Civil judgment of Xiuzhou District People's Court in Jiaxing City, Zhejiang Province

    Xiuzhou District People's Court of Jiaxing City, Zhejiang Province

    Written judgment of civil affairs

    (2018) No. 5459, Zhejiang 0411, Early Republic of China

    Plaintiff: Opai Home Furnishing Group Co., LTD. Domicile: No. 366, Guanghua 3rd Road, Baiyun District, Guangzhou City, Guangdong Province. Unified social credit code: 91440101617404697C.

    Legal representative: Yao Liangsong, chairman of the board.

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

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

    Defendant: Hongda Ceiling material store, Fuxing District, Handan City. Address: No. 55-56, Wanfeng Building Materials City, Fuxing District, Handan city, Hebei Province.

    Operator: Yuan Pengtao, male, born on March 12, 1989, Han Nationality, living in Linzhang County, Handan city, Hebei Province.

    Defendant: Jiaxing Budweiser Electric Co., LTD. Domicile: No. 30, Group 9, Fengzhen Village, Wangdian Town, Xiuzhou District, Jiaxing, Zhejiang. Unified social credit code: 91330411307472221K.

    Legal representative: Li Fei, Executive Director.

    Agent AD litem: Li Yun, lawyer of Zhejiang Development Law Firm.

    Defendant: Li Fei, female, born on February 4, 1986, Han Nationality, residing in Banan District, Chongqing.

    Agent AD litem: Li Yun, lawyer of Zhejiang Development Law Firm.

    Plaintiff opie household group co., LTD. (hereinafter referred to as the plaintiff and the defendant handan Renaissance zone grand condole top material outlets (hereinafter referred to as the grand outlets), jiaxing budweiser electric appliance co., LTD. (hereinafter referred to as budweiser company), Li Fei the infringement trademark rights disputes, dispute case of unfair competition, in our hospital in 2018 November 14 Hitachi after, in accordance with the applicable normal procedure. On January 22, 2019, the Japanese court held a public hearing of the case. The plaintiff entrusted wang Ning, an agent AD litem, and the defendant, Budweiser And Li Fei, jointly entrusted Li Yun, an agent AD litem, to attend the court proceedings. The defendant, Hongda Store, was summoned and refused to attend the court without justified reasons. The case has now been concluded after deliberation by the collegial panel.

    The plaintiff filed a lawsuit to the court: 1. The defendant was ordered to stop the trademark infringement immediately by Hongda Store, that is, stop the sale of the bath bully marked "Opi"; 2. 2. Order Hongda Store to stop unfair competition immediately, that is, to stop the sale of bath Bully labeled as "Opai Integrated Ceiling (Zhejiang) Co., LTD"; 3. Ordered the defendants Budweiser Company and Li Fei to immediately stop the trademark infringement, that is, to stop the production and sale of the bath Bully marked with the word "Opai"; 4. Ordered the defendants Budweiser Company and Li Fei to immediately stop unfair competition behavior, namely to stop the production and sale of The Bath Bar labeled as "Opai Integrated Ceiling (Zhejiang) Co., LTD"; 5. Ordered the three defendants to compensate the plaintiff for economic losses and reasonable expenses of safeguarding their rights in this case, totaling 200,000 yuan; Order the three defendants to bear the costs of the case.

    Facts and Reasons: The plaintiff is the registered trademark owner of class 11 "OPPEIN" and "OPPEIN". 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 associated enterprises significant recognition of market main body and the sources of identity. In June 2018, the plaintiff found that Hongda Stores were selling a large number of yuba labeled "Opai", "Opai Integrated Ceiling (Zhejiang) Co., LTD" and "Manufacturer: Jiaxing Budweiser Electric Appliance Co., LTD" in its stores. The plaintiff entrusted the notary office to make evidence preservation for the above behavior. It is also found that the defendant, Li Fei, a mainland citizen, is the sole shareholder of Opai Integrated Ceiling (Zhejiang) Co., LTD., took advantage of the relaxed company registration environment in Hong Kong to register the company, did not apply for a business registration certificate, and has no actual business address. In conclusion, the plaintiff think the three defendants to clings to the plaintiff's "European" brand reputation, deliberately in the illegal use of the product, "European", "European integration ceiling (zhejiang) co., LTD.", 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, the infringement of the enterprise name of the plaintiff, constitutes unfair competition, and caused great economic losses to the plaintiff, shall bear the corresponding legal responsibility. In order to safeguard the legitimate rights and interests of the plaintiff, the judgment is requested.

