Civil judgment of Chancheng District People's Court, Foshan City, Guangdong Province

    Chancheng District People's Court, Foshan City, Guangdong Province

    Written judgment of civil affairs

    (2018) Yue 0604, Early Republic of China No. 27133

    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.

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

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

    Defendant: Shanghai Qimeng Information Technology Co., LTD., Room 2902-2913, No.533 loushanguan Road, Changning District, Shanghai, unified social credit code ××52C.

    Legal representative: Sun Qin.

    Agent AD litem: Wei Strontium Yun, lawyer of Guangdong Weitao Law Firm.

    Defendant: Zhang Weilin, male, Han Nationality, born on May 8, 1990, living in Shunde District, Foshan city, Guangdong Province,

    Defendant: Shenzhen Happiness Ou Brand Electrical Technology Co., LTD., domicile: 2509, 5th Floor, Building 2, Meilin Dui Industrial Zone, Meihua Road, Futian District, Shenzhen city, Guangdong Province, unified social credit code ××92U.

    Legal representative: Luo Baidian.

    Defendant: Foshan City Pexue Kitchen & Bathroom Electric Appliance Co., LTD., one of the 4th floor, No. 1, Huamei Road, Ronggui Bianjiao Community, Shunde District, Foshan City, Guangdong Province, domicile, with a unified social credit code ××685.

    Legal representative: Ye Zhou.

    The plaintiff opie household group co., LTD. V. the defendant Shanghai searches for information technology co., LTD. (hereinafter referred to as Shanghai dreams), shenzhen happiness European brand electrical technology co., LTD. (hereinafter referred to as the happiness the card company), Zhang Weilin, foshan send snow hutch defends electric appliance co., LTD. (hereinafter referred to as sent snow company) the infringement trademark rights and unfair competition disputes, our college on October 16 2018, Hitachi, in accordance with the applicable ordinary procedure, on March 26, 2019 in open trial, Plaintiff's entrusting litigant agent Yang Fudong and defendant Shanghai dream company's entrusting litigant agent Wei Strontium yun, defendant Zhang Weilin attended the lawsuit in court, defendant Happiness Europe card company, defendant snow company was summoned by the court notice, failed to attend the lawsuit in court. The case is now closed.

    1. The defendant Shanghai Dream Search Co., Ltd. immediately deleted the infringing links of the online store involved in the case; 2. Defendant Zhang Weilin immediately stopped using the words "Oupai" in the online store, and immediately stopped selling the gas stove products with the words "Xingfu Ou" and "Shenzhen Xingfu Oupai - Technology Co., LTD"; 3. The defendant Xingfu European Brand Company and The defendant Peixue Company immediately stopped producing and selling the gas stove products labeled "Xingfu European Brand" and "Shenzhen Xingfu European Technology Co., LTD"; 4. The defendant shall compensate the plaintiff a total of RMB 200,000 yuan for economic losses and reasonable expenses for safeguarding their rights; 5. The four defendants bear the costs of the case. In the trial, the plaintiff confirmed that the infringing link of the product involved had been deleted, applied to withdraw the first claim, and clarified the fourth claim: the defendant Zhang Weilin assumed the tort liability of selling the product within 50,000 yuan, and the defendant Xingfu Europe Brand company and the defendant Pixue Company jointly assumed the tort liability of 150,000 yuan.

