Article source: China Judicial Documents network Release time:2020-07-27 09:41:46 viewed:0time
Chancheng District People's Court, Foshan City, Guangdong Province
Written judgment of civil affairs
(2016) No. 4713, Yue 0604, Early Republic of China
Plaintiff: Opai Home Furnishing Group Co., LTD., No. 366, Guanghua 3rd Road, Baiyun District, Guangzhou City, Guangdong Province. Unified social credit code ××97C.
Legal representative: Yao Liangsong, chairman of the board.
Attorney: Zhai Mingyue, lawyer of Shandong Changping Law Firm.
Defendant: Luo Tingting, female, Han Nationality, born on May 15, 1991, living in Lingshan County, Guangxi Zhuang Autonomous Region.
Defendant: Guangdong Opai Technology Co., LTD., No.313-6, 3rd Floor, 22 Licitang Road, Shangjia, Ronggui Street Office, Shunde District, Foshan City, Guangdong Province. Unified social credit code: ×××294.
Legal representative: Su Liangzhu.
Agent AD litem: Lian Yan, lawyer of Guangdong Bodao Jujia Law Firm.
Agent AD litem: Liang Zhengping, lawyer of Guangdong Bodao Jujia Law Firm.
Defendant: Foshan Yachao Electric Co., LTD., one of the two floors, No. 18, Huatian Road, Shunde High-tech Zone, Foshan (Ronggui), Shunde District, Foshan, Guangdong. Unified social credit code: ××470.
Legal representative: Bai Caixiang.
Plaintiff opie household group co., LTD. (hereinafter referred to as the European group) v was complain of hard work tingting, the guangdong opie technology co., LTD. (hereinafter referred to as guangdong opie), foshan city, the defendant and the super electric co., LTD. (hereinafter referred to as the super electric) the infringement trademark rights and unfair competition disputes, in our hospital in 2016 to begin on May 18, the defendant guangdong sent to our hospital during the defense period to the jurisdiction of the court and in our hospital in 2016 on August 31, ruling, rejected the defendant guangdong sent to the jurisdiction of the court. The defendant, Guangdong European Faction, lodged an appeal to Foshan Intermediate People's Court of Guangdong Province. On April 11, 2017, the Intermediate People's Court of Foshan City, Guangdong Province issued a civil ruling no. 197 of Guangdong 06 People's Government, rejecting the appeal of the defendant, Guangdong European Faction. The court formed a collegial panel in accordance with the law, and held the hearing in public on August 30, 2017. Zhai Mingyue, the authorized agent of the plaintiff Eurogroup, and Liang Zhengping, the authorized agent of the defendant guangdong-Europe Group, attended the court proceedings. The defendant, Luo Tingting, and the defendant, AcHAO Electric, were summoned by the court and refused to attend the court proceedings without justified reasons. The case is now closed.
The plaintiff filed a lawsuit to the court: 1. The court ordered the defendant Ting-ting Luo to immediately stop the unfair competition behavior of using the word "Opi" in the online store for false publicity; 2. 2. Order the defendant, Ting Ting Law, to immediately stop the sale of gas stoves marked "Guangdong Opai Technology Co., LTD" and "Guangdong Opai Technology Co., LTD"; 3. The defendant guangdong Opai Technology Co., Ltd. and the defendant Foshan Yachao Electric Co., Ltd. were ordered to immediately stop the production and sale of gas stoves marked "Guangdong Opai Technology Co., LTD." and "Guangdong Opai Technology"; 4. Order the three defendants to compensate the plaintiff's economic losses and reasonable expenses for safeguarding their rights in this case, totaling RMB 1 million only; 5. The three defendants were ordered to bear the costs of the case.
Facts and reason: the plaintiff is 11 classes, "European" and "OPPEIN" registered trademark, the plaintiff since its inception, after decades of operation, has been "Europe" casting become household names, as is known to all of the country's household, electrical appliances, sanitary ware brand, the brand has won the "Chinese famous brand", "China well-known trademark", such as reputation, in the public mind, "Europe" has become not only the plaintiff products and on behalf of the symbol of the enterprise name, also become the instructions of the plaintiff and the plaintiff associated enterprises significant recognition of market main body and the sources of identity. In January 2016, the plaintiff found that the defendant Luo Tingting used "Opai" in her Taobao store to carry out false publicity and sell gas stoves marked with the words "Guangdong Opai Technology Co., LTD". The plaintiff applied for evidence preservation at the notary office for the aforesaid infringement. After further investigation, the plaintiff found that the above products were manufactured by the defendant Guangdong Opai and the defendant Yachao Electric.
To sum up, the plaintiff argues that the three defendants to clings to the plaintiff's "European" brand reputation, deliberately in the store, the product on the illegal use of "Europe", this behavior is not only the infringement of the right to exclusive use of a registered trademark of the plaintiff, and violate the principles of honesty and credit and recognized business ethics, constitutes unfair competition to the plaintiff, caused great economic losses to the plaintiff, shall bear the corresponding legal responsibility. Therefore, the plaintiff, in accordance with the Trademark Law of the People's Republic of China, the Law of the People's Republic of China against Unfair Competition and other relevant provisions, appealed to the court to make a fair judgment in accordance with the law.
To prove the claim, the plaintiff provides the court with the following evidence:
1. (2016) The Notarial Certificate of Lai Feng City Certificate No. 347 certifies that the plaintiff has the exclusive right to use the registered trademark No. 4378572.
2. (2016) The Notarial Certificate of Lai Feng City Certificate No. 350 certifies that the plaintiff has the exclusive right to use the registered trademark No. 1128213.
3. (2016) Notarial Certificate No. 346 of Laifeng City Certificate, proving that the plaintiff has the exclusive right to use the registered trademark No. 1137521 according to law.
