti-unfair competition law of the People's Republic of China, article 2, the first (2) of article 6, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "article 9, article 10, paragraph 1 of article 16, paragraph 2, the Supreme People's Court on the trial of civil cases of unfair competition" the explanation of application of law in paragraph 1 of article 17, the civil procedure law of the People's Republic of China, the provisions of article one hundred and forty-four of the first paragraph of article sixty-four, The verdict is as follows:

    I. The defendant, Shenzhen Opai Ceramics Co., LTD., shall immediately stop infringing the exclusive right to use the registered trademark of the plaintiff, Opai Home Furnishing Group Co., LTD., No. 4378572 "" and No. 7731876";

    2. The defendant, Shenzhen Opai Ceramics Ceramics Co., LTD., shall change the name of the enterprise within 10 days from the date of the legal effect of this judgment, and the changed name and name shall not contain the word "Opai";

    3. The defendant, Shenzhen Opai Ceramics Ceramics Co., LTD., shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of RMB 100,000 yuan and the reasonable expenditure of RMB 8,000 yuan to stop the infringement within 10 days from the date of the legal effect of this judgment.

    Iv. Other claims of The plaintiff Opai Furniture Group Co., LTD were 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 handling fee of this case is 4,300 yuan (paid in advance by the plaintiff), which is 1,978 yuan for the plaintiff and 2,322 yuan for the defendant.

    If you are not satisfied with this judgment, you shall, within 15 days from the date of serving the judgment, file an appeal petition to the court, and submit copies according to the number of the other party. You shall appeal to the Intermediate People's Court of Shenzhen, Guangdong Province, and pay the fees for accepting the appeal case in advance within 7 days from the next day after receiving the notice of prepaid appeal fee. Those who fail to do so within the time limit shall be deemed to have withdrawn the appeal automatically.

    Li Shanshan, Presiding judge

    People's juror Han Guangming

    People's Juror Jiang Ruqiu

    March 4, 1919

    Clerk Zhuang Xiaomin

    Clerk Holly

    Attached are relevant legal provisions:

    Trademark Law of the People's Republic of China

    Article 57 any of the following ACTS shall be an infringement of the right to exclusive use of a registered trademark:

    (1) using a trademark identical with a registered trademark on the same kind of goods without the permission of the trademark registrant;

    (2) using a trademark similar to its registered trademark on the same kind of goods or using a trademark identical with or similar to its registered trademark on similar goods without the permission of the trademark registrant, which is likely to cause confusion;

    (3) selling commodities that infringe upon the right to exclusive use of a registered trademark;

    (4) forging or manufacturing, without authorization, signs of a registered trademark of another person, or selling signs of a registered trademark that is forged or manufactured without authorization;

    (5) changing a registered trademark of a trademark registrant and putting the commodities with the changed trademark back on the market without the consent of the trademark registrant;

    (6) intentionally facilitating the act of infringing another person's right to exclusive use of a trademark, and helping another person to commit the act of infringing the right to exclusive use of a trademark;

    (7) causing other damage to the exclusive right to use a registered trademark of another person.

    Article 63 The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined on the basis of the actual losses 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; Where it is difficult to determine the losses of the right holder or the benefits obtained by the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. If the circumstances are serious, the amount of compensation may be determined between one time and three times of the amount determined according to the above methods. The amount of compensation shall include the reasonable expenses paid by the right to stop the infringement.

    In order to determine the amount of compensation, the people's court may order the infringer to provide books and materials related to the infringement act, provided that the obligee has tried his best to provide evidence and that the books and materials related to the infringement act are mainly in the possession of the infringer; If the infringer fails to provide false account books or materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided.

    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.

    Law of the People's Republic of China against Unfair Competition

    Article 2 Business operators shall, in their production and business operations, abide by the principles of voluntariness, equality, fairness and good faith and abide by laws and business ethics.

    "ACTS of unfair competition" as mentioned in this Law refers to those that, in their production and business operations, violate the provisions of this Law, disrupt the order of market competition and harm the lawful rights and interests of other business operators or consumers.

    A business operator referred to in this Law means a natural person, a legal person or an unlegal organization engaged in the production or sale of commodities or the provision of services (" commodities "include services).

