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

    (2017) No. 8651, Early Republic of Guangdong 2072

    Plaintiff: Opai Home Furnishing Group Co., LTD., located in 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: Long Daji, male, Zhuang Nationality, living in Nandan County, Guangxi Zhuang Autonomous Region.

    Defendant: Zhongshan Kitchen Appliances Co., LTD., domicile place: Zhongshan city, Guangdong Province.

    Legal representative: Xiao Guohua, General manager of the company.

    Agent AD litem: Xu Zhousheng, lawyer of Guangdong Xiangyu Law Firm.

    The plaintiff opie household group co., LTD. (hereinafter referred to as the company) and the defendant Long Daji, zhongshan after the kitchen electric appliance co., LTD. (hereinafter referred to as the kitchen company) after the infringement trademark rights and unfair competition disputes, in our hospital in Hitachi after 25 July, 2017, summary procedure in accordance with the law, on October 11, 2017, public hearing on the trial. The plaintiff Europe sends the company to appoint the agent AD litem wang Ning, the defendant after kitchen company to appoint the agent AD litem Xu Zhou sheng to attend the lawsuit, the defendant Long Da Ji by the court summons not to attend the lawsuit. The case is now closed.

    Europa company has filed a lawsuit to the court: 1. Longdaji has been ordered to immediately stop using the word "Europa" in its online store for false publicity, unfair competition in selling gas stoves and infringement of trademark rights; 2. 2. Order Longdaji to immediately stop selling gas stoves labeled as "Guangdong Opai Technology Co., LTD"; 3. The kitchen company is ordered to immediately stop the production and sale of gas stoves marked "Guangdong Opai Technology Co., LTD"; 4. The two defendants were ordered to compensate OPai for the economic loss and reasonable expenses of safeguarding their rights in this case by 100,000 yuan. Facts and Reasons: Opie is the holder of class 11 registered trademarks such as "OPPEIN". The 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, "Europe" is not only the company products and on behalf of the symbol of the enterprise name, also be instructed to send company and affiliated enterprise significant recognition of market main body and the sources of identity. In March 2016, Opai found that Longdaji used "Opai" in a large number on Taobao.com to falsely advertise and sell gas stoves labeled as "Guangdong Opai Technology Co., LTD". Opai applied for notary office to protect evidence against the infringement. After further investigation, Opie found that the above products are produced by a kitchen company. To sum up, the two defendants to clings to the company enjoys its reputation as the "European brand", deliberately on the online store, the product the illegal use of the word "Europe", not only infringe on the right to exclusive use of a registered trademark of the European company, also violates the principle of honest credit and recognized business ethics, constituting unfair competition for European companies, to the European company caused economic losses. Accordingly, OPie has filed a lawsuit with the court and filed the above claim.

    The kitchen company argued that the kitchen company did not produce the gas stoves involved in the case, and the evidence provided by Opie was insufficient to prove that the trademark was a well-known trademark and that the kitchen company produced the gas stoves involved in the case, and the kitchen company should not bear the responsibility of the case.

    Ronda continued to make no plea.

    According to the statement of the parties and the evidence confirmed by examination, the facts confirmed by the court are as follows: Opie was established on July 1, 1994, with the registered capital of RMB 373581112, and its business scope is furniture manufacturing industry. Houhu Kitchen Co., Ltd. was founded on December 11, 2013 with a registered capital of 100,000 yuan. Its business scope: production, processing and sales: household appliances and accessories, electric water heater, range hood, gas water heater, gas stove, hardware products (excluding electroplating process). Opai is the owner of the registered trademarks no. 4378572, no. 1137521 and No. 1128213, which are approved to be used in class 11 and 20. The approved products include gas stove, kitchen range hood, etc. The above trademarks are all within the valid period. Opai is the holder of the trademark "OPPEIN" No. 7731876 approved for use in class 11, including kitchen range hoods, etc., and the trademark is valid for the term.