    The defendant Budweiser Company and Li Fei jointly plead that they request to reject the plaintiff's claim against us for the following reasons: First, the evidence submitted by the plaintiff is insufficient to prove that the trademark "Opai" is a well-known trademark in the field of sanitary ware; Second, we did not infringe the trademark right of the plaintiff and did not constitute unfair competition; Third, the plaintiff sued the defendant Li Fei for personal responsibility without legal and factual basis; Fourth, if the plaintiff's claim is too high, we shall not bear the corresponding compensation liability.

    The defendant did not enter a plea.

    The plaintiff presented the following evidence around his claim:

    1. (2016) Notarial Certificate No. 347, (2017) Notarial Certificate No. 675, proving that the plaintiff has the exclusive right to the registered trademark "Opai" No. 4378572 according to law and that the trademark is within the period of validity.

    2. (2016) Notarial Certificate No. 350 and (2017) Notarial Certificate No. 672, proving that the plaintiff has the exclusive right to the registered trademark of "Opai" No. 1128213 and that the trademark is within the period of validity.

    3. (2016) Notarial Certificate No. 346, (2017) Notarial Certificate No. 673, proving that the plaintiff has the exclusive right to the registered trademark "Opai" No. 1137521 and that the trademark is within the validity period.

    4. (2016) The Notarial Certificate no. 348 of Lifeng City Certificate certifying that the plaintiff has the exclusive right to the registered trademark "OPPEIN" No. 7731876 and that the trademark is within the validity period.

    On evidence 1-4, the defendant Budweiser Company and Li Fei cross-examination opinions: First, the plaintiff did not provide the original of the registered trademark certificate, the authenticity of the evidence is not recognized; Second, the content of notarization is too simple. It is impossible to confirm the source of the copy of the registered trademark from the content of notarization. There is no signature of the plaintiff on the copy, so there is an objection to the authenticity. Third, the aforesaid notarization violates the relevant provisions of the notarization law. The notarization process is not specified in the notarization document and does not conform to the legal procedure rules. Therefore, the authenticity and legitimacy of the notarization are not recognized. Fourth, evidence 2, 3 and 4 are not related to this case. The product we produce is Bath Ba. The scope of use of the trademark "Opi" No. 4378572 does not include Bath Ba.

    5. (2016) Notarial Certificate No. 352 issued by Laifeng City Certificate, which proves that the plaintiff legally owns the copyright of "Opai" 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.

    7 [2009] of the Trademark Office of the State Administration for Industry and Commerce, certifying that the registered trademark of the plaintiff, No. 1128213, 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) Notarial Certificate no. 353 of Laifeng City Certificate, which proves that the plaintiff and his brand have high market popularity.

    8. (2017) Laifeng City Certificate No. 260 Notarial Certificate, certifying the latest honor of the plaintiff and his brand.

    9. (2016) The Notarial Certificate of Laifeng City, Minzi No. 357, proves that the plaintiff has paid part of the tax, and proves that the "Opi" brand has generated huge profits and benefits, and the brand is of extremely high value.

    10. (2016) The Notarial Certificate no. 355 issued by Laifengcheng Ziminzi, which proves that the plaintiff has carried out continuous publicity for the "Opai" brand through CCTV and Hunan SATELLITE TV, which proves that the "Opai" brand has been widely known by the public and its brand value is very high.

    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.

    12. (2018) Notarization Certificate No. 1074 of Lulaiwu Fengchen Testifies the fact that the plaintiff continues to promote the brand of Opai through print media and the plaintiff's original advertising slogan of "Family, love and Opai" continues to be used and promoted.

    On evidence 5-12, the defendants Budweiser Company and Li Fei cross-examine opinions: Evidence 5 has nothing to do with this case, and can only prove that the ownership of copyright does not involve the trademark infringement in this case, nor can it prove that it is a well-known trademark; Evidence 6 has nothing to do with this case. The recognition of the well-known trademark by the State Administration for Industry and Commerce cannot prove that the trademark is also well-known on the Brand of Bath Bully, and the scope and field of the well-known trademark cannot be expanded without any reason. The cross-examination opinions in evidence 7 and 8 are the same as those in evidence 1-4; The authenticity and legality of evidence 9 shall not be recognized, nor shall the relevance be recognized. It cannot prove the tax payment of the trademark of the plaintiff on category 11 commodities, nor can the evidence prove the purpose of the plaintiff to prove; The authenticity and legality of evidence 10-12 and the relevance shall not be recognized. All the advertising propaganda shall not prove that the plaintiff has invested in the advertising publicity on the class 11 Yuba trademark, but only the advertising publicity on the class 20 commodity, which is irrelevant to this case.

