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

    Qingdao Intermediate People's Court of Shandong Province

    Written judgment of civil affairs

    (2016) Lu 02, 1651, Early Republic of China

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

    Legal representative Yao Liangsong, chairman of the board.

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

    Agent AD litem: Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Qingbaijiang Dongxiu Building Materials Business Department, No. 203, Building 8, Area 2, Qinglong International Building Materials City, Qingbaijiang District, Chengdu, Sichuan.

    Defendant: Qingdao Fashion Oupai Trading Co., LTD., No. 18, Huishui Road, Licang District, Qingdao.

    Legal representative: Wang Huayong, manager.

    Defendant: Zhongshan Shunhuang Living Electric Appliance Co., LTD., Shelley Road, Dachen Industrial Zone, Huangpu Town, Zhongshan City, Guangdong Province, China.

    Legal representative: Chen Jianwei, manager.

    Agent AD litem: Dai Hai, lawyer of Guang Dong Sen Long Law Firm.

    The plaintiff opie household group co., LTD., and the defendant QingBaiJiang east show building materials sales department (hereinafter referred to as the east show building materials), Qingdao fashion European trade co., LTD. (hereinafter referred to as the fashion opie), zhongshan city, shun emperor life electric appliance co., LTD. (hereinafter referred to as "zhongshan shun emperor) the infringement trademark rights and unfair competition disputes, we accepted after November 1, 2016, in accordance with the applicable ordinary procedure, on June 26, 2017, public trial, plaintiffs entrust agents AD litem wang ning, the defendant is the legal representative of the fashion opie Wang Huayong, defendants zhongshan shun emperor Dai Hai entrust agents AD litem to appear in court to participate in the litigation, The defendant Dongxiu building materials refused to attend the proceedings without justifiable reasons after being served by notice. The case is now closed.

    The plaintiff filed a lawsuit to the court: 1. The defendant dongxiu Building Materials was ordered to immediately stop using the word "Opai" in the store to infringe the right to exclusive use of the trademark; 2. 2. The defendant dongxiu Building Materials was ordered to immediately stop selling the disinfection cabinet marked "Opai" that infringed upon the right to exclusive use of the trademark; 3. The defendant Dongxiu Building Materials was ordered to immediately stop the sale of the unfair competition behavior marked with the words "Qingdao Fashion Opai Trading Co., LTD"; 4. The defendant was ordered to stop the production and sale of disinfectant cabinets marked "Opai" that infringed upon the right to exclusive use of trademarks; 5. Order the defendants Fashionopai and Zhongshan Shunhuang to immediately stop the production and sale of the disinfection cabinets marked with the words "Qingdao Fashionopai Trading Co., LTD"; 6. The court ordered the defendant to compensate the plaintiff for economic losses and reasonable expenses of rights protection of RMB 200,000 yuan, among which dongxiu Building Materials was required to compensate RMB 50,000 yuan, and Fashionopai and Zhongshan Shunhuang were required to compensate RMB 150,000 yuan; 7. Order the three defendants to bear the litigation costs of the case.

    Facts and Reasons: The plaintiff is the registered trademark owner of class 11 "OPPEIN" and "OPPEIN". The brand has successively won the reputation of "China famous Brand" and "China Well-known Trademark". In September 2016, the plaintiff found that the defendant Dongxiu Building Materials used "Opie" extensively in its store to carry out false propaganda and sell disinfection cabinets marked with "Opi". After further investigation, the plaintiff found that the above products are produced by Fashionable Europe and Zhongshan Shunhuang. The plaintiff thinks that the actions of the three defendants not only infringe upon the plaintiff's right to exclusive use of the registered trademark, but also constitute unfair competition, and should bear corresponding legal liability.

    Defendant Dongxiu building materials did not plead.

    Defendant Fashionistas argue that the defendant has no trademark infringement.

    Defendant Zhongshan Shunhuang argued that: The European group trademark is in the cabinet class has a certain reputation of the trademark, in the home appliance industry is not a well-known trademark, the defendant as a home appliance processing party did not have the plaintiff's trademark subjective intention; The defendant is the legal holder of the trademark of OPOAIN, and there is no intention of infringement in using the trademark on the approved product according to law; The words "Qingdao Opai Electrical Appliances", "Qingdao Opai Fashion Trading Co., LTD" and "Youyouaiai Fashion Opai" are not highlighted in the use of the words "Opai", and there is no infringement of trademarks. 4. The plaintiff claims that the economic loss has no factual and legal basis.

    The parties submitted evidence in accordance with the law, and the court organized the parties to exchange and cross-examine evidence.

    The plaintiff submitted to the Court the following evidence:

    Group I: 1. (2016) Notarial Certificate No. 347, which proves that the plaintiff has the exclusive right to use the registered trademark "Opai" no. 4378572 according to law.

