A case about trademark infringement by Internet domain name - Fujian Qinqin Group

Plaintiff Fujian Qinqin Co., Ltd., domiciled at Wuli Industrial Zone, Jinjiang, Fujian Province.

Legal representative Wu Huolu, chairman of the board.

Agent Wu Jianshe, Chairman of Fujian Asia Pacific Trademark and Patent Office Co., Ltd.

The authorized agent is Lin Wenyuan, an employee of Fujian Asia Pacific Trademark and Patent Office Co., Ltd.

Defendant Hao Wenzhong, female, born on March 21, 1957, Han nationality, owner of Qinqin Food Distribution Department, Daowai District, Harbin City, lives at No. 48-2, Deputy Nanji Street, Daowai District, Harbin City.

The authorized agent is Zhang Kejun, a lawyer at Heilongjiang Yinsheng Law Firm.

After accepting the case of the trademark infringement dispute between the plaintiff Fujian Qinqin Co., Ltd. (referred to as Qinqin Company) and the defendant Hao Wenzhong’s computer network domain name on February 23, 2005, this court formed a collegial panel in accordance with the law. The trial was held behind closed doors on March 31, 2005. The plaintiff appointed agents Wu Jianshe and Lin Wenyuan, and the defendant appointed agent Zhang Kejun to attend the lawsuit. The case has now been concluded.

The plaintiff, Qinqin Company, claimed: The plaintiff is a key joint-stock enterprise in provincial agricultural industrialization, founded in 1985. After twenty years of development, the plaintiff has adhered to the business philosophy of "people-oriented, creating value, based on the local area, and looking to the world", worked hard and forged ahead, and currently has 9 holding subsidiaries with 20,000 employees, including mid-level and senior-level employees at home and abroad. With more than 300 management and technical personnel, it has established a complete sales network across the country, with annual sales exceeding 1 billion yuan, and has developed into a well-known domestic food production enterprise. The plaintiff registered the "Qingqin" trademark No. 614573 on goods in Class 30 of the International Classification in 1992, and then continuously improved the trademark. In 2004, it registered the " " Trademark No. 3293585 on goods in Class 29. The " " trademark No. 3293583 was registered on 30 categories of goods. At the same time, the plaintiff also applied to register the defensive trademark and joint trademark of the " " trademark, forming a complete trademark protection system. So far, the plaintiff and its subsidiaries have invested a total of 300 million yuan in advertising, of which 140 million yuan was invested from 2002 to 2004. The advertising coverage covers the whole country, making the " " trademark a well-known brand that is widely known to every household. The " " brand shrimp crackers and potato chips (sticks) series products produced by the plaintiff rank first in sales and market share among the same industry in the country; the sales volume and market share of the " " brand jelly series products produced by the plaintiff rank first in the same industry nationwide. Ranking second in the industry.

In 2005, the plaintiff discovered that the defendant had registered the Chinese domain name "China Qinqin" and the English domain name "www.qinqin-cn.com" on the Internet, maliciously infringing upon the plaintiff's legitimate rights and interests and causing harm to the plaintiff's business. economic losses. Request the court to order: 1. Determine the plaintiff’s registered trademark “ ” as a well-known trademark; 2. The defendant immediately ceases unfair competition and infringement of the plaintiff’s registered trademark “ ”; 3. The defendant’s Chinese domain names “China Qinqin” and The English domain name "www.qinqin-cn.com" was handed over to the plaintiff for use; 4. The defendant compensated the plaintiff for economic losses of RMB 300,000.

Defendant Hao Wenzhong argued that the defendant legally registered and used the Chinese domain name "China Qinqin" and the English domain name "www.qinqin-cn.com", and the plaintiff's "Qinqin" trademark is limited to food. It has nothing to do with the domain name registered by the defendant online; the plaintiff’s claim for damages of 300,000 yuan has no legal basis. Request to dismiss the plaintiff’s claim.

During the trial in this court, the plaintiff and the defendant presented evidence and issued cross-examination opinions in order to prove that the facts of their respective defense claims were established.

The evidence presented by the plaintiff Qinqin Company includes:

Evidence 1. A copy of the plaintiff’s corporate business license. The main content is: The plaintiff’s business scope is the sale of puffed food, jelly, etc.

Evidence 2. Plaintiff’s trademark certificate.

