Category: Electronic digital gt; gt; Mobile phone/communication gt; gt; Mobile phone use
Analysis:
1. Criminal cases of infringement of intellectual property rights
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1. Huang Weijin and other counterfeit registered trademark cases
Public Prosecution Agency: Mianzhu City People’s Procuratorate of Sichuan Province
Defendants: Huang Weijin, Chang Rongfang, Zhang Huijian, Chang Zhujia , Qiu Lunfu
Chang Chunrong, Wen Yong
Cause of action: counterfeiting of registered trademarks
First instance case number: (2003) Sichuan Mianzhu Xingchu Zi No. 66
On May 26, 2003, the Mianzhu City People’s Procuratorate of Sichuan Province filed an indictment (2003) No. 64 against the defendants Huang Weijin, Chang Rongfang, Zhang Huijian, Chang Zhujia, and Qiu Lun. Fu, Chang Chunrong, and Wen Yong committed the crime of counterfeiting registered trademarks and filed a public prosecution with the People's Court of Mianzhu City, Sichuan Province.
The People's Court of Mianzhu City, Sichuan Province found out after trial: Defendant Huang Weijin and defendant Chang Rongfang verbally agreed that Huang Weijin would provide the original wine, and Chang Rongfang organized packaging materials and trademarks to jointly produce counterfeit wines. Famous wines. After that, Chang Rongfang hired the defendant Wen Yong to sell "Mianzhu Daqu", "Jiangkou Chun", "Jianzhuang", "Luzhou" Laojiao Erqu, etc. The wine was transported to the rental houses rented by Chang Rongfang in Zhonghe Town, Chengdu City and Huayang Town, Shuangliu County. Defendants Chang Rongfang and Zhang Huijian organized the trademarks "Jiannanchun", "Quanxing", "Wuliangye" and "Luzhou" and packaging, and hired the defendants Chang Zhujia, Qiu Lunfu, and Chang Chunrong to clean and repack wine bottles, and affixed a total of 648 copies of the "Jiannanchun" trademark, 300 copies of the "Quanxing" trademark, and 88 copies of the "Luzhou" trademark. , 96 copies of the "Wuliangye" trademark. Except for "Wuliangye", the defendant Chang Rongfang hired the defendant Wen Yong to transport the wine to the Xingda Liquor Wholesale Department opened by the defendant Huang Weijin in Chengdu Southwest Food City for sale.
The People's Court of Mianzhu City, Sichuan Province held that the defendants Huang Weijin, Chang Rongfang, and Zhang Huijian illegally used "Jiannanchun", "Wuliangye", "Quanxing" and "Luzhou" without the permission of the registered trademark owner. The trademark and packaging of Laojiao Tequ are serious, and their actions have constituted the crime of counterfeiting registered trademarks. The defendants Wen Yong, Chang Zhujia, Chang Chunrong and Qiu Lunfu knew that the above defendants were counterfeiting registered trademarks and provided transportation and other assistance to them. Their actions should be punished as criminals for the crime of counterfeiting registered trademarks. The defendants Huang Weijin, Chang Rongfang, and Zhang Huijian played a major role in the crime and were the principal offenders; the defendants Wen Yong, Chang Zhujia, and Qiu Lunfu played a minor role and were accomplices, and their punishments may be reduced in accordance with the law; the defendant Chang Chunrong played a minor role. He is an accessory, and he participated in counterfeiting registered trademarks for a short time, and the circumstances are minor, so he can be exempted from punishment according to law. The defendant Chang Zhujia committed another crime within 5 years after being released from prison. He is a recidivist and should be severely punished.