4. (2016) The Notarial Certificate of Laifeng City Certificate No. 348 certifies that the plaintiff has the exclusive right to use the registered trademark No. 7731876.
5. (2016) Notarial Certificate No. 352 issued by Fengcheng License, which proves that the plaintiff legally owns the copyright of "" fine art fonts. This work, created on August 10, 1996, is completely consistent with the contents of the registered trademarks No. 4378572, 1128213 and 1137521 of the plaintiff, and also proves that the" "brand of the plaintiff has certain originality and a long history.
6. The trademark [2009] No. 7 issued by the Trademark Office of the State Administration for Industry and Commerce certifies that the registered trademark "" no. 1128213 enjoyed by the plaintiff was recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce on April 24, 2009.
7, (2016), lai FengCheng card people word no. 353 is notarial deed, prove that the plaintiff and the plaintiff brand have high market visibility, content as follows: (1), in September 2007, the state administration of quality supervision, inspection and quarantine awarded "China famous brand product certificate", prove that the plaintiff of production European brand household cabinet was awarded "China famous brand product" title. (2) In October 2008, guangdong Provincial Bureau of Quality and Technical Supervision issued the "Guangdong Famous brand Product" certificate, proving that the Oupai brand cabinet produced by the plaintiff was awarded the "Guangdong famous brand Product" title. (3) In February 2008, the Guangdong Province Famous Trademark Certificate issued by the Guangdong Province Famous Trademark Recognition Committee proves that the registered trademark "Opai" No. 1128213 was recognized as a Famous trademark of Guangdong Province in March 2005 and February 2008. (4), in December 2012, China building decoration association kitchen and sanitation engineering committee issued the certificate, proving that the plaintiff in 2012 was rated as "2012 China kitchen and sanitation 100", "overall kitchen leading enterprises top 10". (5) In September 2013, the Guangzhou Municipal People's Government issued the certificate of honor, proving that the quality of the plaintiff company was awarded the "2012 Guangzhou Mayor quality Award". (6), December 28, 2014, certificate issued by the brand watch magazine, prove that the plaintiff's European brand strategy to be included in the "2014 China's annual brand marketing case silver" (7), in January 2015, the guangdong province association of float subsequently, honorary certificate issued by the guangdong furniture chamber of commerce, prove that the plaintiff in 2014 was awarded "top ten most valuable brands". (8) In January 2015, Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce issued the certificate of honor, proving that the plaintiff was awarded "Top 10 Enterprises with Innovation Ability" in 2014.
8, the word no. 357 (2016) lai FengCheng card people notarial deed, prove that the plaintiff part of pay taxes, prove that "European" brand benefit huge profits, the brand value is extremely high, specific content as follows: (1), the guangzhou baiyun district issued by the state administration of taxation cloud duty five [2014] no. 100014 tax certificate, prove that the plaintiff on January 1, 2013 to December 31, 2013 to the bureau to pay taxes one $$hk suhuang spreading spreading Wan Jiu us $3 and pure Angle and pure. (2) the tax payment certificate no. [2014]100579 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2014 solstice on June 30, 2014 to the bureau seven thousand five hundred and ninety-nine thousand nine hundred and ninety-nine yuan nine cents. (3) the tax payment certificate no. [2015] no. 100174 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid a tax of nine thousand five hundred and nine thousand one hundred and twenty-two yuan sixty-eight cents to the bureau on July 1, 2014 and December 31, 2014. (4) the tax payment certificate no. [2015] no. 101552 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid tax on January 1, 2015 solstice on June 30, 2015 to the tax bureau seven thousand five hundred and twenty-two thousand six hundred and sixty-seven point four. (5) the tax payment certificate no. [2016]100274 issued by the state tax bureau of baiyun district, guangzhou, certifying that the plaintiff paid a tax of twelve million two hundred and thirty-six hundred and sixty-seven yuan nine cents to the tax bureau on July 1, 2015. (6) notice no. 00000724 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax of four thousand two hundred and twenty-nine thousand nine hundred and seventy-eight yuan eighty sixty cents to the bureau on January 1, 2014. (7) notice no. 00001248 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid the tax on July 1, 2014 and December 31, 2014 to the bureau, i.e., the tax amount of three thousand six hundred and fifty-eight thousand nine hundred and seventy-two cents. (8) notice no. 00003448 issued by the tax administration of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax of four thousand two million four hundred and twenty-seven thousand one hundred and forty cents to the bureau on June 30, 2015 on January 1, 2015. (9) notice no. 00004591 issued by the tax administration bureau of large enterprises of guangzhou local tax bureau certifies that the plaintiff paid tax twenty thousand nine hundred and eighty-one thousand nine hundred and thirty-three yuan forty seven to the bureau on July 1, 2015.
9. (2016) The Notarial Certificate no. 354 of Leifeng City Certificate proves the audit department's audit of the profits obtained by the plaintiff by using the brand "OPPEIN" and "OPPEIN", which proves the high value of the brand "OPPEIN" and "OPPEIN".
