Civil judgment of the Second People's Court of Zhongshan City, Guangdong Province

    The Second People's Court of Zhongshan City, Guangdong Province

    Written judgment of civil affairs

    (2016) No. 12844, Early Republic of Guangdong 2072

    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.

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

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

    Defendant: Luoyang Jianxi Ou sent building materials shop, his place of residence is Luoyang Henan Province, Ruliu Yejia yuan, Jianxi South Road.

    Manager: Hu Xiaomin, female, born on May 8, 1979, han Nationality, residing in Jianxi district, Luoyang, Henan Province.

    Defendant: Henan Wangxing Trading Co., LTD., No. 09, floor 19, Building 5, Business Outer Ring Road, Zhengdong New District, Zhengzhou city, Henan Province.

    Legal representative: Chen Xin.

    Defendant: Zhongshan Century Opai Electric Appliance Co., LTD., 2 / F, Building A, No.10 Kangjing Road, Huangpu Town, Zhongshan City, Guangdong Province.

    Legal representative: Huang Jingli.

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

    Agent AD litem: Wang Haorong, trainee lawyer of Guangdongsen Long Law Firm.

    Defendant: Zhongshan Caiyunlai Kitchen and Sanitary Appliance Co., LTD., No. 2, West Yuegui Road, Nantou Town, Zhongshan City, Guangdong Province.

    Legal representative: Zhou Meixian, General manager of the company.

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

    Agent AD litem: Wang Haorong, trainee lawyer of Guangdongsen Long Law Firm.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the European household company) and the defendant, luoyang jianxi district European building materials stores (hereinafter referred to as the European building materials stores), henan network xing trade co., LTD. (hereinafter referred to as the net hing trading company), zhongshan century European electric appliance co., LTD. (hereinafter referred to as the century European companies), zhongshan finances to hutch defends electric appliance co., LTD. (hereinafter referred to as the money to the company) the infringement trademark rights and unfair competition disputes, our college on October 28 2016, Hitachi, in accordance with the applicable ordinary procedure, on September 14, 2017, public hearing on the trial. The plaintiff Wang Ning, the agent AD litem of Ou Pai Furniture Company, the defendant Dai Hai and Wang Haorong, the agents AD litem of Century Ou Pai Company and Caiyunlai Company, attended the lawsuit in court. The defendant Ou Pai building Materials store and Wangxing Trading Company refused to attend the lawsuit without justified reasons after being subpoenaed by the court. The case is now closed.

    Opai Home Furnishing Company filed a lawsuit to the court: 1. Ordered Opai Building Materials Store to immediately stop using the word "Opai" in the store to infringe the exclusive right to use the trademark; 2. 2. Ordered Opai Building Materials Store to immediately stop selling gas stoves and range hoods marked with the words "Zhongshan Century Opai Electric Appliance Co., LTD"; 3. Ordered Wangxing Trading Company to immediately stop the use of "Opai" in the store to infringe the right to exclusive use of the trademark; 4. Ordered The Wangxing Trading Company to immediately stop the sale of gas stoves, range hoods, faucets, shower sprinklers and bathroom cabinets marked with the words "Zhongshan Century Oupai Electric Appliance Co., LTD". 5. The company and Caiyunai are ordered to immediately stop the production and sale of gas stoves, range hoods, faucets, shower sprinklers and bathroom cabinets marked "Oupai" and "Zhongshan Century Oupai Electric Appliance Co., LTD" in unfair competition; 6. Order Opai Building Materials Store and Century Opai Company to change their names immediately, and the word "Opai" shall not be used in the changed names; 7. The company is ordered to stop the unfair competition of using the word "Europa" for false propaganda on its websites "www.opjskj.com", "www.sjoupai.com" and "www.sjoupai.com"; 8. Order Europa to cancel the domain name "WWW. Euro.com"; 9. The court ordered the four defendants to compensate Europa Home Furnishing Company for its economic losses and reasonable expenses of safeguarding its rights. Facts and Reasons: Opie Furniture Co., Ltd. is the holder of the registered trademarks "OPPEIN" and other trademarks of category 11. Opie household company since its inception, after decades of operation, have "European" molded into the household, furniture, electrical appliances, sanitary ware brand known to all, gained the Chinese famous brand, Chinese well-known trademark, such as reputation, in the public mind, "European" don't, but European household products and the company on behalf of the symbol of the enterprise name, also be instructed to send home company and affiliated enterprise significant recognition of market main body and the sources of identity. In June 2016, Opai Furniture Company found that opai building Materials store used "Opai" in a large number of stores for false publicity, selling gas stoves and range hoods marked "Opai", and applied for notary office for evidence preservation against the above infringement. After further investigation, Opai found that the products were distributed by Wangxing trading Company and produced by Century Opai company and Caiyun Company. In addition, the same products as the alleged infringing products are sold in taobao stores and brick-and-mortar stores in other regions. To sum up, the four defendants to clings to European household company enjoys its reputation as the "European brand", deliberately, stores, products on the illegal use of the web, "European" words "zhongshan century European electric appliance co., LTD.", this behavior not only violated European household company's right to exclusive use of a registered trademark, and violate the principles of honesty and credit and recognized business ethics, constituting unfair competition for European household company, to the European household company caused economic losses. Accordingly, Europe sends household company to bring a lawsuit to the court, and make above lawsuit request.