The main contents are: Trademark Registration Certificate No. 614573, the trademark "Qinqinjitu", approved to be used as Class 30 puffed food, the registration validity period is from October 20, 1992; Trademark Registration Certificate No. 3293585, the trademark " " , the approved goods are Class 29 jelly, etc., the registration validity period is from February 7, 2004; Trademark Registration Certificate No. 3293583, the trademark " ", the approved goods are Class 30 popcorn, shrimp flavored strips, puffed potato chips, etc. , the registration is valid from February 28, 2004.

Evidence 3. "Notarial Certificate" from the Daowai District Notary Office of Harbin City. The main content is: Harbin Daowai District Notary Office notarized on February 3, 2005 that the defendant registered the Chinese domain name "China Qinqin" and the English domain name "www.qinqin-cn.com" on the Internet, using "Qinqin Food" ” logo is used to sell jelly and puffed food.

Evidence 4. Invoice for purchasing "Qinqin Shrimp Stick Bag" packaging in September 1993. Proof: The plaintiff is already using the “Qingqin” trademark.

Evidence 5. Business licenses, industrial and commercial registration files and trademark license contracts of multiple subsidiaries controlled by the plaintiff. Proof: The plaintiff owns many subsidiaries across the country, and their puffed food, jelly and other products all use the " " trademark.

Evidence 6. The plaintiff’s advertising contract, invoices, advertising albums, advertising films, media reports and advertising monitoring reports. The main content is: from 1992 to 2004, the plaintiff invested a total of 300 million yuan in advertising and media publicity reports, of which 140 million yuan was invested from 2002 to 2004. Proof: The plaintiff's " " trademark has a high reputation throughout the country and is a well-known trademark in China.

Evidence 7. Certificates of honor for the plaintiff and its products and trademarks. The main contents are: In 1999, it was awarded the title of "Excellent Enterprise in China's Food Industry" by China Food Industry Association; in 2001, it was recognized as "China's Famous Food" by China Food Industry Association; in 2000, it was recognized as "National Quality Standard Food" by China Food Industry Association "unit; in 2004, it was rated as "(2000-2004) National Quality Inspection Qualified Product" by China Quality Inspection Association; in 2002, it was rated as "Quality Reputation Tracking Product" by China Quality Association; in 1998, it was rated as "National Quality Inspection Qualified Product" by China Food Industry Association It is the "Recommended Brand for TV Advertisements of China Food Industry Association"; in 2003, it was rated as "National Safety and Quality Food Commitment Activities Commitment Enterprise" by China Food Industry Association and Entrepreneur Committee of China Food Industry Association; in 1992, it was rated by China Consumer Newspaper, China Consumer The Consumer Guidance Working Committee of the Association of Consumers and the China Technical Supervision Newspaper were awarded the "Exhibition Honor Award for the Beijing Jinjiang Famous Products Fair"; in 2002, it was rated as the "Fujian Famous Trademark" by the Fujian Provincial Famous Trademark Recognition Committee; in 1998, it was named the Fujian Provincial Famous Trademark It was rated as "Fujian Famous Trademark" by the Recognition Committee; in 2003, it was rated as "Fujian Famous Brand Product" by the Fujian Provincial People's Government. Proof: The plaintiff's " " trademark has a high reputation throughout the country and is a well-known trademark in China.

Evidence 8. Certificates from relevant industry associations, local governments and economic development bureaus. The main contents are: the annual production volume of the plaintiff and its subsidiaries reached 10.07 million boxes in 2002, with terminal sales of 812 million yuan, and profits and taxes of 107 million yuan; in 2003, the annual production volume reached 10.71 million boxes, with terminal sales of 863 million yuan, and profits and taxes of 117 million yuan. ; In 2004, the annual production volume reached 12.87 million boxes, terminal sales were 1.041 billion yuan, and profits and taxes were 139 million yuan, ranking among the top among peers nationwide.

Evidence 9. Partial list of the plaintiff’s local dealers and regional agency contracts. The main contents are: The plaintiff has entered into 101 distribution contracts with nearly 2,000 major dealers across the country. Proof: The plaintiff has established a complete sales network and a complete after-sales service system across the country.

Evidence 10. The plaintiff formed a trademark registration certificate and trademark management system for the trademark protection system. The main contents are as follows: The plaintiff applied to register the defensive trademark and joint trademark of the " " trademark on relevant goods, and obtained the U.S. trademark registration certificate on January 8, 2002.

Proof: The plaintiff has formed an all-round and complete system to protect the " " trademark.

