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

    Qingdao Intermediate People's Court of Shandong Province

    Written judgment of civil affairs

    (2018) Lu 02, No. 180, 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: Qingdao Opai Century Electric Appliance Co., LTD., Room 101, No. 5, Dongxing Market, Shibei District, Qingdao city.

    Legal representative: Liu Weijie, General Manager.

    The plaintiff Opai Home Furnishing Group Co., Ltd. and the defendant Qingdao Opai Century Electric Appliance Co., Ltd. violated trademark rights and unfair competition disputes. After the case was filed, the court applied the ordinary procedures according to law and held a trial in public on August 31, 2018. Yang Fudong, the authorized agent AD litem of the plaintiff Opai Household Group Co., LTD., attended the lawsuit. The defendant Qingdao Opai Century Electric Appliance Co., LTD. Was notified by the court and failed to attend the court proceedings. The court shall be absent from the trial according to law. The case is now closed.

    European furniture group co., LTD. To our lawsuit request: 1, the defendant Qingdao opie century electrical appliance co., LTD., to immediately stop the production, the sale infringement of the plaintiff no. 4378572, no. 1137521 "European" use of a registered trademark and annotation "Qingdao opie century electric appliance co., LTD." ACTS of unfair competition of the product; 2. Ordered the defendant Qingdao Opai Century Electric Appliance Co., Ltd. to immediately change the enterprise name, and the word "Opai" shall not be used in the changed enterprise name; 3. Order the defendant to compensate the plaintiff for the economic loss and reasonable expense of safeguarding the rights, totaling RMB 200,000 yuan; 4. Order the costs of the case to be borne by the defendant. 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 holder of "OPPEIN" and "OPPEIN". After decades of painstaking operation, the plaintiff has turned "OPPEIN" into a household, electrical and sanitary brand known throughout the country. 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 September 2017, after investigation by the plaintiff, the store signs, interior decoration, product manuals and other places of the store involved highlighted the use of the words "European Kitchen Appliances", "European Century Appliances", "European Kitchen Appliances", "Qingdao European Century Appliances", "WWW.European Kitchen appliances.cn" and other words, while the store sold the gas stove products involved. Involved in the place such as product packaging box, instruction manual marked with "WWW. Opie hutch electricity. Cn", "Qingdao opie century electric appliance co., LTD.", "opie household kitchen burning gas, such as" the other "European" card label used on the spot "with family love opie" wording, such as signing star endorsement image picture, and the plaintiff, the plaintiff entrusted notary organ of the behavior of the above evidence preservation. After investigation, the products involved were produced by Qingdao Opai Century Electric Appliance Co., LTD.

    In conclusion, the plaintiff that the defendant production, sales of the products involved in the behavior of the infringement of the registered trademark of the plaintiff has, at the same time, the defendant Qingdao opie century electric appliance co., LTD., without any justified reason, the registered enterprise name containing "European" font size and in the production and sales of products including "European" font size on the labeling of the behavior of the enterprise name, enough to produce market confusion, the production, sales, product, has violated the principle of good faith and recognized business ethics, constitutes unfair competition. In order to safeguard their own rights and interests, the plaintiff appealed to the court, asking for judgment as requested.

    The defendant Qingdao Opai Century Electric Appliance Co., LTD did not answer.

    Based on the evidence presented by the plaintiff, the Court finds the following facts:

    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. On November 27, 2014, the plaintiff and Beijing on-time boiling international advertising co., ltd. signed the sponsorship and cooperation agreement of 2015 "exchange space" home decoration fund, which agreed that on April 4, 2015 solstice on March 26, 2016, the plaintiff's brand would be promoted in the second set of "exchange space" column of CCTV with the advertising fee of 6 million yuan. The plaintiff carried out publicity for the brand on many print media, including Linchuan Evening News published on April 21, 22, 25, 26, 28 and 29, Shanghai Cabinet published in September 2010, Ruili Home Furnishing published in April 2011 and Decorating 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.

    It is also found that the defendant Qingdao Opai Century Electric Appliance Co., Ltd. was established on March 19, 2012. The legal representative is Liu Weijie, with a registered capital of 100,000 yuan, and its business scope is wholesale: electrical appliances, gas appliances, sanitary ware, range hood, disinfection cabinet, etc.