    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 the registered trademark owner of "Opai". After decades of painstaking operation, the plaintiff has turned "Opai" into a well-known and well-known brand in China. 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 April 2018, after investigation by the plaintiff, it was found that there were infringement behaviors involved in the online store named "Jiuzhou Kitchen and Bathroom Shop" on the pyeongduo platform. The titles of the products in the online store involved in the case were marked with the words "Opai", and the purchased products were marked with the words "Opai" and "Shenzhen Opai Science and Technology Co., LTD", and were not the products of the plaintiff. The plaintiff entrusted the notary office to preserve the evidence. After further investigation, the plaintiff found that "Pongduo network" is the defendant Shanghai Dream Information Technology Co., Ltd. opened, "nine kitchen store" online store operator is Zhang Weilin, involved in the product labels defendant Shenzhen Happiness Europe a science and technology Co., LTD., Foshan City Snow kitchen and sanitary appliances Co., LTD. Production. To sum up, the plaintiff argues that without the consent of the plaintiff, the defendant Zhang Weilin without authorization in the online product name involved the use of "European" related words, the defendant, production and sales of the products involved in behavior, caused the confusion related to consumer goods source, in violation of the provisions of the trademark law of the relevant laws, infringes upon the plaintiff, enjoy the European trademark. At the same time, the behaviors of the defendant Zhang Weilin, the defendant HXD And the defendant Pixue violated the principle of good faith and recognized business ethics, and had the intention to obviously join the plaintiff and the plaintiff to promote sales, causing confusion among the relevant public and constituting unfair competition. At the same time, the defendant Shanghai Dream Information Technology Co., LTD., as the founder of the e-commerce platform "Pinduoduo", should have a reasonable obligation to review the publicity and use of the online store, which has provided convenience for the infringement, and should also bear corresponding legal liability for the infringement. Therefore, in order to safeguard their legitimate rights and interests, the plaintiff, according to the relevant provisions of the law, file a lawsuit, request the court to judge as requested.

    The defendant Shanghai Dream Search Company argues that the defendant Shanghai Dream Search company is not a qualified defendant in this case. The defendant Shanghai dreamsearch company is the operator of pinduoduo website, pinduoduo APP and pinduoduo WeChat mall (hereinafter referred to as "pinduoduo platform"), and is an e-commerce platform with the mode of third-party settlement. Commodities on pinduoduo platform are sold directly to consumers by third-party settlement merchants. As an Internet service provider of a non-proprietary e-commerce trading platform, the defendant Shanghai Dream Company is not qualified as a defendant in this case because it is impossible to carry out the infringement. Merchants entering pinduoduo platform shall sign the Pinduoduo Platform Cooperation Agreement, which is clearly stipulated in articles 2 and 7 of the agreement. The defendant Shanghai Dreamsearch company is only responsible for the daily maintenance and technical support of Pinduoduo Platform. Merchants sell goods directly to consumers through Pinduoduo and provide pre-sale and after-sales services; The merchant guarantees that the goods he sells do not infringe upon the exclusive right to use the registered trademark of others and do not violate relevant laws and regulations. Ii. The defendant Shanghai Dream Company has no fault. The defendant, Shanghai Dream Search Company, required the individual or enterprise to provide their personal identity information, enterprise license information and relevant qualification certificates when the merchants settled in the company. The defendant could set up a shop and operate after the platform's examination and approval. Pinduoduo has hundreds of thousands of merchants and over 100 million online commodity and service information, and the commodity data of the platform changes in real time. Therefore, the defendant Shanghai Dreamsearch company is objectively unable to conduct a comprehensive and substantive review in advance. As a provider of Internet services, the defendant Shanghai Dream Search Company has no legal obligation to monitor the Internet and look for infringement ACTS. In order to facilitate the rights protection of the right holders, the defendant Shanghai Dreamsearch Company publicized the "Ipr Protection And Complaint Guidelines" on the official website of Pindo. Upon receiving the valid complaints from the right holders, the defendant would immediately take effective measures such as taking down the products complained about, disconnecting the webpage links and so on. In this case, the defendant Shanghai Dream Company before the plaintiff sued, did not know the right of the right and the existence of the infringement information, does not have any fault to the occurrence of the infringement, after receiving the plaintiff's prosecution materials, has taken effective measures in a timely manner. Therefore, the defendant Shanghai Dream Search Company has fulfilled the duty of qualification examination in advance and the duty of reasonable and prudent care after the fact, and has no fault in this case. It should not be presumed that the defendant Shanghai Dream Search Company knew or should have known the existence of the accused infringement fact, let alone the fact that caused the infringement to continue to exist. Three, the original claim that the fact of infringement no longer exists. After receiving the lawsuit materials of this case, the defendant Shanghai Dreamsearch Company immediately verified the information of the commodities involved, informed the merchants to deal with the accused infringing commodities immediately, and promptly deleted and blocked the links of the accused infringing commodities. The infringement facts that had been told no longer existed. The plaintiff requested the defendant Shanghai Dream Company to delete the information of the goods involved and stop selling the goods involved without factual basis. To sum up, the plaintiff's claim that the defendant Shanghai Dream Search Company should compensate for the economic loss has no factual and legal basis, and the loss amount claimed by the plaintiff is obviously too high, the defendant Shanghai Dream Search company has not carried out any tort, and does not have to bear any tort liability. The court is requested to reject the plaintiff's claims on the basis of finding out the facts.