10. (2016) The Legal certificate of Laifengcheng Ziminzi No. 355, which proves that the plaintiff has carried out continuous publicity for the "Opai" brand through CCTV and Hunan SATELLITE TV, and proves that the "Opai" brand has been widely known by the public and has a high brand value. The specific content is as follows: (1), October 30, 2012, the plaintiff and the Beijing international advertising co., LTD. Signed on time boiling "swap space" domestic outfit funded 2013 cooperation agreement, this agreement is agreed on January 5, 2013 to December 28, 2013, 2 sets in CCTV's "exchange space" propaganda of the plaintiff brand, advertising for wu bai suhuang ten thousand yuan. (2), in July 2014, the plaintiff with hunan, hunan radio and television advertising corporation downwind media television project advertising co., LTD. Signed a contract, the contract on September 28, 2014 to October 12, 2014, in hunan TV's 10th golden eagle festival closing ceremony and awards section is relevant to the plaintiff, brand advertising for above ten thousand yuan. (3) on November 6, 2013, the TV advertisement release contract signed by the plaintiff and zhejiang zhimei auto advertising co., LTD., which stipulates that the plaintiff's brand shall be publicized on CCTV news channel on January 1, 2014 and the advertising fee shall be four thousand four hundred and sixty-three thousand nine hundred and seventy yuan. (4) on November 27, 2014, the sponsorship and cooperation agreement of 2015 "exchange space" home decoration fund signed by the plaintiff and Beijing ontime boiling international advertising co., LTD. The agreement agreed that on April 4, 2015 solstice on March 26, 2016, the plaintiff's brand would be promoted in the second set of "exchange space" column of CCTV, and the advertising fee would be six million yuan. (5) on October 22, 2014, the advertising agency contract signed by the plaintiff and kashgar yinsong culture media co., LTD., the agreement provides that on January 1, 2015, solstice, December 31, 2015, the advertising fee of the plaintiff shall be twenty-three million nine hundred and seventy thousand yuan for promoting the plaintiff's brand on the CCTV news channel.
11. (2016) The Notarial Certificate no. 356 issued by Lifeng City Certificate, which proves that the plaintiff spent a huge amount of money to hire the star Jiang Wenli to speak for "Europa" products, which further proves that the plaintiff spent a huge amount of money to promote Europa brand.
April 12, 2011, 21, 22, 25, 26, 28, 29, "linchuan evening news", published on August 26, 2011 issue of the "shenzhen special zone signs up for", on September 20, 2011, published on September 30, anqing daily, published in September 2010 years of the ambry in Shanghai ", published in June 2011, the sales and marketing management edition, published in April 2011 "ruili household", published in April 2014, decorate world magazine, prove that the plaintiff by the print media publicity, "European brand", It also proves that the plaintiff's original advertising slogan of "family, love and Europe" continues to use and publicize.
13. (2016) Notarial Certificate No. 224 (including the infringing material object sealed by the notary Office) and (2016) Notarial Certificate No. 443 (Laifengcheng Certificate No. 443), which prove the tort facts of the defendant.
14. There is one notarization fee note. The plaintiff claims 1,400 yuan in this case, which proves the plaintiff's reasonable expense in safeguarding his rights.
The court recognizes the authenticity of the evidence provided by the plaintiff as the basis for ascertaining the facts of the case.
Defendants Tingting Law and Achor Electric did not enter a plea.
The defendant GUANGDONG Opai argues that: 1. The defendant Guangdong Opai has never produced or sold any products, and the gas stove products involved are not produced, sold or authorized by the defendant Guangdong Opai to produce or sell any third party; 2. The defendant GUANGDONG Opai does not own any online shop, nor does it authorize the defendant Luo Tingting or any third party to set up an online shop and sell the products involved in the case. In this case, the products involved are counterfeit products of the company name and trademark of guangdong-Oriental School of the defendant. All the infringement behaviors of the plaintiff's notarization have nothing to do with guangdong-Oriental School of the defendant, and guangdong-Oriental School of the defendant is also a victim in this case. Since the torts in this case were not committed by the defendant Guangdongbei sect, the defendant Guangdongbei sect is not liable. At the same time, the defendant Guang Dong Pai reserves the right to pursue legal responsibility for the counterfeiting of the defendant Luo Tingting.
Ii. The trademark used by the defendant GUANGDONG Opo Group on the products involved is the registered trademark "OPAICN" No. 12124262. It obtained the legal trademark right as of July 21, 2014, and should be protected by law. Although the defendant Ting-ting Luo used the trademark of the defendant Guangdongfang Without the permission of the defendant GuangdongFang without authorization, the trademark is completely different from the trademark of the plaintiff, and both of them have obtained legal trademark rights, which does not constitute any trademark infringement to the plaintiff.
Three, in this case was complain of hard work tingting, though without the consent of the defendant guangdong opie, without authorization, using the defendant on product packaging enterprise name to guangdong, but the QiYeMing known as the industrial and commercial registration, legal and totally different from the plaintiff's enterprises subordinate to the industry, not constitute the unfair competition, the plaintiffs request stop using and change the company name. In this case, the plaintiff and the defendant belong to two different industries. There is no competitive relationship between the two enterprises, let alone unfair competition. (1) the defendant "guangdong science and technology co., LTD." of the enterprise name is April 30, 2014, guangdong province administration of industry and commerce approved size and formal registration and establishment, the font size for approval department of the enterprise name with the plaintiff belong to guangdong province administration for industry and commerce approved the registration department management, the plaintiff's "European" brand has won the award for the well-known trademark, industrial and commercial bureau of guangdong province have started to its famous trademark name protection, but still province administration of industry and commerce for approval of the defendant's enterprise size, prove the defendant's the company name and not completely to the plaintiff of the well-known trademark of any infringement or unfair competition, otherwise, The same industrial and commercial bureau could not agree to approve the defendant's use of the enterprise name and shop name. (2) The primary factor that constitutes unfair competition is that both parties are engaged in the same industry with a competitive relationship, and the unfair competition causes damage to the other party due to its unfair competition behavior. If both parties are engaged in different industries, there is no competition at all. In this case, according to the plaintiff's evidence, the plaintiff is engaged in trademark classification class 20 household industry, production and sales of the products are cabinets, wardrobe, and the defendant engaged in the technology industry, the electric equipment product that the product is class 11, both sides of the industry and the products are completely different, there is no peer competition, also not because of the industry and the production and sales of behavior to the plaintiff to the case production sales caused any damage or loss, therefore does not constitute