    The second group: 2, (2016), lai FengCheng certificate notarial deed, 3, 352 people word trademark chi (2009) no. 7, 4, (2016), word FengCheng card people notarial deed, 5, 353 (2016), word FengCheng card people notarial deed, 6, 357 (2016), word FengCheng card people notarial deed, 7, 354 (2016), word FengCheng card people notarial deed, 8, 355 (2016), FengCheng word card people a notarial deed, 9, 356 newspapers, prove that the plaintiff trademark has been for the public to know together, as a famous trademark.

    The third group: 10. (2016) Notarial Certificate No. 110542 of Chuanguo Notarization, which proves the infringement facts of the defendant.

    The fourth group: 11. The cost of purchasing infringing products and the reasonable expense to prove the plaintiff's right protection.

    Defendant Dongxiu Building Materials did not issue a cross-examination opinion.

    The defendant fashion European faction, Zhongshan Shunhuang did not object to the authenticity of the evidence, but the matter of proof. The court confirms the authenticity of the evidence submitted by the plaintiff.

    Defendant Dongxiu building materials, fashion Europe did not submit evidence.

    The defendant, Sun Yat-sen, submitted two copies of trademark registration certificate to the court, proving that the trademark OPOAIN used in the goods involved was owned by the defendant. The plaintiff has no objection to the truth of the evidence, but considers it irrelevant to the case. The court confirms the authenticity of the evidence.

    Based on the parties' statements and the evidence examined and confirmed, the Court finds the following facts:

    1. Guangzhou Oupai Cabinet Enterprise Co., Ltd. applied to the Trademark Office of the State Administration for Industry and Commerce for registration of no. 4378572 "Oupai" on June 7, 2007, and approved the use of category 11 "gas furnace; Microwave oven (kitchen utensils); Electric cooker. Baking utensils, etc., valid from June 7, 2007 to June 6, 2017 solstice. After changing the trademark owner several times, on March 24, 2014, the trademark owner changed to be the plaintiff.

    On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce affirmed that "The registered trademark of 'Oupai' on the sideboard goods of Category 20 of the International Classification of Goods and Services for trademark registration used by Guangzhou Oupai Cabinet Enterprise Co., Ltd. is a well-known trademark". In February 2008, the trademark "Opi" on the sideboards, storage racks and dishcabinets was recognized as the famous trademark of Guangdong Province. Guangzhou Oupai ambry Enterprise Co., LTD. Has won many honors such as "Chinese famous brand products", and the plaintiff has put in a lot of advertisements for "Oupai" trademark.

    2, on September 7, 2016, the plaintiff's attorney shou-zhen wang and chengdu in sichuan province national notarization notaries zhang and staff Lord together came to 2666 QingBaiJiang avenue of qingbaijiang district, chengdu district 2 tsing lung [international] decorative building materials city 8 203 salesroom OPOAIN Qingdao opie appliances, bought goods marked "OPOAIN household kitchen burning gas" a, "OPOAIN Qingdao opie appliances embedded disinfection cabinet" style of goods a and "OPOAIN Qingdao opie electric oil absorption" words of a goods, In addition, I have obtained a Lin Zhaodong business card issued by the shop assistant, which is marked with such words as "Exclusive distribution of Qingdao Opai Electric Appliances in Sichuan" and "Love is as long as you have a home", as well as a sales certificate no. 0002015, "Sales List of Qingdao Opai Electric Appliances", and two brochures. The outer packing and operating instructions of the disinfection cabinet accused of infringement are marked "Qingdao Oupai Electrical Appliances", "Qingdao Fashionable Oupai Trading Co., LTD" and "Manufacturing: Zhongshan Shunhuang Living Electrical Appliances Co., LTD".

    The court holds that, in combination with the original defendant's lawsuit claims and the facts ascertained by the court, the dispute focus of this case is: 1. Whether the actions of the defendant dongxiu Building Materials, Fashion Europe School and Zhongshan Shunhuang constitute trademark infringement and unfair competition; 2. How to bear civil liability if it constitutes trademark infringement or unfair competition.

    A, whether the defendant Dongxiu Building Materials, fashion European school, Zhongshan Shunhuang's behavior constitutes trademark infringement and unfair competition.