    Defendant Zhang Weilin argued that: 1. When visiting the defendant Peixue Company to see the goods, the defendant Peixue Company provided the copy of the trademark registration certificate of the brand and the copy of the trademark license contract signed by the brand owner, so the defendant believed that the products of the brand were normal products and could be sold. The salesman of the accused Company did not inform whether the trademark infringes the intellectual property rights of other trademarks, so he did not know. 2. Pinduoduo said that it was prohibited to sell products that infringed intellectual property rights, but it did not know whether the products infringed intellectual property rights of other trademarks. Pinduoduo also did not investigate and told that the brand could not be sold on pinduoduo Platform. 3. Before receiving the court summons, pinduoduo successfully withdrew its store from pinduoduo in mid-October 2018 and did not continue to sell such products on pinduoduo platform.

    The defendant, HFE And PTE Snow, did not attend the court and made no written reply.

    In the lawsuit, the plaintiff submitted the following evidence to the court: 1.(2016) Notarial Certificate No. 350 of Laifengcheng Certificate No. 2.(2016) Notarial Certificate No. 346, Certificate No. 673, Certificate No. 673, Certificate No. 3.(2016) Notarial Certificate No. 347, Certificate No. 675, Certificate No. 675, Certificate No. 4.(2016) Notarial Certificate No. 348, Lifengcheng Certificate; 5. Trademark Chi Zi [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce; 6. (2016) Notarial Certificate No. 353, Lifengcheng Certificate; 7. (2017) Notarial Certificate No. 260 of Laifeng City; 8.(2016) Notarial Certificate No. 357 of Laifeng City Certificate; 9.(2016) Notarial Certificate No. 355 of Laifeng City; 10.(2016) Notarial Certificate No. 356, Lifengcheng Certificate; 11.2011 years on April 21, 22, 25, 26, 28, 29, published "linchuan evening news", published on August 26, 2011 zhuhai, dc, newspaper, 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; 12.(2017) Printed copies of The Notarial Certificate Of Laifengcheng Certificate Minzi No. 1015 and the Enterprise Credit information Publicity system; 13. (2018) Notarization Certificate No. 522, Zhengminzi, Fengcheng district, Lulaiwu; 14. Print copies of production license inquiry information; 15. The trademark query information of the English logo of the product involved, and the printed copy of the enterprise credit information of the accused Company.

    As for the above evidence, the Court finds as follows: Evidence 1 to 10, 12 and 13 have original copies verified and are related to the facts to be proved in this case, and the court accepts them; Although the plaintiff can only provide part of the original evidence, the group of evidence can be mutually corroborated with evidence 10, so the court accepts it. Evidence 14 and 15 are consistent with the information shown in the relevant official website, which is accepted by our hospital.

    The defendant Shanghai Dream Search Company submitted the following evidence to the court: 1. 2. Pinduoduo multi-platform Cooperation agreement; 3. Signing records of the agreements of the stores involved; 4. Relevant order information and store operation log; 5. Pinduoduo Website Ipr Protection Complaints Guidelines.

    As for the above evidence, the Court finds as follows: The plaintiff and defendant Zhang Weilin have no objection to evidence 1 to 4, which is related to the facts to be proved in this case, and the Court accepts it; The court disproves evidence 5 for its lack of relevance to the facts to be proved in this case.

    The defendant Zhang Weilin submitted a copy of the trademark registration Certificate No. 14257621 as evidence. The content reflected in the evidence was consistent with the evidence 15 submitted by the plaintiff and was related to the case.

    After being subpoenaed by the court and refusing to attend the court proceedings without justifiable reasons, the defendants, Happiness Europe Company and Paixue Company, shall be deemed as waiving their rights of defense, proof and cross-examination.