    On September 14, 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 to the city of henan province zhengdong new district baisha town west city of the star league (white) hutch defends a hall 11 "opie kitchen appliance stores," shou-zhen wang in the shop to buy a marked "Qingdao opie century electric appliance co., LTD." on the oil absorption, kitchen burning gas in each one. I got a POS card issued by the store on the spot, a receipt of Qingdao Opai Century Electric Appliance Co., LTD., a business card with "Jin Niu" printed on it, and a brochure with "Qingdao Opai Century Electric Appliance Co., LTD." printed on it. Wang Shouzhen took five photos of the shop inside and outside. After the end of the above activities, Wang Shouzhen took 20 photos of the above articles under the supervision of the notary, the notary sealed the above articles, Wang Shouzhen took two photos of the appearance of the sealed articles, and the sealed articles were kept by Wang Shouzhen. Fengcheng Notary Office of Laiwu city, Shandong Province issues (2017) Fengcheng Notary No. 1508 for the above process.

    During the court hearing, it can be seen that the front and back sides of the packing case and the cover of the instruction manual are printed with the logo of "WWW.opai Kitchen electric. Cn", and the words "Qingdao Opai Century Electric Appliance Co., LTD" are printed in black on the side of the packing case.

    The court believes that the focus of the dispute in this case is: 1. Whether the alleged infringing product infringes upon the exclusive right to use the registered trademark No. 4378572 and No. 1137521 enjoyed by the plaintiff; 2. Ii. Whether the behavior of the defendant Qingdao Opai Century Electric Appliance Co., Ltd. constitutes unfair competition, and whether the defendant Qingdao Opai Century Electric Appliance Co., Ltd. should change the enterprise name; If it constitutes a tort, whether the defendant should bear civil liability 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 used on similar products instead of a registered trademark of the same trademark, easy to cause confusion, the use of a registered trademark infringement. In this case, both sides accused of infringing products packing box, as well as the cover of the instruction for use, are printed with "WWW. Opie hutch electricity. Cn" logo, the "European" logo with the plaintiff's "European" registered trademark, no. 4378572 no. 1137521 "European" registered trademark, the only different fonts, overall very approximate, and is accused of infringement product range approved to use the registered trademark is the same with the plaintiff, for the same goods, to ordinary consumers view, easy to cause confusion, so that the mistake is the plaintiff's product or its relevance. Therefore, it should be determined that the accused infringing product infringes the exclusive right to use the registered trademark no. 4378572 and No. 1137521 enjoyed by the plaintiff, and is an infringing product.

    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 defendant will be the same as the plaintiff's registered trademark of the word "ou" for the enterprise name registration in font size, and used on the same commodity, its behavior is enough to make the relevant public to mistake the Qingdao opie century electrical appliance co., LTD., 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.

    With regard to focus 3, the Court holds that, in accordance with article 118 of the General Principles of the Civil Law of the People's Republic of China, the defendant shall bear civil liability for stopping the infringement and compensating for the loss for his 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.

    In this case, the plaintiff failed to evidence to prove that the loss of its situation, also failed to prove the defendant's tort profit amount of proof, as a result, according to the law, our college in view of the plaintiff's trademark value degree, the defendant's subjective fault, tort, period, consequences, and the properties of the plaintiff reasonable expense for stopping the infringement of the defendant etc factors, determined the defendant electric appliance co., LTD. Qingdao opie century 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 on December 1, 1993), article 2, article 20, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain, article 16 of the act, the decision is as follows:

    I. As of the effective date of this judgment, the defendant Qingdao Opai Century Electric Appliance Co., Ltd. immediately ceases to produce and sell products that infringe upon the exclusive right to use the registered trademark of the plaintiff Opai Home Furnishing Group Co., LTD. No. 4378572 and no. 1137521 and mark the words "Qingdao Opai Century Electric Appliance Co., LTD.";

    Ii. The defendant Qingdao Opai Century 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 with "Opai";

    3. The defendant, Qingdao Opai Century Electric Appliance 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 is 4,300 yuan, 1,075 yuan borne by the plaintiff Opai Household Group Co., LTD., and 3,225 yuan borne by the defendant Qingdao Opai Century Electric Appliance 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

    Judge Guo Jing

    Mou Dunrong, people's juror

    September 3, 2008

    Clerk Chen Dong

    Clerk Li Youjia