Civil judgment of Hangzhou Intermediate People's Court, Zhejiang Province

    Hangzhou Intermediate People's Court of Zhejiang Province

    Written judgment of civil affairs

    (2018) Zhejiang 01 No. 1701, 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: Yang Fudong, Zhai Mingyue, lawyer of Shandong Changping Law Firm.

    Defendant: Ogre Furniture Sales Center, Pukou District, Nanjing city, business location: No. 014, Zone C, 4th Floor, Jinsheng Home Building, No. 24, Daqiao North Road, Pukou District, Nanjing City, Jiangsu Province.

    Operator: Wang Xiandong, male, born on June 10, 1976, Han Nationality, living in Fengxian, Jiangsu Province.

    Defendant: Jiaxing Meifu Electric Appliance Co., LTD., Henggang Industrial Park, Baibu Town, Haiyan County, Jiaxing City, Zhejiang Province.

    Legal representative: Tang Renchao, General Manager.

    Agent AD litem: Xiang Zevan, lawyer of Henan Desheng Law Firm.

    Defendant: Tang Renchao, male, born on January 31, 1987, Han Nationality, residing in Haiyan County, Jiaxing City, Zhejiang Province.

    Agent AD litem: Xiang Zevan, lawyer of Henan Desheng Law Firm.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the company) as the defendant in nanjing pukou ogrin beautiful furniture sales center (hereinafter referred to as ogrin li center), jiaxing fu electronics co., LTD. (hereinafter referred to as "good company"), tang dynasty the infringement trademark dispute case, on June 15, 2018 to a civil lawsuit in our hospital. The court formed a collegial panel on the same day and held the hearing in public on November 15, 2018. Yang Fudong, the agent AD litem of Opai, the plaintiff, and Xiang Zevon, the agent AD litem of Mifu and Tang Renchao, the defendant, attended the lawsuit. The defendant Augre y Center was summoned by the court and failed to attend the court proceedings without justifiable reasons, and the court tried in absentia according to law. The case is now closed.

    Filed a lawsuit against the plaintiff's company to our request, the request to judge: 1. Ogrin li center immediately to stop selling marked "opie the room ceiling" bath bully and marked "opie European ceiling" flat lamp products behavior, and immediately stop at the store signs, billboards, product exhibition, business CARDS, invoices and use the words "European" logo, behavior; 2. Mef and Tang Renchao immediately stopped the production and sale of bath Ba marked with the words "European-style suspended Ceiling" and flat panel lights marked with the words "European-style suspended Ceiling", and immediately stopped the use of the words "WWW.ZJOPPEIN.COM" in the operation instructions and packaging of the products involved in the case; 3. Tang Renchao and Meofu shall immediately stop using the website domain name of "www.zjoppein.com" and immediately stop using the logo of "Opi" in the website for commercial promotion; 4. The three defendants jointly and severally compensate the economic losses of Opai company and the reasonable expenses of safeguarding rights, totaling RMB 300,000 only; The costs of this case shall be borne by the three defendants. Fact and Reason: Opai was founded in 1994, is a comprehensive domestic integrated modern home furnishing service provider, products cover the whole wardrobe, kitchen appliances, bathroom, commercial kitchenware and other fields. OPPEIN is the registered trademark owner of "OPPEIN" and "OPPEIN", and "OPPEIN", as the original design of the enterprise logo of OPPEIN, has a strong significance. After years of painstaking operation and market promotion, OpAI has formed the enterprise brand reputation with the "OPPEIN" brand name and trademark logo as the core, as well as the classic slogan of "Home, love and OPPEIN", which has been known by the majority of domestic consumers and gained high popularity among the public. The Opai brand has successively won the reputation of "Guangdong Famous Trademark", "China famous brand product", "China famous Trademark" and so on. In the eyes of the relevant public, "Opai" has become a significant identification mark indicating the market subject and commodity source of Opai company and its affiliated enterprises. In December 2017, according to the investigation of Opie, the "Opi" logo and words were used in store signs, billboards, product exhibition racks, business CARDS, invoices and other places of the business premises of Ougli Center to sell the products of "Bath bullies" and flat lamps. Among them, the products involved in the bath bully are marked with the words "Opie Ceiling", "WWW.ZJOPPEIN.COM" and so on in the packaging box, operating instructions, product border, anti-counterfeiting label, product label and other places. The plate light products involved in the case were highlighted with the words "European style (traditional) suspended ceiling" and "WWW.ZJOPPEIN.COM" at the packaging box, product border, anti-counterfeiting label and product label. The two products involved in the case are printed with the image of Jiang Wenli, a spokesperson signed by Opai; The plaques and business CARDS displayed in the premises of the case are "franchised distributor" and "General agent of Opai Nanjing". Opai commissioned a notary office to preserve the evidence. After further investigation, it was found that the products involved and the domain name website marked were produced and used by Meifu Company. Upon inquiry, the website domain name and trademark registration information marked in the case were registered by Tangrenchao, which is the sole shareholder of Meofu. To sum up, Opai believes that the registered trademark of opai enjoys high market popularity and is known by the relevant public. Three defendants without permission from the European company, production, sales, marked "European" relevant identification, use the company signed a star endorsement image of the product and in store decoration, and other business activities of the site using the "European" logo, has obvious for clings to "European" brand awareness and malicious use of a "European" the intention, three products for consumers in the defendant's behavior related to the source of confusion, fade out "European" brand value, the request in accordance with the "European" trademark for well-known trademark protection. Augli Center did not fulfill the reasonable duty of inspection to sell the products involved, and used the word "Opai" logo in many places such as store decoration, which had the intention of obviously attaching itself to the brand awareness of Opai; Tang Renchao is registered, mefo labels "WWW.ZJOPPEIN.COM" on the user manual of the product involved, USES the above domain name to establish a website, and USES the celebrity endorsement image signed by Opai in the related product field without justified reasons; The above behaviors violate the principle of good faith and recognized business ethics and constitute unfair competition behavior. As the registrant of the domain name of the website and the trademark mark of the products involved, Tang Renchao is the legal representative and the only shareholder of Meifu. He knows that the ACTS involved in the case constitute joint infringement and should bear the responsibility for the ACTS involved in the case. In addition, Meofu and Tang Renchao continue to carry out the infringement when similar infringement has been prosecuted and dealt with, and their infringement is intentionally obvious and of a bad nature. At the trial, Opai applied for the withdrawal of the second claim and requested Mef and Tangrenchao to immediately stop using the words "WWW.ZJOPPEIN.COM" in the involved product instructions, product packaging and other commercial publicity, as well as the third claim, and clarified the fourth claim as follows: Good company, tang dynasty joint compensation European economic losses and reasonable rights of spending a total of 300000 yuan, ogrin center jointly and severally liable to the 50000 yuan, such as the three defendants not jointly and severally liable, is good company, tang dynasty joint compensation European economic losses and reasonable rights of spending a total of 250000 yuan, ogrin li center for European economic loss and reasonable expenses rights of a total of 50000 yuan, we shall be allowed in accordance with the law.

