Article source: China Judicial Documents network Release time:2020-07-27 09:42:23 viewed:0time
Chancheng District People's Court, Foshan City, Guangdong Province
Written judgment of civil affairs
(2018) Yue 0604, Early Republic of China no. 28408
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: Shuangsheng Sanitaryware Business Department, Qinhuai District, Nanjing City, Jiangsu Province, Place of business, No. 18, Wujiashan, Qinhuai District, Nanjing City, Jiangsu Province, Registration Number 320104600344279.
Operator: Li Shuangfei, male, Han Nationality, born on October 13, 1983, living in Nan 'an County, Fujian Province,
Defendant: Nanjing Xinshang Building Materials Co., LTD., no. 540, 542, Hongyang A2 Zone, No. 12 Longzang Avenue, Yuhua Economic Development Zone, Nanjing city, Jiangsu Province, with unified social credit code ××897, is a sole proprietorship enterprise.
Legal representative: Huang Xijun.
Defendant: Huang Hanming, male, Han Nationality, born on October 15, 1979, living in Xiangqiao District, Chaozhou City, Guangdong Province,
Defendant: Guangdong Oumeng School Kitchen & Bathroom Co., LTD., one of Room 507, Block 7, No. 56, North Wenhua Road, Chancheng District, Foshan City, Guangdong Province, with unified social credit code ××910.
Legal representative: Huang Hanming.
Defendant: Huang Xijun, female, Han Nationality, born on August 13, 1980, residing in Yuhuatai District, Nanjing City, Jiangsu Province,
The plaintiff opie household group co., LTD., and the defendant qinhuai district, nanjing city double sheng sanitary ware sales department (hereinafter referred to as dual sheng sanitary ware shop), nanjing xin building materials co., LTD. (hereinafter referred to as lei is building materials company), Huang Hanming, guangdong dream sent hutch defends co., LTD. (hereinafter referred to as the European dream company), trademark and unfair competition disputes Huang Xijun enroach on, in our hospital in 2018 to begin on November 15, in accordance with the applicable ordinary procedure, on February 20, 2019 public hearing on the trial. The plaintiff's agent AD litem Zhai Mingyue attended the proceedings. Having been lawfully summoned by the court, the defendant refused to attend the proceedings without justified reasons. The case is now closed.
1. The defendant shuangsheng Sanitary Ware Business Department and Xinshang Building Materials Company immediately stopped the use of "Opai" in store signs, stores, posters, business CARDS and other places to infringe the plaintiff's trademark rights; 2. The defendant shuansheng Sanitary ware Business Department and Xinshang Building Materials Company immediately stopped the sale of sprinkles, taps and toilets marked with the words "OPPAIM" and "OPPAIM"; 3. The defendants, Huang Hanming and Oumeng Pai company, immediately stopped infringing the exclusive right to use the trademark and marked the words "Oupai" and "OPPAIM" on the products of shower, faucet and toilet seat produced and sold by them, as well as on the promotional brochures; 4. The defendants, Huang Hanming and Oumeng Pai company, immediately stopped unfair competition and marked the words "Oupai Technology (China) Co., LTD" on the products of shower heads, faucets and toilet seats produced and sold by them; 5. Defendant Huang Hanming immediately stopped using the enterprise name of Opai Technology (China) Co., Ltd. to carry out business activities in the mainland; 6. The defendant, Shuang Sheng Sanitary Ware Business Department, Xinshang Building Materials Company, Huang Hanming and Oumeng Group, shall compensate the plaintiff for the economic loss and the reasonable expense of rights protection totaling RMB 200,000 yuan in this case, and the defendant, Huang Xijun, shall bear joint and several liabilities within the compensation scope of the defendant, Xinshang Building Materials Company; 7. The five defendants Shared the costs of the case.