On August 20, 2003, the People's Court of Mianzhu City, Sichuan Province, in accordance with Article 213, Article 25, Paragraph 1, Article 26, Paragraph 1, and Paragraph of the Criminal Law of the People's Republic of China According to the provisions of paragraph 4, paragraphs 1, 2, 64 and 65 of Article 27, defendant Huang Weijin was sentenced to 3 years and 6 months in prison and fined 10,000 yuan; defendant Chang Rongfang was sentenced to 3 years and 6 months in prison and fined 10,000 yuan; defendant Chang Rongfang was sentenced to 3 years and 6 months in prison. The defendant Zhang Huijian was sentenced to 3 years and 6 months in prison and fined 10,000 yuan; the defendant Chang Zhujia was sentenced to 1 year and 6 months in prison and fined 10,000 yuan. The defendant Wen Yong was sentenced to 1 year in prison and fined 2,000 yuan; the defendant Qiu Lunfu was sentenced to 1 year in prison and fined 2,000 yuan; the defendant Chang Chunrong was exempted from criminal punishment.
After the first-instance verdict was pronounced, none of the seven defendants including Huang Weijin appealed, and the prosecutorial office did not protest, so the verdict became legally effective.
2. Case of Ying Hongxia and others selling goods with counterfeit registered trademarks
Public Prosecution Agency: People’s Procuratorate of Xihu District, Hangzhou City, Zhejiang Province
Defendant: Ying Hong Xia, Gu Linlin, Feng Shengwei
Cause of action: Selling goods with counterfeit registered trademarks
First instance case number: (2004) Zhejiang Hangxi Xingchuzi No. 336
On July 5, 2004, the People's Procuratorate of Xihu District, Hangzhou City, Zhejiang Province filed Hangxi Procuratorate (2004) Indictment No. 285, accusing the defendants Ying Hongxia, Gu Linlin, and Feng Shengwei of committing the crime of selling goods with counterfeit registered trademarks. The Provincial People's Court of Xihu District, Hangzhou City initiated a public prosecution.
The People’s Court of Xihu District, Hangzhou City, Zhejiang Province found after trial that the defendant Feng Shengwei was originally a staff member of the Hangzhou office of Guangzhou Dasheng Integrated Marketing Communications Agency, from early January 2004 to February 23 of the same year. , for the purpose of illegal profit-making, knowing that the shampoo provided to him by "Chen Dawei" and "Ni Zhuang" in Guangzhou were counterfeit registered trademarks such as Rejoice, Head and Shoulders, and Pantene produced by Procter & Gamble (China) Company. This time, he sold counterfeit shampoo with the above-mentioned registered trademark produced by Procter & Gamble (China) Company worth about 1.5 million yuan to Ying Hongxia and Gu Linlin, the former external staff of Guangzhou Procter & Gamble Company in Hangzhou, and paid a commission of 10-15 yuan per box. The illegal profits totaled more than RMB 70,000. During the same period, the defendants Ying Hongxia and Gu Linlin, for the purpose of making illegal profits, knowingly knew that the above-mentioned shampoo was a counterfeit product and sold it to Huang, a daily chemical products dealer, seven times, from which the defendants Ying Hongxia and Gu Linlin Illegal profit of more than 150,000 yuan. After the incident, the defendant Feng Shengwei surrendered.
After trial, the Hangzhou Xihu District People’s Court held that the defendants Feng Shengwei, Ying Hongxia, and Gu Linlin knowingly sold goods with counterfeit registered trademarks, and the sales amount was huge, and their actions constituted the sale of counterfeit registered trademarks. Commodity crime. The defendant Feng Shengwei voluntarily surrendered and truthfully confessed his crime, which should be regarded as surrender and may be given a lighter punishment in accordance with the law.
On August 3, 2004, the People’s Court of Xihu District, Hangzhou City, in accordance with Article 214, Article 67, Paragraph 1, Article 25, Paragraph 1, and Paragraph 2 of the Criminal Law of the People’s Republic of China According to the provisions of Article 64, Article 72, and Article 73, paragraphs 2 and 3, the defendant Ying Hongxia was sentenced to 3 years' imprisonment, suspended for 5 years, and fined RMB 50,000; the defendant Gu Linlin was sentenced to 3 years' imprisonment, suspended 5 years and a fine of RMB 50,000; the defendant Feng Shengwei was sentenced to 3 years in prison, suspended for 4 years, and fined RMB 50,000.
After the first-instance verdict was announced, the defendant did not appeal and the prosecutorial office did not protest. The verdict has taken legal effect.