    The defendant Did not enter a plea.

    1. Authorized by Tang Renchao to use the trademark no. 6825112 of "Opio" and the trademark No. 15474560 of "Opio" on the metal ceiling, It is a legitimate exercise of the right of registered trademark and does not infringe the trademark right of others. Meofu's use of the registered trademark that has not changed its distinctive features does not fall within the scope of the people's court. Meofu shall inform OPai to settle with the administrative department and reject the claim of OpAI. 2. Mef does have a supply relationship with OGRE Center, but MeF only provides Finished products, including commodities and outer packing, to OGRE. Mef has nothing to do with shop signs, billboards, product exhibition racks, business CARDS, invoices and other promotional materials, and shall not bear the tort liability. 3. Opal may apply for enforcement of the terms and conditions in the conciliation statement, which has nothing to do with the case. 4. The unit price of the lamp and Bath Bully involved in the case is low, only a few hundred yuan for each piece. Opai requires a compensation of 300,000 yuan, which is obviously too high to be supported. To sum up, the request for judgment rejected the lawsuit of Opai company.

    The defendant super defense according to tang dynasty, tang dynasty super is only in the case of "opie the trademark registrant, with shareholder identity authorized company with the use of the trademark, with the company as a one-person limited liability company, should bear civil liability independently, can't prove that tang dynasty documented evidence implemented a tort, so the tang dynasty super children the defendant is not the case. The other opinions are the same as those of Meifu. To sum up, the request for judgment rejected the lawsuit of Opai company.

    The parties submitted evidence in accordance with the law, and the court organized the parties to exchange and cross-examine evidence. Based on the valid evidence presented by the parties and their statements in the trial, the Court ascertains the following facts:

    I. The registration and use of the trademark involved

    Opai, formerly known as Guangzhou Kangjie Kitchen Equipment Co., LTD., was founded on July 1, 1994 with a registered capital of 373581112 yuan. Its business scope is furniture manufacturing industry. On May 7, 1997, October 28, 1997, on July 6, 2009, July 20, 2010, the company name from guangzhou kang jie kitchen equipment co., LTD to apply for change to guangzhou European kitchen equipment co., LTD., guangzhou opie hutch ark enterprise co., LTD., guangdong opie group co., LTD., guangdong opie household group co., LTD., and got the approval. On August 19, 2013, Guangdong Provincial Administration for Industry and Commerce agreed to approve the change of enterprise name of Guangdong Opai Furniture Group Co., LTD to Opai Furniture Group Co., LTD.