    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 state administration of quality supervision, inspection and quarantine set awarded to the company's brand household cabinet for "China famous brand product". In October 2008, Guangdong Provincial Bureau of Quality and Technical Supervision granted Opai's cabinet products as guangdong famous brand products. In February 2008, "Opai" trademark was recognized as "Famous trademark of Guangdong Province" by Guangdong Famous Trademark Recognition Committee. In December 2012, Opai was identified by China Building decoration Association hutch and sanitation Engineering Committee as "2012 China hutch and sanitation top 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 evaluated by Brand Watch magazine was selected into the silver Award of 2014 Annual Brand Marketing Case in China. In January 2015, Guangdong Home Furnishings Federation and Guangdong Furniture Chamber of Commerce jointly awarded Opai the title of "Top 10 Most Valuable Brands" and "Top 10 Innovative Enterprises" in 2014 guangdong pan-household industry.

    On October 30, 2012, opai signed an agreement with Beijing ontime boiling international advertising co., ltd. on the sponsorship and cooperation of home decoration fund. It was agreed that opai would sponsor two sets of "exchange space" home decoration fund of CCTV. The contract was performed on January 5, 2013, solstice on December 28 of the same year. On July 20, 2013, Opai hired Jiang Wenli as its spokesperson. On November 11, 2013, opai signed a TV advertisement release contract with zhejiang zhimei chewen advertising co., LTD. It was agreed that opai entrusted zhejiang zhimei chewen advertising co., ltd. to release the advertisement during January 1, 2014 solstice on December 31, 2014, with the media of cctv-news channel, and the cost was RMB 40463970. In July 2014, the company with hunan, hunan radio and television advertising corporation downwind media co., LTD., television advertising project contract, agreed: the company commissioned in hunan province, 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 signed an advertising agency contract with kashgar yinsong culture & media co., LTD. It was agreed that Europa culture & media co., ltd. would act as an advertising agency for Europa on cctc-news "global view" on January 1, 2015 and December 31, 2015. The agreed fee was 23,970,000 yuan. On November 27, 2014, opai signed an agreement with Beijing ontime boiling international advertising co., ltd. on the sponsorship and cooperation of home decoration fund. It was agreed that opai would sponsor the home decoration fund of two sets of "exchange space" 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, Opai put an advertisement in a Cabinet in Shanghai, using the slogan "You have home, you have love, you have Opai". In 2011, Opai put advertisements in Linchuan Evening News, Zhuhai Special Zone Newspaper, Anqing Daily, Sales & Marketing, Ruili Home Furnishing and decoration world respectively, using the slogan "Youjia, Youai, youpai". The brand spokesperson employed in the above advertising promotion is Jiang Wenli.

    On March 9, 2016, Opai Applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. On the same day, in the notarization notaries and notarial personnel, under the supervision of the company entrusted agent Yang today use notary office computer I bought on taobao shopkeeper called "dragon yiyi darling" "hutch defends electric appliance affordable shop" online sales of kitchen burning gas, Yang today during operation on the relevant page screenshots and videos. After the end of the above ACTS, under the supervision of the notary and notary staff, Yang Will burn the above video documents and screenshots in the office into three copies of CD, sealed by the notary staff and affixed the notary office seal. On March 14 of the same year, under the supervision of notaries and notaries, Yang came to the sales department of "Yunda Express" at no. ×× Road (general Curtain wall Courtyard), ×× City, Lai Wu city. In the sales department, Yang picked up the goods with intact outer packing and marked with the words "household gas kitchen". The notary took the goods back to the notary office. Under the supervision of the notary and notary, Yang Opened the above goods. In the packing box there is a gas cooker with the word "OPAICN Europai", a OPAICN instruction booklet, and a anti-counterfeiting quality guarantee card. The notary staff sealed the above articles and gave them to Yang Jin Jin for safekeeping. On March 18 of the same year, under the supervision of notary and notary personnel, Yang Today USES notary office computer to buy shopkeeper name "Long Yiyi guaiguai" "hutch defends electric appliance store material benefit" the gas stove that net inn sells undertook confirmation receive goods. Yang Jinzhao took screenshots of relevant pages during the operation and recorded the entire operation. After the above ACTS are completed, Yang Jin Zhao prints the above screenshots in triplicate, and the above video files and screenshots are burned to a CD in triplicate under the supervision of the notary and notary staff, and the notary staff seals and affix the seal of the notary office. Laiwu city in shandong province FengCheng notarization for certificate issued by the above facts (2016) the lai FengCheng people word no. 448 is notarial deed, notarial deed recorded the following contents: in the case of online display nickname of "dragon yiyi darling", real name "Long Daji", the other, the company with the notarial deed has mentioned that a lawsuit case number: (2016) guangdong 2072 early 5948, involved in products for smoke lampblack machine, disinfection cabinet.