    1. The alleged infringing products do not constitute trademark infringement and there is no unfair competition; 2. The amount of compensation and reasonable expenses claimed by Opai Furniture Company are too high and groundless; 3. The company only produces gas stoves and range hoods involved in the case; 4. The enterprise name of Century Opai Company has been approved and registered by the industry and Commerce Department, which is legal and valid. There is no legal basis for opai household Company to change the enterprise name; 5. The three websites involved in the case are not owned by Eurogroup and have no right to cancel. Moreover, the website www.opjskj.com has expired and cannot be used normally.

    Caiyunlai argues that: 1. Caiyunlai did not produce or sell the products accused of infringement, and there was no trademark infringement or unfair competition; 2. 2. The compensation, amount and reasonable expenses claimed by Opai Furniture Company are too high and groundless.

    Opai Building Materials store and Wangxing Trading Company did not make a defense.

    The parties have provided evidence according to law around the claims, and the court has organized the parties to exchange and cross-examine evidence. Evidence submitted by the European household company, we decided as follows: 1. The word no. 347 (2016) lai FengCheng card people notarial deed and word no. 350 (2016) lai FengCheng card people notarial deed and word no. 346 (2016) lai FengCheng card people notarial deed and word no. 348 (2016) lai FengCheng card people notarial deed, have the original check, and are issued by the notary organ, can confirmed opie household power source, and associated with this case, so we found; 2.(2016) No. 352 notarization certificate of Laifeng City certificate has no connection with the facts to be proved in this case, and the court will not confirm its connection; 3. The approval of the trademark "Opai" as a well-known trademark is issued by the National Trademark Office. There is an original copy for verification, which can prove the popularity of the trademark "Opai" and is related to this case. 4. (2016) Notarial Certificate No. 353 issued by the notarial office after checking the original, and the certificate of honor attached to the notarial certificate can indirectly reflect the popularity of Opai Furniture Company, which is related to this case, which will be recognized by the court; 5. (2016) Notarial Certificate No. 357 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate no. 354 of Laifengcheng Certificate no. 354 of Laifengcheng Certificate no. 357 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate no. 354 of Laifengcheng Certificate no. 354 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 354 of Laifengcheng Certificate No. 6. (2016), word FengCheng card people notarial deed, (2016) no. 355 lai FengCheng card people word notarial deed, no. 356 issued by the notary organ, reflect the European household for companies operating in the process of promotion and the fact that it hired well-known star endorsements, can reflect the European household company profile, in the absence of contrary evidence refute, we found; 7. Information from newspapers and magazines. The report is published to the public, reflecting the publicity of Opie Furniture Company and confirming the popularity of Opie Furniture Company. 8. (2016) Notarization Certificate No. 712, 714 and (2016) Notarization Certificate No. 6880 of Zhenghuang Certificate No. 6880 are issued by the notarial office and are related to this case. Therefore, the court confirms them. 9. The notary fee invoice cannot be verified without checking the original, so the court will not confirm its authenticity. As for the evidence submitted by Century OPai, the court finds as follows: the screenshot of the website "www.opjskj.com". The evidence is a printed copy, which cannot be verified as authentic. Moreover, the page indicates that a fee is required, which cannot prove that the website is no longer in use.

    According to the statement of the parties and the evidence confirmed by examination, the facts confirmed by the court are as follows: Opai Furniture Company was founded on July 1, 1994, with a registered capital of RMB 373581112, and its business scope is furniture manufacturing industry. Opai Building Materials store was founded on December 21, 2015 with a registered capital of RMB 400,000. Its business scope covers retail building materials, kitchen appliances, sanitary ware, HVAC equipment, furniture, household products, etc. Wangxing Trading Company was founded on November 18, 2014 with a registered capital of RMB 15 million. Its business scope covers wholesale and retail of household appliances, sanitary ware, building materials, decorative materials, etc. Founded on March 10, 2015 with a registered capital of RMB 30,000, Century Opai is engaged in the production and sales of household appliances. Caiyunlai Company was founded on March 16, 2011 with a registered capital of 100,000 yuan. Its business scope covers the production, processing and sales of range hood, electric water heater, disinfection cabinet, gas cooker, gas water heater, etc. Opai Household Products Co., Ltd. is the owner of the registered trademarks no. 4378572, No. 1137521 and No. 1128213, which are approved to be used in the 11th and 20th classes. The approved products include gas stoves and kitchen range hoods, etc. The above trademarks are all within the valid period. Opai Household Is the owner of the trademark "OPPEIN" No. 7731876 approved for use in class 11. The approved goods include kitchen range hoods, etc., and the trademark is within the term of validity.