    On the basis of the admissible evidence and the parties' statements, the following facts may be ascertained:

    1. The plaintiff and his claims

    The plaintiff Opai Furniture Group Co., Ltd. was founded on July 1, 1994, and its business scope is furniture manufacturing industry.

    On November 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. was approved to register trademark No. 1128213 "", and approved to use goods in category 20, including furniture, sideboards, counters, etc. The registration was renewed and valid until November 20, 2027. On December 21, 1997, Guangzhou Kangjie Kitchen Equipment Co., Ltd. approved and registered the trademark "" no. 1137521, and approved the use of goods in category 11, including kitchen stoves, gas stoves, electric cookers, etc. The registration was renewed and valid until December 20, 2027. On June 7, 2007, Guangzhou Opai Cabinet Enterprise Co., Ltd. registered the trademark no. 4378572 "", approved the use of goods for the 11th category, including gas stoves, bathroom fixtures, bath equipment, kitchen range hoods, etc., and renewed the registration valid until June 6, 2027. On March 14, 2011, Guangdong Opai Group Co., Ltd. approved and registered the trademark "OPPEIN" No. 7731876, which was approved to be used in category 11, including cooking utensils, gas stoves, water heaters, kitchen range hoods, bathroom fixtures, bath appliances, etc. The registration is valid until March 13, 2021. The four registered trademarks above changed the name of the registrant to be the plaintiff on March 24, 2014.

    From March 2005 to February 2011, the trademark "" of Guangzhou Opai Cabinet Enterprise Co., Ltd. was recognized as a famous trademark of Guangdong Province on the sideboard and other commodities. From September 2007 to September 2010, Opai household cabinets produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. were identified as China's famous brand products by the General Administration of Quality Supervision, Inspection and Quarantine. From October 2008 to September 2011, Opai cabinets produced by Guangzhou Opai Cabinet Enterprise Co., Ltd. were identified as guangdong famous brand products by Guangdong Provincial Bureau of Quality and Technical Supervision. 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. From December 2012 to December 2013, Guangdong Opai Home Furnishing Group Co., Ltd. was named "2012 China's top 100 kitchens overall kitchen leading enterprises". From January 2016 to December 2018, the trademark "OPPEIN" "used by the plaintiff on sideboards, furniture (wardrobes), kitchen range hoods and bathing equipment was recognized as a famous trademark of Guangzhou by the Administration for Industry and Commerce of Guangzhou municipality.

    From 2011 to 2016, the plaintiff continued to publicize its "Opai" brand by advertising in many newspapers such as Linchuan Evening News, Ruili Home Furnishing, Decorate the World, and media such as CCTV and Hunan TV. From 2013 to 2015, the plaintiff continued to employ actress Jiang Wenli as the spokesperson of "Opai" brand cabinet, wardrobe, bathroom and other products.

    Ii. Facts of alleged infringement

    In order to safeguard their legitimate rights and interests, the plaintiff authorized The Jindun Intellectual Property Service Center in Laicheng District of Laiwu City to notarize the preservation evidence on behalf of the Center and filed an application for the preservation evidence notarization to Fengcheng Notary Office of Laiwu City, Shandong Province on April 18, 2018. On the same day, in the notarization notaries, notarial personnel under the supervision of, laiwu city, the city committed intellectual property service center of the entrusted agent shou-zhen wang FengCheng notarization office in laiwu city in shandong province, by the use of notaries, notarial personnel inspection and connect to the Internet phone, clean login spell, many mobile phone APP, find "rates hutch defends inn", the a link to the total of commodities in the shop, goods entitled "opie kitchen burning gas for household gas range double hearth type/embedded liquefied natural gas oven bag mail 4.2 KW high flame furnace has the big fire", and "1233", Wang shouzhen clicked the link to buy a gas cooker for 298 yuan. After payment, an order of order No. 180418-410437680003367 is generated (showing the waybill no. 9925403592). On April 25, 2018, wang Shouzhen, under the supervision of notaries and notaries of the notary office, picked up a piece of goods with the order number 9925403592 and the outer packing intact and marked with the words "Shenzhen Happiness Opai technology Co., LTD" at the Logistics Department of Deppon, Wenhe Avenue, Leicheng District, Laiwu city, Shandong Province. Wang Shouzhen will open the above goods box, there is a gas cooker inside, a manual. The notary sealed the above items with the notary office seal and took photos before giving them to Wang Shouzhen for safekeeping. On May 3, 2018, under the supervision of notary public and notary public, Wang Shouzhen confirmed the receipt of order 180418-410437680003367 in fengcheng Notary Office, Laiwu city, Shandong Province, using the mobile phone of the notary public and notary public that had conducted cleanliness inspection and connected to the network, logged on panyu Mobile APP. On May 29, 2018, the notary office issued the (2018) Lulaiwu Fengcheng Certificate No. 522 notarial certificate to certify the above process.