    During the trial of the case No. 10160 in the early Republic of China of Guangdong 2072 (2016), the court found that the gas stove and two CDS purchased by the notarization were sealed in good condition, and the seal and seal of the notary office were intact. The two sides of the packing box are marked with the words "Guangdong Opai Technology Co., LTD" and the other two sides are marked with the words "Guangdong Opai Technology Co., LTD supervisor, manufacturer: Zhongshan Houhu Electric Appliance Co., LTD. Address: Maxin Industrial Zone, Huangpu Town, Zhongshan City. Open the carton at the scene, there is a gas cooker, a manual, product security warranty card, security certificate. The body of the gas stove is marked with the words "Guangdong Oupai", and the product anti-counterfeiting guarantee card and anti-counterfeiting certificate are marked with the words "Supervised by Guangdong Oupai Technology Co., LTD". The scene opened the evidence preservation of two envelopes, there is a CD. Play word no. 448 (2016) lai FengCheng card people notarial deed video screen displayed when the online store has been involved in February 16, 2014 completed alipay real-name certification, through the comparison, the store on the product name, product introduction, extensive use of the word "Europe", such as "opie gas burner embedded liquefied natural gas cookers desktop double hearth embedded amphibious kitchen burning gas stove" "guangdong". Opie and the kitchen company have no objection to the above facts. Opai believes that longdaji's extensive use of the word "Opai" in the online store involved in the case constitutes trademark infringement, and the two defendants' unfair competition with the words "Guangdong Opai Technology Co., Ltd." on the outer packing and quality warranty card of the products accused of infringement. The kitchen company argues that it does not produce the products accused of infringement.

    In the court hearing, the parties failed to provide evidence on the amount of losses suffered by OPie due to the infringement and the profits made by the infringer due to the infringement. Opai said its reasonable costs include 8,000 yuan for a lawyer (without a note), 3,000 yuan for travel (without a note) and 298 yuan for buying infringing products.

    We think, is accused of infringement online shopkeeper called dragon yiyi darling, show real name for Long Daji, the online store has completed real-name certification, and Long Daji for European companies to prosecute without complaint, no evidence to prove that others pretend to be the name of product sales is accused of infringement, as a result, we concluded that accused of infringing online store for the Long Daji management and sales have been accused of infringing products. At issue in the case are: 1. 2. Whether the online shop involved in the case constitutes trademark infringement; 3. Whether the conduct of the two defendants constitutes unfair competition; 4. Subject and amount of compensation.

    1. Is accused of infringement product outer packing on kitchen electric appliance co., LTD. "after the" manufacturer: zhongshan city, product packaging, and other transaction documents of production enterprise information have for consumers to identify the function of product producers or sellers, with a clear point to the nature of the product provider, and after hutch company for the production-oriented enterprises, in the kitchen under the condition of the company did not provide a rebuttal evidence, we decided that after hutch company production and sales of the accused of infringement product.