Evidence 11. Quality inspection reports on the plaintiff’s products from 20 national, provincial and municipal inspection centers including the National Processed Food Quality Supervision and Inspection Center, Fujian Provincial Central Inspection Institute, and Xianyang Product Quality Supervision and Inspection Institute. Proof: The plaintiff’s products are of high quality and have a high reputation.

Evidence 12. Penalty decision letter. Proof: The plaintiff's " " trademark is a well-known trademark and is protected throughout the country.

Evidence 13, 10 products and packaging bags. Proof: The plaintiff has been actually using the " " trademark.

The defendant believes that: There is no objection to the plaintiff’s evidence 1, 2, 5, 6, 7, 9, 10, and 13; evidence 3 can only prove that the defendant registered the Chinese domain name “China Qinqin” and the English domain name "www.qinqin-cn.com", but it cannot prove that the defendant has infringed the plaintiff's trademark rights; Evidence 4 cannot prove the plaintiff's claim; Evidence 8 and 12 are irrelevant to this case; Evidence 11 cannot directly prove that the plaintiff's " " trademark is well-known in China trademark.

Defendant Hao Wenzhong presented the following evidence:

Defendant Hao Wenzhong’s individual industrial and commercial business license of Qinqin Food Distribution Department, Daowai District, Harbin City. The main content is: business scope sales of small food.

The plaintiff has no objection to the defendant’s evidence.

After a comprehensive analysis of the pleadings, evidence presented and cross-examination opinions of all parties, the focus of the dispute in this case is: whether the plaintiff's " " trademark is a well-known trademark; the defendant's registration and use on the Internet Whether the Chinese domain name "China Qinqin" and the English domain name "www.qinqin-cn.com" infringe upon the plaintiff's trademark rights and constitute unfair competition.

This court confirmed: 1. The plaintiff Qinqin Company was founded in 1985. The plaintiff and its holding subsidiaries have used the "Qinqin" trademark since 1993, and their business scope is the sale of puffed food, jelly, etc. 2. The plaintiff owns the following registered trademark rights: Trademark Registration Certificate No. 614573, the trademark "Qinqinji Tu", approved to be used in the 30th category of puffed food, and the registration validity period is from October 20, 1992; Trademark Registration No. 3293585 Certificate, trademark " ", approved for use in category 29, jelly, etc., the registration validity period is from February 7, 2004; Trademark Registration Certificate No. 3293583, trademark " ", approved for use in category 30, popcorn and shrimp flavored strips , puffed potato chips, etc. The registration validity period is from February 28, 2004. The plaintiff also applied for registration of a defensive trademark and a joint trademark of the " " trademark on related goods, and obtained the U.S. trademark registration certificate on January 8, 2002. 3. The products produced by the plaintiff and its holding subsidiaries had an annual production volume of 10.07 million boxes in 2002, terminal sales of 812 million yuan, and profits and taxes of 107 million yuan; in 2003, the annual production volume was 10.71 million boxes, terminal sales of 863 million yuan, profits and taxes 117 million yuan; in 2004, the annual production volume was 12.87 million boxes, terminal sales were 1.041 billion yuan, and profits and taxes were 139 million yuan. 4. From 1992 to 2004, the plaintiff invested a total of RMB 300 million in advertising and media reports, of which *** invested RMB 140 million from 2002 to 2004. 5. The plaintiff has established a complete sales network and a complete after-sales service system across the country. 6. The quality inspection reports of the plaintiff’s products from 20 national, provincial, and municipal inspection centers including the National Processed Food Quality Supervision and Inspection Center, Fujian Provincial Central Inspection Institute, and Xianyang Product Quality Supervision and Inspection Institute prove that the plaintiff’s products are of excellent quality. 7. The plaintiff, its products and trademarks have been awarded the title of "Excellent Enterprise in China's Food Industry" by the China Food Industry Association, recognized as "China's Famous Food" by the China Food Industry Association, and rated as "China's Famous Food" by the China Association for Quality Inspection (2000-2004) National Quality Inspection Qualified Product", Fujian Provincial Famous Trademark Recognition Committee as "Fujian Famous Trademark", China Food Industry Association as "China Food Industry Association TV Advertising Recommended Brand", Fujian Provincial People's Government as "Fujian Famous Brand Product" and many other honors.