    Article 6 A business operator shall not commit any of the following ACTS of confusion, which may cause it to be mistaken for another person's goods or have a specific connection with another person:

    (1) to use, without authorization, marks that are identical with or similar to the names, packaging and decoration of commodities that have a certain influence on others;

    (2) unauthorized use of the names of enterprises (including shortened names and shop names, etc.) and social organizations (including shortened names, etc.) and names (including pennames, stage names, and translated names, etc.) that have certain influence on others;

    (3) unauthorized use of the body of the domain name, the name of the website, the webpage, etc., which has certain influence on others;

    (4) other ACTS of confusion which are sufficient to cause people to mistake them for goods of others or have a specific connection with others.

    Interpretation of the Supreme People's Court on Some Issues concerning the Application of Law in The Trial of Trademark Civil Disputes

    Article 9 The term "identical trademarks" as provided for in Article 52, item (1), of the Trademark Law means that the trademark accused of infringement is compared with the registered trademark of the plaintiff, and there is basically no visual difference between the two.

    Article 52 of the trademark law of the first paragraph (a) the trademark approximation, is refers to the accused of infringement of trademark compared with the plaintiff's registered trademark, the glyph, pronunciation and meaning of the text or graphic composition and color, or the combination of whole structure similar to that of all the elements or the stereo shape, color combination, easy to make the relevant public to mistake the source of the goods or think of its source and the plaintiff's registered trademark commodities have a specific contact.

    Article 10 The people's court shall, in accordance with the provisions of Article 52, item (1), of the Trademark Law, determine that a trademark is identical or similar in the following principles:

    (1) based on the general attention of the relevant public;

    (2) A comparison shall be made on both the whole and the main parts of a trademark, and shall be made separately under the condition that the objects of comparison are isolated;

    (3) To judge whether a trademark is similar or not, consideration shall be given to the significance and popularity of the registered trademark which is requested to be protected.

    Article 16 If it is difficult to determine the interests the infringer has gained or the losses the infringed has suffered as a result of the infringement, the people's court may, at the request of the party concerned or in accordance with the provisions of Paragraph 2 of Article 56 of the Trademark Law, apply its functions and powers, determine the amount of compensation.

    When determining the amount of compensation, the people's court shall take into account such factors as the nature, period and consequences of the infringing act, the reputation of the trademark, the amount of the trademark license fee, the type, time and scope of the trademark license, and the reasonable expenses for stopping the infringing act.

    Where the parties have agreed on the amount of compensation in accordance with the provisions of paragraph 1 of this article, permission shall be granted.

    Interpretation of the Supreme People's Court on Some Issues concerning the Application of Law in The Trial of Civil Cases of Unfair Competition

    Article 17 The amount of compensation for damage caused by ACTS of infringing trade secrets as stipulated in Article 10 of the Law against Unfair competition may be determined with reference to the method of determining the amount of compensation for damage caused by ACTS of infringing patent rights. The determination of the amount of damages for ACTS of unfair competition as provided for in Article 5, article 9 and Article 14 of the Law against Unfair competition may be carried out with reference to the determination of the amount of damages for infringement of the right to exclusive use of a registered trademark.

    If the trade secret has become known to the public due to the infringement, the amount of damages shall be determined on the basis of the commercial value of the trade secret. The commercial value of a trade secret shall be determined according to such factors as the research and development cost, the income from the implementation of the trade secret, the available benefits and the time for maintaining the competitive advantage.

    Civil Procedure Law of the People's Republic of China

    Article 64 A party has the duty to provide evidence in support of his claim.

    The people's court shall investigate and collect evidence that the parties and their agents AD litem are unable to collect by themselves for objective reasons, or that the people's court deems necessary for the trial of the case.

    The people's court shall examine and verify evidence in a comprehensive and objective manner in accordance with legal procedures.

    "Article 144 If a defendant, having been served with a summons, refuses to appear in court without justified reasons, or if he withdraws halfway without the permission of the court, the court may make a judgment by default."

    "Article 253 If the person subjected to execution fails to perform his obligations with respect to pecuniary payment within the period specified in a judgment or written order or any other legal document, he shall pay double interest on the debt for the delay in performance." If the person subjected to execution fails to perform his other obligations within the period specified in the judgment, written order or any other legal document, he shall pay a fee for late performance.