    During the trial, the sealed items attached to the notary certificate were unsealed in court (the deppon logistics list with the order number 9925403592 and the delivery information "Ren Cuiming 180××× 8493, next to No.10, Wanzhong Street, Houde Road, Dongfeng Town, Zhongshan City, Guangdong Province"), and there was a gas stove (hereinafter referred to as the accused infringement product) and a manual. The white label on the outer packing case states that the product is "domestic gas cooker", the model is W-16 and the production license is XK21-07-10933. Its outer packing case, instructions and gas stove panel are marked "OPPEOPAI? "- - happiness life the pie", outside packing, manual annotation "shenzhen happiness opie - technology co., LTD.", at the same time, the outside packing and specification stated "shenzhen happiness opie - technology co., LTD. (producer)" "production base/manufacturer: foshan send snow hutch defends electric appliance co., LTD.", outer packing label production date to "see" certificate of approval, but no certificate seal material.

    After comparison, the plaintiff thinks, outside packing case, gas cooker panel, instructions on the label "happy European" words, and the plaintiff enjoys the no. 1137521, No. 4378572 trademark constitute similar, infringement of the above two registered trademark right; The words "Shenzhen Happy Opai - Technology Co., LTD." marked on the outer packing cases and the instructions are unfair competition behaviors attaching the name and goodwill of the plaintiff; The online shop of Pingduo involved in the case used the word "Opai" on the link name of its gas stove goods, which is similar to the trademark no. 1137521 and No. 4378572 of the plaintiff, infringing the exclusive right of the two registered trademarks mentioned above, and at the same time attached the name and goodwill of the plaintiff, which constitutes unfair competition. The defendant Shanghai Dream company, the defendant Zhang Weilin on the plaintiff's opinion no objection.

    Other ascertained facts

    The defendant Shanghai Dream Company was founded on January 9, 2014, with a registered capital of 10 million yuan. Its business scope covers network technology, technology development in the field of computer hardware and software, network engineering, e-commerce, kitchen and sanitary products, etc. It is the operator of Pongduo Platform.

    The defendant Xingfu European Brand company was founded on November 7, 2012 with a registered capital of 100,000 yuan. Its business scope covers the research, development and sales of technology for range hood, disinfection cabinet, gas stove, gas water heater, electric water heater, electric pressure cooker and induction cooker on the Internet. On April 10, 2017, its enterprise name was changed and registered as "Shenzhen Happyoupai Electrical Technology Co., LTD" by "Shenzhen Happyoupai Electrical Technology Co., LTD" and on March 14, 2018 as "Shenzhen Happyoupai Electrical Technology Co., LTD". Its former shareholder is Chen Zhijun.

    The defendant Pixue Company was established on January 13, 2015 with a registered capital of 3 million yuan. Its business scope is manufacturing: household appliances and their accessories, and gas appliances. The production license number of the division is XK21-077-01933.

    The case of the online shop "nine kitchen store" (shop No. : 800321) entered for the defendant Zhang Weilin, its first time to sign an agreement with pinto more platform is October 19, 2017, the store details described as "this store sales kitchen and health products, gas stoves, range hoods, disinfection cabinet and other kitchen and health products. Lawsuit, Zhang Weilin said commodities link contains multiple involved, not only "European" goods, and other goods sent snow company in the near future, "1233" is the shop runs a year accumulative total sales of all products, not accused of infringing goods sales, is accused of infringing goods shelves in March 2018, inventories have ErSanShiTai, each profits between 20 to 50 yuan.

