Appellant’s point of view
Appellant ***** filed an appeal request with this court: 1. Revoke (2020) Yu 0192 Minchu No. 6222 Civil Judgment, change the judgment and reject the appealed The person's litigation claim; 2. The appellee shall bear the litigation fees of the first and second instances. The facts and reasons are as follows: 1. The trademark used by the product involved in the case does not constitute confusion with the trademark of the respondent, and there is no infringement. 1. The judgment of whether trademarks are identical shall be based on the general attention of the relevant public. The trademarks involved in the case shall be compared as a whole and partially, and shall be conducted separately with the comparison objects isolated. The goods involved in the case are prominently marked as JP ACE in terms of outer packaging, product, product startup screen, etc. Although the 王字 in the trademark claimed by the respondent is the same, the distinction can be clearly seen, and it is obviously impossible for the general public to distinguish it. It is believed that the TV set has some connection with TCL and will not cause confusion among the relevant public; 2. The wholesale price of the product involved in this case is more than 200 yuan, and the retail price of the appellant is also more than 300 yuan. This price is consistent with the TCL series of TVs sold. The price difference is huge and there is no confusion among the concerned public. 2. Even if it is believed that there is trademark infringement, the product involved in the case is produced by a regular manufacturer, and the appellant purchased it from regular channels and has stated the supplier, which has constituted a legal source defense. 1. The court of first instance did not recognize the phone call recording presented by the appellant during the trial and did not make any comments. There were omissions in the fact finding. In the first instance, the appellant cited a recording of the call between the appellant and the phone number 13628420730 on September 10, 2020, which clearly mentioned JP Ace TV and requested the trademark certificate for the TV set purchased by the appellant. On September 13, 2020, the appellant received the trademark registration certificate for the JP registered trademark from Wu Liangcai. The above two pieces of evidence cited by the appellant can be corroborative, or at least explain the fact that the appellant purchased the JP Ace TV involved in the case from Wu Liangcai. Combined with the sales list and WeChat transfer records, the transaction process can be restored. 2. The evidence adduced by the appellant forms a chain of evidence, which is sufficient to show that the product involved in the case sold by the appellant has a legal source. The court of first instance held that the sales list provided by the appellant did not contain the product name and could not correspond to the infringing product involved in the case, and held that there was no legal source defense. The appellant purchased five TV sets from Wu Liangcai for a total price of 1,290 yuan. The sales list stated that 17 and 19 were display screen sizes. This was a typical small-amount transaction. Both parties to the transaction understood what the sales list said. For products, it is normal that no specific product information is stated. The appellant's store is in a township, the TV series involved in the case also belongs to the small household appliances industry, and the value of the goods itself is not high. The individual industrial and commercial household registration management cards, call recordings, sales lists, WeChat transfer records, and WeChat chat records cited by the appellant can be comprehensively determined to be the purchasing channel of the appellant as Wu Liangcai. According to Wu Liangcai’s individual business registration management card, its registration location is located in Chongqing’s Yalan Electronics City, which is a professional market where small household appliance merchants are concentrated in Chongqing. This can indicate that the appellant’s purchase channel is a formal channel and the product involved in the case cannot be identified as infringement. It is normal for products with registered trademark exclusive rights.
Appellee’s point of view
Appellee TCL argued that the facts in the first-instance judgment were clear and the applicable law was correct, and requested the court to reject all the appeals of the appellant.
Plaintiff’s point of view in the first instance
TCL filed a lawsuit with the court of first instance: 1. *****, Dazu District Ririsheng Electrical Appliances Sales Department immediately stopped sales for infringement of TCL Company’s No. 1792882 No. "" registered trademark exclusive goods, destroy the inventory of infringing products; 2.*****, Dazu District Ririsheng Electrical Business Department *** agree to compensate TCL Company for economic losses of 50,000 yuan (including TCL Company's The evidence collection and shopping fee paid to stop the infringement is 368 yuan, and the amount of notary fees, lawyer fees, transportation and accommodation fees shall be determined by the court); 3.*****, Dazu District Ririsheng Electrical Appliances Business Department shall bear the litigation costs of this case .
Facts of the first instance case
The facts found by the court of first instance:
TCL Group Co., Ltd. was approved to register the "" trademark No. 1792882 on June 21, 2002 , the approved scope of use is Category 9 commodities: fax machines, telephones, computer software (recorded), televisions, electronic dictionaries, etc. On February 3, 2004, the registrant of the trademark was changed to TCL Group Co., Ltd., and the validity period of the registered trademark was subsequently renewed until June 20, 2022. TCL Group Co., Ltd. was approved to register the "" trademark No. 4190928 on January 7, 2007. The approved use scope is Class 9 commodities: monitors, computers, televisions, video recorders, etc.; the validity period of the registered trademark was later renewed. Until January 6, 2027. TCL Group Co., Ltd. was established on March 11, 1982 with a registered capital of more than 13.5 billion yuan. Its business scope includes research, development, production, and sales of electronic products and communication equipment, new optoelectronics, liquid crystal display devices, Wujijiaodian, and VCD , DVD players, home theater systems, computers and accessories, etc. On February 5, 2020, TCL Group Co., Ltd. changed its name to TCL Technology Group Co., Ltd.
In 1999, the "" trademark registered and used by TCL Group Co., Ltd. on telephones and televisions was recognized as a well-known trademark by the State Trademark Office. For a long time, after TCL Technology Group Co., Ltd. has carried out extensive publicity and promotion of its products and brands, the "TCL" brand ranked first in the national TV manufacturing industry in the evaluation of China's Top 100 Brand Values ??from 2014 to 2017. TCL Ace TV has also won many honors.
On February 5, 2020, TCL Technology Group Co., Ltd. issued a "Trademark Authorization Letter", authorizing TCL to use "", "", "" and other trademarks and carry out rights protection matters; the licensing method is: Under a general license, the authorized party has the right to take rights protection actions in its own name against any infringement of the licensor's trademark rights and unfair competition, including but not limited to reporting to the industrial and commercial administration department, civil and criminal litigation, negotiation and settlement, etc.; Authorized area For mainland China; the authorization period is from September 17, 2018 to December 31, 2022; if the authorized party implements the authorized content mentioned in this trademark authorization letter before the signing date, the authorized party will ratify it.
On June 10, 2020, the Guoli Notary Office of Chengdu City, Sichuan Province issued (2020) Sichuan Notary Certificate No. 60658, which mainly states: On May 19, 2020, Notary Public, Notary Public The staff of the office and the purchaser assigned by the applicant went to a store marked "Ririsheng Electrical Little Swan Refrigerator Specialty Store" at No. 215, Longgang East Road, Dazu District, Chongqing City, and purchased a product labeled "Ace" for 368 yuan. A television set with a sign and a receipt. After the purchaser uses his mobile phone to pay, he will take a screenshot of the mobile phone payment page, and the purchased TV will be numbered by a notary (number: 5-19-1). The notary takes photos of the purchase site, purchased goods and receipts, and seals the purchased goods and receipts. The purchased television set shall be sealed and handed over to the applicant for safekeeping. The notarial certificate includes 8 pages of photo printouts. The bill details in the picture attached to the notarial certificate show that the payee is