    Guangzhou Oupai Kitchen Cabinet Enterprise Co., Ltd. is the registered trademark of "" no. 4378572, and the approved commodity is class 11: gas stove; Microwave oven (kitchen utensils); Electric cooker. Baking utensils (cooking utensils); The faucet; Bathroom fixtures; Disinfect cupboards; Drinking water filter; Lavatory basin (sanitary fittings); Steam bath equipment; Sit in the bath; Bathing equipment; Shower stall; Wash tub; Implement; Kitchen range hoods; The lamp. The registration period is June 7, 2007, solstice, June 6, 2017. On March 24, 2014, the name of the registered trademark registrant was approved and changed to Opai Company. Upon renewal, the said registered trademark shall remain valid until June 6, 2027.

    Guangdong Opai Group Co., Ltd. is the registrant of the trademark "OPPEIN" No. 7731876, and the approved commodities are of the 11th class: dome light; The oven; Cooking utensils; Gas burner. The water heater. Ice chest. The refrigerator; Kitchen range hoods; Non-laboratory furnace; The faucet; Bathroom fixtures; Bathing equipment; A flush toilet; Washbasin (sanitary fittings); Disinfect cupboards; Drinking water filter; Electric heater; Lighter (cut off). Registration is valid until March 14, 2011 solstice until March 13, 2021. On March 24, 2014, the name of the registered trademark registrant was approved and changed to Opai Company.

    Guangzhou Kangjie Kitchen Equipment Co., Ltd. is the registered trademark of "" no. 1128213, and the approved goods are category 20: furniture; Sideboard; Metal furniture; Cupboards; Plate rack; Storage rack; Washstand (furniture); Food delivery truck (furniture); Dinner cart (furniture); The counter. The registration period is 21 November 1997 solstice November 20, 2007. On March 24, 2014, the name of the registered trademark registrant was approved and changed to Opai Company. After two renewals, the above registered trademarks shall remain valid until November 20, 2027.

    Opai Co., Ltd. is the registrant of trademark "OPPEIN" No. 12088111, and the goods approved for use are category 20: furniture; The closet; Sideboard; The bed; The mattress. Bedstead (wooden); Display board. Plastic decorations for food; Non-metallic identification bracelet used in hospitals; The pillow. Pad; Magnetic therapy pillows; Jade pillow. Bedding (except linen) (cut off). The registration period is July 14, 2014 solstice July 13, 2024.

    On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce issued the trademark Chi Zi [2009] No. 7 "Reply on the Identification of the trademark" Ou Pai "as a well-known trademark", which identified the registered trademark "Ou Pai" used on the category 20 sideboard goods of Guangzhou Ou Pai Kitchen Cabinet Enterprise Co., Ltd. as a well-known trademark.

    In September 2007, the General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China granted the opai household cabinets manufactured by Guangzhou Opai Kitchen Cabinet Enterprise Co., Ltd. as China's famous brand products with a validity period of three years. In October 2008, Guangdong Provincial Bureau of Quality and Technical supervision granted Oupai kitchen cabinet products manufactured by Guangzhou Oupai Kitchen Cabinet Enterprise Co., Ltd. as guangdong famous brand products, valid for three years. In February 2008, trademark No. 1128213 "" was renewed as a famous trademark of Guangdong Province, valid for three years. Trademark No. 4378572, trademark No. 1128213 "", Trademark No. 7731876 and Trademark No. 12088111" OPPEIN "are identified as" Famous Trademarks of Guangzhou City "and shall be valid from January 2016 to December 2018.

    Guangdong Opai Household Group Co., Ltd. was awarded the honorary title of "top 10 Leading enterprises of Top 100 Kitchens in China in 2012" and "2012 Guangzhou Mayor quality Award". Opai has been awarded the honorary titles of "top ten Most Valuable Brands in Guangdong Pan-household Industry in 2014" and "Top Ten Enterprises with Innovation Ability".

    The tax payment certificate issued by the State Tax Bureau of Baiyun District, Guangzhou city, shows that THE VALUE-ADDED tax paid by Opai in 2013 is RMB 144789583.77. In the first half of 2014, it paid 75,999,899.93 yuan of VAT. Paid 95009102.68 YUAN of VAT in the second half of 2014; In the first half of 2015, it paid 75202867.43 YUAN of VAT; In the second half of 2015, it paid 122,030667.69 yuan of VAT.