    The trademark no. 14257621 "OPPEOPAI" used on the alleged infringing goods was registered on May 7, 2015 by Chen Zhijun.

    In the lawsuit, the plaintiff claims to compensate for economic losses and reasonable expenses for safeguarding rights of 200,000 yuan, among which the economic losses mainly consider the sales volume of the commodities involved, the business scale of the defendant company and other factors, and the reasonable expenses for safeguarding rights consider 298 yuan for the products accused of infringement and 1,000 yuan for the notary fee, etc., and request the court to decide.

    The court holds that this case is a trademark infringement and unfair competition dispute. The plaintiff withdrew the first claim in court, that is, it does not claim tort liability against the defendant Shanghai Dream Company, which is a legal punishment for its own civil rights and litigation rights, and the court gives permission. For the controversy focus of this case, the analysis is as follows:

    I. Whether the accused infringing goods are produced by the accused Company, Happiness Europe, and The accused company, Pixue

    Is accused of infringing goods outer packing and the directions are marked as "production base/manufacturer: foshan send snow hutch defends electric appliance co., LTD.", and carry on its production license sent snow company production license agreement with that of the accused, the accused sent the company's business scope includes snow in the manufacture of gas stove, therefore, in the case of no contrary evidence to overthrow, this case is enough to that producers accused of infringing goods for the company sent snow. Accused of infringing goods at the same time as "shenzhen happiness opie - technology co., LTD. (producer)", the supervision supervision made the word mean, the defendant happiness the card companies have been accused of infringing goods in its corporate name and the word with the supervision, suggest the defendant sent snow company has meaning on the production was accused of infringing goods in touch, and have been accused of infringing goods to use the trademark "OPPEOPAI" hold human happiness before the brand the company's shareholders, also, in the case of no contrary evidence to overthrow, comprehensive above situation also enough that the happiness the card company is accused of infringing goods producers. Therefore, the court finds that the defendant Pixue Co., Ltd. and Happiness Europe Brand Co., Ltd. are the co-producers of the defendant's infringing goods.

    Ii. Whether the actions of defendant HXD, Defendant Pexue and Defendant Zhang Weilin constitute an infringement of the plaintiff's right to exclusive use of the 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; ..." In this case, the plaintiff obtained the trademark exclusive right of trademark No. 1137521 "" and trademark No. 4378572" "after registration according to law, the trademark is now in the period of validity, among which the goods approved for use of trademark No. 1137521" "are in category 11, including kitchen stoves, gas stoves, etc., and the goods approved for use of trademark No. 4378572 are in category 11, including gas stoves, etc. The defendant happiness the brand company, the defendant is accused of infringing goods sent snow company production, on the outer packing, specification, the panels are prominent use of words "happy life happiness opie", the "European" for inventing words, play a major role in identifying the sources of, "" no. 1137521 and no. 4378572 with the plaintiff" registered trademark "words are the same, but there was no difference in the visual basic, shall be deemed to be the same, so the" happy life happiness Europe "as a whole with the plaintiff of the above two trademark constitutes a approximation, is accused of infringing goods with the plaintiff of the use of a registered trademark approved kitchen stove, gas stove, kitchen burning gas for the same kind of goods, Easy to make the relevant public confusion, mistake the goods from the plaintiff or to use the registered trademark with the plaintiff has the specific commodity, the defendant happiness the card company sent snow company without the consent of the plaintiff and the defendant, in its production and sales of using the above logo is accused of infringing goods, belong to infringe on the plaintiff. 1137521, no. 4378572 of the right to exclusive use of a registered trademark. The defendant, Zhang Weilin, violated the plaintiff's trademark right by selling the products on his Pindong online store, "Jiusheng Store", which also constituted the infringement of the plaintiff's exclusive right to use the said trademark.

