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. 1048, 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: Huang Qi (former name: Huang Qi), male, Han Nationality, born on April 3, 1989, living in Xizong County, Sichuan Province.

    The plaintiff Opai Home Furnishing Group Co., LTD. (hereinafter referred to as Opai) and the defendant Huang Qi infringed the trademark right and unfair competition dispute. After the court accepted the case, it formed a collegial panel and held a trial in public. Wang Ning, the authorized agent of opai, attended the lawsuit. Huang Qi, the defendant, was summoned by the court, but refused to attend the court proceedings without justified reasons. 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 that the defendant used the word "Opai" in a large number in his online store to sell range hoods marked with the words "Guangdong Opai Technology Co., LTD". The plaintiff entrusts a notary office to preserve evidence for the defendant's behavior. The plaintiff thinks that the defendant USES the word "Opai" in his online store without authorization, which infringes upon the plaintiff's right to exclusive use of the registered trademark. As the operator, the defendant sold the lampblack machine marked with "Guangdong Opai Technology Co., LTD" without authorization, which violated the principle of good faith and recognized business ethics and constituted unfair competition for the plaintiff. To sum up, we hereby request the court to order: 1. The defendant immediately stops using the word "Opai" in its online store to infringe the trademark right of the plaintiff; 2. 2. The defendant immediately stopped selling range hoods bearing the words "Guangdong Opai Technology Co., LTD"; 3. The defendant shall compensate the plaintiff a total of 300,000 yuan for economic losses and reasonable expenses for safeguarding their rights; The costs of this case shall be borne by the defendant.

    The defendant, Huang Qi, made no reply and did not submit any evidential materials to the court within the time limit for evidential evidence.

    Trial found that: "the no. 4378572", the trademark registrant is a European hutch ark enterprise co., LTD., shall be used for class 11 goods, including gas furnace, microwave oven, kitchen utensils), electric cooker, baking utensils, cooking utensils, sterilized kitchen cupboards, 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-00001907. The author was Liang Zhaotang.

    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, the 2012 guangzhou market award honorary certificate, 2014 guangdong top ten most valuable brands home field, 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. On November 14 of the same year, under the supervision of the notary staff, Wang Shouzhen bought a range hood from the "Shuya Electric Appliance" shop named "h45X" on Taobao.com by using the computer connected to the Internet in the "7 Days Chain Hotel" in Baiyun District, Guangzhou by using the notary office. On November 19 of the same year, Wang Shouzhen signed at the gate of "7 Days Hotel Chain" in Baiyun District, Guangzhou city for a piece of goods sent by a Courier of "Deppon Express", whose package was in good condition and marked with the words "Guangdong Opai Technology Co., LTD. (supervision)". The tracking number was "6309X". Wang Shouzhen will open the above goods box, there is a range hood, a manual, a warranty card. On the same day, Wang Shouzhen confirmed the receipt of the order no. 279668X on Taobao.com, using a computer connected to the Internet by the notary office in the 7 Days Chain Hotel in Baiyun District, Guangzhou. On December 26, 2016, Shandong Liaocheng Luxi Notary Office issued a notarial certificate no. 3788 (2016), 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.

    The attachment of the notarial certificate can be seen: the front page of the shop name of Taobao.com is "Shuya Electric Appliance", and the words "Shuya Electric Appliance Flagship store" are displayed below the shop name; "Range Hood" and other products are displayed below the store name; Among them, the key word of the title is "European lampblack suction lampblack machine Chinese double electric oil smoke machine wall hanging lampblack machine special top suction type smoke machine" the commodity price is 759 yuan, the display trades successfully 286, accumulative total comment 524. After being opened and notarized in court, the sealed goods contained a range hood. Opai said in court that there were "Guangdong Opai Technology co., LTD" and "Guangdong Opai Technology" on the front of the outer package, instructions, quality guarantee card and product panel, and "Opai" on the sales receipt. Meanwhile, Huang used the word "Opai" extensively in his online store and sold the goods accused of infringement, which constituted trademark infringement and unfair competition.

    Opai submitted a copy of the invoice for notary fee (the amount is 25000 yuan), and said in court that it only claims notary fee 500 yuan in this case.