    Guangdong Opai Home Furnishing Group Co., LTD., Opai Signed advertising contracts with Beijing Ontime Boiling International Advertising Co., LTD., Hunan Radio and TELEVISION Advertising Corporation, Hunan Shunfeng Media Co., LTD., Kashi Yinsong Culture Media Co., LTD., etc., including sponsorship and cooperation agreements of exchange Space Home Decoration Fund in 2013 and 2015. Opai, as the cabinet partner of Speed Ahead 3 in 2016, signed a TV advertising agency contract with Hunan Shunfeng Media Co., LTD. Opai united (tianjin) household sales co., LTD signed the "opai" brand communication service contract with kasai yinsong culture media co., LTD and guangzhou orange league integrated marketing communication co., LTD. On January 1, 2017, solstice on December 31, 2017, and April 1, 2018, solstice on December 31, 2018, the 10-second patch advertisement was released in Oriental space-time. Guangzhou opai integrated household co., ltd. signed advertising release contracts with Beijing shengda advertising co., ltd. and guangzhou orange league integrated marketing communication co., LTD. On January 1, 2017, solstice released "opai" brand advertisements on the wardrobes and cabinets in the voice of China and the voice of economy on December 31, 2018. In 2015, in 2016, guangzhou European integration household co., LTD and nanjing iron advertising co., LTD., Beijing wealth XiaoYao advertisement media culture development co., LTD., tianjin advertising co., LTD. Signed a contract, in Beijing, tianjin, guangzhou, fuzhou, zhengzhou, xian, nanjing, Shanghai, suzhou, changzhou, changchun, chongqing and other places of high release "European" brand light boxes advertising MTR station. European company, guangzhou European integration household co., LTD and guangzhou road also advertising co., LTD., Harbin Jin Lin culture communication co., LTD., Shanghai ya shi d advertisement communication advertising co., LTD. Signed a contract, in jiuhua airport, Harbin taiping international airport, guilin liangjiang airport, zhengzhou xinzheng airport, hangzhou airport issued a "European" brand advertisements. Opai company and Beijing Dingdingyi Xuan network marketing planning Co., Ltd. signed a contract for baidu network advertising release, in baidu website to release the cabinet, wardrobe on the "Opai" brand advertising. On July 20, 2013, opai signed an advertising renewal contract with jiang wenjuan et al., which stipulated that opai continue to invite jiang wenli to serve as the spokesperson of opai's cabinets, wardrobes and sanitary ware for two years from August 1, 2013 to July 31, 2015.

    During 2011 to 2014, the company in "linchuan evening news", "shenzhen special zone signs up for", anqing daily, the ambry in Shanghai ", "sales and marketing management version", "luck beautiful household", "packaging world" in newspapers and magazines such as "opie ambry chest", "opie household", "opie group" for publicity, and jiang wenli as image spokesperson. From 2013 to 2016, netease, sohu, huaxia times.com, Pacific family home net, ifeng.com, chinanews.com, xinhuanet and other online media also have a large number of reports on the European company and the "European" brand.

    2. Evidence collection for the alleged infringement

    On December 8, 2017, the Fengcheng Notary Office of Laiwu City, Shandong Province, conducted evidence preservation for the purchase of the alleged infringing products after an application by The Jindun Intellectual Property Service Center in Laicheng District, Laiwu City. In notarial personnel, under the supervision of the applicant's agent shou-zhen wang to jiangsu province, nanjing pukou bridge north road no. 48 hong Yang comprehensive area of 204 square "opie european-style integration ceiling" shops, to buy the tablet marked "opie European ceiling" lights a and marked "opie the room ceiling" bath bully a, the unit price is 100 yuan respectively, 500 yuan, and achieved by ogrin li a delivery single zhang and business CARDS, center seal shou-zhen wang, exterior, inside the store the purchased items in the pictures, notarial personnel of the above items are sealed. On January 2, 2018, Fengcheng Notary Office of Laiwu City, Shandong Province issued the (2017) Fengcheng Notary Public Certificate No. 1983. It can be seen from the photos and real objects attached to the notarial certificate that signs, billboards and invoices of the shop have signs of "Europe-style European Integrated suspended Ceiling" and "Europe-style suspended Ceiling", as well as signs of "" on the front and" "on the back of product exhibition stands and business CARDS. The packaging box of the flat panel light is marked with a "" logo on the eye-catching position, two-dimensional code, product label and anti-counterfeiting code. On the front of the box is printed a large portrait of film and television star Jiang Wenli, with the company name of Meifu and the website of WWW.ZJOPPEIN.COM. The eye-catching place of the container of bath bully, packing bag, instruction manual, qr code, VIP card, the frame of products, product labeling, anti-counterfeiting code "" logo, packing printing has a big movie star jiang wenli positive portraits, and marked with a company with the enterprise name and the website of WWW.ZJOPPEIN.COM, shown on the certificate of approval production date will be on September 2, 2017. At the trial, Mefo acknowledged that the alleged infringing products were manufactured by mefo and sold to The Ogre Center.