    On April 24, 2009, the Trademark Office of the State Administration for Industry and Commerce recognized the trademark of "Opai" on the sideboard of category 20 of the International Classification of Goods and Services as a well-known trademark. In September 2007, the General Administration of Quality Supervision, Inspection and Quarantine of the People's Government of China awarded opai household cabinet "China famous brand". In October 2008, The Bureau of Quality and Technical Supervision of Guangdong Province awarded Opai household Products as guangdong famous brand cabinet products. In February 2008, "Opai" trademark was recognized as "Famous trademark of Guangdong Province" by Guangdong Famous Trademark Recognition Committee. In December 2012, European home furnishing company by China building decoration association hutch and sanitation engineering committee identified as "2012 China hutch and sanitation 100" "overall kitchen leading enterprises top 10", effective term of a year. In September 2013, The Guangzhou Municipal People's Government awarded Opai the title of "2012 Guangzhou Mayor Quality Award". On December 28, 2014, the case of Opai Furniture Company evaluated by Brand Watch magazine was selected as the silver Award of 2014 Chinese Brand Marketing Case of the Year. In January 2015, Guangdong Home Furnishings Federation and Guangdong Furniture Chamber of Commerce jointly awarded Opai home Furnishing Company the title of "Top 10 Most Valuable Brands" and "Top 10 Innovative Enterprises" in guangdong pan-household field in 2014.

    On October 30, 2012, Europa home furnishing company signed a sponsorship cooperation agreement with Beijing ontime boiling international advertising co., LTD. It was agreed that Europa home furnishing company would sponsor two sets of "exchange space" home decoration fund of CCTV. The contract was performed on January 5, 2013, solstice on December 28, 2013, and the sponsorship advertising fee was RMB 5700000. On July 20, 2013, The Company hired Jiang Wenli as its spokesperson. On November 11, 2013, Europa furniture company signed a TV advertisement release contract with zhejiang zhimei chewen advertising co., LTD. It was agreed that Europa furniture company entrusted zhejiang zhimei chewen advertising co., ltd. to release the advertisement during January 1, 2014 solstice on December 31, 2014. The release medium was cctv-news channel, and the cost was RMB 40463970. In July 2014, the European household company and hunan, hunan radio and television advertising corporation downwind media co., LTD., television advertising project contracts, agreement: European household company commissioned in hunan, hunan radio and television advertising corporation downwind media co., LTD., published "the 10th golden eagle festival closing ceremony and awards" project related advertising, distribution medium for hunan broadcast hunan satellite TV channels, release time is on September 28, 2014 to October 12, 2014, cost $18000000, using the slogan of "there is love, there's a, have the pie". On October 22, 2014, Europa furniture company signed an advertising agency contract with kashgar yinsong culture & media co., LTD. It was agreed that the kashgar yinsong culture & media co., ltd. would act as an agent for Europa furniture company to advertise in cctc-news "global view" on January 1, 2015 and December 31, 2015. The agreed fee was 23,970,000 yuan. On November 27, 2014, Europa home furnishing company and Beijing ontime boiling international advertising co., ltd. signed the cooperation agreement on the sponsorship of home decoration fund, which agreed that Europa home furnishing company would sponsor two sets of "exchange space" home decoration fund of CCTV. The contract was performed on April 4, 2015, solstice on March 26, 2016, with the sponsorship advertising fee of RMB 6,000,000.

    In 2010, Opie home Furnishing company put an advertisement in a Cabinet in Shanghai, using the slogan "You have a home, you have love, you have Opi". In 2011, Opai home Furnishing company put advertisements in Linchuan Evening News, Zhuhai Special Zone Newspaper, Anqing Daily, Sales market, Ruili Home furnishing and decoration world respectively, using the slogan "Youjia, Youai, Youopai". The brand spokesperson employed in the above advertising promotion is Jiang Wenli.