    13. (2018) The Notarization Certificate No. 688 and no. 1260 of Lulaiwufengchengzi (including the infringing material object sealed by the notary office) and the enterprise credit information publicity report of Hongda Store prove the infringement facts of the three defendants.

    14. One notarization fee note. The plaintiff claims 2000 yuan in this case, which proves the plaintiff's reasonable expense in safeguarding his rights.

    On evidence 13-14, the defendants Budweiser Company and Li Fei's cross-examination opinion: the enterprise credit information publicity report of Hongda Store cannot be confirmed, so the cross-examination is not allowed. For the authenticity, legality, relevance of notarial deed all no. 688, the copy of notarial deed, in violation of the provisions of the notarization law of territorial jurisdiction, grand outlets did not appear in court, we are unable to verify of the source of the product, budweiser company did not to grand outlets selling a product, also does not recognise the grand outlets, and the defendant Li Fei no knowledge about this, so both the defendant not bear tort liability accordingly. The opinions on the cross-examination of Notarization No. 1260 are consistent with the above notarization. The notarization fee is too high, and the notarization fee invoice cannot show the specific amount, so its authenticity, legitimacy and relevance are not recognized.

    15. The trademark "Europa Cloud" No. 11394754 is searched for information to prove that the trademark is now invalid.

    The defendant Budweiser Company and Li Fei's cross-examination opinion: the product involved was produced in 2017, and Budweiser company used the trademark legally.

    The defendant provided the trademark Certificate of "PitMT English + Graphics" no. 11394754, trademark Certificate of "PitMT English + Graphics" No. 9983384 and trademark certificate of "PitMT English + Graphics" no. 13930324 to prove that it was a legitimate use of the registered trademark and there was no infringement of the plaintiff's trademark rights.

    The plaintiff's cross-examination opinion: the authenticity and legality of the evidence is recognized, but the relevance is not recognized. The case does not claim that the above trademark is suspected of trademark infringement, and the above evidence has nothing to do with the case.

    The defendant Li Fei submitted the registration materials of Opai Integrated Ceiling (Zhejiang) Co., Ltd. and the online publicity materials of dissolution, proving that the company was established in accordance with The laws of Hong Kong and dissolved on December 1, 2017, and the debts of the company should not be borne by the defendant Li Fei personally.

    The plaintiff cross-examination advice: authenticity, legitimacy of the evidence shall be approved and the relevance, the defendant Li Fei is the company's sole shareholder, the company is not real business address in Hong Kong, also does not have to carry out the relevant business, also did not deal with business registration certificate, in mainland also have no business license, Li Fei as mainland citizens to register the Hong Kong company is to implement the purpose of ACTS of unfair competition.

    The defendant Shall be deemed to have waived the right to provide evidence and cross-examine if he has not submitted evidence or put forward the opinion of cross-examination. The plaintiff submitted evidence 15, which confirmed that the trademark No. 11394754 is invalid, but Budweiser still submitted the trademark registration certificate as evidence without explanation, and the court will not confirm the authenticity and legality of the evidence submitted by Budweiser. The court confirms the authenticity and legality of other evidence provided by the plaintiff and the defendant, Budweiser And Li Fei, and confirms it in the volume. The defendant Budweiser company has an objection to the authenticity and legality of the notarized evidence provided by the plaintiff, but does not provide contrary evidence, the court will not recognize its cross-examination opinion, and the court will confirm the corresponding evidence.

    Based on the parties' statements and the evidence examined and confirmed, the Court finds the following facts:

    The plaintiff was established on October 21, 2008, with a registered capital of RMB 415091112, and its business scope is furniture manufacturing industry. 4378572, "European" trademark by the guangzhou opie ambry enterprise co., LTD., apply for registration, shall use commodities for 11 categories: 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, bath shower cubicle, basin, toilet, kitchen smoke lampblack machine, lamp (as), from June 7 to 2007 on June 6, 2017, after the renewal of June 6, 2027. On March 24, 2014, the registrant of the trademark was changed to the plaintiff.