    On January 9, 2018, the Fengcheng Notary Office of Laiwu City, Shandong Province, protected the web page through the application of Jindun Intellectual Property Service Center in Laicheng District, Laiwu City. Under the supervision of the notary public, wang Shouzhen, the agent of the applicant, used the computer of the notary office and logged on www.zjoppein.com. By inquiring zjoppein.com's registration information through Aliyun, you can see that the domain name owner is Tang Renchao. On January 9, 2018, Fengcheng Notary Office in Laiwu city, Shandong Province issued the (2017) Fengcheng Notary Public Certificate No. 2120.

    Three, about The Ogre Center, Meofu Company, Tang Super

    Established on July 6, 2012, Augli Center is an individual industrial and commercial enterprise, whose business scope is furniture sales.

    Meifu Is a one-person limited liability company, established on June 21, 2016, with the registered capital of RMB 1.3 million yuan and the shareholders and legal representatives are Tang Ren Chao. Its business scope includes the manufacturing and processing of household electrical appliances, heaters, ventilation fans, lighting appliances, plastic products, metal products and industrial design.

    The trademark "" no. 6825112 was approved for registration on July 7, 2010. The registrant, Xu Jinxiang, approved the use of the commodity as category 11: lamp; The water heater. The refrigerator; Fan (air conditioning); Kitchen range hoods; The faucet; Solar water heaters; Bath bully; Disinfect cupboards; Radiator (cut off). On September 27, 2015, the trademark was approved and transferred to Tang Renchao. The trademark "" no. 15474560 was approved and registered on October 21, 2016. The registrant, Tang Renchao, approved the use of commodities in category 6: metal sheet and metal plate; Metal pipes; Aluminous model board; Metal ceiling; Metal belt hinge; Rough or semi-finished common metal (cut off).

    The company in 2016 on November 29, Sue to our company, with the tang dynasty over the infringement trademark rights and unfair competition disputes [(2016) 01, 1349, in the early days of zhejiang] hereinafter referred to as the former case, according to the company to submit evidence of the word no. 1159 (2016) lai FengCheng card people notarial deed, laiwu city, urban shield intellectual property service center authorized by European companies, to FengCheng notarization to apply for evidence preservation in laiwu city in shandong province, on October 8, 2016 the applicant's agent in wujin district, changzhou, jiangsu province, pond textile city no.e1-18 "AUPU at the" salesroom, I bought one bath bully, one square flat lamp, one rectangular flat lamp each with the words "Opie European suspended ceiling". On April 12, 2017, the two parties reached a mediation agreement: 1. Mef and Tangrenchao immediately stopped manufacturing and selling the bath Bar and flat lamp products that were involved in infringement of the trademark rights of "OPPEIN" and "OPPEIN" enjoyed by OpP; 2. Ii. Mef and Tangrenchao immediately stop using the trademark "OPPEIN" and "OPPEIN" in their website, packaging and decoration and other commercial publicity activities; Iii. Meiftech and Tangrenchao shall immediately stop using www.zjoppein.com domain name, and Tangrenchao shall cancel the above domain name within 30 days; Iv. Mefo and Tangrenchao are willing to compensate OPai for the economic losses and reasonable expenses of RMB 85,000 before April 15, 2017 for the alleged infringement. ; V. The parties have no other disputes in this case.

    The above facts are supported by the trademark registration certificate, notarial certificate, conciliation statement and other evidences submitted by the parties.