    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 trading 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 by Opai's trademark No. 1128213 "Opai" are in category 20. Although the electrical products sold by Longda are not covered, the trademark is 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, Long Daji when the online store using "European" (e.g., "opie gas burner embedded liquefied natural gas cookers desktop double hearth embedded amphibious kitchen burning gas stove", "guangdong"), among them, the "European" suffix words is the description of product features, properties, "guangdong" only on behalf of the administrative division, 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 the Long Daji use the word "European" behavior constitute a trademark use, second, Will be involved in the online shop using the "European", comparing the logo with the cited trademark words, pronunciation is the same, both approximation, likely to cause consumer confusion, Long Daji when the online store using text of "European" propaganda, violated the company's 1128213 "European" right to the exclusive use of a registered trademark, Long Daji stop the infringement and compensate for the losses of responsibility.

    3. (1) Counterfeiting the registered trademark 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 company name of the font size, and the company use of the trademark, the company is the domestic famous furniture production enterprise, in the class the sideboard 20 "European" trademark by the trademark office identified as well-known trademarks, its enterprise also won many honors, such as China famous brand product, guangdong well-known trademark, top 2012 China hutch defends, integral kitchen top ten leading enterprises, the 2012 guangzhou mayor quality prize, in 2014, guangdong generic 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 the 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". Long Daji, kitchen company after being accused of infringement product packaging and quality warranty card and use the word "guangdong opie technology co., LTD.", easy to make the relevant public to mistake there is a link between its products with European company, easy to make the relevant public confusion and mistakes of product source, damage the lawful rights and interests of the company, both 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, right to enterprise name violated European company, If it is an act of unfair competition, the two defendants shall be liable for torts.

    4. The parties failed to provide evidence for Long Daji after the implementation of the trademark infringement, unfair competition, and kitchen companies ACTS of unfair competition and lead to the company by the actual loss as well as the profits of the infringer, we consider the company's brand awareness and the management of the scale, the infringer during the implementation of the nature of the infringement, and consequences and the degree of subjective fault, the company to stop infringement spending attorney's fees, travel expenses, the cost of buying infringing material, once against the same notarial deed has been factors such as, The court hereby determines that Longda shall pay compensation of RMB 15,000 (including reasonable expenses for preventing infringement) to Opai, and the kitchen company shall pay compensation of RMB 90,000 (including reasonable expenses for preventing infringement) to Opai.

    If Long Da Ji refuses to attend the court proceedings without justifiable reasons after being legally summoned by the court, he may be deemed to have waived his right of defense in this case, but this 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, and Article 144 of the Civil Procedure Law of the People's Republic of China, the judgment by default is as follows:

    I. As of the date of the legal effect of this judgment, the defendant Longda immediately stopped using the word "Oupai" in the shopkeeper's Taobao store named "Long Yiyi Darling" to sell gas stoves, which infringed on the exclusive right of the registered trademark "Oupai" No. 1128213;

    2. As of the date of the legal effect of this judgment, defendant Longda immediately stopped selling the gas stoves marked with the words "Guangdong Opai Technology Co., LTD";

    3. As of the date of the legal effect of this judgment, defendant Zhongshan Houkitchen Electric Appliance Co., Ltd. immediately ceases to produce and sell the gas stoves marked with the words "Guangdong Opai Technology Co., LTD.";

    Iv. Within 5 days from the date of the legal effect of this judgment, the defendant, Long Daji, shall pay compensation of RMB 15,000 to the plaintiff, Opai Furniture Group Co., LTD. (including reasonable expenses paid to stop infringement);

    5. Within 5 days from the date of the legal effect of this judgment, the defendant, Zhongshan Houhu Electric Appliances Co., Ltd. shall pay the plaintiff, Oupai Household Appliances Group Co., LTD., an indemnity of 90,000 yuan (including reasonable expenses paid to stop infringement);

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

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

    The case acceptance fee is 2300 yuan, and the halved fee is 1150 yuan, 20% of which is 230 yuan to be borne by the plaintiff Opai Household Group Co., LTD., 20% of which is 230 yuan to be borne by the defendant Longdaji, and 60% of which is 690 yuan to be borne by the defendant Zhongshan Houhuoelectric 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.

    Judge Guo Ning

    October 23, 2017

    Clerk Lu Guotang