a competitive relationship, nothing more proper or improper. (3) the plaintiff accused the defendant of the enterprise name involved constitutes unfair competition, which demand a ban on using the enterprise name, but through anti-unfair competition law to ban the use of enterprise name, must request the plaintiff's trademark or name in forbidden enterprise name used by industries and products have very high visibility and form the only correspondence. However, the plaintiff's evidence shows that all the production, sales, publicity and promotion of the plaintiff are limited to the cabinet and wardrobe products of category 20. The plaintiff has no production, sales and promotion of the electrical products involved, and has not formed any popularity. In addition, the evidence submitted by the defendant shows that what used the word "Opai" as the trademark to produce electrical products in the electrical appliance industry and had certain popularity was the washing machine products of "Opai" brand owned by Danone, which had been used for many years in the other case, but this "Opai" brand was not the "Opai" of the plaintiff. Thus it can be seen that the plaintiff's "Opai" brand has not formed a unique corresponding relationship in the electrical industry, and is not well-known, which is less well-known than The Opai brand of Danone. What qualification does the plaintiff have to ask the defendant to prohibit the use of this name in the electrical industry? (4) The plaintiff's "Opai" brand and name did not form a unique corresponding very high popularity not only in the electrical appliance industry involved, but also in other industries. The evidence of the defendant Guangdong Opai shows that the "Opai" brand electric vehicle of Opai Technology Co., Ltd. ranks the first in the electric vehicle industry in China. The brand image spokesperson of opAI electric vehicle is also Jiang Wenli. The door industry of "Opai" brand of Jiangshan Opai Company is a famous trademark in Zhejiang province. There are also opai paint, opai floor and so on. All of them have quite high popularity in their respective industries, but none of them has anything to do with the plaintiff. Moreover, the term "Eurofaction" was not invented by the plaintiff, but originally meant "European faction, western faction", which is often referred to as the product style of European faction or European and American technology in the industry. As a result, the term "European" is not an original and unique from the start, now also at the same time there are a number of different industries, "European brand" and "European" and a number of enterprise size, and popularity is quite high, therefore, the plaintiff's "European" brand did not reach to prohibit the defendant in completely different industries and products using the word as the name of the only corresponding high name recognition, the plaintiff suing for there completely irrational.
Iv. The term "Eurogroup" was not invented by the plaintiff, and the plaintiff has no exclusive right to use it. The word "Eurofaction" means "European faction, western faction" and is often referred to as the product style of European faction or European and American technology in the industry. As a result, the word "Europe" is not an original and unique, from the start and at the same time in the market now is there are a number of different industries, "European brand", "European" word registered trademark and more than to "Europe" as the size of the business enterprise size, and popularity is quite high, therefore, the plaintiff's "European" and real "European" brand on the market and text completely did not reach one-to-one high uniqueness and high visibility, more have not reached "anti-unfair competition law" regulation can prohibit the defendant guangdong opie in completely different industries and products using the word as a condition of font size, The plaintiff's claim is completely groundless and groundless.
Five, the product is marked "guangdong opie technology co., LTD." and so on general public information, but this information can get, through public via unauthorized use by others easily, and the defendants guangdong opie didn't authorize the super electrical use the enterprise name, both sides does not exist any relationship between producer, so the defendant guangdong opie does not exist the possibility of any manufacturing or participate in manufacturing the product involved.
Vi. The defendant Guangdongpai of this case did not authorize the defendant Achao Electric to use the enterprise name of the defendant Guangdongpai. However, this is an internal problem between defendant GUANGDONG Opai and defendant Yachao Electric, which has nothing to do with the plaintiff. From a legal perspective, the defendant and the super electric in the involved products while without the consent of the defendant in guangdong opie annotate "guangdong science and technology co., LTD." company name, but its means of the use of the enterprise name are very formal, without any violation, the product does not pose any trademark infringement or unfair competition to the plaintiff
In conclusion, in this case, the product is a fake the defendant involved guangdong trademark and enterprise name of counterfeit products, the guangdong opie didn't implement any copyright infringement charges by the case of the plaintiff, neither the infringing act, there is no infringement responsibility, therefore, the defendant guangdong opie does not pose any trademark infringement or unfair competition to the plaintiff, the plaintiff to the defendant the guangdong opie filed for there are also please be all rejected.
The defendant, The Quaker, provided the following evidence in the proceeding:
1. Trademark certificate. It is proved that the trademark of the plaintiff is not used on the products involved. The trademark used on the products involved is registered trademark No. 12124262, which obtained the legal trademark right as early as July 21, 2014. The trademark used on the products involved does not infringe any trademark right of the plaintiff.
2. Enterprise information and profile of Jiangshan Oupai Door Industry Co., LTD. Proved that the "European" trademark is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", the registered trademark of jiangshan European door industry "European" brand wooden door, began in 2006, in 2009 won the title of "Chinese wood door industry 30 strong, brand-name products in zhejiang province in 2010 won the title, in 2012 won the title of" famous trademark of zhejiang province, to prove "European" brand on the market several coexistence is the indisputable fact that, and the plaintiff's pie even if is not the only has a high level of popularity in the industry of household, jiangshan European wood door in the household popularity is higher than the plaintiff on the wooden door, Besides, the brand image spokesperson of Jiangshan Oupai Wooden door is also Jiang Wenli, and the "Oupai" brand of the plaintiff has not formed a unique corresponding high popularity in the household furniture market, not to mention the electrical industry involved in the production and sales of the plaintiff. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.
3. Enterprise information and profile of Wuxi Shengbao Vehicle Manufacturing Co., LTD. This is to certify that the company's registered trademark "Opai" brand electric vehicle, started production in 1996, is now ranked the first brand in China's electric vehicle industry for several consecutive years. Proved that the "European" trademark is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market more than coexistence is the indisputable fact that the plaintiff's "European" brand not only corresponds to a high popularity in the market, not to mention in the plaintiff have not production and sales of electrical appliances industry. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.