3. Copyright infringement case by Wang Hongxing and Zhao Kun
Public Prosecution Agency: People’s Procuratorate of Haidian District, Beijing
Defendants: Wang Hongxing and Zhao Kun
Cause of action: Crime of copyright infringement
First instance case number: (2003) Jinghai Fa Xing Chu Zi No. 2434
On November 3, 2003, People’s Court of Haidian District, Beijing The Procuratorate filed a public prosecution with the People's Court of Haidian District, Beijing, charging the defendants Wang Hongxing and Zhao Kun with the crime of copyright infringement (2003) Jinghaijingjingvzi No. 621.
The Haidian District People’s Court of Beijing found after trial that the defendants Wang Hongxing and Zhao Kun were originally employees of Beijing Leishi Century Digital Technology Co., Ltd. (hereinafter referred to as “Leishi Company”) and were responsible for software development. In March 2002, after the two resigned from Leishi Company, they took away the source code of Leishi Company's KTV karaoke system software and wanted to continue developing and selling the system software. From March 2002 to January 2003, for the purpose of profit, the two defendants slightly modified the "Leishi KTV Broadband Service System" software and copied the installation disk, and successively provided it to Xi'an Yunzhi Electronic Technology Development Co., Ltd. and Hangzhou Xin Seven companies, including Time and Space Digital Technology Co., Ltd., sold copies of the software, with illegal gains totaling RMB 119,295.
The Beijing Haidian District People’s Court held that the defendants Wang Hongxing and Zhao Kun copied and distributed other people’s computer software without the permission of the copyright owner for the purpose of profit, and the amount of illegal gains was relatively large, and their actions constituted infringement. Copyright crime. Defendants Wang Hongxing and Zhao Kun both actively participated in and benefited from it, but Zhao Kun's role in the crime was slightly smaller than Wang Hongxing's.
On February 27, 2004, the People's Court of Haidian District, Beijing City, in accordance with Article 217(1), Article 25(1), and Article 53 of the Criminal Law of the People's Republic of China , Article 64, the defendant Wang Hongxing was sentenced to 1 year and 6 months in prison and fined RMB 5,000; the defendant Zhao Kun was sentenced to 1 year in prison and fined RMB 3,000.
After the first-instance verdict was announced, the two defendants Wang Hongxing and Zhao Kun did not appeal, and the prosecutorial office did not protest. The verdict has taken legal effect.
2. Civil trial cases involving intellectual property rights
1. The Appellant in the (U.S.) Educational Examination Service Center v. New Oriental School, a private school in Haidian District, Beijing over copyright infringement and registered trademark rights (Defendant in the original trial): Private New Oriental School in Haidian District, Beijing
Appellee (Plaintiff in the original trial): (U.S.) Educational Testing Service (Educational Testing Service)
Appellant Beijing City The private New Oriental School in Haidian District (hereinafter referred to as New Oriental School) was dissatisfied with the civil judgment No. 35 of the Beijing No. 1 Intermediate People's Court (2001) No. 1 Zhongzhichuzi No. 35 due to a dispute over copyright infringement and trademark exclusive rights, and filed a lawsuit with the Beijing Higher People's Court. File an appeal.
The first-instance court, Beijing No. 1 Intermediate People’s Court, ruled that the (U.S.) Educational Testing Service (hereinafter referred to as ETS), as the host and developer of the TOEFL exam, independently designed and created the TOEFL test questions, and registered copyrights in the United States for 53 sets of TOEFL test questions. In August 1997, ETS signed an agreement with New Oriental School, which is mainly engaged in foreign language teaching services, allowing New Oriental School to copy the sound recordings and written works (***20 sets of test questions) listed in the agreement in a non-exclusive manner for internal use. No external sales are allowed, and the agreement is valid for one year. However, New Oriental School sold the TOEFL test questions in the form of publications on its campus and on the Internet to unspecified people, and did not sign a new agreement after the license agreement expired. In addition, ETS has approved the registration of the "TOEFL" trademark in China, and the scope of approved use is cassette tapes, examination services, publications, etc. The cover of the allegedly infringing product shall be marked with "TOEFL" in eye-catching words. In January 2001, ETS filed a lawsuit with the Beijing No. 1 Intermediate People's Court for infringement of copyright and registered trademark rights by New Oriental School. Previously, New Oriental School had been investigated and punished by the administrative law enforcement department for this reason.