    The court holds that Opai is the owner of the registered trademark No. 4378572 and No. 1128213, and therefore has the right to Sue according to law. The above trademarks are still in the period of protection, and the legal status is stable. The exclusive right to use the trademark involved shall be protected by law. At the trial, Opal clarified that the cause of this case was infringement of trademark rights and unfair competition disputes, and it also clarified that the manifestations of its accusation of Trademark infringement were as follows: 1. Use of "Opal" logo on store signs, billboards, product exhibition racks, business CARDS and invoices; 2. 2. Sell bath bully and flat panel lamp products marked with "Opi" logo; The manifestations of trademark infringement by Mefo and Tangrenchao are as follows: 1. Produce and sell bath Bully and flat panel lamp products marked with the logo of "Opi"; 2. 2. Use the logo of "Opai" on the website; The manifestations of unfair competition behaviors carried out by Ogli Center are as follows: selling bath bully and flat panel lamp products marked with the logo of "Europa" and WWW.ZJOPPEIN.COM; The manifestations of unfair competition behaviors carried out by Meofu and Tangrenchao are as follows: 1. Registration and use of www.zjoppein.com domain name; 2. 2. Mark WWW.ZJOPPEIN.COM on the package of bath Bully and flat panel lamp products. In view of the mediation document has been on the use of the domain name registration has been proposed, opai company explicitly abandon the case involving www.zjoppein.com domain name related charges. According to the facts ascertained by the court and the opinions of the two parties, the focus of the dispute in this case is as follows: 1. Whether the use of the accused infringing marks by The Ogre Center and Mefo infringe upon the exclusive right to use the registered trademarks of Opie No. 4378572 and No. 1128213, and whether it constitutes unfair competition; 2. If the tort is established, the three defendants shall bear civil liabilities.

    (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, Opai claims that Ogre Center and Mefo use marks similar to the registered trademark no. 4378572 "" on the same or similar commodities, which constitutes trademark infringement, and also claims to protect the well-known trademark of the registered trademark No. 1128213". Meifu claims that it is using trademark No. 6825112 "" and trademark No. 15474560" properly, and that the flat light product with the logo of "" has been dealt with in the preceding case, which is a duplicate lawsuit.

    The Court holds that, first of all, article 56 of the Trademark Law of the People's Republic of China stipulates, "The exclusive right to use a registered trademark shall be limited to the trademark that has been approved for registration and the commodities that have been approved for use." The central to the case company claiming the 4378572th protection ", "use of a registered trademark approved goods of class 11, is accused of infringing goods is a flat light, bath bully, we believe that the use of a registered trademark approved 11 goods series, lighting, heating, steam generating, cooking, drying, ventilating, water supply and sanitation in device, and is accused of infringing goods are used in the hutch in domestic outfit, lighting, heating equipment and the use of a registered trademark approved no. 4378572 of goods with the same or a similar function, purpose, sales channels and consumption object, therefore, The product accused of infringement is the same kind of commodity or similar commodity as that used in the trademark approval.

    Secondly, article 9 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Laws in the Trial of Trademark Civil Disputes stipulates that the trademark is identical, which means that the trademark accused of infringement is compared with the registered trademark of the plaintiff, and there is basically no visual difference between the two. Trademark approximation, is refers to the accused of infringement of trademark compared with the plaintiff's registered trademark, the glyph, pronunciation and meaning of the text or graphic composition and color, or the combination of whole structure similar to that of all the elements or the stereo shape, color combination, easy to make the relevant public to mistake the source of the goods or think of its source and the plaintiff's registered trademark commodities have a specific contact. When judging the similarity or similarity of trademarks, consideration should be given to the significance and popularity of the registered trademark, and the general attention of the relevant public should be taken as the standard for the overall comparison of the trademark as well as the main part of the trademark. The comparison should be made separately under the isolation of the objects. At the same time, the Supreme People's Court on the trial of a registered trademark and enterprise name and prior right conflict of civil disputes provisions on some issues of the second paragraph of article 1 of the regulation: the plaintiff to another person to use a registered trademark on goods of check and ratify its prior registered trademark for identical with or similar to a lawsuit, the people's court shall, according to article one hundred and eleven of the civil procedure law the provisions of item (3) apply to the relevant administrative authorities solve told the plaintiff. However, if the plaintiff brings an action on the ground that a registered trademark which has been used by another person beyond the scope of the approved goods, or by means of changing distinctive features, splitting or combining, is identical with or similar to the registered trademark, the people's court shall accept the action.