    The plaintiff also has other trademarks under his name, including trademark no. 1128213 "Oppe", trademark No. 1137521 "OPPEIN" and trademark No. 7731876. In July 2007, Opai household cabinet was 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 Bureau of Quality and Technical Supervision. In February 2008, the plaintiff's trademark "Opie" No. 1128213 was identified as a famous trademark of Guangdong Province on the sideboard, storage rack and dish cupboard. On April 24, 2009, the trademark of "Opai" on the category 20 sideboard goods of the plaintiff was recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce. In December 2013, the plaintiff obtained the Chinese building decoration association kitchen and sanitation engineering committee issued the "2012 Chinese kitchen and sanitation 100", "overall kitchen leading enterprises top 10" honorary certificate. In September 2013, the plaintiff was awarded the "2012 Guangzhou Mayor Quality Award" by the Guangzhou Municipal People's Government. On December 28, 2014, the plaintiff was awarded the "Silver Award of 2014 Annual Brand Marketing Case in China" by Brand Watch Magazine. In January 2015, the plaintiff was rated as "Top 10 Most Valuable Brands" and "Top 10 Innovative Enterprises" by Guangdong Provincial Home Industry Federation and Guangdong Furniture Chamber of Commerce. The plaintiff's trademark no. 12088111 "OPPEIN" and trademark No. 1128213 "OPPEIN" were identified as famous trademarks of Guangzhou city by The Administration for Industry and Commerce of Guangzhou Municipality on sideboards and furniture (wardrobe) products, and the valid period is from January 2016 to December 2018. The plaintiff's trademark No. 4378572 "OPPEIN" and trademark No. 7731876 "OPPEIN" were recognized as famous trademarks of Guangzhou city by The Administration for Industry and Commerce of Guangzhou Municipality on kitchen range hood and bath equipment, and the validity period is from January 2016 to December 2018. In May 2016, the plaintiff was awarded the honor certificate of "China's Industry Iconic Brand" issued by the China Industry Iconic Brand Review Committee. In May 2016, the plaintiff was awarded the honor certificate of "China top 500 Brand Value" issued by the Review Committee of China Top 500 Brand Value. The plaintiff had invested a large number of advertisements for the "European group" brand, and invited Jiang Wenli to serve as the spokesman of the cabinet, wardrobe, bathroom products of the European group brand.

    On June 27, 2018, the plaintiff's attorney shou-zhen wang in laiwu city in shandong province FengCheng notary office personnel under the supervision of, as an ordinary consumers come to handan city, hebei province hanshan district in the elevator (which is to the first door (upstairs) "op condole top shop," shou-zhen wang in the shop to buy a marked "European integration ceiling (zhejiang) co., LTD." the words of the bath bully, a marked "opie european-style condole top plate lamp, a shou-zhen wang use alipay payment, made the store on the spot" Yuan Pengtao "card issued one and the payment receipt. Wang Shouzhen took two photos of the market and the shop's outdoor scene, and used a mobile phone to intercept a payment voucher. Then, under the supervision of the notary, Wang Shouzhen took 16 photos of the items she had purchased. The notary sealed up the bath bully and the flat lamp respectively, and Wang Shouzhen took two photos of the appearance of the sealed items, which were kept by Wang Shouzhen. On August 27, 2018, (2018) issued by FengCheng notarization in laiwu city in shandong province shandong laiwu FengCheng certificate notarial deed, no. 688 people word according to the photo attached to the notarial deed, notarization preservation of the alleged infringement bath bully are printed on the outer packing, "European integration ceiling company", "European integration ceiling (zhejiang) co., LTD., manufacturer mark" jiaxing budweiser electric appliance co., LTD. ", the inner packing with a service card, opposite, marked "European integration ceiling" production date specified in the certificate of approval for 2017. The receipt shows Oupai Yuba, the amount of 400 yuan, 80 yuan, a total of 480 yuan, printed with the official seal of "Mishi Door Sales Office in Handan City's recovery district" and the signature of "Yuan Pengtao". The name card shows Yuan Pengtao, manager, the words "Dahongda Suspended Top Daquan", the telephone number is 158××× 9080, 150×× 8899, the address is the first left hand elevator on the second floor of Luochengtou Building Materials Building Materials, Zhuhe Road, Handan City. Consumption records show 480 yuan was paid to Yuan Pintao Alipay on June 27, 2018.

    After being in court, word (2018) shandong laiwu FengCheng card people attached to the 688th notarial deed notarial preservation material for bath bully, a model for G17, bath bully on the packaging printed on both sides of "European integration ceiling company", "European integration ceiling (zhejiang) co., LTD." the words and the head is marked with the "golden" starring jiang wenli, side indicate the manufacturer for "jiaxing budweiser electric appliance co., LTD.", address for king shop in small home appliance industrial park, telephone for 0573-82997897, url for xx, with qr code, scanning display of xx. Batch number of production marked on Yuba is 2017. A product operation manual is attached to the package. The QR code shows "Opi Integrated ceiling official website: ××". There is a service card inside the package, showing "The pioneer of Opai Whole-house Cloud Space" on the front, with a TWO-DIMENSIONAL code printed on the back, marking the words "Opai Integrated ceiling 2d anti-counterfeiting code", and scanning the TWO-DIMENSIONAL code showing "Opai Integrated Ceiling ××".