The court of first instance held that the TOEFL test questions were developed and designed by ETS. Each test question requires multiple people to go through multiple steps and put in creative work to complete. It is original and falls within the meaning of China’s copyright law. The work, and the entire set of examination questions compiled therefrom, should also be protected. New Oriental School copied and publicly sold TOEFL test questions for commercial purposes without permission from ETS, which infringed the copyright of ETS and should bear corresponding legal liability. New Oriental School marked the word "TOEFL" in eye-catching fonts on the cover of the TOEFL test questions publication it issued, and the product category was the same as the product category registered by ETS. New Oriental School's behavior infringed on ETS's exclusive right to register trademarks. The court ordered New Oriental School to stop infringing copyright and registered trademark rights, compensate for losses, eliminate the impact and apologize.
After hearing, the Beijing Higher People’s Court held that the first-instance judgment that New Oriental School had infringed ETS’s copyright was correct and should be upheld, but that the infringement of ETS’s registered trademark rights and the amount of compensation were improperly identified and handled. be corrected as appropriate.
Accordingly, a judgment was made in accordance with the law on December 27, 2004, upholding the first-instance judgment regarding copyright and revoking the first-instance judgment regarding the exclusive right to register a trademark.
2. Trademark infringement and unfair competition dispute case of Bonnet Trisevenol Co., Ltd. v. Shanghai Meizheng Clothing Co., Ltd. and others
Appellant (defendant in the original trial): Shanghai Meizi Clothing Co., Ltd. (hereinafter referred to as Shanghai Meizi)
Appellee (plaintiff in the original trial): Bonerie Cevenole S. A. R. L.
Original trial Defendant: Montagut Meizi (Hong Kong) Clothing Co., Ltd. (hereinafter referred to as Hong Kong Meizi)
Defendant in the original trial: Changshu Haoteba Clothing Co., Ltd. (hereinafter referred to as Changshu Haoteba)
Defendant in the original trial: Gan Chuanmeng
Defendant in the original trial: Gan Chuanfei
Defendant in the original trial: Xu Guoliang
Appellant Shanghai Meizheng Clothing Co., Ltd. (hereinafter referred to as Shanghai Meizheng) Due to a dispute over trademark infringement and unfair competition, he was dissatisfied with the civil judgment (2002) Hu Er Zhong Min Wu (Zhi) Chu Zi No. 202 of the Shanghai No. 2 Intermediate People's Court and appealed to the Shanghai Higher People's Court.
After trial, the court of first instance found that the plaintiff Bonnetry Severnol Co., Ltd. is a French company engaged in clothing design, manufacturing and sales. It has registered in mainland China "flower graphics, traditional Chinese characters" There are four trademarks including "MONTAGUT", "MONTAGUT" and a combination of flower graphics. The products approved for use by the trademarks are all Class 25 clothes, shoes, hats, etc. Hong Kong Meizheng was established in Hong Kong by Gan Chuanfei and Gan Chuanmeng, and was assigned a registered trademark that combines the Chinese characters "Meizheng", the pinyin letters "Meizheng" and the petal graphic (hereinafter referred to as the "Meizheng" trademark). Shanghai Meizi was established in Shanghai by Gan Chuanmeng and was authorized by Hong Kong Meizi to exclusively use the "Meizheng" trademark in mainland China. Changshu Haoteba was established by Xu Guoliang to process and sell clothing for Shanghai Meizi. The clothing produced by Changshu Haoteba and sold by Shanghai Meizi and Changshu Haoteba used the "Montagut Meizi" logo, and the decoration of the packaging bags was similar to that of the plaintiff. In addition, Shanghai Meizheng has marked the traditional pinyin letters of "Montagut" and "Meizhan" with petal graphic logos at intervals on the shelves of its specialty stores, and marked the "goods (brand) number" as "Montagut" on the price tags. Shanghai Plum Steamer uses the corporate name of Hong Kong Plum Steamer with the words "Montaggio" directly on its store doors, billboards, clothing, and packaging bags. Changshu Haoteba directly uses the company name of Hong Kong Plum Steamer with the words "Montaggio" on clothing and packaging bags.