    The defendant Zhang Weilin in its spell, many shop "" rates hutch defends shop sales of kitchen burning gas product link name used in the word" Europe ", the words with the plaintiff. 1137521, no. 4378572 trademark visual basic difference, form the same, although its not outstanding used as a trademark, but have to show that the commodity brand's meaning, said this case is online sales, mainly through related consumer goods name to identify sources of goods, such as the use of behavior with the defendant Zhang Weilin is 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, According to article seventy-six of the regulations on the implementation of the trademark law of the People's Republic of China "with others on the same goods or similar goods registered trademark identical with or similar to the logo used as name of commodity or commodity packaging, misleading the public, belonging to paragraph 2 of article 57 of the trademark law of the right to exclusive use of a registered trademark infringement" regulation, its the behavior also belong to the plaintiff's 113752th

    Iii. Whether the actions of defendant Hsun Europa, Defendant Pai Xue and defendant Cheung Wai-lun constitute unfair competition

    Article 6 of the Law of the People's Republic of China against Unfair Competition stipulates: "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; ..." . In this case, the plaintiff was founded in 1994, on July 1, early in 1997, has 20 class furniture, kitchen cabinets, counters and 11 class kitchen stove, gas stove, electric cookers, register the "" trademark on goods such as, in 2011 also in class 11 gas stove, water heater, kitchen smoke lampblack machine and other commodities to register the trademark" OPPEIN ", its registered to use on the sideboard goods "" trademark in 2005 to 2011 was identified as famous trademarks of guangdong province, in 2009 was identified as well-known trademarks, The "OPPEIN" and "" trademarks used in sideboards, furniture (wardrobes), kitchen range hoods and bath equipment were identified as famous trademarks in Guangzhou in 2016. At the same time, from 2011 to 2016, the plaintiff put advertisements on many newspapers and magazines, CCTV, Hunan SATELLITE TV and other media to continuously promote its "Eurovision" brand, and hired film and television star Jiang Wenli as the spokesperson. Therefore, the plaintiff's "Opai" is both a shop name and a trademark. After continuous use and publicity, it has gained a certain market popularity nationwide and is known by the relevant public. It is an influential enterprise name.

    The happiness the brand company, the defendant snow in its production, the sale is accused of infringing goods labeled "shenzhen happiness opie - technology co., LTD." of the enterprise name, its name is "happiness opie -", the major identification part for "European" 2 words, same as the plaintiff's "European" font size, consumers will easily be accused of infringing goods mistaken for the plaintiff products or thought there is some correlation. Two defendants as kitchen appliances, gas stoves manufacturing, sales, and with the plaintiff is located in guangdong area, within the industry, such as kitchen home appliance brand should be more familiar with the general public, for the plaintiff already has certain market popularity "European" name and logo is supposed to know, but its production, sales, with a "shenzhen happiness opie - technology co., LTD." the word of the accused of infringing goods, belong to the unauthorized use of the plaintiff "European" font size, easy to confuse the relevant public behavior, the behavior constitutes unfair competition.

    The defendant Zhang Weilin as special sales of kitchen burning gas kitchen appliances such as operators, its already has certain market popularity of the plaintiff "European" font size and brand also ought to know, but its purchases have been accused of infringing goods for sale, still did not fulfill the reasonable duty of care, at the same time, its on the product link name is accused of infringing goods using the word "Europe", the consequences of the same confusion, infringes upon the plaintiff of the legitimate rights and interests enjoyed by its enterprise name, the same form of unfair competition.

    Iv. Civil liabilities to be borne by defendant HXD, Defendant Pexue and Defendant Zhang Weilin

    According to article 15 of the Tort Liability Law of the People's Republic of China, the main ways to bear tort liability are to stop the infringement and compensate for the loss. The plaintiff has confirmed that the infringement link of the online store involved in the case has been deleted, and the defendant Zhang Weilin is no longer able to carry out the infringement. Therefore, the plaintiff requires the defendant Zhang Weilin to stop the infringement, which is not supported by the court. The defendant, Xingfu Europe Brand Company and the defendant, Pixue Company, failed to prove that they had stopped producing and selling the accused infringing goods. Therefore, it should be concluded that the infringing ACTS of the two defendants continued and they should bear the civil liability for stopping the infringing goods.