    The plaintiff alleges that the word "Opai" on the product being sued infringes upon the exclusive right to use the trademark "Opai" No. 4378572 and constitutes unfair competition.

    On October 21, 2018, liu Qianzhen, the plaintiff's authorized agent, applied to fengcheng Notary Office in Laiwu city, Shandong Province for evidence preservation of the infringement evidence collected by him. On November 22, 2018, under the supervision of the notary, Liu Qian Zhen used the computer of the notary office to visit the website of xx. During the operation, Liu Qian Zhen used the "Screen video expert" software to record the entire operation process and took screenshots of some pages. According to the photo attached to the notarial deed, web page marked "opie swarm into condole carries on the official website", "opie genting", "opie website" and "golden" starring jiang wenli image, product display page display including chengde specialty stores, Shanghai group, hangzhou stores, huaian stores, specialty stores, such as baoding, contact page shows jiaxing budweiser electric appliance co., LTD. (manufacturing), address for king shop in small home appliance industrial park.

    The plaintiffs allege that budweiser operates a website with the word "Opie" that infringes on its right to exclusive use of the trademark "Opie" No. 4378572 and constitutes unfair competition. In addition to the court to verify, the above information in the court can still be shown in the website query.

    Hongda Store is an individual industrial and commercial business established on January 17, 2012. Its registered business location is No. 55-56, Wanfeng Building Materials City, Fuxing District, Handan city, Hebei Province. It is operated by Yuan Pengtao and its business scope is interior decoration materials retail.

    Budweiser company is on June 12, 2014, the establishment of a limited liability company, the registered capital is 500000 yuan, for, in xiuzhou district of jiaxing city of business scope for bath bully, integration ceiling, low voltage electrical switches, heater, fan, solar water heaters, lighting appliances, integrated kitchen, plastic products, metal parts manufacturing, processing, legal representative person Li Fei, shareholders for Li Fei, Hou Huijie.

    Opai Integrated Ceiling (Zhejiang) Co., LTD., a private company limited by shares, was established in Hong Kong Special Administrative Region on April 8, 2014 with Li Fei as its founder and director. On December 1, 2017, it was dissolved.

    11394754, "opie cloud" trademark by Hou Huijie on June 20, 2017 to apply for registration, shall use commodities for 11 categories: lighting equipment and device, electric water heater, fan, air conditioning, kitchen smoke lampblack machine, gas furnace, faucet, bath bully, solar water heater, electric heater, water purification equipment and machines, because of the application is rejected, will not be accepted and other such matters the trademark has been invalidated.

    In addition, the website name is opai integrated ceiling official website, the website address is ×× hosted by Budweiser Company, the name of the person in charge of the website is Hou Huijie.

    Another find out, we accepted the plaintiff and the defendant of nanjing it film, building materials sales department, Li Fei, budweiser company the infringement trademark rights disputes, dispute case of unfair competition, through mediation, in our hospital was born on May 11, 2018, (2018), zhejiang 0411 civil the conciliation statement no. 1448, in the early days of mediation include: Li Fei, budweiser company immediately stop production, sales, abuse the plaintiff 4378572th of a registered trademark of the alleged infringement plate lamp, bath bully behavior; Li Fei and Budweiser company immediately stopped the unfair competition and stopped using the words "Opai Integrated Suspended Ceiling (Zhejiang) Co., LTD" on the production and sales of the infringement bath Bar, flat panel light products and their packages. Within three months from the date of signing the agreement, Li Fei shall submit the application for changing or canceling the enterprise name (or enterprise name) of "Opai Integrated Ceiling (Zhejiang) Co., LTD." and submit other relevant documents to the relevant departments. The changed enterprise name shall not contain the word "Opai"; Li Fei and Budweiser shall pay a lump sum of RMB 50,000 for the plaintiff's economic losses, including reasonable expenses. They shall pay RMB 25,000 before June 15, 2018 and the remaining RMB 25,000 before July 15, 2018. The style of plate lamp and bath bully involved in this case is not consistent with the products of infringement accused in this case.

    The court holds that the plaintiff is the exclusive owner of the trademark No. 4378572. The trademark is still in the valid period of registration and the legal relationship is stable.

    After examination, this case is a trademark infringement and unfair competition dispute. Based on the arguments of both parties, the dispute focus of this case is as follows: 1. Ii. Whether the actions of Hongda Store and Budweiser Infringe upon the registered trademark rights of the plaintiff and constitute unfair competition; Iii. If the infringement is established, what legal liability should Hongda Store, Budweiser And Li Fei assume?