    In this case, the plaintiff is the owner of the trademark with the word "Eurogroup" no. 4378572. Within the term of validity of the trademark, the exclusive right of the registered trademark enjoyed by the plaintiff is protected by law. The plaintiff believes that the words "Oupai" and "Qingdao Oupai Trading Co., LTD" used by the defendant, Zhongshandonghuang, on the outer package of the products accused of infringement violated the plaintiff's right to exclusive use of the registered trademark and constituted unfair competition. "Trademark law of the People's Republic of China" (hereinafter referred to as the "trademark law") the first item (7) of article 57, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation under paragraph (a), the first article will be the same or similar registered trademark with others words as enterprise size in use highlights on the same or similar goods, misleading the public and the relevant public could produce misidentification, belong to the behavior of the damage to the exclusive use of a registered trademark of others. In this case, the use of "Qingdao Opai" on the outer package of the infringing product and the use manual of the infringing product is to make the trademark of the plaintiff prominent, combine with the popularity of the trademark of the plaintiff, and easily cause the related public to misidentify, which constitutes an infringement on the exclusive right of the registered trademark of the plaintiff. Article 58 of the Trademark Law of the People's Republic of China provides that anyone who USES a registered trademark of another person or an unregistered well-known trademark as the shop name of an enterprise, thus misleading the public and constituting an act of unfair competition, shall be dealt with in accordance with the Law of the People's Republic of China against Unfair Competition. Article 2, Paragraph 1, of the Anti-Unfair Competition Law of the People's Republic of China stipulates that in market transactions, operators shall follow the principles of voluntariness, equality, fairness, honesty and credibility and abide by generally recognized business ethics. In this case, the plaintiff is the holder of the trademark of "Opai", which has certain market popularity. The defendant fashion Opai USES "Opai" as the part with the most distinguishing function in its enterprise name, which will make the relevant public mistakenly think that the defendant has a correlation with the trademark of "Opai", causing confusion. Therefore, the defendant's actions constitute unfair competition.

    Regarding the defendant Dongxiu Building Materials, it sold the infringing products at the business site, which constituted the trademark infringement and unfair competition behavior against the plaintiff. The first (2) of the trademark law, article 57, "rules for the implementation of the trademark law of the People's Republic of China" the seventy-sixth regulation, with others in the same kind of goods or similar goods registered trademark identical with or similar to the symbol used as name of commodity or commodity packaging, misleading the public, belong to the exclusive use of a registered trademark has been infringed, the defendant east show building materials used in door, business CARDS, sales voucher "Qingdao opie appliances" propaganda, to the plaintiff, "European" trademark used as commodity packaging, can make the relevant public to mistake the sales of products for the plaintiff, constitute a trademark infringement to the plaintiff.

    How the defendant shall bear civil liability.

    In this case, the defendant Dongxiu Building Materials, FashionOpai and Zhongshan Shunhuang infringed the plaintiff's No. 4378572 "Europai" registered trademark exclusive right, which constituted unfair competition and should bear the civil liability of stopping infringement and compensation for loss.

    About the amount of damages, because the plaintiff did not prove to our hospital for all the damage by the defendant infringement also do not have evidence to prove that the defendant infringement profit situation, our college on the basis of the plaintiff brand visibility, the plot of the degree of the defendant's subjective fault, tort, determine the defendant fashion the economic loss of 100000 yuan sent to compensate the plaintiff, the defendant shall bear joint liability for zhongshan shun emperor, the east building materials to compensate the plaintiff economic loss of 20000 yuan.

    In accordance with the trademark law of the People's Republic of China article 57 sub-paragraph (2), (7), article 58, the anti-unfair competition law of the People's Republic of China, the first paragraph of article 2, 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 interpretation (1) the first article of the act, the decision is as follows:

    I. As of the effective date of this judgment, the business Department of qingbaijiang Dongxiu Building Materials of the defendant shall immediately stop using the word "Opai" in its door head, business card and sales voucher;

    2. As of the effective date of this judgment, the defendant Qingbaijiang Dongxiu Building Materials Business Department immediately stopped the sale of disinfection cabinets marked "Qingdao Oupai Electrical Appliances" and "Qingdao Fashionable Oupai Trading Co., LTD";

    3. The defendant Qingdao Fashion Oupai Trading Co., Ltd. and the defendant Zhongshan Shunhuang Household Electrical Appliances Co., Ltd. immediately stopped the production and sale of disinfection cabinets marked "Qingdao Oupai Electrical Appliances" and "Qingdao Fashion Oupai Trading Co., LTD." as of the effective date of this judgment;

    Iv. The defendant qingbaijiang Dongxiu Building Materials Business Department shall, within 10 days from the effective date of this judgment, compensate the plaintiff Opai Home Furnishing Group Co., Ltd. for the economic loss of RMB 20,000 yuan;

    V. The defendant Qingdao Fashion Oupai Trading Co., Ltd. shall compensate the plaintiff Oupai Home Furnishing Group Co., Ltd. for the economic loss of RMB 100,000 yuan within 10 days from the date of the effectiveness of this judgment, and the defendant Zhongshan Shunhuang Home Furnishing Co., Ltd. shall bear the joint and several liability;

    Vi. Rejecting other claims of the plaintiff Opai Furniture Group Co., LTD.

    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, 860 yuan borne by the plaintiff, 2,867 yuan borne by the defendant Qingdao Fashion Oupai Trading Co., Ltd. and Zhongshan Shunhuang Living Appliances Co., LTD., and 573 yuan borne by qingbaijiang Dongxiu Building Materials Business Department.

    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.

    Chief Judge Ji Xiaoxin

    Judge Wang Yan

    Acting judge Wang Xiaolin

    August 16, 2017

    Clerk Dong Hehe

    Clerk Li Youjia