The Shanghai Second Intermediate People's Court held after trial that the collars and linings of jackets produced and sold by Shanghai Meizi and Changshu Haoteba were marked with the "Montaggio Meizi" logo, and the left side of the jacket was The chest is marked with the pinyin letters of "ume steam" and the petal graphic logo. The color of the pinyin letters of "ume steam" is the same as the color of the clothing material, which highlights the color of the petals. The petal graphic only lacks leaves and stems compared to the plaintiff's "flower graphic", and is in The direct use of "Montagut" as the product name on shelves and price tags is enough to mislead the public and infringe the plaintiff's exclusive right to register a trademark. Shanghai Plum Steamer used the company name containing the plaintiff's trademark "Montaggio" directly on the store doors, billboards, clothing, and packaging bags of Changshu Haoteba. The decoration of the packaging bags was also similar to that of the plaintiff. constitute unfair competition. Shanghai Meizheng, Hong Kong Meizheng, and Changshu Haoteba have subjectively shared the intention of infringement and should jointly bear civil liability for infringement. Because Gan Chuanmeng, Gan Chuanfei and Xu Guoliang are the legal representatives of the three defendant companies respectively, and their actions represent their respective companies, the consequences of the infringement should be borne by the companies. Based on the ascertained facts of the case, the court of first instance ruled that the three defendant companies should cease trademark infringement and unfair competition, and jointly and severally compensate the plaintiff for economic losses of RMB 500,000. After the verdict, Shanghai Mei Zheng appealed to the Shanghai Higher People's Court.
After trial, the Shanghai Higher People's Court found that the facts found by the original court were clear, the law was applied correctly, and the trial procedures were legal, and should be upheld. On July 6, 2004, the Shanghai Higher People's Court ruled in accordance with the law to reject the appeal and uphold the original judgment.
3. Copyright infringement dispute case between Sony Records (Hong Kong) Co., Ltd. and Suzhou West Catering and Entertainment Co., Ltd.
Plaintiff: Sony Records (Hong Kong) Co., Ltd. (hereinafter referred to as Sony Corporation)
Defendant: Suzhou West Catering and Entertainment Co., Ltd. (hereinafter referred to as West Entertainment Company)
Plaintiff Xinli Company discovered on December 12, 2003 that West Entertainment Company was operating for profit without permission For the purpose of screening three works ("Two in One", "All Day Love", and "Acid") sung by Li Ming, which Xinli Company owns the copyright to (MTV), in the form of karaoke OK to the public, Xinli Company was accused of infringing on its legitimate rights and interests. The lawsuit was filed with the Intermediate People's Court of Suzhou City, Jiangsu Province.
The Suzhou Intermediate People's Court found after trial that in 2001, Xinli Company produced and distributed VCD discs containing the three MTV works involved in the case. The back page of the genuine disc jacket involved was marked with the Xinli Company copyright mark. And registered the copyright with the Asia Office of the International Federation of the Phonographic Industry. On December 12, 2002, the International Federation of the Phonographic Industry’s Beijing Representative Office entrusted agent Liu Ying to order eight songs sung by Liming that were played at the Western Biaoge City operated by Western Entertainment Company, videotaped the playback process, and burned it into a CD Two servings. The disc contains three MTV works involved in the case. The Suzhou Notary Office notarized the above evidence collection process.