Facts and Reasons: Founded in 1994, the plaintiff is a leading brand in the whole cabinet industry. Its products cover the whole wardrobe, kitchen appliances, bathroom and commercial kitchen utensils and other fields. The series trademarks of "" and" OPPEIN "owned by the plaintiff, after decades of careful creation and huge investment in advertising, have been molded into household, kitchen, bathroom brands that are well known throughout the country. This brand has successively won the reputation of" China famous brand products ", "China well-known trademark" and so on. At the same time, in February 2017, the plaintiff was successfully listed in Shanghai with stock code 603208, which further laid the leading brand advantage of the plaintiff in the industry. Nowadays, in the public mind, "Opai" series of trademarks is not only a representative symbol of the plaintiff's products and enterprise names, but also a significant identification mark indicating the market subject and commodity source of the plaintiff and the plaintiff's affiliated enterprises. In December 2017, the plaintiff discovered the defendant double xin sheng sanitary ware arm, is building materials company in store signs, shop, poster and card extensive use of "Europe", "OPPAIM" sells "Europe", the word "OPPAIM" the flower is aspersed, faucet, toilet, in the place such as product packaging, product, manual annotation "European", "the home has love with European", "OPPAIM", "European science and technology (China) co., LTD.", "guangdong dream sent hutch defends co., LTD., from", and with pictures and the plaintiff spokesman sun li's signature. In addition, the defendant Opie used the word "Opie" on its website to produce and sell the products involved. The plaintiff applied for notary office to preserve evidence. Upon enquiry, it was found that the founder of Opai Technology (China) Co., Ltd. was the defendant, Mr. Huang Hanming. The company did not have a business registration certificate in Hong Kong and had no actual place of operation. The defendant Xinshang building Materials Company is a one-person limited company, and the defendant Huang Xijun is the sole shareholder of the defendant Xinshang building materials Company. To sum up, the plaintiff believes that the five defendants intentionally illegally used the words "Opai", "OPPAIM", "OPPAIM", "OPPAIM" and "OPPAIM Technology (China) Co., LTD" in the stores, products and promotional brochures in order to keep up with the plaintiffs' reputation of "OPPAIM" and "OPPAIM". The defendant, Mr Wong Han-ming, who was not a Resident of Hong Kong, took advantage of the relaxed industrial and commercial registration system in Hong Kong to register Opai Technology (China) Co., Ltd. and apply it to the products in question, which constituted an infringement of the plaintiff's right to the enterprise name. The above-mentioned behavior of the defendant not only infringes the plaintiff's right to exclusive use of the registered trademark, but also violates the principle of good faith and recognized business ethics, constitutes unfair competition to the plaintiff, causes great economic loss to the plaintiff, and shall bear the corresponding legal liability. As a shareholder of a one-person company, defendant Huang Xijun shall be liable for the debts of the company. Therefore, the plaintiff, in accordance with the Trademark Law of the People's Republic of China, the Law of the People's Republic of China against Unfair Competition and other relevant provisions, appealed to the court to make a fair judgment according to law.
At the trial, the plaintiff claimed that the faucet products involved had filed a separate lawsuit, and the lawsuit was withdrawn in this case.
In order to prove his claim, the plaintiff submitted to the Court the following evidence:
1.(2016) Notarial Certificate No. 347, Certificate No. 675, Certificate No. 675, Certificate No. 347, Certificate No. 675, Certificate No. That the plaintiff has the exclusive right to the registered trademark No. 4378572 and that the trademark is within the period of validity;
2.(2016) Certificate No. 350 of Laifengcheng Certificate No. 672 of Laifengcheng Certificate No. That the plaintiff has the exclusive right to the registered trademark No. 1128213 and that the trademark is in valid;
3.(2016) Notarial Certificate No. 346, (2017) Notarial Certificate No. 673. That the plaintiff has the exclusive right to use the registered trademark No. 1137521;
4.(2016) Notarial Certificate No. 348 of Laifeng City Certificate. That the plaintiff has the exclusive right to use the registered trademark No. 7731876;
5.(2016) Notarial Certificate No. 352 of Lifengcheng Certificate. It proves that the plaintiff legally owns the copyright of "" fine art fonts. The work was created on August 10, 1996, which is completely consistent with the contents of the registered trademarks no. 4378572, 1128213 and 1137521 of the plaintiff. It also proves that the plaintiff's" "brand has certain originality and a long history.
6. Trademark [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce. To certify that the registered trademark no. 1128213 "" enjoyed by the plaintiff had been recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on April 24, 2009;
7.(2016) Notarial Certificate No. 353 of Laifeng City Certificate. To prove that the plaintiff and the plaintiff's brand have high market visibility;
8.(2017) Notarial Certificate No. 260 of Laifeng City Certificate. To certify the latest honor of the plaintiff and the brand of the plaintiff;
9.(2016) Notarial Certificate No. 357 of Laifeng City Certificate No. It proves that part of the tax paid by the plaintiff from 2013 to 2015, and proves that the "Opi" brand generates huge profits and benefits, and the brand has a very high value.