    On June 21, 2016, Opai Furniture Company applied for evidence preservation to Yellow River Notary Office, Zhengzhou City, Henan Province. On the same day, the notarization of notaries and staff with European household company entrusted agent wang mou to the city of luoyang road of (xx) European home decoration supermarket, wang mou bought a cigarette and a kitchen, a total of charge paid 3200 yuan, the scene made credit card cardholder stub single shipment, single card, a card, a brochure, a print, wang mou on the appearance of the stores and shops within the associated part of the picture. Later, wang mou of purchased items in the notarization photos, pictures, after the completion of notarial personnel sealing for the above items and paste the seal, then wang mou to seal after the appearance of the pictures, and for the cardholder stub obtained a single shipment, single card, a card, a brochure, print a photograph, a total of 38 photos. Then the notary personnel will be the above-mentioned items to wang Mou custody. The Yellow River Notary Office of Zhengzhou City, Henan Province issued the notarization Certificate of Zheng Huang Certificate No. 6880 for the above facts (2016). The pictures attached to the notary certificate show that the above store signs use "Ou Pai home Decoration supermarket", "Ou Pai Cabinet Wei", "You You Love Ou Pai", and the decorations in the store are marked "Ou Pai" and "You You Love Ou Pai". The name CARDS, promotional pages and product selection manuals obtained in the store are labeled "Opi" and "Opi".

    On July 14, 2016, Opai Furniture Company applied for evidence preservation to Fengcheng Notary Office in Laiwu city, Shandong Province. On the same day, in the public notary notary public and staff, under the supervision of European household company entrusted agent wang mou to notarization place connected to the Internet using computer to browse the site for "www.opjskj.com" "WWW. Century Europe. Com" three of "sjoupai.com" website, and log in "cloud" ali website query the three website domain name registration information, then wang mou and to enter into taobao shopkeeper called "jin sent electric" "century Europe clique" online browsing, On Taobao.com, I bought the range hoods, gas stoves and disinfection cabinets sold by the "Century Europe Kitchen Appliances" online store named yixing Home. Wang took screenshots of relevant pages in the above process and recorded the entire operation. After the above actions, under the supervision of the notary on the spot, Wang shall print the above screenshots in triplet and record the above video files and screenshots in the notary office in triplet, which shall be sealed by the notary and sealed with the seal of fengcheng Notary Office in Laiwu city, Shandong Province. On July 19 of the same year, under the supervision of notary staff, Wang came to the sales department of "Yunda Express", No. 42, Xiangshan Road, Laicheng District, Laiwu city. Wang picked up a package of express in the sales department with sound packaging, and obtained a single piece of logistics, the order number is "1901557500266". After coming out of the business department, Wang took a photo of the business department. After the above actions are completed, the notary personnel shall take the above express delivery for safekeeping. Subsequently, under the supervision of the notary staff, Wang came to the "Debang" logistics business department, 208 Wenhe Road, In which Wang picked three pieces of goods with intact outer package, marked with the words "household gas stove", "household range hood" and "embedded cleaning cabinet", the order number was "372049940". After coming out of the business department, Wang took a photo of the business department. After the above actions, take the above items back to notarization, notarial personnel in notarial personnel under the supervision of, wang mou will be the first "YunDa express" express open, there is a payment receipt, each a sales memo, then extracted from the gravels logistics to open, three pieces of goods in cartons marked "household gas cooker" with "zhongshan century European electric appliance co., LTD." on the kitchen burning gas a, a specification, the quality warranty card a, Marked "household range hood" in the carton with "zhongshan century European electric appliance co., LTD." on the oil absorption of the quality warranty card, a specification, anti-counterfeiting, marked "embedded cleaning tank" in the carton with the wording "zhongshan century European appliances" alexipharmic ark of a, specification a. The notary staff sealed the above articles with notary office seal, sealed and then handed over to Wang Mou custody. On July 19 of the same year, under the supervision of the notary staff, Wang used the computer connected to the Internet in the notary office to confirm the receipt of orders for gas stoves, range hoods and disinfection cabinets sold by the "Century Europe Kitchen Appliances" online store named "Yixing Home" on Taobao. Wang carried out screenshots and videos of relevant pages during the operation. Under the supervision of the notary, Wang printed the above screenshots in triplet and burned the above video files and screenshots in the notary office in triplet. The notary staff put the above CDS into the evidence bag and affixed the seal of fengcheng Notary Office in Laiwu city, Shandong Province for sealing. Fengcheng Notary Office of Laiwu City, Shandong Province issued the notary Certificate of Laifengcheng Certificate Minzi No. 714 (2016) for the above facts. The attached pictures showed the words "Opjskj.com", "WWW. Shijiopai.com", "Sjoupai.com" and "Zhongshan Shiopai Electric Appliance Co., LTD" on the websites.