4. Enterprise information and profile of Suzhou Suou Wood Industry Co., LTD. Prove the registered trademark of the company 2002 "European" brand floor, floor is one of the top ten famous brand for the Chinese household, prove that "European" brand is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market many coexistence is the indisputable fact that, and the plaintiff's pie even in household industry not only has a high visibility, Sue the European wood industry "European" brand floor in the household popularity is on the floor above the plaintiff, the plaintiff's "European brand" in its home market, did not form the corresponding high name recognition, Not to mention the electronics industry in which the plaintiffs did not produce and sell the products. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.
5. Enterprise information and profile of Henan Oupai Electric Appliance Co., LTD. It is proved that Opai is a subsidiary of Danone, a well-known enterprise in the electrical industry, specializing in the production of "Opai" brand washing machines, whose brand is far more well-known in the electrical industry than the plaintiff's "Opai". It is proved that "Opai" trademark is not a unique plaintiff, nor is it only the plaintiff's "Opai" famous, it is an indisputable fact that "Opai" trademark coexists in the market. The plaintiff has never carried out production and sales promotion in the electric appliance industry, and has no popularity in the electric appliance industry. The popularity of "Opai" in the electric appliance industry belongs to the "Opai" brand of the Henan Opai Electric Appliance Company. As a result, the appliance store in this industry more than the plaintiff has involved, "European" 2 words of trademark, and other home better-known the plaintiff, as a result, the plaintiff has not formed in the industry of appliance stores involved only corresponds to a high enough profile, the plaintiff asked to unfair competition to ban the use of the defendant on the products of different industries there is unreasonable, to expand the scope of protection.
6. Opai coating chemical Company, Opai leather Goods Company, Opai Machinery Company and other enterprise information and introduction. Proved that the "European" brand paint, "European" brand leather goods, "European" brand machinery is used, "European" two characters as a product brand, but is not the plaintiff's trademark, prove that "European" brand is not the plaintiff a unique, is not only famous for one thing: the plaintiff's "European", "European" brand on the market more than coexistence is the indisputable fact that the plaintiff's "European" brand not only corresponds to a high popularity in the market, not to mention in the plaintiff have not production and sales of electrical appliances industry. Therefore, the plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless, which is to expand the scope of protection without authorization.
7. Use the word "Opai" as a series of enterprise information. It is proved that in addition to the plaintiff's enterprise name, there are still a large number of enterprises in various industries which have been officially approved and registered by the Industrial and commercial Bureau and use the word "Eurogroup" as the enterprise name, which are legally existing. It is an indisputable fact that "Opai" coexists with many companies on the market as the enterprise name. Even if the plaintiff is a well-known trademark on the cabinet and wardrobe products of home, it can be used legally in different industries and products, and the plaintiff cannot expand the scope of protection without authorization. Therefore, the name involved in the case of the defendant is legal and should be protected by law. The plaintiff's request to prohibit the defendant's use of products in different industries by unfair competition is unreasonable and groundless.
8. A series of trademark information that USES the word "Opai" as a trademark and has obtained the exclusive right of registration. It is proved that in addition to the plaintiff's trademark of "Opie", there are still 58 registered trademarks of various classes which use the word "Opie" as trademarks and are legally existing. Prove "Europe is sent" 2 words serve as trademark to coexist on the market many it is indisputable fact, even if plaintiff is on the ambry that lives in, chest product is well-known trademark, but go up in different industry and product also can be used lawfully, plaintiff cannot expand protection limits without authorization. Therefore, the defendant's font size is legal and should be protected by law. The plaintiff's request to prohibit the defendant from using the font size in different industries is unreasonable and groundless.
9. A series of reports on serious quality problems of the plaintiff's "Opai" brand cabinet products. It proves that the publicity of the plaintiff's "Opai" brand cabinet and other products is not worthy of its name, and its product quality has serious problems and is resisted by consumers. Its "Opai" brand does not have the high reputation claimed by the plaintiff, so the defendant does not need to attach its brand reputation.
10. Civil Judgment of Guangzhou Intermediate People's Court (2014) guangzhou Zhongfa Zhi Minchu Zi No. 310. An enterprise name that is certified to be identical with the distinctive logo in another person's registered trademark is lawfully registered and established, and the standardized use of the enterprise name shall not constitute an infringement upon the exclusive right to use the said trademark. An enterprise name which has the same shop name as the name of another enterprise registered for establishment shall be registered and established in accordance with the law, and the standardized use of the enterprise name shall not constitute unfair competition against the said enterprise name.
11. Corporate credit information of The defendant Guangdong Opai Technology Co., LTD. It is proved that the registration place of the defendant Guangdong Opai Technology Co., Ltd. is No. 313 6-3, No. 22, Liitang Road, Shangjia City, Ronggui Street Office, Shunde District, and the business site is only a commercial office building in a busy area, which does not have the conditions for producing household appliances.
12. (2017) Notarial Certificate No. 33763, Foshan Shunde, Guangdong It is proved that the business site of the defendant Guangdong Opai Technology Co., Ltd. is located in the Yongcase Complex building, which is an office building and does not have the premises, equipment, materials and other conditions necessary for the production of home appliances. The products involved are not produced by the defendant.
13. Europa Home Furnishing Group Co., LTD. It is proved that the plaintiff publicized and promoted kitchen cabinets, wardrobs, sanitary ware, household furniture, European wood doors, bedding and wallpaper, but not kitchen appliances. It is proved that the defendant Guangdong Opai Technology Co., Ltd. and the plaintiff operated in different industries, and there is no competitive relationship between the two parties.