    In this case, the accused infringement signs include ""," ", "" European European Integrated suspended ceiling", "European European suspended ceiling" and "". For identification ", "is accused of infringement, and company no. 6825112" "trademark, compared with the text, some" ou Pyle "text font in the change, use the no. 4378572 with European company" "trademark identical font, no. 4378572" "trademark as inventing words, with special art font design, is of high significance, and has been identified as the famous brand in guangzhou, also has certain well-knownness, embarks from the average consumer habits of reading habits and call, when see is accused of infringement identification, Are more likely to notice the strong discrimination "text", and "European ceiling" read together as a whole, so we think, is accused of infringement identification ", "6825112" "brand with good company, compared to its trademark characteristic has changed, our college for the proper use of a registered trademark of defense will not be believed, is accused of infringement identification", "and" "trademark involved approximation. For identification ", "is accused of infringement, compared with the company with the 6825112th" "trademark, also to highlight text, although the company will with the" European continental ceiling "instead of" opie the room ceiling ", but "room ceiling" is not a description integration ceiling or its electrical module common vocabulary, from the general attention of ordinary consumers, still easy to focus on the high-profile "European" text, and also constitute two approximation. For the accused infringement signs "European Integrated Ceiling", "European Integrated ceiling", "" "," European integrated ceiling ", "European suspended ceiling" are the common names of the industry, the main identification part is the same or similar with the trademark of "", so the two constitute the same or similar. In addition, Mifo USES the image of Jiang Wenli, the former spokesperson of Opai, on its products and packaging, which is more likely to lead to confusion and misidentification by the relevant public. In conclusion, we believe that the alleged infringement identification and no. 4378572 "registered trademark" are identical with or similar to, enough to make the relevant public to the accused of infringement identification indicated that the source of the goods cause misidentification, or that between the source and 4378572 registered trademarks of commodities have a specific contact, to the company number 4378572 "" the right to exclusive use of a registered trademark infringement.

    Think about good company use the "identity" flat lamp products of the company have argued that in the former case, we believe that the company notary to buy the flat light time of the products is on December 8, 2017, far later than the former case for reconciliation time on April 12, 2017, on the flat lamp products with production time, if company claims a repeat procedure, with the need to evidence to prove that the system in production, sales, before April 12, 2017 the fact that the flat light, otherwise, bear the adverse consequences of proof cannot. Meifu company has not fulfilled the corresponding burden of proof, and the court shall not accept meifu's claim that it constitutes a duplicate lawsuit.

    As for European company requirements identified 1128213, "" registered trademark for well-known trademarks, we think, according to the supreme people's court on the trial of the civil case dispute involving well-known trademark protection" the explanation of application of law in article 2, article 3 of the regulations, the people's court to recognition the necessity of a well-known trademark review. In this case, the establishment of the trademark infringement action is not based on the fact that the trademark is well-known, so the court will not examine whether the registered trademark is well-known or not.

    As for the claim of Opie that the augli Center's sales of yuba and flat-panel light products with the logo of "Opie" simultaneously constitute unfair competition, the court holds that under the circumstance that the above behaviors have constituted trademark infringement, it is no longer necessary to apply the anti-Unfair competition law to provide overlapping protection, and the court does not support it according to law.

    For the second contention, ogrin center in store signs and billboards, product exhibition, business CARDS, invoices to use the "European" marks and sales marked "European" bath bully, plate lamp products, with the company production, sales, with "European identity" bath bully, plate lamp products and use "European" logo on the website, to the company no. 4378572 "" the right to exclusive use of a registered trademark infringement, should the trademark infringement behavior of the implementation of its respective stop the infringement, compensate for the loss of civil liability. Tang Renchao is not the subject of trademark infringement. Therefore, the court does not support the appeal of Eu Pai to stop the infringement. For European companies to advocate good ogrin li center used in commercial activities, "European identity" behavior shall bear joint and several liability of action, we believe that the existing evidence ogrin li center to open stores in its logo to use the infringement, the company was not evidence to prove that good company know ogrin li center in shops decorate and commercial information printed logo used in the infringement facts, so we do not support. Opie company advocates good company as a one-person limited liability company, for the good of the company's sole shareholder, tang dynasty, tang dynasty and good company constitute a common tort, shall bear the joint and several liability to pay compensation either, we believe that the law of the People's Republic of China company law "the sixty-third regulation: a one-person limited liability company shareholders cannot prove the company property independent of his own property, shall be jointly and severally liable to the company's debts. Article 8 of the Tort Liability Law of the People's Republic of China provides that two or more persons who jointly commit a tort and cause damage to others shall bear joint liability. In this case, tang dynasty was not evidence to prove that the company property independent of his own property, to deal with good companies are jointly and severally liable in the case of infringement, and combining with the tang dynasty than accepting no. 6825112 "" trademark, domain name and the trademark, registered www.zjoppein.com domain name provided to the company with the use of behavior, ultra, the company's action with the tang dynasty objectively relate to each other, work together, in the subjective understanding of the occurrence of harmful consequences with common or common pursuit, therefore, constitute a common infringement, shall be jointly and severally liable.

