Civil judgment of Baiyun District People's Court, Guangzhou City, Guangdong Province

    People's Court of Baiyun District, Guangzhou City, Guangdong Province

    Written judgment of civil affairs

    (2017) No.321, Yue 0111, 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.

    Agent: Zhai Mingyue, Wang Ning, lawyer of Shandong Changping Law Firm.

    Defendant: Lei Bingbing, male, Han Nationality, born on May 19, 1989, residing in Guiyang County, Chenzhou City, Hunan Province.

    Defendant: Zhongshan Bensheng Huasheng Electric Appliance Co., LTD., registration No. 4420000X, Tongle 2nd Road, Dongfeng Town, Zhongshan City, Guangdong Province.

    Legal representative: Chen Fengying.

    The plaintiff Opai Home Furnishing Group Co., LTD. (hereinafter referred to as Opai Company) and the defendant Lei Bingbing and Zhongshan Bensheng Huichen And Sanitary Appliances Co., LTD. (hereinafter referred to as Bensheng Company) have infringed the trademark right and had an unfair competition dispute. After accepting the case, the court formed a collegial panel and held a trial in public. Wang Ning, the authorized agent of opai, attended the lawsuit. The defendant Lei Bingbing, Bensheng company by the court notice summons, notice expires after the court refused to participate in the proceedings without justified reasons, the court is absent from trial according to law. The case is now closed.

    The plaintiff Opai Company claims that the plaintiff is the exclusive owner of the 11th "OPPEIN" and "OPPEIN" series of trademarks. Since its establishment, the plaintiff has cast "OPPEIN" and "OPPEIN" series of trademarks into household, electrical and sanitary brands that are well-known throughout the country. The plaintiff's products and brands have won the reputation of "China famous brand products" and "China well-known trademark" successively. "Opai" has not only become the representative symbol of the plaintiff's products and enterprise names, but also become the significant identification mark indicating the market subject and commodity source of the plaintiff and its affiliated enterprises. In November 2016, the plaintiff found the defendant LeiBing soldiers in the open a shop inside the extensive use of "European" text sales indicate "guangdong opie technology co., LTD." on the kitchen burning gas, on the product packaging, manuals and other carrier was labeled "guangdong science and technology co., LTD." "OPAICN" "there's a love have guangdong opie" words "zhongshan ran sheng hutch defends electric appliance co., LTD.", the plaintiffs entrust notary evidence of the defendant's act preservation. The plaintiff think the second defendant unauthorized unauthorized use of "European" words, production, sales, with a "guangdong science and technology co., LTD." with the words "OPAICN" kitchen burning gas, not only violated the trademark rights of the plaintiff, also constitute the encroachment of right to enterprise name to the plaintiff, in violation of the principle of honesty and credit and recognized business ethics, the behavior constitutes unfair competition to the plaintiff. To sum up, we hereby request the court to order: 1. The defendant Lei Bing immediately stopped infringing the plaintiff's trademark right by using the words "Opi" on the name and website of his online store; 2. 2. The defendant, Lei Bing, immediately stopped selling gas stoves with the words "Guangdong Opai Technology Co., LTD" and "You have a home and love and Guangdong Opai"; 3. The defendant Bensheng Company immediately stopped the production and sale of gas stoves with the words "Guangdong Opai Technology Co., LTD" and "There is a family with love and Guangdong Opai"; 4. The two defendants shall compensate the plaintiff a total of 200,000 yuan for economic losses and reasonable expenses for safeguarding their rights; The costs of this case shall be borne by the two defendants.

    The defendants Lei Bingbing and Bensheng Company have no defense and have not submitted any evidence materials to the court within the time limit of proof proof.

    Trial found: no. 4378572 "Europe", the trademark registrant is a European hutch ark enterprise co., LTD., shall be used for class 11 goods, including gas furnace, microwave oven (kitchenware), electric cooker, kitchen smoke lampblack machine, etc., registration is valid from June 7, 2007 to 2017 on June 6, after the renewal of registration is valid until June 6, 2027. On January 6, 2011, the registered name of the trademark change was approved to be Guangdong Opai Group Co., LTD., which changed to Opai Company on March 24, 2014.

    On March 24, 2015, Opai, as the copyright owner, applied to Guangdong Copyright Bureau for the copyright registration of "Opai" fine art works. The registration number was Yuezuo-2015-F-0X. The author was A Certain Liang.