    As for the amount of compensation, the Trademark Law of the People's Republic of China stipulates in paragraphs 1 and 3 of Article 63: "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 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. ... 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 make a judgment of not more than THREE million yuan in accordance with the circumstances of the infringement." The third and fourth paragraphs of Article 17 of the Anti-Unfair Competition Law of the People's Republic of China stipulate: "The amount of compensation for an operator who is injured due to an act of unfair competition shall be determined according to the actual loss suffered by the operator due to the infringement. Where the actual loss is difficult to calculate, it shall be determined in accordance with the benefits derived by the infringer from the infringement. The amount of compensation shall also include the reasonable expenses paid by the operator to stop the infringing act. If the operator violates the provisions of Article 6 and article 9 of this Law, and it is difficult to determine the actual losses suffered by the obligee as a result of the infringement or the benefits gained by the infringer as a result of the infringement, 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."

    In this case, for the parties to the plaintiff for trademark infringement and unfair competition behavior of actual losses, the defendant Zhang Weilin, the defendants happiness the brand company, sent snow company for trademark infringement and unfair competition of interests, such as have not proof confirmed that it is difficult to determine, so considering three subjective fault of the infringement, the defendant during the operation scale, the nature of the infringement,, consequences, such as plot, the plaintiff, "European" font size and brand awareness is higher, and the reasonable cost of stopping the infringement (including purchase was accused of infringing goods costs 298 yuan, the plaintiff claims the notarial fees and other fees not proof confirmed) etc., The court decided that defendant Zhang Weilin should compensate the plaintiff's economic loss and reasonable expense of safeguarding the rights with a total amount of 25,000 yuan, and that the defendant Xingfu Eurobrand company and the defendant Pexue Company constituted a joint infringement, and jointly compensate the plaintiff's economic loss and reasonable expense of safeguarding the rights with a total amount of 80,000 yuan. The Court does not support the part of the plaintiff's claim in excess of the said amount.

    To sum up, In accordance with the trademark law of the People's Republic of China, paragraph 1 of article 3, paragraph 2 of article 57, paragraph 3, paragraph 1 of article sixty-three, paragraph 3, the anti-unfair competition law of the People's Republic of China, the second and third paragraph of article 17 of article 6, paragraph 4, article 15 of the "tort liability law of the People's Republic of China" and article seventy-six of the regulations on the implementation of the trademark law of the People's Republic of China, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases by interpretation of article 9, article 10, paragraph 1 of article 16, paragraph 2, article 17 and article sixty-four of the civil procedural law of the People's Republic of China in the first Paragraph 1, Article 144 The judgment by default is as follows:

    I. The defendant, Shenzhen Happyou Electric Technology Co., LTD., and The defendant, Foshan Paigue Kitchen and Sanitary Appliances Co., LTD., immediately stopped the production and sale of gas stove products labeled as "Happylife Happyopai" and "Shenzhen Happyopai-Technology Co., LTD." as of the date of the legal effect of this judgment;

    2. The defendant, Shenzhen Happyou Brand Electrical Technology Co., Ltd. and The defendant, Foshan Paigue Kitchen and Sanitary Appliances Co., Ltd. jointly compensated the plaintiff, Opai Home Furnishing Group Co., Ltd. for economic losses and reasonable expenses of safeguarding rights, with a total amount of RMB 80,000 within 10 days from the date of the legal effect of this judgment;

    3. The defendant, Zhang Weilin, shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., a total of RMB 25,000 for economic losses and reasonable expenses for safeguarding rights within 10 days from the date of the legal effect of this judgment;

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

    If the defendant fails to perform his pecuniary obligation within the time limit specified in this judgment, he shall, in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China, pay the plaintiff double interest on the debt for the delay period.

    The receiving fee of this case is 4,300 yuan, which shall be borne by the plaintiff Oupai Household Group Co., LTD. 1200 yuan, and the defendant Zhang Weilin shall bear 600 yuan, and the defendant Shenzhen Happiness Oupai Electric Technology Co., Ltd. and The defendant Foshan Pixue Kitchen and sanitary Appliance Co., Ltd. shall jointly bear 2,500 yuan.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal to this court, and make copies according to the number of the other party, and appeal to foshan Intermediate People's Court, Guangdong Province.

    Chen Xiuling, Chief Judge

    People's Juror Ho Shao-li

    People's Juror Huanhong Huang

    April 9, 1919

    Clerk Huo Zhichao