On November 10, the Beijing Intellectual Property Court ruled that the plaintiff Meichao Group Co., Ltd. (hereinafter referred to as Meichao Company) sued the defendant Beijing Xiujie Xinxing Building Materials Co., Ltd. (hereinafter referred to as Xiujie Company) and the defendant The first-instance judgment was made in the dispute over Wang Xiaoliang's infringement of the exclusive right to use a registered trademark. The defendant Xiujie Company immediately stopped using the word "Wall Lock" on the concrete interface treatment agent products it manufactures and sells, and compensated the plaintiff Meichao Company for its economic losses and reasonable expenses of 10 million yuan. .
Basic facts of the case
Meichao Company claimed that it is a well-known enterprise that manufactures and sells high-quality home decoration and building materials products. On September 11, 2002, Beijing Meichao Decoration Materials Co., Ltd. applied for registration of the "Wall Guard" trademark No. 3303708. The registration was approved by the Trademark Office in 2004 and was approved for use in Class 1 industrial glue, industrial adhesives and other products. Above, the exclusive right to register the trademark is Meichao Group Co., Ltd. On September 7, 2005, Meichao Company applied for registration of the "Wall Guard" trademark No. 4882697. The trademark was approved and registered by the Trademark Office in 2009, and was approved for use on Class 1 industrial glue, industrial adhesives and other products. Meichao Company believes that Xiujie Company has used “Xiujie Wall Lock”, “Yikang Wall Lock”, For the "Xingchao Qiangguan" trademark, the defendant Wang Xiaoliang sold the above-mentioned infringing goods without authorization. The actions of the two defendants violated the company's exclusive right to transfer registered trademarks with respect to the two "Qiangguan" trademarks. Meichao Company requested the court to order: 1. The two defendants should stop infringing the exclusive rights of the registered trademark "Qiangluo"; 2. The two defendants should jointly and severally compensate the plaintiff for economic losses and reasonable expenses paid to stop the infringement, totaling 10 million yuan. Yuan; 3. The two defendants published a statement in China Industrial and Commercial News to eliminate the adverse effects caused by the infringement.
The defendant Xiujie Company argued that the company submitted No. 1401072 "Xiujie XIUJIE and "Picture", trademark registration application No. 5130550 "Yikang", No. 5536078 "XINGCHAO". After the above three trademark applications were approved and registered by the Trademark Office, they were approved to be used on Class 1 industrial glue, industrial adhesives and other products. Xiujie Company believes that the use of "Wangluo" on products such as "Concrete Interface Treatment Agent" has weak significance and will not play a role in distinguishing the source of the product; the word "Wangluo" is the term for "concrete interface" in the field of architectural decoration. "Treatment Agent" is a commonly accepted common name for the product, and the company has not used it prominently on its products, nor has it infringed upon Meichao's exclusive right to register a trademark with respect to the "Wall Guard" trademark.
"Wall Mo" is not a common name for concrete interface treatment agent products
The court held that if the relevant public generally believes that a certain name can refer to a class of goods, it should be determined that the name The name is a common name by convention. Those listed as trade names in professional reference books and dictionaries can be used as a reference for determining conventional common names. Conventional common names are generally judged based on the common understanding of the relevant public across the country.
In this case, the defendant Xiujie Company submitted two notarial certificates to accuse the plaintiff Meichao Company and other business entities of using the word "Wall Guard" on the "Concrete Interface Treatment Agent" product in online publicity. Evidence was preserved. The evidence shows that the word "Wall" used by the plaintiff Meichao Company on the product "Concrete Interface Treatment Agent" is used as a registered trademark and is used in conjunction with the registered trademark "Mechao". When other business entities on the Internet use the word "wall", most of them mark the explanatory text "latex interface agent" or "interface treatment agent" in parentheses. This just shows that nationwide construction and decoration material operators and consumers are not aware of the word "wall" to the extent that it refers to concrete interface treatment agent products. Therefore, the word "Wall" does not belong to the common name of the concrete interface treatment agent product.
Based on the facts ascertained, Meichao Company has a high market reputation in the field of building and decoration materials. The registered trademark "Mechao" has been recognized as "Beijing Famous Trademark" and "China Famous Trademark" , the trademark has strong inherent distinctiveness and the distinctiveness obtained through commercial publicity and use. Through the joint use of the "Meichao" trademark, the market reputation gained by the "Meichao" trademark and font size will naturally extend to the "Qiangluo" trademark, greatly enhancing the distinctiveness and market visibility of the "Qiangluo" trademark. The defendant Xiujie Company used the words "Xiujie Wall Guard", "Yikang Wall Guard" and "Xingchao Wall Guard" as product names on the outer packaging barrel of the concrete interface treatment agent product, and the text structure completely included the plaintiff Meichao Company's The "Wall Guard" trademark logo is used in a prominent position on the outer packaging barrel. The font is large and used prominently. In terms of products used, concrete interface treatment agents are a type of industrial adhesives. The above-mentioned usage behavior of the defendant Xiujie Company is likely to cause the relevant public to associate the source of the goods it provides with the source of the goods approved for use by the plaintiff Meichao Company’s “Qiangluo” trademark, causing confusion and misunderstanding, and constitutes a “defeat” of the plaintiff Meichao Company. Infringement of the exclusive right to use the registered trademark "Wall Guard".