10.(2016) Notarial Certificate No. 355 of Laifeng City Certificate. It proves that the plaintiff has carried out continuous publicity for the "Opai" brand through CCTV and Hunan TV, which proves that the "Opai" brand has been widely known by the public and the brand is of high value.
11.(2016) Notarial Certificate No. 356 of Laifeng City Certificate. It proves that the plaintiff spent a lot of money to hire the star Jiang Wenli to speak for the "European Group" products, which further proves that the plaintiff spent a lot of money to promote the European group brand.
12.2011 years on April 21, 22, 25, 26, 28, 29, "linchuan evening news", published on August 26, 2011 issue of the "shenzhen special zone signs up for", on 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 the world magazine. It proves that the plaintiff continuously propagates the brand of "Opi" through print media, and also proves that the original advertising slogan of "Family, love and Opi" is continuously used and promoted by the plaintiff;
13. (2017) Laifengcheng Certificate Minzi No. 1968 and (2017) Laifengcheng Certificate Minzi No. 2117 Notarial Certificate (including the infringing material object sealed by the notary Office). To prove the facts of the defendant's infringement;
14. Notary fee note. To prove the reasonable expenses of the plaintiff;
15. The defendant's industrial and commercial information of Shuangsheng Sanitaryware Business Department, Xinshang Building Materials Company and Oumengpai Company. Prove that the defendant is the identity of the subject, especially the double sheng sanitary ware arm, xin building materials company's identity, yet the plaintiff forensics location is in the xin building materials company, a site access card and POS machine slip is derived from the double sheng sanitary ware's business, to prove that the defendant double xin sheng sanitary ware's business operators and the defendant is building materials company's legal person should be a relationship;
16. Business registration information of Opai Technology (China) Co., LTD. To certify that defendant Huang Hanming is the sole shareholder of the company and that the company has been dissolved;
17. Planning Agreement signed by the plaintiff and Sun Li, a film and television star. To prove that Sun Li is the image spokesperson of the plaintiff's products;
(2018) Civil Judgment No. 5854 of Yue 0604 in the Early Republic of China. It also proves that the defendant Huang Hanming is the sole shareholder of Opai Technology (China) Co., LTD.
19. "OPPAIM" trademark query information. Certify that the registered trademark is Opai Technology (China) Co., LTD.
The defendant Shuangsheng sanitaryware business Department, Xinshang building Materials Company and Huang Xijun did not submit their defense opinions.
The defendant, Huang Hanming, and The defendant, OPPAIM Technology (China) Co., LTD., made a written defense, saying that OPPAIM was legally registered and established in Hong Kong according to the laws and regulations of that place, and "OPPAIM" was also granted a trademark certificate, which did not constitute infringement. Although the product logo advertised on the website of defendant Huang Hanming was suspected of infringement, defendant Huang Hanming did not actually produce and sell the product. The defendant Omonpai company also did not produce and sell the products involved, which did not constitute infringement.
If a defendant fails to appear in court after being lawfully summoned by the court to answer the suit, he shall be deemed to have waived his right to produce evidence and cross-examine evidence.
The court confirms the authenticity of the plaintiff's evidence, which can be used as the basis for determining the case.
On the basis of the admissible evidence and the parties' statements, the following facts may be ascertained:
The plaintiff and his claim
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 opie ambry enterprise co., LTD., approved the registration no. 4378572 "" trademark, shall use commodities for 11 categories, including gas type, faucets, bathroom equipment, basin of wash one's hands (sanitary equipment parts), shower equipment, toilet, kitchen smoke lampblack machine, etc., renewal of registration is valid until June 6, 2027. On March 14, 2011, guangdong opie group co., LTD., approved the registration no. 7731876 "OPPEIN" trademark, shall use commodities for 11 categories, including cooker, gas stove, water heater, kitchen smoke lampblack machine equipment, faucets, bathroom, shower device, toilet bowl, wash one's hands basin (such as sanitary equipment parts), 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 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 trademarks "OPPEIN" and "" used by the plaintiff on sideboards, furniture (wardrobes), kitchen range hoods and bathing equipment were recognized as famous trademarks of Guangzhou by The Administration for Industry and Commerce of Guangzhou municipality.
From 2011 to 2016, the plaintiff in the linchuan evening news, "ruili household", "decorate world", and other media such as newspaper and CCTV, hunan TV ads for its continuous publicity, "European" brand, the slogan "the home has love with European" instead of "European" brand publicity, and film and television star jiang wenli, sun li has brought in as "European" brand cabinets, wardrobe, bathroom, etc.