    On August 3, 2016, Opai Furniture Company applied for evidence preservation to Fengcheng Notary Office in Laiwu city, Shandong Province. On August 4, the same year, in the notarization notaries and under the supervision of staff, opie household company entrusted agent wang mou as ordinary consumers come to city town of henan xinzheng x x x x x x number of "opie hutch defends electric appliance stores," wang mou inside the store bought sit implement a, kitchen burning gas, oil absorption one, the flower is aspersed a, bathroom cabinet, a set of (including cabinet put oneself in another's position, sink, faucet), wang mou after payment, In the store on the spot "Guo Lixia" issued "hong-ying zhu" Chen Xinzhong "business card" three, product brochures, a credit card voucher, POS machine a and sales list a list (sales carries the "henan network xing trade co., LTD." "opie hutch defends electric (China) co., LTD." seal), wang mou three images in the shop location. After the above actions, take the above items back to notarization, notarial personnel in notarial personnel under the supervision of, photo by wang mou of the above items seventy-two pieces, which take the above product with notarization notarial personnel seal on the seal, seal items by wang mou photos after protracted war two, under the custody of wang mou away. Fengcheng Notary Office of Laiwu City, Shandong Province issued the notarization Certificate of Laifeng City Certificate No. 712 (2016) for the above facts. The picture attached to the notarial certificate shows that the store's storefront, signboard and interior decoration are marked with the word "Oupai", and the product selection manual and business card obtained by the store are marked with the words "Oupai" and "Youjia Youai Youpai".

    After trial examination, the notarization bought three gas stove, three lampblack machine, a disinfection cabinet, a flower sprinkling, a bathroom cabinet (including cabinet body, lavabo, faucet) sealed in good condition, notary seal and seal integrity. Three sets of kitchen burning gas boxes are marked with the words ", "zhongshan century European electric appliance co., LTD., the open three boxes, the boxes inside the kitchen burning gas a, anti-counterfeiting a certificate of approval, instruction manual, anti-counterfeit quality warranty card a piece of toilet paper, kitchen burning gas stickers on the fuselage, security certification, security quality warranty card and instruction manual cover are marked with" zhongshan century European electric appliance co., LTD. ", the instructions on the back of the marked "zhongshan century European electric appliance co., LTD." "manufacturer: finances to hutch defends electric appliance co., LTD., zhongshan city, address: zhongshan city in southern China's guangzhou west village bay west road no. 2". Three oil absorption of packing cases are marked "zhongshan century European electric appliance co., LTD.", the open three boxes, the boxes with oil absorption a, security certificate a, a specification, the quality warranty card, a security certificate, security quality warranty card and instruction manual are marked with the words ", "zhongshan century European electric appliance co., LTD., one machine machine of oil absorption smoke of sticker marked" Europe ". Disinfection cabinet boxes marked with the words ", "zhongshan century European electric appliance co., LTD., open the packing cases, there are disinfection cabinet a, one copy of instruction manual, anti-counterfeiting a certification, disinfect ark body, marked" zhongshan century European appliances "instruction for use, security certificate are marked with" zhongshan century European electric appliance co., LTD. ". The packing case of sprinkling is pasted with the sticker of "Zhengzhou South China City Sprinkling". When the packing case is opened on site, there is a set of sprinkling and a manual. The sprinkling nozzle is marked with the word "Opi". The packing box of the bathroom cabinet is pasted with stickers with the words "Have a home, have love, have Europa" and "Europa". When the packing box is opened on the spot, there is a bathroom cabinet with the words "Have a home, have love, have Europa" and "Europa" on the cabinet body. The lavabo and faucet boxes are pasted with "Opi-8152" stickers. When the boxes are opened on site, there are basins and faucets with "Opi" printed on them. Opai Home Furnishing company, Century Opai Company and Fortuna Have no objection to the above facts. Opai Furniture Company thinks that the words "Opai" marked on the flower shower is the same as the trademark of Opai furniture Company, which is an infringement of trademark right. Labeling "Zhongshan Century Oupai Electric Appliance Co., LTD." on the outer package of gas stoves and the products themselves, instructions, warranty CARDS, product labels and product certificates is an unfair competition behavior that infringes on the enterprise name of Oupai household Appliances. Packing and the product itself in oil absorption, manuals, warranty CARDS, product labeling, product certification mark "zhongshan century European electric appliance co., LTD.", is violated European household company ACTS of unfair competition of the enterprise name, and the product itself, marked "European" trademark approximation with European household company, belong to the infringement trademark rights behavior; The labeling of "Opai" on the outer package of lavabo, faucet and the product itself is a violation of the trademark right of OpAI household Company. The label "Opai" on the outer packing of the bathroom cabinet and the cabinet body is the same as the trademark of Opai Furniture Company, which is a violation of the trademark right of opai furniture Company. The label "There is a family with love and Opai" is a false promotion of unfair competition. Labeling "Zhongshan Century Opai Electric Appliance Co., LTD" on the package of disinfection cabinet and the product itself, the specification and the anti-counterfeiting certificate is an unfair competition behavior that infringes on the enterprise name of Opai Home Furnishing Company. Meanwhile, the product itself is labeled "Zhongshan Century Opai Electric Appliance", which is an infringement on the trademark right of Opai Home Furnishing Company. Opie building materials stores operating in the store, store signs use "opie home decoration supermarket" "European" ambry is opie household company trademark infringement, inside the store decoration marked with "Europe" is the European household company trademark infringement, marked "have family love opie" belongs to the false advertising ACTS of unfair competition; Labeling "Opai" in the color page of business card promotion and product selection manual is a violation of the trademark right of OpAI household company. Labeling "Opai is a kind of unfair competition with false publicity. It is a violation of the trademark right of The Company to mark "Opai" in the stores, signs, shop decoration, product selection manuals and business CARDS operated by Wangxing Trading Company, and it is an unfair competition behavior of false propaganda to mark "Opai has love". Century European companies, fortune to confirm is accused of infringement of kitchen burning gas, oil absorption, disinfection cabinet for century European company production and sales, has nothing to do with the money to the company, but the flower is aspersed, basin, faucet, not its production and sales, and think that kitchen burning gas, oil absorption, alexipharmic ark not use the word "Europe", outstanding does not constitute a trademark infringement, the products, specifications, packing and so on media use "zhongshan century European electric appliance co., LTD." is legally registered enterprise name, does not constitute unfair competition.