14. Shop facade of Opai Home Furnishing Group Co., LTD. It is proved that the plaintiff's shop facade is operated by cabinets and closets, and that the defendant Guangdong Opai Technology Co., Ltd. and the plaintiff operate in different industries, and there is no competitive relationship between the two parties.
The court certifies the evidence submitted by the defendant GUANGDONG Opai as follows: The relevance with this case is evaluated in the following way by combining the evidence of the whole case.
On the basis of admissible evidence and the parties' statements, the Court ascertained and confirmed the following facts:
(I) Opie Group, founded on July 1, 1994, is a joint-stock company engaged in furniture manufacturing.
On June 7, 2007, guangzhou opie ambry enterprise co., LTD., by the state administration for industry and commerce trademark office (hereinafter referred to as the trademark bureau) for approval the registration no. 4378572 "European" registered trademark, shall use commodities for 11 class gas furnace, microwave oven (kitchenware), electric cooker, baking equipment, cooking utensils, faucets, bathroom equipment, disinfect cupboard, water filter, wash one's hands basin (sanitary equipment parts), sauna, sitz bath tub and shower equipment, in the rain compartment, wash tub, sit implement, kitchen smoke lampblack machine, lamp (as), Registration is valid from June 7, 2007 to June 6, 2017. Then the name of the registrant of the trademark is changed to Opai Home Furnishing Group Co., LTD.
In September 2007, Opai cabinet products were rated as China's famous brand by the General Administration of Quality Supervision, Inspection and Quarantine. In October 2008, Opai cabinet products were rated as guangdong famous brand products by Guangdong Quality Supervision Bureau. In February 2008, the plaintiff's trademark no. 1128213 "Opai" was a famous trademark of Guangdong Province on the sideboard and was ×× ×. On April 24, 2009, the trademark "Opai" on the category 20 sideboard goods of the plaintiff was identified as a well-known trademark by the Trademark Office.
(II) On January 20, 2016, wang Shouzhen, the entrusted agent of the plaintiff, applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. In notarial personnel under the supervision of, and the king kept the chastity notary office computer, connected to the Internet in the computer, to buy the "taobao" website bought a shopkeeper called "qq11 XXX 33" "nutrition cuisine life electric appliance store sales of oil absorption, kitchen burning gas, shou-zhen wang in the process of operation related to the relevant page for screenshots, and video to the whole process. On January 28, 2016 in notarial personnel, under the supervision of shou-zhen wang lai city xiangshan road in laiwu city in shandong province to sign for the "YunDa Courier express", respectively, marked with "household gas stove", "near suction range hood", the word "embedded cleaning disinfection cupboard" of the three pieces of goods, shou-zhen wang will the above three items are open the photo. The OPAICN box with the words "Household gas cooker" contains a gas cooker with the words "OPAICN Guangdong Opai Technology" and a copy of the OPAICN manual. Then the notary staff sealed the above articles with the seal of the notary office, and delivered the sealed articles and logistics documents to Wang Shouzhen for safekeeping.
On February 3, 2016 in laiwu city in shandong province FengCheng notary office staff, under the supervision of the king kept the chastity notarization to computer, the computer connected to the Internet, on the "taobao" website to buy the shopkeeper called "qq11 XXX 33" "nutrition cuisine life electric appliance store sales of oil absorption, kitchen burning gas deal page browsing process, web page" embedded in guangdong opie dream blue gas burner gas stove ", such as a shou-zhen wang in the process of operation related to the relevant page for screenshots, and video to the whole process. Fengcheng Notary Office of Laiwu city, Shandong Province supervised the above purchase and receiving process, and issued the (2016) Fengcheng Notary Office of Laiwu City, Minzi No. 224. In the purchase order information above, the real name of the seller "QQ11 ××33" is Luo Tingting.
On March 19, 2016, wang Shouzhen, the entrusted agent of the plaintiff, applied to Fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation. In notarial personnel under the supervision of, shou-zhen wang to ordinary buyers alex arrived in ronggui, shunde district, foshan city, China in the name of the street west road no. 18 in the north on the second floor of the super electric co., LTD., foshan city, "", shou-zhen wang within the company office, a self-proclaimed" Li Fengling "a salesman for the card (handwritten have QQ number is XXX, 21, 19 have a phone number, fax, the company address and other information), product brochures two books, and to the company location, etc. On March 19, 2016 in notarial personnel, under the supervision of the king kept the chastity notarization to computer, the computer connected to the Internet, and QQ number is XXX 21 19 users chat, recognized the user as "miss the super electrical Li Fengling" foshan city, the chat records, according to the users to send "opie packaging" file and verify the amount of processing production companies to help others. Fengcheng Notary Office of Laiwu city, Shandong Province supervised the above process and issued the notary Certificate of Laifeng City Certificate No. 443 (2016).
In trial, plaintiff opened the product that afore-mentioned notarization bought in court, plaintiff charges the tort product of this case is gas stove. The front and rear sides of the outer packing case and the product panel are marked with the words "Guangdong Opai Technology", and the left and right sides of the outer packing and the product instructions are marked with the words "Guangdong Opai Technology Co., LTD"; Also marked "Manufacturer: Foshan Yachao Electric Co., LTD., fax and service hotline", which the plaintiff believed constituted unfair competition. The pictures of the defendant, Tingting Law, made extensive use of the words "Opie", which the plaintiff believed constituted trademark infringement. Plaintiffs believe that after being accused of infringement product packaging, manual annotation with the wording "guangdong opie technology co., LTD." and "manufacturers and super electric co., LTD., foshan and fax, service hotline" and so on, so by the defendant is accused of infringement product department in guangdong Europe clique and the super electrical production, so the defendant guangdong opie and the super electric constitute ACTS of unfair competition. In addition, the proprietor of the Taobao website named "QQ11 ×××33" recorded in the notarial certificate is the defendant, Tingting Law, who used the word "Opai" in a large number of online store advertisements and sold products. Therefore, the defendant, Tingting Law, constituted trademark infringement and unfair competition.