8. The " " brand shrimp crackers and potato chips (sticks) series products produced by the plaintiff rank first in sales and market share among the same industry in the country; the sales volume and market share of the " " brand jelly series products produced by the plaintiff Ranking second in the same industry nationwide. 9. The defendant registered the Chinese domain name "China Qinqin" and the English domain name "www.qinqin-cn.com" on the Internet, and used the logo of "Qinqin Food" to sell jelly and puffed food. 10. The business scope of defendant Hao Wenzhong’s Qinqin Food Distribution Department in Daowai District, Harbin City is the sale of snack foods.

This court believes that: a well-known trademark is a trademark that enjoys high popularity and high credibility in the domestic and international markets and is well known to a considerable range of consumers. The plaintiff has used the "Qingqin" trademark for products such as jelly and puffed food since 1993, and has registered the "Qingqin" and " " trademarks on related products since 1992. Its No. 614573 "Qingqin and Picture" The registered trademarks, registered trademark No. 3293585 " " and registered trademark No. 3293583 " " are valid; the plaintiff also applied to register the defensive trademark and joint trademark of the " " trademark respectively on related goods. The "Qinqin qinqin" trademark was registered in January 2002 Obtained a U.S. trademark registration certificate on May 8th; the plaintiff’s trademark has significant uniqueness; after several years of testing by relevant national, provincial and municipal product quality inspection agencies, the plaintiff’s goods are of excellent and stable quality, and the plaintiff, its products and trademarks have obtained It has been awarded many honors by China Food Industry Association and others, and has been rated as "China's Famous Food" and "Fujian Famous Trademark". Its " " brand shrimp crackers and potato chips (sticks) series products have achieved sales and market share Ranking first in the same industry nationwide, the " " brand jelly series products rank second in sales and market share in the same industry nationwide; the plaintiff has established a complete sales network and a complete after-sales service system nationwide, and has invested Huge amounts of advertising were carried out, and its advertising investment increased in direct proportion to sales; the plaintiff, its products and trademarks enjoyed high visibility and credibility in the same industry and were well known to relevant consumers. According to Article 14 of the Trademark Law of the People's Republic of China and Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names, the plaintiff's No. 3293585 should be determined The registered trademark “ ” and the registered trademark No. 3293583 “ ” are well-known trademarks in China. The defendant Hao Wenzhong opened the Qinqin Food Distribution Department in Daowai District, Harbin City, which is an individual industrial and commercial household specializing in selling small food. The plaintiff and its products and trademarks enjoy high visibility and credibility in the same industry and are well known to relevant consumers. It should be done knowingly. Without the permission of the plaintiff, the defendant registered the Chinese domain name "China Qinqin" and the English domain name "www.qinqin-cn.com" on the Internet, and used the logo of "Qinqin Food" to sell jelly and puffed food. Its domain names It is identical and similar to the plaintiff's well-known trademark, which is enough to cause misunderstanding among relevant consumers. It has obvious subjective malicious intent of "similar to the famous brand", which infringes upon the plaintiff's legitimate rights and interests, damages the plaintiff's business reputation and product reputation, and violates good faith. In principle, if a computer network domain name infringes upon trademark rights, corresponding civil liability should be borne.

To sum up, the plaintiff’s claim is reasonable and this court will support it; the defendant’s defense is untenable and this court will not accept it.

In accordance with Article 14 and Paragraph 1 and Paragraph 2 of Article 56 of the Trademark Law of the People's Republic of China, Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases Item (3), "Interpretations of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names" Article 4, Article 5, Paragraph 1, Items (1), (2), and 6 Article 8 and Article 8, the judgment is as follows:

1. Defendant Hao Wenzhong immediately ceases infringement of plaintiff Fujian Qinqin Co., Ltd.'s " " trademark rights;

2. Defendant Hao Wenzhong immediately stopped using the Chinese domain name "China Kiss" and the English domain name "www.qinqin-cn.com";

3. The Chinese domain name "China Kiss" and the English domain name "www.qinqin-cn" .com" was registered and used by the plaintiff Fujian Qinqin Co., Ltd.;

4. The defendant Hao Wenzhong compensated the plaintiff Fujian Qinqin Co., Ltd. for economic losses of 300,000 yuan, which shall be paid within 10 days after this judgment takes effect.

The case acceptance fee of 7,760 yuan was borne by the defendant Hao Wenzhong.

If you are dissatisfied with this judgment, you can submit an appeal to this court within fifteen days from the date of delivery of the judgment, and submit copies according to the number of opposing parties, and appeal to the Heilongjiang Higher People's Court.

Presiding Judge Liu Yajun

Judge Liu Shuhua

Acting Judge Chang Yude

April 16, 2006

Secretary He Yang