    About the controversy one. In accordance with article 90 of the interpretation of the supreme people's court on the application of the > civil procedure law of the People's Republic of China, a party shall provide evidence to prove the facts on which his own claim is based or the facts on which he refutes the other party's claim, except as otherwise provided by law. If a party fails to provide evidence before a judgment or the evidence is insufficient to prove his claim, the party bearing the burden of proof shall bear the adverse consequences. The manufacturer of a product usually marks his name, name or other identifiable marks on the product or its packaging, instructions, etc., in order to announce to the outside world that he is the manufacturer of the product. In this case, the plaintiff submitted in court accused of infringement product packaging box and carrying on the manual "manufacturer: jiaxing budweiser electric appliance co., LTD.", and budweiser company confirm used in court on the packaging involved "opie cloud" brand, and the "opie cloud" trademark ownership Hou Huijie budweiser company shareholders, in the case of not provide disproof, can be concluded that budweiser company is accused of infringement product manufacturers.

    Although grand outlets of the industrial and commercial registration management place with the plaintiff to buy do not match the address of the infringing products, but in combination with great outlets operators in industrial and commercial registration information and notarial deed of sellers pay treasure transaction records in the display name, and the seller show the plaintiff's business card is also marked with the words "big", our hospital served on grand outlets registered business address failure but to buy a copy of the copy of the alleged infringing products delivery address is successful information, such as in the case of grand outlets did not provide disproof, we determine the sales of the main body of the infringing products should be grand outlets, actual operators for Yuan Pengtao.

    The second point of contention. According to paragraph 2 of article 57 "trademark law of the People's Republic of China" and the provisions of paragraph 3, without the permission of the trademark registrant, used on the same kind of goods with similar trademark registered trademark, or to use its registered trademark in the similar products of the same or similar trademark, easy to cause confusion, and sales to the exclusive use of a registered trademark has been infringed, violations of the right to exclusive use of a registered trademark of behavior. According to the Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "in the second paragraph of article 9, paragraph 1 of article 10, article 11 and article 12 of the regulations, the trademark approximation, is accused of infringement of trademark and registered trademark, the glyph, pronunciation and meaning of the text or graphic composition and color, or the combination of whole structure similar to that of all the elements or the stereo shape, color combination, easy to make the relevant public to mistake the source of the goods or that its origin and registered trademarks of commodities have specific contact; When determining a registered trademark, the standard shall be the general attention of the relevant public, which shall not only make a comparison of the whole trademark, but also the main part of the trademark, and shall take into account the significance and popularity of the registered trademark. Similar goods refer to those with the same functions, USES, production departments, sales channels and consumption objects, or those that are generally believed by the relevant public to have specific connections and are likely to cause confusion. In determining whether a commodity or a service is similar, a comprehensive judgment shall be made based on the general understanding of the relevant public on the commodity or service; The International Classification of Goods and Services for Trademark Registration and the Classification of Similar Goods and Services may serve as a reference for the determination of similar goods and services.

    According to the trademark law of the People's Republic of China the first (2) of article 57, the first item (3) of this law, without the permission of the trademark registrant, used on the same kind of goods with similar trademark registered trademark, or to use its registered trademark in the similar products of the same or similar trademark, easy to cause confusion, and sales to the exclusive use of a registered trademark has been infringed, violations of the right to exclusive use of a registered trademark of behavior. The plaintiff's trademark "Europa" is not a fixed phrase in Chinese, but has a strong significance. After long-term commercial use, it has gained a high popularity. In this case, the "bathroom device" in the 11th class of goods approved by the plaintiff's trademark No. 4378572 "Europa" belongs to the same kind of goods. Budweiser companies argue that the alleged infringing products of "European integration ceiling company" logo according to company site, but the logo and web address format is not consistent, and in the front side of the outer packing is larger font display url information does not accord with common sense, also the logo both before and after the caption, "European integration ceiling" can identify independently, "integration ceiling" as the product category, the "European" words have played an important role to identify the source of goods, with the plaintiff no. 4378572 "European" trademark approximation, easy to cause consumer confusion, produce the sources of constitute trademark infringement. Similarly, Budweizer marks the words "Europa Genting" and "Europa official website" on the ×× website operated by Budweizer, among which the words "Europa" play a role in identifying the source of goods, which is similar to the trademark of plaintiff no. 4378572 "Europa", easily causing confusion among consumers about the source of goods and constituting trademark infringement.