    Another check: Zhejiang Taobao network Co., LTD., issued a letter of information disclosure, record member name "h45X" the real name of the member for Huang Qi, ID number for, and the identity information of the defendant in this case 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 Huang Qi's behavior constitutes trademark infringement. According to member information disclosed by Zhejiang Taobao.com Co LTD, the taobao shop nicknamed "h45X" for notarization and forensics was started by Huang Qi. According to the record in the attachment of the notarial certificate, the sealed goods were purchased from the online store involved in the case run by Huang Qi. Within the period of proof proof, Huang Qi did not provide evidence to the contrary to overturn the notarial certificate. Therefore, the court accepts the above facts. The approved scope of the registered trademark of "Opai" no. 4378572 is category 11, including gas stove, disinfecting cupboard, kitchen range hood, etc., which is the same as the category of goods sold by the online store involved in the case that notarized and obtained evidence, and the range hood goods that were notarized and sealed. The title of the goods on the online shop in question used the word "Opai", which is basically the same as the registered trademark of "Opai" no. 4378572. Combined with the company shall enjoy the right to the exclusive use of a trademark of visibility and reputation of the registered trademark involved Huang Qi as long-term sale hutch defends bath goods such as online store operators, is supposed to know the company and its "European" brand products, within the time limit of proof, Huang Qi not proof to confirm its use in online stores involved "European" legal authorization, so we decided that Huang Qi used in online stores involved "European" behavior, violation of opie company enjoys no. 4378572 "European" use of a registered trademark, shall bear tort liability.

    The question is whether Huang's actions constitute unfair competition. European company was founded in July 1, 1994, and has been used since the "European" font size, combined with the company to submit the certificate of honor, 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. Accused of infringing goods with a "guangdong opie technology co., LTD." with the words "" guangdong science and technology, although the goods the name of the annotation of enterprise itself has no justification, the infringement of the right to enterprise name of European companies, but Huang Qi is accused of infringing goods the seller only, and is not accused of infringing goods producers, to relevant general public attention is hard to distinguish whether the sales related products infringe on the others' right to enterprise name, so Huang Qi act doesn't constitute unfair competition, its only stop selling was accused of infringing goods oil absorption.

    To sum up, opai now requests Huang Qi to stop using the word "Opai" on its online store website, stop selling the range hood of the accused infringing goods, and compensate for the losses caused by his trademark infringement. The court supports the lawsuit based on the law.

    About the amount of compensation. The cost of purchasing the accused infringing goods claimed by Opie is proved by notarization and supported by the court. The notarization fee, lawyer's fee, travel expenses, etc. claimed by the court are not verified by the original documents, but considering that Opai has indeed notarized evidence collection and appointed lawyers to appear in court to answer the lawsuit, the court gives appropriate support to the reasonable part of the above expenses. 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 Huang Ji infringement, so we consider the fame of the trademark involved in the attitude, subjective fault and error correction of the infringer, the types of tort forms, is accused of infringing goods, price and sales quantity, during the period of infringement, consequences, and the reasonable expenses of the rights in stopping the infringement behavior, etc., as appropriate and determine the amount of compensation for 100000 yuan (including the reasonable expenses). Huang Qi was subpoenaed by the court and refused to attend the proceedings without justified reasons, which was deemed as a waiver of his right to defend himself, and the court made a 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, 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. On the effective date of this judgment, defendant Huang Qi immediately stopped using the words "Opi" on the website of his Taobao store "h4X";

    2. On the effective date of this judgment, defendant Huang Qi immediately stopped selling the range hood products with the words "Guangdong Opai Technology Co., LTD";

    3. Within 10 days from the effective date of this judgment, defendant Huang Qi shall compensate the plaintiff Opai Home Furnishing Group Co., LTD for the economic loss of RMB 100,000 yuan (including reasonable expenses);

    Iv. Other claims of the plaintiff, Opai Furniture Group Co., LTD., shall be rejected.

    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 5,800 yuan, which is 3,866 yuan borne by the plaintiff Opai Home FurnishGroup Co., LTD., and 1,934 yuan borne by the defendant Huang Qi (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 part of the expenses borne by the defendant Huang Qi shall be paid directly to the plaintiff 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 Lin Guangqun

    People's Juror Chen Jingrong

    August 10, 2017

    Clerk Wong Kam-hung