The court held that regarding the plaintiff Meichao Company’s claim that another defendant Wang Xiaoliang had committed trademark infringement, based on the purchase process stated in the notarized document and the corresponding evidence obtained, the perpetrator of the alleged infringing sales behavior It cannot be uniquely determined that it is Wang Xiaoliang, so Meichao's claim lacks factual and legal basis and is not supported.
Why fully support Meichao Company’s trademark infringement claim of 10 million yuan?
Article 63 of the "Trademark Law" stipulates that in order to determine the amount of compensation, the people’s court shall determine the amount of compensation from the right holder. If every effort has been made to provide evidence and the account books and materials related to the infringement are mainly in the possession of the infringer, the infringer may be ordered to provide the account books and materials related to the infringement; if the infringer fails to provide or provides false account books or materials, the people's court shall The court may determine the amount of compensation with reference to the rights holder's claims and the evidence provided.
Article 13 of the "Interpretation of Laws Applicable to Trademark Civil Dispute Cases" stipulates that when the people's court determines the infringer's liability for compensation in accordance with the provisions of Article 56, paragraph 1, of the Trademark Law (before amendment), it may The amount of compensation is calculated according to the calculation method chosen by the right holder. Article 14 stipulates that the benefits obtained from infringement as stipulated in Paragraph 1 of Article 56 of the Trademark Law (before amendment) can be calculated based on the product of the sales volume of the infringing product and the unit profit of the product; if the unit profit of the product cannot be ascertained, , calculated based on the unit profit of registered trademark goods.
In this case, the plaintiff Meichao Company claimed the amount of compensation based on the interests gained by the defendant Xiujie Company due to the infringement, and did its best to provide public information channels that the defendant Xiujie Company operated the allegedly infringing goods. evidence. After the court explained to the defendant Xiujie Company, although the company objected to the objectivity of the information contained in the above evidence, it still did not provide relevant account books and materials to refute, nor did it raise any objection to the validity of the corresponding notarial certificate to the notary administrative authority. Therefore, the court determined the amount of compensation based on the relevant evidence provided by the plaintiff Meichao Company.
In this case, the plaintiff Meichao Company claimed the amount of compensation based on the benefits obtained by the defendant Xiujie Company due to the infringement. The main considerations are:
(1) The sales price range of the allegedly infringing goods is 75 yuan/barrel-125 yuan/barrel, the gross profit margin is 30 yuan/barrel, and the average profit is 30 yuan/barrel. Considering the market Based on the factors, the profit of the allegedly infringing goods was determined to be 26 yuan/barrel.
(2) The defendant Xiujie Company claimed that the monthly output of "Xiujie Wall Prison" alone is 10,000 tons, the unit product is 18 kg/barrel, and the monthly output is 555,555.6 barrels.
(3) Taking the above factors into consideration, the monthly profit is 14444445.6 yuan and the annual profit is 173333347.2 yuan.
(4) The defendant Xiujie Company began selling the allegedly infringing goods in August 2009, so its profits far exceeded 10 million yuan.
The content of the business information published by the defendant Xiujie Company on the online business information release platform submitted by the plaintiff Meichao Company shows that the "Xiujie" brand building materials include "Xiujie Wall Wall" and other ***16 species, with a monthly output of 10,000 tons and an annual turnover of 50 million to 100 million yuan. The weight of each barrel of "Xiujie Wall Prison" is 17kg or 18kg. The defendant has started selling "Xiujie Wall Prison" since August 2009 at the latest.
The court held that it was reasonable for the plaintiff Meichao Company to determine the sales profit part as the main consideration in the calculation of the claim based on the sales price difference and gross profit margin of the accused infringing goods shown in the evidence. Although there is no exact sales data for the allegedly infringing goods, the monthly output of the "Xiujie Wall Guard" product alone is 10,000 tons. The defendant Xiujie Company has established separate sales departments for the "Xiujie" and "Yikang" brands. Taking into account factors such as its business scale, number of sales stores, and geographical scope, the total monthly sales volume of the three accused infringing products, "Xiujie Wall Guard", "Yikang Wall Guard", and "Xingchao Wall Guard" is determined to be 10,000 tons of plausibility. On the basis of the above factors, combined with the sales time span of the defendant Xiujie Company, the degree of subjective fault, the market popularity of the two registered trademarks of the plaintiff Meichao Company, and the reasonable expenses paid by the plaintiff Meichao Company to stop the infringement in this case, the plaintiff Meichao Company’s The request for infringement compensation of 10 million yuan has factual and legal basis and will be fully supported.
As for the claim of elimination of impact put forward by the plaintiff Meichao Company, the court held that according to the evidence provided by Meichao Company, the harm caused by the infringement behavior of the defendant Xiujie Company was that the relevant public was affected by the infringement provided by both the plaintiff and the defendant. The misidentification of the source of goods or the perception of relevance caused by the use of similar trademarks on the same goods is the damage to the property interests of the plaintiff Meichao Company by the relevant public during the actual purchase, and does not involve damage to its business reputation. . Therefore, the plaintiff Meichao Company’s claim that the defendant Xiujie Company published a statement in the media to eliminate the adverse effects caused by infringement lacks factual and legal basis and is not supported.