The court held that the MTV works involved in this case were based on certain vocal and instrumental music works as the main carriers. They carried out visual creative design based on the different characteristics and situational atmosphere of the music genre, forming an audio-visual structure integrating sound and painting. At the same time, it uses changing combinations of light, color, composition, etc. in artistic processing, and uses three-dimensional animation, digital editing and other technical processing to condense the creative labor of directors, actors, photography, editing, lighting, etc. It is an art that combines audio and video It meets the constituent requirements of a work and is a work created using a method similar to that of a film as stipulated in the Copyright Law. Sony Corporation owns the copyright to the three MTV works involved in the case. Western Entertainment Company used the works involved in the case without permission in its business activities, infringing on the screening rights and remuneration property rights enjoyed by Sony Corporation. It should bear civil liability to stop the infringement and compensate for losses according to law. Since Western Entertainment Company has not infringed upon the personal rights of Sony Corporation, the liability method of apology is no longer applicable. The amount of compensation should be determined as appropriate based on factors such as the type of works involved in the case, the business scale and level of Western Entertainment Company, the time of infringement, and other factors. The reasonable expenses incurred by Xinli Company for litigation, etc. shall be borne by Western Entertainment Company.
On November 26, 2004, the Suzhou Intermediate People's Court ruled in accordance with the law: Western Entertainment Company ceased infringement, compensated Xinli Company for economic losses of RMB 9,000 and reasonable expenses of RMB 25,441 for the lawsuit, and rejected Xinli. Other claims of the company. After the judgment, neither party filed an appeal in accordance with the law, and the judgment has taken legal effect.
4. Zhejiang Xiaoshan Wuliangye Series Wine Sales Co., Ltd. and Yibin Wuliangye Co., Ltd. v. Sichuan Laozuofang Winery and Ninghai County Changsheng Food Co., Ltd. Trademark infringement and unfair competition dispute case
Appellant (plaintiff in the original trial): Zhejiang Xiaoshan Wuliangye Series Liquor Sales Co., Ltd. (hereinafter referred to as Xiaoshan Wuliangye)
Appellant (plaintiff in the original trial): Yibin Wuliangye Co., Ltd. (hereinafter referred to as Yibin Wuliangye)
Appellant (defendant in the original trial): Sichuan Laozuofang Winery (hereinafter referred to as Laozuofang Winery)
Appellee (defendant in the original trial): Ninghai County Changsheng Food Co., Ltd. (hereinafter referred to as Changsheng Company) )
Xiaoshan Wuliangye and Yibin Wuliangye sued Laoshoufang Distillery and Changsheng Company for trademark infringement and unfair competition disputes. The two parties were dissatisfied with the Ningbo Intermediate People’s Court (2003) Yongmin Erchu No. 95 Civil judgment No. 1 was appealed to the Zhejiang Provincial Higher People's Court.
The court found after trial that Xiaoshan Wuliangye obtained the "Zuofang" trademark in March 2003 and granted Yibin Wuliangye the exclusive use of the "Zuofang" trademark.
Sichuan Yibin Wuliangye Group Co., Ltd. obtained the design patent for the packaging box in December 1999. Laozuofang Winery was established in July 2001 and produces the wine "Laozuofang Yupai Laozuofang Yujiao". The three characters "Laozuofang" in "Laozuofang Yujiao" are much larger than the two characters "Yujiao". Changsheng Company has been operating three varieties of Laoshuofang Yujiao wine since December 2002.
The Higher People’s Court of Zhejiang Province held that Xiaoshan Wuliangye and Yibin Wuliangye have exclusive rights to the registered trademark “workshop” and should be protected. Laozuofang Winery prominently uses the word "Laozuofang" in the "Laozuofang Yupai Laozuofang Yujiao" wine, which is generally similar to the registered trademark "Zhoufang" and may easily cause the relevant public to misunderstand the source of the trademark. Identification or confusion, Laozuofang Distillery and Changsheng Company have infringed the trademark rights of Xiaoshan Wuliangye and Yibin Wuliangye; the evidence provided by Yibin Wuliangye cannot determine that the "Zuofang" brand Laozuofang Liquor and Zuofang Liquor involved in the case are well-known products. Laozuofang Distillery, The actions of Changsheng Company did not constitute an infringement on the unique name, packaging, and decoration of well-known commodities; in the case that Xiaoshan Wuliangye and Yibin Wuliangye did not make a clear claim for patent infringement, there was no need to hear the patent infringement dispute; because Xiaoshan Wuliangye It has only enjoyed the exclusive right to register the trademark "Zhoufang" since March 2003, while Laozuofang Distillery was established in July 2001, earlier than Xiaoshan Wuliangye enjoyed the exclusive right to register the trademark, and the company name of Laozuofang Distillery has been registered by the industrial and commercial administration agency Procedural acquisition, Xiaoshan Wuliangye and Yibin Wuliangye’s request to revoke the brand name of Laozuofang Distillery has no factual and legal basis; combined with the circumstances of this case, based on the time when Xiaoshan Wuliangye obtained the exclusive right to trademark, the duration of the infringement of Laozuofang Distillery, and Xiaoshan Wuliangye, The amount of compensation is the amount of compensation that takes into account the reasonable expenses paid by Yibin Wuliangye to stop the infringement.