    The Supreme People's Court on some issues of applicable law in trademark civil dispute cases to explain "the provisions specified in the first paragraph of article 1, will be the same or similar registered trademark with others words as enterprise size in use highlights on the same or similar goods, the relevant public could produce misidentification, belong to the infringement of a registered trademark of behavior. Plaintiffs' claims on the alleged infringement product packaging printing some "European integration ceiling (zhejiang) co., LTD." the word "Europe", the infringement of the no. 4378572 of the plaintiff "European" trademark, to this, we believe that in this case, although the company of "European" font size and the plaintiff's 4378572th the script of "European" brand are exactly the same, but its all in the same font, in the form of an enterprise name full name marked on the alleged infringement product outer packing box, not the "European" two words from prominent out prominently in the enterprise name used, therefore, It does not constitute an infringement of the exclusive right to use the trademark of the plaintiff no. 4378572, and the court does not support the plaintiff's corresponding claim, which lacks facts and legal basis.

    Article 2 of the Law of the People's Republic of China against Unfair Competition stipulates that business operators shall abide by the principles of voluntariness, equality, fairness, honesty and credibility and observe universally recognized business ethics in their market transactions. Article 6 According to item (3) of the first paragraph, an operator shall not, without authorization, use the enterprise name (including abbreviation, shop name, etc.), the name of a social organization (including abbreviation, etc.), and the name (including pen name, stage name, translation name, etc.) of an enterprise which has certain influence on others, so as to cause people to mistake it for the goods of others or to have specific contact with others. When the plaintiff and its affiliates were established, they took "Opai" as their name and product brand, and the trademark "Opai" owned under their name was recognized as well-known trademark and won a number of honors, thus enjoying high popularity. Therefore, "Europe" as a strong originality and significance of the specific meaning of fixed phrases, the plaintiff and associated company for many years and continue to promote, is more than just a name, and more to carry the plaintiff strong market competitiveness and broad influence, mention of "Europe" the relevant public will naturally associate to the plaintiff and its products, "European" logo has established specific connection and the plaintiff is not in doubt.

    The defendant, Li Fei, as the founder and director of Opai Integrated Ceiling (Zhejiang) Co., Ltd. confirmed in case No. 1448 of Zhejiang 0411 in the early Republic of China (2018) that he had improperly registered and used the company name, promising to change the company name, and subsequently dissolved the company on December 1, 2017. On the other hand, Budweiser marks the company's name on the packaging of the infringing products, intending to confuse the market with the high popularity of the "Europa" brand to gain a competitive advantage. Such behavior violates the principle of good faith, which will objectively lead the relevant public to misidentify the source of the products, cause market confusion and constitute unfair competition.

    As a seller, Hongda Stores sells the products sued for infringement and marks the word "Opai" on the receipt, which can easily cause confusion and misidentification of the product source by consumers and damage the legitimate rights and interests of the plaintiffs. The behavior of Hongda Stores also constitutes unfair competition.

    The third point of contention. Both Hongda Stores and Budweiser Company have carried out trademark infringement and unfair competition, and the plaintiff has requested the two defendants to stop the infringement and compensate for the economic loss, which is supported by the court based on the law.

    Determination of the amount of compensation. The Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in article 17 of the regulation, article 5 of the anti-unfair competition law, article 9, article 14 of the regulation of damages of ACTS of unfair competition, can consult to determine the damages of trademark infringement method. According to the provisions of Paragraph 1 and Paragraph 3 of Article 63 of the Trademark Law of the People's Republic of China, the amount of compensation for the infringement of the exclusive right to use a trademark shall be determined on the basis of the actual loss suffered by the right holder as a result of 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 benefits obtained by the infringer, a reasonable multiple of the licensing fee for the trademark shall be determined by reference to the said trademark. If the circumstances are serious, the amount of compensation may be determined between one time and three times of the amount determined according to the above methods. The amount of compensation shall include the reasonable expenses paid by the right to stop the infringement. If it is difficult to determine the actual losses suffered by the right holder as a result of the infringement, the profits obtained by the infringer as a result of the infringement, or the licensing fee of the trademark, the people's court shall, in light of the circumstances of the infringement act, make a judgment to pay compensation of not more than THREE million yuan. In this case, neither party of the original defendant has provided evidence to prove that the infringed has suffered from infringement and the infringed has obtained benefits due to infringement, and there is no trademark license fee for reference. Therefore, the court will take various factors into consideration, including 1. 2. Subjective faults and circumstances of the tort of Hongda Store and Budweiser Company; 3. Budweiser has reached an infringement compensation settlement with the plaintiff in the separate case on May 11, 2018, but continues to infringe on the rights on the website sponsored by Budweiser until the opening of the court session, which constitutes a bad case; 4. For the reasonable expenses paid by the plaintiff to stop the infringement and other factors, it is determined that Hongda Stores shall compensate the plaintiff for the economic loss of RMB 15,000 (including the reasonable expenses paid by the plaintiff to stop the infringement), and Budweiser shall compensate the plaintiff for the economic loss of RMB 100,000 (including the reasonable expenses paid by the plaintiff to stop the infringement).