    During the trial, both parties failed to provide evidence on the amount of losses suffered by Opai Household Company due to its infringement and the profits made by the infringer due to the infringement. European household company says its rights reasonable costs including attorney fees 10000 yuan (not paper), travel 3000 yuan (not paper), notarial cost 5500 yuan (not provide notes), purchase is accused of infringement product cost 8274 yuan (kitchen burning gas three 450 yuan, 1450 yuan and 668 yuan respectively, oil absorption three 1000 yuan, 1800 yuan and 1188 yuan respectively, disinfection cabinet, 688 yuan, flower is aspersed, 400 yuan, basin, faucet, 130 yuan, the bathroom ark 500 yuan). The company said three of the sites involved had been created by someone and had no right to cancel the domain names. It managed "www.world.com" and "Sjoupai.com" and had stopped using "www.opjskj.com" without providing proof.

    Although the company, we believe that European household that is accused of infringement showers, the bathroom ark with words "European" constitute trademark infringement and is accused of infringement, bathroom cabinet and European building materials stores, web hing trading company in the store or product publicity color pages, product selection manual annotation "have family love opie" form of unfair competition, but is not advocated in the lawsuit, according to the principle of not to ignore its the claim is not in our hospital.

    Article 69 of the Civil Procedure Law of the People's Republic of China provides that "legal facts and documents notarized through legal procedures shall be taken as the basis for ascertaining facts by the people's court, unless there is evidence to the contrary which is sufficient to overturn the notarization." In this case, the four defendants did not provide evidence to the contrary to overturn (2016) The Notarial certificate no. 712, (2016) the Notarial Certificate No. 714, and (2016) the Notarial Certificate No. 6880. Therefore, the court recognized three notarial certificates. Word no. 6880 (2016) zheng yellow card people notarial deed and word no. 712 (2016) lai FengCheng card people notarial deed recorded respectively, notarial personnel to European building materials stores, henan hing company purchases is accused of infringing products, European building materials stores, henan network company via our legally summoned to appear in court litigation, claims of European household company also without complaint, therefore, we decided that the European building materials store sales of kitchen burning gas, oil absorption is accused of infringement, henan network company sold is accused of infringement kitchen burning gas, oil absorption, showers, the bathroom ark a set (including the cabinet put oneself in another's position, sink, faucet).

    At issue in the case are: 1. 2. Whether the defendant's act constitutes trademark infringement; 3. Whether the defendant's conduct constitutes unfair competition; 4. Subject and amount of compensation.

    Focus 1, Century Opai company confirmed that the production and sales of the accused infringement of three gas stoves, three range hoods, a disinfection cabinet, the hospital confirmed. Three sets of kitchen burning gas specification marked with "manufacturer: zhongshan finances to hutch defends electric appliance co., LTD.", use transaction documents such as manual annotation of production enterprise information for consumers to identify the function of product producers or sellers, which has a clear point to the nature of the product provider, in the money to the company did not provide the rebuttal evidence, we decided that fortune companies participate in the production and sales of three sets of kitchen burning gas. Opai furniture Company did not provide evidence to prove that Caiyunlai company participated in the production of the lampblack machine and disinfection cabinet accused of infringement, nor did it provide evidence to prove that Century Opai and Caiyunlai company produced the shower, faucet and bathroom cabinet accused of infringement. Therefore, the court does not support its claim.