On August 26, 2004, the Zhejiang Higher People’s Court ruled in accordance with the law: Laozuofang Distillery and Changsheng Company ceased infringement of the "Zuofang" registered trademark; Laozuofang Distillery and Changsheng Company respectively compensated Xiaoshan Wuliangye , Yibin Wuliangye suffered economic losses of 200,000 yuan and 100,000 yuan (including reasonable expenses paid to stop the infringement).
5. Harbin Black Swan Group Co., Ltd. v. Guangdong Black Swan Catering Culture Co., Ltd. Trademark infringement and unfair competition dispute case
Appellant (defendant in the original trial): Guangdong Black Swan Catering Culture Co., Ltd. (hereinafter referred to as Guangdong Black Swan Company).
Appellee (plaintiff in the original trial): Harbin Black Swan Group Co., Ltd. (hereinafter referred to as Harbin Black Swan Company).
In the case of Harbin Black Swan Company v. Guangdong Black Swan Company for trademark infringement and unfair competition disputes, the Guangzhou Intermediate People’s Court issued (2001) Suizhong Fa Zhi Chu Zi No. 190 Civil Judgment against Guangdong Black Swan Company. Stop the infringement of the exclusive rights of registered trademarks, compensate for losses of 500,000 yuan, and reject the plaintiff’s unfair competition and other other claims. Guangdong Black Swan Company was dissatisfied with the judgment and appealed to the Guangdong Provincial Higher People's Court.
After trial, the court found that Harbin Black Swan Company acquired the "Black Swan" word and picture combination trademark in September 2000. Guangdong Black Swan Company was established on January 20, 1998. In April 2002, Guangdong Black Swan Company applied to the State Trademark Office to cancel the "Black Swan" trademark of Harbin Black Swan Company, but the State Trademark Office decided not to accept the application. In December 2003, the Beijing No. 1 Intermediate People's Court issued an administrative judgment upholding the State Trademark Office's decision not to accept the application. During the second trial, Guangdong Black Swan Company appealed the judgment to the Beijing Higher People's Court.
After hearing, the Guangdong Provincial Higher People’s Court held that although Guangdong Black Swan Company appealed to the Beijing Higher People’s Court, according to the provisions of the Administrative Litigation Law, if the execution of specific administrative actions is not stopped during the litigation, it will not be suspended in the country. Before the Trademark Office cancels the "Black Swan" trademark, the exclusive right to register the trademark "Black Swan" should be protected by law; the court of first instance did not accept Guangdong Black Swan Company's counterclaim, which did not violate the law and did not affect Guangdong Black Swan Company's litigation rights. The trial of this case does not need to be based on the results of the relevant administrative cases; according to the Implementation Regulations of the Trademark Law, a trademark that has been continuously used until July 1, 1993 is the same as or the service trademark that has been registered by others on the same or similar services. Similarly, you can continue to use it, but you are not allowed to expand the area of ??use and service items. However, Guangdong Black Swan Company has no affiliation with the outsiders who used the "Black Swan" trademark and store name before July 1, 1993. They belong to different market entities. Guangdong Black Swan Company claims that it has the prior right to use the "Black Swan" trademark. The reason is untenable; Guangdong Black Swan Company was established in January 1998. After the "Black Swan" trademark was registered, it used a trademark similar to the registered trademark of Harbin Black Swan Company, which constituted trademark infringement.
On April 2, 2004, the Guangdong Provincial Higher People’s Court ruled in accordance with the law: the appeal was dismissed and the original judgment was upheld.