The defendant guangdong opie denied kitchen burning gas is produced by the accused of infringement, it considers notary to buy kitchen burning gas packaging is labeled "guangdong science and technology co., LTD." of the enterprise name, but belong to fake the defendant of guangdong opie products, marked on the outer packing "manufacturer: foshan super electric co., LTD., and fax, service hotline", not the defendant guangdong pie. Meanwhile, the defendant Guangdong Opai did not authorize others to produce the alleged infringing products, nor did the defendant Luo Tingting open an online store to sell the alleged infringing products. Except for the defendant's general information such as the company name and trademark, the plaintiff has no material evidence to prove that the alleged infringement is related to the defendant's company name and trademark.
The court holds that this case is a case of infringement of the right to exclusive use of trademarks and unfair competition disputes. Combined with the plaintiff's accusations against the three defendants, the court makes the following comments:
1. Whether the defendant Ting-ting Law infringed the plaintiff's right to exclusive use of the registered trademark involved in the case.
The trademark law of the People's Republic of China (hereinafter referred to as the trademark law) article 48 states: "the use of trademark referred to in this law refers to the trademarks to commodities, commodity packaging or containers and trading documents, or the trademarks used in advertising, exhibitions and other commercial activities, behavior" is used to identify the sources of. (1) Using a trademark identical with a registered trademark on the same kind of goods without the permission of the registered trademark owner; (2) using, without the permission of the trademark registrant, a trademark similar to its registered trademark on the same good s or a trademark identical with or similar to its registered trademark on similar good s, which is liable to cause confusion... ." According to the supreme people's court on some issues of applicable law in trademark civil dispute cases interpretation of article 9, the provisions of article 10, in trademark infringement cases that advocate for the rights of accused of infringement identification and whether the registered trademark constitutes approximation, should regard trademark or its constituent elements involved significant degree, market popularity, such as the specific circumstances, in the consideration and comparison form, pronunciation and meaning of the text, graphic composition and color, or on the basis of the combination of elements of the structure, the whole or the major part is the possibility of market confusion to comprehensive analysis and judgment.
According to the facts found in this case, the plaintiff's registered trademark No. 4378572 is approved to be used in the 11th category of goods, including gas stove. The product accused in this case is gas stove, which belongs to the same kind of goods. Be complain of hard work tingting in taobao shop promises to sell kitchen burning gas is used in the product page "embedded in guangdong opie dream blue kitchen burning gas gas cookers" wording, such as product introduction, is accused of infringement of identity "European" and advocate for the rights of the plaintiff compared to no. 4378572 "European" registered trademark, the pronunciation and meaning are the same, while the former is simplified Chinese which is traditional Chinese characters, but for the use of Chinese characters, no substantial difference, the relevant public to general attention easily confused between the two. Therefore, the court finds that the use of the "Europa" logo on the website by the defendant Tingting Law is similar to the trademark involved in the plaintiff's claim of rights. According to the above legal provisions, without the permission of the trademark registrant, the defendant Ting-ting Law used the same and similar trademarks in the promised sales of the products, which constituted trademark infringement.
, whether the defendant Tingting Law and the defendant Yachao Electric constitute unfair competition. Article 2 of the Law of the People's Republic of China against Unfair Competition reads: "In market transactions, business operators shall follow the principles of voluntariness, equality, fairness, honesty and credibility, and observe universally recognized business ethics." . Article 5 stipulates: "Business operators shall not engage in market transactions and harm competitors by the following improper means:. (3) to use, without authorization, the enterprise name or name of another person, thus causing it to be mistaken for another person's goods; ." . According to the supreme people's court on the trial of civil dispute case applicable law of unfair competition, the explanation of some issues of article 6 of the regulation, the enterprise registration authority in accordance with the registered enterprise name, and for commercial use within the territory of China, foreign (regional) enterprise name shall be identified as (3) of article 5 of the anti-unfair competition law "enterprise name" prescribed in item. The shop name of an enterprise that has a certain market popularity and is known to the relevant public may be identified as the "enterprise name" prescribed in Item (3) of Article 5 of the Anti-Unfair Competition Law. This case, "Europe" is the font size in the plaintiff opie group enterprise name, the plaintiff opie group 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 and the plaintiff opie group "European" font size across the country have high visibility, and by the relevant public know, belong to (3) of article 5 of the anti-unfair competition law "enterprise name" prescribed in item. Plaintiff opie group'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" protection, complain of hard work tingting in sales, the defendant of super electrical products and packaging, instruction to use the "guangdong science and technology co., LTD." with the words "" guangdong science and technology, easily mistaken for the sales of the products and make the relevant public there is a link between the plaintiff opie group, easy to make the relevant public source for products cause confusion and mistakes, damage the legitimate rights and interests of the plaintiff opie group, 2 the defendant's act clearly violates the law of the People's Republic of China against 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 rights of the plaintiff opie group enterprise name, belongs to the ACTS of unfair competition, the defendant shall bear tort liability.
Whether the defendant violated the plaintiff's right to exclusive use of the registered trademark and constituted unfair competition.