    The company submitted a "about that," European "trademark for well-known trademark", China famous brand product certificate, certificate of famous trademarks of guangdong province, 2012 China hutch defends top certificate of integral kitchen top ten leading enterprises, guangzhou mayor award honorary certificate in 2012, 2014, guangdong household field top ten most valuable brands, innovation ability of ten strong enterprise honorary certificate and other evidence, to prove that "European" brand has a high market reputation; The tax payment certificate issued by the State Administration of Taxation in Baiyun District, Guangzhou City from 2013 to 2015, and the notification issued by the tax Administration of large enterprises in Guangzhou City Local Taxation Bureau in 2014 and 2015 were submitted to prove that the brand "Opai" has generated huge profits and benefits, and its brand value is extremely high. Submitted on time boiling with Beijing international advertising co., LTD. Signed the 2013 < space > home outfit funded cooperation agreement ", "2015 < space > home outfit funded cooperation agreement", and hunan radio and television advertising company, hunan downwind media co., LTD. The television advertising contracts signed, and zhejiang wisdom beauty car advertising co., LTD., the television advertising contracts signed, and kashi silver pine culture media co., LTD. Signed advertising agency contract and other evidence, intends to prove that the company "European brand" for the continuous publicity, and has been widely known; Submitted since 2011 "linchuan evening news", "newspaper zhuhai dc anqing daily Shanghai hutch ark" sales and marketing management version "" ruili household magazines such as decorating the world on the publicity of evidence, to prove that the company continues to promote in the print media," European brand ", its original "have a home, there is love, there are" slogan and promote the continuous use.

    On November 12, 2016, Wang Shouzhen, the entrusted agent of Shandong Zhixiang Law Firm, applied for notarization of evidence preservation to Luxi Notary Office of Liaocheng City, Shandong Province. Under the supervision of the notary staff, on November 14 of the same year, Wang Shouzhen bought a gas stove in the online shop named "Guangdong Opai Qidiandian Electric Appliances" of the owner named "Guangzhou Cherry Omishi" in the "7 Days Chain Hotel", No. X, Renhe Street, Renhe Town, Baiyun District, Guangzhou, using the computer connected to the Internet by the notary office. On November 19 of the same year, under the supervision of a notary, Wang Shouzhen signed for a package with the label of "Guangdong Opai Technology Co., LTD. (Supervision)" from a Courier of "Deppon Express" at the gate of "7 Days Chain Hotel", No. X, Renhe Town, Baiyun District, Guangzhou. The package number was "63144X". Wang Shouzhen will open the above goods box, there is a gas cooker inside, a manual. On the same day, under the supervision of the notary staff, Wang Shouzhen confirmed the receipt of the order no. 2680849110X on Taobao.com by using the computer connected to the Internet in the "7 Days Chain Hotel", No. X, Renhe Town, Baiyun District, Guangzhou. On December 26, 2016, Shandong Liaocheng Luxi Notary Office issued a notarial certificate (2016) zhulu Xi Certificate No. X, certifying that the work record attached to the notarial certificate is consistent with the content of the original filed by the notary office, and the signature of Wang Shouzhen on the original is true; The attached photo is taken on the spot by Wang Shouzhen, which is consistent with the actual situation; The attached page screenshot is obtained by The above operation of Wang Shouzhen, which is consistent with the actual situation; The attached CD is made by Wang Shouzhen after the above-mentioned video recording, which is consistent with the actual situation; The material objects sealed by the notary office are obtained as described above and conform to the actual situation.

    Attached to the notarial certificate: The name of the shop on the front page of the website shows "Guangdong Opai Qidiandian Electric Appliance"; the shopkeeper is named "Guangzhou Cherry Omishi"; "Alipay Personal Certification: 2014-06-25"; The headline "Guangdong Opai Gas Stove with Double Embedded Ligulified gas Burner Table Gas Stove with Double Embedded Ligulified gas Burner Stove" is 288 yuan. In the upper left corner of the product picture, the words "Guangdong Opai" are displayed, showing "301 successful transactions", "1551 accumulated comments" and "69 in stock". The order information section "seller information" shows that the operator of the shop involved is Lei Bingbing. After being opened and notarized in court, there is a gas stove inside. The words "Guangdong Opai Technology Co., LTD" are printed on the outer package, instructions and products. The words "Guangdong Opai Technology Co., LTD" are printed on the front of the outer package, and the words "Bensheng Kitchen & Bathroom Appliance Co., LTD" are printed on the side. Opai said in court that the packaging of the alleged infringing products produced by Pensheng was marked with the words "Guangdong Opai Technology Co., LTD.", which constituted unfair competition that infringed opai's right to the enterprise name. The packaging of the alleged infringing products produced by Bensheng company was marked with the words "There is love and Guangdong Opi", which constituted unfair competition of false propaganda. Lei used the word "Opai" extensively in the name and in the store he operated, and sold products accused of infringement, which constituted trademark infringement and unfair competition.