    Focus 2. Article 48 of the Trademark Law of the People's Republic of China stipulates that "the use of a trademark referred to in this Law means the use of a trademark on commodities, commodity packaging or containers, and commodity transaction documents, or the use of a trademark in advertising, publicity, exhibition and other commercial activities to identify the source of commodities." And the seventh paragraph of article 57 "to others the right to exclusive use of a registered trademark of other damage caused by the behavior of infringing the right to exclusive use of a registered trademark" and "the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation under paragraph (2) the first article" copy, imitation, translation of the well-known trademark of others register or its main part in not the same or similar goods used as a trademark, misleading the public, thereby causing damage to the interests of the well-known trademark registrant may, belong to the provisions of the trademark law of the behavior of the other damage to the right to exclusive use of a registered trademark of others." The goods approved for use in the trademark "Opai" no. 1128213 of Opai Household Furniture Co., Ltd. are in the 20th class. Although the electrical products in this case are not covered, the trademark was recognized as a well-known trademark on April 29, 2009 and enjoys the special protection of well-known trademark according to law. , in this case, first of all, European building materials stores, web hing trading company within the store signs, shops and so on use the wording "European" (e.g., "opie home decoration supermarket" "opie ambry" "opie hutch defends electric appliance"), as well as the century European company production, sales, marked with "European" word "zhongshan century European appliances" of range hood, disinfection cabinets, among them, the "home" "decorate" "supermarket" "ambry text is the phrase," the relevant public attention and recognition effect is the word "Europe", the relevant public will "European" word as a source of difference between a product or service mark, So European building materials stores, mesh hing trading company, century European companies use the wording "European" behavior constitute a trademark use, second, the European building materials stores, mesh hing trading company, century European companies use the "European", comparing the logo with the cited trademark words, pronunciation is the same, both approximation, likely to cause consumer confusion, three of the defendant's act violated European household company number 1128213 "European" right to the exclusive use of a registered trademark, stop the infringement and compensate for the losses of responsibility.

    "Business operators shall not engage in market transactions by the following unfair means to the injury of competitors :(1) counterfeiting the registered trademarks of others; (3) making unauthorized use of another person's enterprise name or name to mislead others into believing it is another person's commodity ". This case, "Europe" is the European household font size on your company's business name, is also a European household company use of trademark, European household company is the domestic famous furniture production enterprise, in the class 20 tableware on ambry, "European" trademark by the trademark office identified as well-known trademarks, its enterprise also won many honors, such as China's brand-name products, famous trademarks of guangdong province, 2012 China top hutch defends, whole kitchen top ten leading enterprises, 2012 guangzhou mayor quality prize, 2014 guangdong household field top ten most valuable brands, innovation ten strong enterprise honorary title, In CCTV, hunan TV station and other print media for advertising, pay a lot of advertising costs, visible "European" series of products as well as the "European" font size across the country have high visibility, and by the relevant public know, European furniture company's prior rights by "general principles of the civil law of the People's Republic of China" and "anti-unfair competition law of the People's Republic of China". European building materials stores, sales network hing trading company is marked with the words ", "zhongshan century European electric appliance co., LTD of kitchen burning gas, oil absorption, century European companies, fortune to jointly produce and sell marked with the words", "zhongshan century European electric appliance co., LTD., kitchen burning gas and century European company production, sales, marked with the words", "zhongshan century European electric appliance co., LTD. Of the range hood, disinfection cabinets and in the management of the three sites using" European "words" zhongshan century European electric appliance co., LTD. "for publicity, easy to make the relevant public mistaken for its products with European companies there is a link between household, Easy to make the relevant public confusion and mistakes of product source, damage the legitimate rights and interests of European household company, four the defendant's act clearly violates the law of the People's Republic of China of unfair competition law, the provisions of article 2 "in market transactions, an operator shall follow the principles of voluntariness, equality, fairness, honesty and credit", violated the recognized business ethics in the market transaction, violated European household company enterprise name right, belong to the ACTS of unfair competition, four defendants shall bear tort liability. Opie has provided no evidence to prove that It is the owner of www.opie.com, and the court does not support its claim that it is unwarranted.

    Focal point 4, the parties failed to provide evidence for European building materials stores, mesh hing trading company, century European companies implement trademark infringement and four defendants implementation of ACTS of unfair competition in European household company of actual loss as well as the profits of the infringer, we consider opie household company's brand awareness and the management of the scale, the infringer during the implementation of the nature of the infringement, and the consequences, as well as the degree of subjective fault, European household attorney's fees, incurred by the company to stop infringement notarial fees, travel expenses, the cost of buying infringing material etc., Set our discretionary European building materials store to the home company to pay compensation of 20000 yuan (including reasonable expense to stop the infringement), net hing trading company to pay compensation opie household 30000 yuan (including reasonable expense to stop the infringement), century European company, money to pay for joint production of kitchen burning gas to the European household company for compensation of 80000 yuan (including reasonable expense to stop the infringement), century European company pay compensation to the European household company 120000 yuan (including reasonable expense to stop the infringement).

    If Opai Building Materials Store and Wangxing trading Company refuse to attend the court proceedings without justifiable reasons after being legally summoned by the court, it can be deemed as waiving the right of defense in this case, but it will not affect the court's judgment according to law.