The plaintiff accused the defendant of guangdong opie infringement fact is: is accused of infringement of kitchen burning gas carrying on outer packing carton, products, product manuals "guangdong science and technology co., LTD.", "guangdong science and technology" and "manufacturer: foshan and super electric co., LTD. And fax, service hotline" and other words, it is complain of hard work tingting kitchen burning gas sold by Europe clique, the accused and the defendant guangdong super electrical production sales; The defendant guangdong Opai denied being accused of infringement by the production and sales of gas stoves, that others falsely used its business name and trademark. We think, is accused of infringement product outer packing mark has the wording "guangdong opie technology co., LTD.", is the same as the defendant guangdong opie enterprise name, but as a result of enterprise name belongs to the known information, there is the possibility of being fake, therefore, directly in the plaintiff failed to prove the defendant guangdong opie the presence of production sales is accused of infringing products, we can't only according to the accused of infringement product labeling information and it is concluded that the product is the guangdong opie production sales. In other words, only with the existing evidence, can not determine the accused of infringement gas stove products by the defendant guangdongfang production sales, can not determine the defendant GuangdongFang to carry out the accused infringement ACTS. Therefore, the plaintiff should bear the legal consequence that proof cannot.
Therefore, the plaintiff failed to provide evidence to prove that the defendant guangdong Opie carried out the production and sale of the alleged infringing products, so the plaintiff's accusation of trademark infringement and unfair competition against the defendant Guangdong-Opi lacks factual basis, and the court does not support it.
About the civil liability borne by the defendant Luo Tingting and the defendant Yachao Electric
Ren.
According to Article 118 of the General Principles of the Civil Law of the People's Republic of China, a citizen or legal person whose right to exclusive use of a registered trademark has been infringed upon shall have the right to demand that the infringement be stopped and that the loss be compensated for.
Based on the above analysis of whether the defendant constitutes infringement, the plaintiff was filed for complain of hard work tingting to immediately stop using the web, "European" and stop selling marked "guangdong science and technology co., LTD." "guangdong science and technology" on the infringement of kitchen burning gas, the defendant and the super electric stop production sales marked "guangdong science and technology co., LTD." "guangdong science and technology" on the tort lawsuit of kitchen burning gas, Yu Fayou according to, our support. The plaintiff sued the defendant guangdong Opai to stop the production and sale of gas stoves marked with the words "Opai" and "Guangdong Opai Technology Co., LTD". As mentioned above, the court does not support the plaintiff's accusation without factual basis.
On the issue of the determination of the amount of compensation in this case. According to the provisions of The first and third paragraphs of Article 63 of the Trademark Law, "The amount of compensation for the infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the right holder due to the infringement; Where the actual loss is difficult to determine, it may be determined in accordance with the profits the infringer has gained from the infringement; Where it is difficult to determine the losses of the right holder or the profits of the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the interests gained by the infringer as a result of the infringement, or the licensing fee of the registered trademark, the people's court shall, in light of the circumstances of the infringing act, make a judgment to compensate the obligee not more than THREE million yuan ". This case the plaintiff did not proof to prove the actual losses and be complain of hard work tingting, the defendant and the illegal income of super electric, we consider the plaintiff brand well-knownness, be complain of hard work tingting, the defendant and the subjective intent of super electric, infringement plot, business scale, is accused of infringement product sales, and other factors, he was complain of hard work tingting compensate the plaintiff for the economic loss of 30000 yuan to the plaintiff, the defendant and the electric compensation of economic loss of 70000 yuan, the compensation has been including reasonable expense for the rights to the case. The excessive portion of the plaintiff's claim was dismissed. The court does not support the plaintiff's claim that the defendant Guangdong Opai compensates for the economic loss.
After being legally summoned by the court, the defendant Luo Tingting and the defendant Yachao Electric refused to appear in court to answer the lawsuit without justified reasons, which was deemed as waiving the right of defense, and the court made a judgment by default according to law.
In conclusion, according to paragraph 1 of article 3 of the "trademark law of the People's Republic of China", article 57, paragraph 1 of article sixty-three, paragraph 3, the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation articles 9, 10 and 16, the civil procedure law of the People's Republic of China, of the first paragraph of article sixty-four, the provisions of article one hundred and forty-four of the judgment by default is as follows:
Be complain of hard work tingting since the day of the enforcement of this decision immediately stop the infringement of the plaintiff's pie furniture group co., LTD. No. 4378572, "European" use of a registered trademark of act, which stopped when the sales page to use the words "European" and stop selling contains "guangdong science and technology co., LTD." "guangdong science and technology" of kitchen burning gas;
2. The defendant, Foshan Yachao Electric Co., Ltd. immediately stopped producing and selling gas stoves bearing the words "Guangdong Opai Technology Co., LTD." and "Guangdong Opai Technology co., LTD." as of the effective date of this judgment;
Iii. Within 10 days from the effective date of this judgment, defendant Luo Tingting shall compensate the plaintiff Opai Home Furnishing Group Co., LTD for the economic loss of RMB 30,000 (including the reasonable expenses paid by the plaintiff Opai Home Furnishing Group Co., LTD to stop the infringement in this case);
Iv. The defendant, Foshan Yachao Electric Co., Ltd. shall, within 10 days from the effective date of this judgment, compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of 70,000 yuan (including the reasonable expenses paid by the plaintiff, Opai Home Furnishing Group Co., LTD., to stop the infringement in this case);
V. Rejecting other claims of the plaintiff opai Furniture Group Co., LTD.
If the defendant Luo Tingting and the defendant Foshan Yachao Electric Co., Ltd. fail to perform their pecualpayment obligations within the period specified in this judgment, they shall, in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China, pay double interest on the debt for the delayed period.
The handling fee of this case is 13,800 yuan, 1,000 yuan borne by the defendant Luo Tingting, 2,800 yuan borne by the defendant Foshan Yachao Electric Co., Ltd. and 10,000 yuan borne by the plaintiff Opai Home Furnishing Group 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 a copy according to the number of the other party, and appeal to the Intermediate People's Court of Foshan, Guangdong.
Chief Judge Wu Zhanhong
People's Juror Chen Huiyu
People's Juror Ho Wing Chun
November 8, 2017
Clerk Yan Yongyu