    Opai claims that the two defendants should jointly compensate their economic losses and reasonable expenses totaling 200,000 yuan, but has not submitted any bills to prove it.

    Opai co., LTD., established on July 1, 1994, is a joint stock limited company. Bensheng Company is a limited liability company with a registered capital of RMB 200,000 yuan. Its establishment date is July 21, 2010. Its business scope covers the production and sales of kitchen and sanitary ware, range hood ventilator, hardware products, household electrical appliances accessories, stoves, electric kettle and juicer.

    Check again: Zhejiang treasure network limited company issues information to disclose a letter, record member name is "Guangzhou Oriental cherry poem" the member true name is Lei Bingbing, ID number is, with this case the identity information of defendant is consistent.

    The above facts are supported by the trademark registration certificate, the change certificate of the registered trademark, the notarization, the sealed object, the industrial and commercial registration materials and the statements of the parties.

    The court holds that Opai is the exclusive owner of the registered trademark "Opai" no. 4378572. Until the time of the lawsuit, the registered trademark is still under effective protection, and the exclusive right of opai to use the trademark involved should be protected.

    On whether the actions of each defendant constitute trademark infringement and unfair competition and their respective liability for tort. First of all, according to the notarial certificate of evidence, the online store involved in the case was founded by Lei Bingbing. The name of the store and the website of the online store involved in the case were highlighted with the word "Opai", which was similar to the registered trademark of Opai Company No. 4378572. The approved scope of the registered trademark of "Opi" no. 4378572 is category 11, including gas stoves, microwave ovens (kitchen utensils), electric cookers, kitchen range hoods, etc., which are the same as the gas stoves accused of infringement. Proof within the time limit, LeiBing soldier did not proof to confirm its when the online store name and use the wording "European" highlights on the page with the holder of the legal license, so we decided that LeiBing soldiers when the online store name and web site use the wording "European" behavior, the infringement of the no. 4378572 of European companies enjoy "European" use of a registered trademark, shall bear tort liability. Now Opai asks Lei Bingbing to stop highlighting the word "Opai" on the shop name and website of the online shop involved and to compensate for the loss, which is supported by the court.

    Second, is accused of infringement on the product packaging, specifications and product are marked as "guangdong science and technology co., LTD.", the outer packing of product with a positive "have family love guangdong", side with a word "rush sheng hutch defends electric appliance co., LTD.", in the case of no other contrary evidence, can maintain is accused of infringement product is running of the company. Opai company and Bensheng Company are both manufacturers and sellers of household appliances and kitchen appliances. According to the media reports and other evidence submitted by Opie, it can be concluded that it has been using the slogan of "There is a family, there is love and opie" for a long time since 2011, and has gained certain popularity and been widely known by the relevant public. According to notarization notarial deed attachment records forensics, used on the outer packing has accused of infringing products have "family love with guangdong", combined with the company and its brand, advertising language awareness, etc., to make the relevant public to mistake the running of the production, the sale is accused of infringement of products and the company production and sales of the products, constitute a misleading false propaganda ACTS of unfair competition, should bear tort liability.

    Again, the company was founded in 1994, on July 1, and have been used since the "European" font size, combined with the company submitted the honorary certificate, certificate of tax payment, newspaper and magazine reports, advertising contract, media reports and other evidence of actual use and popularity, can maintain "European" font size has certain market popularity and is known by the relevant public enterprise name of the font size. Ran sheng on July 21, the company was founded in 2010, far later than European company set up time, ran sheng company as production, sales, hutch defends sanitary ware, stoves and other enterprises, should know the company already has a certain awareness of "European" font size and in the case of a registered trademark, it will be the words "guangdong science and technology co., LTD." mark on the product packaging, manuals and product, has the "free-rider" subjective malice, violated the civil activities shall follow the principle of fairness, honesty and credit, and constitutes unfair competition. To sum up, opai now requests Bensheng company to stop the production and sale of gas stoves with the words "Guangdong Opai Technology Co., LTD" and "There is a home with love and Guangdong Opai" and compensate for the losses. The court supports the lawsuit based on the law. Because LeiBing soldier is accused of infringement product sellers only, not accused of infringement product producer, to relevant general public attention is hard to distinguish whether the sales related products infringe on the others' right to enterprise name and whether the false propaganda, therefore LeiBing soldiers act doesn't constitute unfair competition, the only need to stop selling with "guangdong science and technology co., LTD." "there's a love have guangdong opie" words of kitchen burning gas.