The facts of an 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 December 4, 2017.
(a) on December 6, 2017 in laiwu city in shandong province FengCheng notarization notaries, notarial personnel under the supervision of, laiwu city, urban shield intellectual property service center of entrusted agent shou-zhen wang arrived in nanjing city, jiangsu province in the name of ordinary consumers it made yuhua district on the road of economic development zone 12 red sun decoration city A2 district no. 511 "OPPAIM love life have a European" shops, shou-zhen wang in the shop to buy a marked "European science and technology (China) co., LTD." with the words of Angle valves, each a washing machine tap, faucet, shower set and implement one. On the spot, I obtained a POS machine credit card issued by the store, a sales list with the number 6358471, a business card with the words "Li Shuangfei", and a brochure with the words "Love life with Europa". The notary and notary will seal up the above-mentioned articles and give them to Wang Shouzhen for safekeeping. On January 2, 2018, the notary office issued a (2017) Certificate of Laifeng City Certificate No. 1968 to certify the above process. The POS machine swiping slip issued by the "OPPAIM Love Life You Ou Pai" store shows the merchant's name as "Qinhuai District Shuangsheng Sanitary Ware Sales Department, Nanjing". The name card of "Li Shuangfei" has the bank account of "OPPAIM Europe famous Trademark China sanitary ware" and the account of CCB, POSTAL service and ICBC whose name is "Li Shuangfei".
The photo attached to the notarial certificate shows that "OPPAIM Loves Life with OPPAIM" has a variety of sanitary products for sale, and posters on the wall are labeled with the words "OPPAIM loves Life with OPPAIM" or "OPPAIM with OPPAIM". During the trial, the plaintiff submitted a notarized sealed article, which was unsealed in court, including a one-piece toilet and a shower set. Among them, the implement on the outer packing mark "OPPAIM", "European science and technology (China) co., LTD. (producer)", "guangdong dream sent hutch defends co., LTD., from", "address: foshan city zen mandarin one of 7 road, 56, 507", "service hotline: 400-777-0607", "WWW. Opie hutch defends, China", "love is the life" and grandson couple avatars and other information. There are "OPPAIM", "OPPAIM for love life" and Sun Li's head on the cover, water tank and side of the product. Flange ring has "OPPAIM", "service hotline: 400-777-0607", "WWW. Opie hutch defends, China", the word "love life have a European", have on the manual "OPPAIM", "love life, a European", "WWW. Opie hutch defends · China" and "European science and technology (China) co., LTD. (producer)", "guangdong dream sent hutch defends co., LTD., from", "address: foshan city zen mandarin one of 7 road, 56, 507", "service hotline: 400-777-0607 ", WWW.OPPAIM.COM Shower set for a large box, three small boxes. On the big box packaging labeling "OPPAIM", "European science and technology (China) co., LTD. (producer)", "guangdong dream sent hutch defends co., LTD., from", "address: foshan city zen mandarin one of 7 road, 56, 507", "service hotline: 400-777-0607", "WWW.OPPAIM.COM", "WWW. Opie hutch defends, China", "love is the life" and grandson couple avatars and other information. The packages are labeled "OPPAIM" and "OPPAIM". After opening the big box, it is a set of flower sprinkling accessories marked with "OPPAIM". The plaintiff believes that "OPPAIM· OPPAIM" on the small package box of sprinkling accessories infringes its trademark right; Product labeled "love life have a European" and "WWW. Opie hutch defends · China" also violated the trademark rights of the plaintiff, in the case of products labeled with the "European science and technology (China) co., LTD. (producer)", the infringement of the right to enterprise name of the plaintiff, the form of unfair competition, products involved in extensive use of the head of the plaintiff's spokesman sun li, violated the principle of good faith, constitutes unfair competition. Shop of the double sheng sanitary ware, xin is building materials company's store signs to use the word "love life have a European", stores that take the door screen USES the word "opie wei yu", posters, price tag plate, hanging on the power of attorney, trademark certificate with the wording "Europe", especially the trademark registration certificate of suspension is "OPPAIM · o, and the word" Europe "as well as in the case of business card, the above situation both constitute a trademark infringement.