    In case No. 1448 of Zhejiang 0411 in the early Republic of China (2018), the plaintiff requested Li Fei to bear the liability for compensation for his registration and improper use of the name of Opai Integrated Ceiling (Zhejiang) Co., LTD. After the two parties reached an agreement, Li Fei stopped the infringement and cancelled the company name. Therefore, the aforesaid unfair competition ACTS have been dealt with by effective legal documents, and the plaintiff now makes a new appeal to ask for personal responsibility, which has no basis in law, and the court will not support it.

    In conclusion, in accordance with the law of the People's Republic of China tort liability law article 15, paragraph 1 of article sixty-three of the "trademark law of the People's Republic of China" and the third paragraph, the anti-unfair competition law of the People's Republic of China, article 2, paragraph 1 of article 6 of the first item (3), the Supreme People's Court on some issues of applicable law in trademark civil dispute cases interpretation paragraph 1 and 2 of article 16 and article 17, the Supreme People's Court on the trial of civil cases of unfair competition "the explanation of application of law in paragraph 1 of article 6, paragraph 1 of article 17, In accordance with article 144 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

    I. The defendant shall immediately stop infringing upon the exclusive right to use the trademark registered by the plaintiff, Opai Home Furnishing Group Co., LTD. No. 4378572.

    2. The defendant, in the Hongda Ceiling material store of Fuxing District of Handan City, immediately stopped the unfair competition behavior of selling the infringing products;

    3. The defendant, Jiaxing Bud Electric Appliance Co., Ltd. immediately stopped infringing the exclusive right to use trademark No. 4378572 registered by the plaintiff, Opai Home Furnishing Group Co., LTD., and stopped using the word "Opai" on the infringing products, packages, operating instructions and service CARDS produced and sold by the defendant;

    4. The defendant Jiaxing Budweiser Electric Appliance Co., Ltd. immediately stopped the unfair competition and the words "Opai Integrated Suspended Ceiling (Zhejiang) Co., Ltd." were used on the production and sale of the infringing products and their packages.

    5. The defendant, Hongda Ceiling Materials Store, Fuxing District, Handan city, shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of RMB 15,000 (including reasonable expenses paid to stop infringement), and shall complete the performance within 10 days after the judgment takes effect;

    Vi. The defendant, Jiaxing Budweiser Electric Appliance Co., Ltd. shall compensate the plaintiff, Opai Home Furnishing Group Co., LTD., for the economic loss of 100,000 yuan (including reasonable expenses paid to stop infringement), and shall complete its performance within 10 days after the judgment takes effect;

    Vii. Rejecting other claims of the plaintiff opai Home Furnishing 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 case acceptance fee is 4,300 yuan, 914 yuan to be borne by the plaintiff Opai Home Furnishing Group Co., LTD., 441 yuan to be borne by the defendant Hongda Hangding material store in Fuxing District, Handan city, and 2,945 yuan to be borne by the defendant Jiaxing Baiwei Electric Appliance Co., LTD., which shall be paid within seven days after this judgment takes effect.

    If you are not satisfied with this judgment, you may, within 15 days from the date of serving the judgment, file an appeal petition to the court, and submit copies according to the number of parties to the other party, and appeal to jiaxing Intermediate People's Court.

    (Back page)

    Xu Chenli, chief judge

    People's Juror Zheng Shuimiao

    People's juror MAO Shixin

    March 31, 1923

    Clerk Zhou Xiaohong

    1. If a party appeals against the court's judgment, it shall pay the fees for accepting the case of the appeal. The fees for accepting the case of the appeal case shall be paid in advance when the appellant submits the appeal petition to the people's court.

    If the court fails to pay the litigation costs within the time limit and fails to apply for judicial assistance, or fails to apply for judicial assistance and fails to pay the litigation costs within the time limit specified by the people's court, the case shall be deemed as withdrawn automatically.

    2. If one party refuses to perform the obligations prescribed in a legally effective written judgment, order or conciliation statement, the other party may apply to the people's court for execution. If a party applies for suspension or discontinuance of the limitation of action, the relevant provisions of the law shall apply. The above-mentioned period shall be counted from the last day of the performance period stipulated in the legal document; If a legal document stipulates that the performance shall be performed by stages, it shall be counted from the last day of each prescribed period of performance; If the period of performance is not stipulated in a legal document, it shall be counted from the date the legal document becomes effective.