    Finally, because the company has not confirmed proof LeiBing soldiers when the online store name and use the wording "European" highlights on the web and the behavior of the product sales is accused of infringement, and ran sheng company production, sales, is accused of infringement product common infringement behavior intentionally, so the requirements for European companies two defendants jointly bear reasonable expenses and compensation for the economic loss of the claims, we shall support LeiBing soldiers and ran sheng company dealing with their own specific tort bear tort liability to pay compensation.

    About the amount of compensation. The cost of purchasing the alleged infringing products claimed by Opie is certified by notarization and supported by the court. The notarization fee, attorney's fee and travel expenses claimed by Opai are not supported by the corresponding bills. However, considering that Opai does notarize to obtain evidence and entrusts a lawyer to appear in court to answer the lawsuit, the court supports the reasonable part of the above expenses as appropriate. Proof within the time limit, because the parties thereto have not been submitted to admissibility of evidence of the company's actual loss, the situation of profit or two defendants for infringement, so our comprehensive consideration of the registered trademark involved in the popularity, the infringer's subjective fault and error correction attitude, form, is accused of infringing copyright product types, price, sales volume, during the period of infringement, consequences, and the reasonable expenses of the rights in stopping the infringement behavior, etc., the compensation of the discretion to determine LeiBing is RMB 50000 (including the reasonable expenses), ran sheng company's compensation amount is RMB 150000 (including the reasonable expenses). Lei Bing-bing, Bensheng company by the court's notice summons, after the expiration of the notice without justified reasons refused to attend the court in this case, it is deemed as the waiver of their right to defend, the court judgment by default according to law.

    To sum up, in accordance with the "tort liability law of the People's Republic of China the first (a) (6) of article 15, article 57" trademark law of the People's Republic of China "in the first (2) (3), article sixty-three, the anti-unfair competition law of the People's Republic of China" (3) of article 5 of the, article 9, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "article 9, article 16 and article 17, article sixty-four of the civil procedural law of the People's Republic of China, the provisions of article one hundred and forty-four, decision is as follows:

    I. As of the effective date of this judgment, the defendant, Lei Bing Bing, shall immediately stop highlighting the words "Opai" on the store name and web page of his Taobao store;

    2. As of the effective date of this judgment, the defendant, Lei Bingbing, immediately stopped selling the gas stove products with the words "Guangdong Opai Technology Co., LTD" and "You have love and you have Guangdong Opai";

    Iii. The defendant, Zhongshan Bensheng Kitchen and Sanitary Appliances Co., Ltd. immediately stopped the production and sale of gas stove products with the words "Guangdong Opai Technology Co., LTD." and "You have love and Guangdong Opai" as of the effective date of this judgment;

    Iv. The defendant, Lei Bing bing, shall compensate the plaintiff, Opai Home Furnishing Group Co., Ltd. for the economic loss of 50,000 yuan (including reasonable expenses) within 10 days from the effective date of this judgment;

    5. The defendant, Zhongshan Bensheng Huasheng Electric Appliance Co., Ltd. shall compensate the plaintiff, Opai Home Furnishing Group Co., Ltd. for the economic loss of RMB 150,000 yuan (including reasonable expenses) within 10 days from the effective date of this judgment;

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

    If the pecuniary obligation is not performed within the time limit 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 receiving fee of this case is 4,300 yuan, 1,075 yuan borne by the defendant Lei Bingbing, and 3,225 yuan borne by the defendant Zhongshan Bensheng Huichen Electric Appliance Co., LTD. (The receiving fee has been paid in advance by the plaintiff Opai Home Furnishgroup Co., LTD., the court will not return it, and the plaintiff agrees that the two defendants should pay part of the expenses directly to the defendant within the above performance period).

    If the parties are not satisfied with this judgment, they 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 and appeal to the Guangzhou Intellectual Property Court.

    Chief Judge Gong Xiaoning

    People's juror Bai Chunai

    People's Juror Liu Guiying

    August 21, 2017

    Clerk Wei Xiaoping