(2) On January 9, 2018, under the supervision of notaries and notaries of Fengcheng Notary Office in Laiwu city, Shandong Province, Wang Shouzhen connected to the Internet computer with the notary office and logged on the website www.oppaim.com, which read "Oppaim.com sanitary Ware - Oppaimtech (China)..." Left upper corner of the page, the page marked "OPPAIM" brand and "China's high-end hutch", below is the "home page", "about Europe clique", "product display" and other columns, which at the bottom of the page marked "all rights reserved, 2010-2016 European science and technology (China) co., LTD. Guangdong dream sent hutch defends co., LTD., the national customer hotline: 400-777-0607", "about Europe clique" section contains "opie introduction: guangdong European dream sent hutch defends co., LTD is a professional design, production and sale of sanitary ware series products modern enterprise......" In the "product display", there are various kinds of toilet, lavabo, toilet, faucet and shower products. The registration information of "Oppaim.com" domain name was checked through Aliyun website, showing that the domain name owner was "Huanghanming" with the registration date of June 22, 2010. Wang Shouzhen saved the screenshot of the above webpage. On January 22, 2018, the notary office issued a (2017) Notarial certificate of Laifengcheng Certificate No. 2117 to certify the above process.
Other ascertained facts.
The business department of the defendant Shuangsheng Sanitary ware was established on May 2, 2013 as an individual industrial and commercial business operated by Li Shuangfei. Its business scope covers the sales of sanitary ware, hardware, plumbing equipment, building materials, stone and ceramic products.
The defendant's dream company on December 23, was founded in 2014, is a limited liability company, the legal representative as the defendant Huang Hanming, shareholders to outsiders Li Jinman Huang Hanming and case, the defendant scope of business for sale hutch supplies, furniture, ceramic sanitary ware, bathroom cabinet, metal products, cabinets, cistern, kitchen appliances, plumbing, water purification equipment, intelligent sanitary ware, tile products.
On 24 March 2010, the defendant, Mr Wong Han-ming, established Opai Technology (China) Co., LTD in Hong Kong as a limited company with the sole director being Mr Wong Han-ming. European science and technology (China) co., LTD. No. 8194500 "OPPAIM" trademark registrant, the trademark shall be used goods for 11 kinds of faucet, shower basin, toilet, sit implement, the urinal (sanitation), toilet seat, hot steam bath equipment, bathroom equipment, basin of wash one's hands (health equipment parts), water washing equipment, registration is valid from May 28, 2011 to 2021 on May 27.
The defendant, Xinshang Building Materials Company, is a limited liability company solely owned by natural persons, and the shareholder is the defendant Huang Xijun.
We think the case for the infringement trademark rights and unfair competition disputes, "OPPAIM love life have a European" issued by the store POS credit card slip shows merchant named "qinhuai district, nanjing city double sheng sanitary ware shop", the shop in the word "shuang-fei li" account for "shuang-fei li" are printed on the card of China construction bank, postal, icbc bank account, so we decided that the defendant double sheng sanitary ware shop of sales is accused of infringing products, has been accused of infringing products marked with the "guangdong dream sent hutch defends co., LTD., from" the words and the company's other information, Therefore, the court confirms that the accused infringing product is produced by the defendant Omonpie And the website involved is used by the defendant. The court does not support the plaintiff's allegation that the defendant Xinshang Building Materials Company and Huang Xijun sold the accused infringing products, because there is no factual basis. For the disputes in this case, the analysis is as follows:
Whether the defendant constitutes trademark infringement.
(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 goods that infringe upon the right to exclusive use of a registered trademark..." In this case, the plaintiff obtained the exclusive right to use the trademark No. 4378572 according to the law after registration. The trademark is now in the period of validity, and approved to use the goods as the 11th class, including gas stove, faucet, bathroom equipment, lavatory basin (sanitary equipment parts), bath equipment, toilet, kitchen lampblack machine and so on. First of all, the double sheng sanitary ware sales department in the store to use the "OPPAIM" logo and poster, "European" or "opie wei yu", the "European", "opie bathroom" and "OPPAIM" logo font, background color all have obvious difference, so the "European", "opie bathroom" is highlighted as a trademark use, same as the plaintiff "registered trademark" text no. 4378572, constitute a trademark is the same, and the double sheng sanitary ware sales department sales sanitary ware products displayed in the shop with no. 4378572 ", "use of a registered trademark approved goods belong to the same kind of goods, Therefore, the plaintiff no. 4378572 "" registered trademark exclusive right has been infringed. Secondly, the defendant is accused of infringement of sanitary ware sales department in its sales product outer packing and manual positive middle position with large fonts of "love life have a European", the word "Europe", while not prominent used as a trademark, but 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 symbol used as name of commodity or commodity packaging, misleading the public, belonging to the paragraph 2 of article 57 of the trademark law of the right to exclusive use of a registered trademark infringement." ", the above words are easy to make the relevant public to the source of the goods misidentify or think that its source and the plaintiff's registered trademark of the goods have a specific connection, so the defendant Shuangsheng sanitary ware business department's behavior also violated the plaintiff no. 4378572 "" registered trademark exclusive right.