    For the amount of damages, on the basis of available evidence, the accused ogrin, tang li center, but the company's profit of infringement or the plaintiff's company for infringement of concrete damage, use a registered trademark licensing fees are difficult to determine, so we will consider various factors, including the scope of the infringement occurred, the influence caused by the infringement, be infringing registered trademark awareness as well as the subjective fault of the infringer, power factors such as the reasonable expenses in stopping the infringement, reasonably determine the compensation amount. At the same time, regarding the compensation amount of Meifu Company and Tang Renchao, the court has noticed the following facts: 1. 2. Mefo company has engaged in the production and sale of the infringing products. The period of the infringing ACTS involved is from the mediation date of the previous case to the judgment date of this case, and the scope of the infringing ACTS is nationwide; 3. After the mediation of the previous case, Meifu still USES the infringement mark involved in the case, which has the subjective intention of infringement; 4. Opai has expended certain manpower and material resources for this case. The court has noted the following facts: 1. The registered trademark of Case No. 4378572 "" has certain popularity; 2. 2. Augli Center sold the products involved in the infringement case. The flat panel lamp and bath Ba were sold for 100 yuan and 500 yuan respectively; 3. The Ogre Center also implements the use of infringing signs in its stores and business materials; 4. Opai has expended certain manpower and material resources for this case.

    In conclusion, according to the provisions of article 56 of the "trademark law of the People's Republic of China, article sixty-three, article 57, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain" article 9, article 10, article 11, the Supreme People's Court on the trial of a registered trademark and enterprise name and prior right conflict of civil disputes provisions on some issues of the second paragraph of article 1 and article sixty-three of the "company law of the People's Republic of China, article 8 of the tort liability law of the People's Republic of China, the law of the People's Republic of China civil procedure law the provisions of article sixty-four, article sixty-four, the decision is as follows:

    One, the nanjing pukou ogrin beautiful furniture sales center immediately stop the infringement of the plaintiff's sent home group co., LTD. No. 4378572 "" the right to exclusive use of a registered trademark act, which stopped at the store signs, billboards, product exhibition, business CARDS, invoices used on a" European "text logo, and stop the sale of a" European "text logo merchandise;

    Ii. The defendant jiaxing Meifu Electric Appliance Co., Ltd. immediately stopped infringing the exclusive right to use the registered trademark "" of the plaintiff Opai Home Furnishing Group Co., LTD. No. 4378572, that is, stopped producing and selling the goods with" Opai "logo;

    Iii. The defendant, Ouge Li Furniture Sales Center, Pukou District, Nanjing, shall compensate the plaintiff, Oupai Furniture Group Co., Ltd. for economic losses and pay a total of RMB 30,000 for reasonable expenses to stop the infringement, which shall be fulfilled within 10 days upon the effective date of this judgment;

    Iv. The defendant jiaxing Meifu Electric Appliance Co., Ltd. and Tang Renchao jointly and severally indemnified the plaintiff Opai Home Furnishing Group Co., Ltd. for economic losses and paid a total of RMB 250,000 as reasonable expenses to stop the infringement, and the performance shall be completed within 10 days upon the effective date of this judgment;

    V. 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 acceptance fee is RMB 5,800 yuan, which shall be borne by the plaintiff Opai Home Furnishing Group Co., LTD. RMB 193 yuan; the defendant, Nanjing Pukou District Ougeli Furniture Sales Center, RMB 601 yuan; and the defendant, Jiaxing Meifu Electric Appliance Co., Ltd. and Tang Renhao, RMB 5,006 yuan.

    The plaintiff, Opai Home Furnishing Group Co., LTD., shall refund the fee to the court within 15 days from the effective date of this judgment; The defendant, Nanjing Pukou District Ougeli Furniture Sales Center, Jiaxing Meifu Electric Appliance Co., Ltd. and Tang Renchao, shall, within 10 days from the effective date of this judgment, pay the case handling fee to the court.

    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 Higher People's Court of Zhejiang Province. And the account designated by Zhejiang Provincial Higher People's Court shall be paid in advance the fees for accepting the appeal cases. If an appeal is filed against a property case, the case acceptance fee shall be paid in advance according to the appeal against the part of the judgment of the first instance. If he fails to pay the appeal fee within seven days after receiving the notice of payment of appeal Fee, the appeal shall be automatically withdrawn. The account name, bank and designated account number of the Higher People's Court of Zhejiang Province are shown in the Notice of Payment of Appeal Fee.

    Zhang Mian, chief judge

    Judge Yan Shimeng

    People's Juror Wang Wei

    December 7, 2008

    Clerk He Guoshen