    To sum up, in accordance with the general principles of the civil law of the People's Republic of China, in the second paragraph of the first paragraph of article one hundred and thirty-four, the "trademark law of the People's Republic of China" (7), article sixty-three, article 48 and article 57, the anti-unfair competition law of the People's Republic of China, article 2, article 5, article 20, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "article 9, article 10, article 16 and article 17, In accordance with the provisions of Article 1, Article 4, Article 6, Paragraph 1 of Article 17 and The provisions of Article 64, Paragraph 1, Article 69, and Article 144 of the Civil Procedure Law of the People's Republic of China, the judgment made by default is as follows:

    1. The defendant, Luoyang jianxi Oupai Building Materials Store, immediately stopped any infringement of the right to exclusive use of the word "Ou Pai" in the store as of the effective date of this judgment;

    Ii. Defendant Luoyang jianxi Ou Pai Building Materials Store immediately stopped selling the improper competition of gas cooker and oil hood marked "Zhongshan Century Ou Pai Electric Appliance Co., LTD" as of the date of the legal effect of this judgment;

    3. The defendant, Henan Wangxing Trading Co., Ltd. immediately stopped the infringement of the exclusive right of the registered trademark no. 1128213 by using the word "Opai" in the store as of the date of the legal effect of this judgment;

    4. The defendant henan Wangxing Trading Co., Ltd. immediately stopped the sale of gas stoves and range hoods marked with the words "Zhongshan Century Oupai Electric Appliance Co., Ltd." from the date of the legal effect of this judgment;

    V. The defendant, Zhongshan Century Oupai Electric Appliance Co., Ltd. and Zhongshan Caiyunlaihuitai Electric Appliance Co., Ltd. immediately stopped the production and sale of gas stoves marked with the words "Zhongshan Century Oupai Electric Appliance Co., Ltd." on the date of the legal effect of this judgment;

    Vi. The defendant, Zhongshan Century Oupai Electric Appliance Co., Ltd. immediately stopped the production and sale of the range hood and disinfection cabinet marked "Oupai" or "Zhongshan Century Oupai Electric Appliance Co., Ltd." on the date of the legal effect of this judgment;

    Vii. The defendant, Luoyang Jianxi Ou Pai Building Materials Store and Zhongshan Shiji Ou Pai Electric Appliance Co., LTD., shall immediately change the enterprise name within 30 days after such judgment becomes legally effective, and the changed enterprise name shall not contain the words "OU Pai";

    8. On the date of the legal effect of this judgment, the defendant Zhongshan Century Opai Electric Appliance Co., Ltd. ceased the unfair competition behavior of using the word "Opai" in the websites "www.opjskj.com", "www.worldJoupai.com" and "www.sjoupai.com" managed by the defendant;

    Ix. The defendant, Luoyang Jianxi Ou Pai Building Materials Store, paid an indemnity of 20,000 YUAN to The plaintiff ou Pai Home Furnishing Group Co., LTD on the day when this judgment took effect legally (including reasonable expenses paid to prevent tort);

    X. The defendant Henan Wangxing Trading Co., Ltd. shall, on the date of the legal effect of this judgment, pay compensation of RMB 30,000 to the plaintiff Opai Home Furnishing Group Co., LTD. (including reasonable expenses paid to stop infringement);

    Xi. The defendant, Zhongshan Century Oupai Electric Appliance Co., LTD., and Zhongshan Caiyunlai Kitchen and Sanitary Appliance Co., LTD., shall pay the plaintiff Oupai Home FurnishGroup Co., LTD., an indemnity amount of 80,000 yuan (including reasonable expenses paid to stop infringement) on the date of the legal effect of this judgment;

    Xii. The defendant, Zhongshan Century Opai Electric Appliance Co., LTD., shall pay the plaintiff, Opai Home Furnishgroup Co., LTD., an indemnity of 120,000 yuan (including reasonable expenses paid to stop infringement) on the date of the legal effect of this judgment;

    13. Other claims of The plaintiff, Opai Household Group Co., LTD., were rejected.

    If the pecuniary obligation is not performed within the period specified in this judgment, the interest on the debt for the delayed period shall be doubled in accordance with article 253 of the Civil Procedure Law of the People's Republic of China.

    The case acceptance fee is 8,800 yuan, 20% of which is 1,760 yuan to be borne by the plaintiff Ou Pai Home Furnishing Group Co., LTD.; 20% or 1,760 yuan to be borne by the defendant Luoyang Ou Xi Ou pai building materials store and Henan Wangxing Trading Co., LTD.; 60% or 5,280 yuan to be borne by the defendant Zhongshan Century Ou Pai Electric Appliance Co., LTD. And Zhongshan Caiyunlaihuwei Electric Appliance Co., LTD.

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

    Guo Ning, chief judge

    Judge Feng Yi

    People's juror Lin Xingjiao

    October 27, 2017

    Clerk Lu Guotang