To sum up, the defendant Ou Meng Pai company produced and sold the accused infringing products, and the defendant Shuang Sheng Sanitary ware business Department sold the accused infringing products and used the words "Ou Pai", "Ou Pai Bathroom" and "Ou Pai Love life" in the store advertising posters and sales list. All these are ACTS infringing the exclusive right of the plaintiff's trademark.
2. Whether the defendant's conduct constitutes unfair competition.
According to article 6 of the Law of the People's Republic of China against Unfair Competition, "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 abbreviation, shop name, etc.), of social organizations (including abbreviation, etc.), names (including pen names, stage names, translated names, etc.) that have certain influence on others... ." In this case, the plaintiff opie household group co., LTD., 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 2007 the faucet, bathroom equipment, wash one's hands basin (sanitary equipment parts), shower equipment, implement register the" "trademark on goods such as, the main overall kitchen, cabinet, wardrobe, sanitary ware products such as whole. The plaintiff to register to use on the sideboard goods "" trademark was identified as well-known trademarks in 2009, the European brand household cabinet from 2007 to 2010 was identified as Chinese famous brand products, its use in the sideboard, furniture (chest), kitchen smoke lampblack machine, shower equipment" OPPEIN ", "" trademark was identified as the famous trademark 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 "Opai" brand. , therefore, the plaintiff's "European" for the shop name and logo, as its on the sideboard commodity 20 well-known trademark recognition on the operation of the kitchen and bathroom products have a certain amount of radiation effect, and after the plaintiff in the whole kitchen, bathroom products continue to use and promotion of "European" name and trademark of the plaintiff in the same industry have a certain influence, belongs to the rules of law "has certain influence enterprise name (including, font size, etc.)".
This case, European science and technology (China) co., LTD. Is the defendant Huang Hanming company, established in Hong Kong, after the defendant Huang Hanming was established and an outsider with the plaintiff business scope is similar to the European dream company, and served as the legal representative, company production, sales, appointed by the defendant's dream annotation "European science and technology (China) co., LTD." of the enterprise name is accused of infringing products. European science and technology (China) co., LTD., enterprise size and the plaintiff has a certain influence, "European" font size is the same, and both the similar products, consumers will be accused of infringement product easily mistaken for the plaintiff products or think there is some kind of association, the accused of infringement product at the same time with the plaintiff "European" brand spokesman sun li's image, enhanced the accused infringing products linked to the plaintiff, deepen the misunderstanding of consumers. Therefore, the behavior of the defendant Huang Hanming and Oumeng Group is the unauthorized use of the plaintiff's name "Oupeng", which is easy to confuse the relevant public. It has obvious intention to "free ride", violates the principles of fair and honest market competition, violates the recognized business ethics, and constitutes unfair competition.
In addition, the plaintiff maintains that the use of "OPPAIM" constitutes infringement. In this regard, the court holds that the trademark "OPPAIM" is a registered trademark approved by the Trademark Office according to law, and the registered trademark is OPPAIM Technology (China) Co., LTD., so the exclusive right of the trademark "OPPAIM" should be protected by law. The defendant's use of the trademark "OPPAIM" did not infringe the legitimate rights and interests of the plaintiff.
Civil liabilities of the defendant.
As mentioned above, the defendant Huang Hanming use Hong Kong industrial and commercial registration system, registration of European science and technology (China) co., LTD., and by the President of the legal representative of the defendant's dream company production, sales, has been accused of infringing products, at the same time the defendant Huang Hanming registered domain name to open the website of European science and technology (China) co., LTD., the defendant's dream to promote their company and is accused of infringement product, so the defendant Huang Hanming, European dream company division of labor cooperation, jointly infringe on the plaintiff's right to the exclusive use of a trademark and the legitimate rights and interests of the plaintiff as operators, constitute a common infringement, in accordance with the law shall bear joint and several liability. The defendant shuangsheng Sanitary ware sales Department infringed upon the plaintiff's trademark exclusive right and used the word "Opai" in the store and other places, failing to fulfill the duty of reasonable care, and shall bear the corresponding tort liability according to law.
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. Accordingly, the plaintiff requires the defendant to stop the infringement and compensate for the loss, which is supported by the court. As for the amount of compensation, according to the provisions of Paragraph 1 and Paragraph 3 of Article 63 of the Trademark Law of the People's Republic of China, "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." In addition, according to the provisions of Paragraph 3 and Paragraph 4 of Article 17 of the Anti-Unfair Competition Law of the People's Republic of China, "The amount of compensation for an operator who is injured due to ACTS of unfair competition shall be determined according to the actual losses 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, because the parties from the actual damage to the plaintiff because of the infringement, the defendant from the infringement profits have not proof such as confirmed that it is difficult to determine, so considering the nature of the infringement, the degree of subjective fault, the defendant, consequences during the period of the plot, specific to the defendant Huang Hanming on March 24, 2010 in the establishment of the Hong Kong region science and technology (China) co., LTD., the enterprises in the same year the registered domain name website propaganda and accused of infringing products, was founded on December 23, 2014, the defendant's dream company production, sales, has been accused of infringing products, with the subjective malicious tort, etc., As well as the plaintiff's reasonable cost to stop the infringement, the court decided that the defendant Huang Hanming and Oumeng Group jointly and severally compensate the plaintiff's economic loss and reasonable expense of safeguarding the rights with a total of 100,000 yuan, and the defendant Shuangsheng Sanitary ware business Department compensate the plaintiff's economic loss and reasonable expense of safeguarding the rights with a total of 20,000 yuan. The Court does not support the part of the plaintiff's claim in excess of the said amount. Defendants Xinshang building Materials Company, Huang Xijun not assume liability for compensation.
To sum up, according to the provisions of the trademark law of the People's Republic of China article 3, paragraph 1 of article 57, and 1, 2, 3, paragraph 1 of article sixty-three, paragraph 3, the anti-unfair competition law of the People's Republic of China, article 2, paragraph 2, article 17, the first paragraph of article 6 of the law of the People's Republic of China tort liability law article 15, 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, the provisions of article one hundred and forty-four of the first paragraph, Judgment in default is as follows:
Nanjing qinhuai district double one, the shop of sheng sanitary ware in the judgment takes legal effect from the date of the immediately stop the infringement of the plaintiff opie household group co., LTD. No. 4378572 "" the right to exclusive use of a registered trademark act, which stopped in our stores, posters, sales list using the" European "words, stop selling marked" Europe "the flower is aspersed, sit implement of products;
Second, the defendant guangdong dream sent hutch defends co., LTD., in the judgment takes legal effect from the date of the immediately stop the infringement of the plaintiff opie household group co., LTD. No. 4378572 "" the right to exclusive use of a registered trademark of behavior and stop ACTS of unfair competition, namely stop in its production and sales of flower is aspersed, sit implement products labeled" European ", "European science and technology (China) co., LTD." the words.
3. The defendant, Huang Hanming, and Guangdong Oumeng Kitchen & Sanitation Co., Ltd. jointly compensate the plaintiff, Oupai Furniture Group Co., Ltd. for economic losses and reasonable expenses for safeguarding their rights, a total of 100,000 yuan within 10 days from the date of the legal effect of this judgment;
Iv. The defendant, Shuangsheng Sanitaryware Business Department of Qinhuai District, Nanjing, shall compensate the plaintiff, Opai Home Furnishings Group Co., LTD., for the economic loss and reasonable expense of safeguarding its rights, totaling 20,000 yuan within 10 days from the date of the legal effect of this judgment;
V. Rejecting other claims of the plaintiff opai Furniture Group Co., LTD.
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 double interest on the debt for the delay period.
The accepting fee of this case is 4300 yuan, 1000 yuan is borne by the plaintiff Ou Pai household Group Co., LTD., the defendant Huang Hanming and Guangdong Ou Meng Pai kitchen and sanitation Co., Ltd. jointly bear 3000 yuan, and the defendant Qinhuai District Shuangsheng sanitary ware business department bears 300 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.
Chief Judge Wu Zhanhong
People's Juror Zhang Qiu Ling
People's Juror Huanhong Huang
May 5, 1919
Clerk Chen Yunyi