Fu Zhengjun has a Kaixin domain name case. The process is as follows:

A trademark infringement case that occurred in Beijing in 2008

The plaintiff in the Kaixin.com domain name case is Beijing Kaixinren Information Technology Co., Ltd., and the defendant is Beijing Qianoak Internet Technology Development Co., Ltd. company.

Chinese name

Kaixin domain name case

Foreign name

Time domain name case

Plaintiff

p>

Beijing Kaixinren Information Technology Co., Ltd.

Defendant

Beijing Qianoak Internet Technology Development Co., Ltd.

Case Process

[Moderator]: The plaintiff, Beijing Kaixinren Information Technology Co., Ltd., filed a lawsuit claiming that in March 2008, the plaintiff founded "Kaixin.com", a website with high commercial value. In October 2008, the plaintiff discovered that the defendant had also opened "Kaixin.com" with the same name. The website name, service functions, service objects, and service content were exactly the same as the plaintiff's website, making it difficult for netizens to distinguish between true and false, resulting in the plaintiff's registration as a user. The upward trend has slowed down significantly, a large number of potential users have been lost, and the plaintiff has suffered huge losses to its legitimate interests. Its behavior constitutes unfair competition. Therefore, the lawsuit was filed in court, requesting an order to order the defendant to stop using "Kaixin.com" as the website name and to compensate the plaintiff for economic losses of 10 million yuan. Yuan, publicly apologized to the plaintiff and bore all litigation costs.

The defendant, Beijing Qianoak Internet Technology Development Co., Ltd., argued that our company is no longer the operator of "Kaixin.com" and the plaintiff's lawsuit was wrong. It requested that the plaintiff's lawsuit be dismissed. [09:14:20]

[Clerk]: Now announce the court rules. 1. When judges enter or leave the court, all judges should stand. 2. Litigation participants shall abide by court rules, maintain court order, and shall not make noise or noise; speeches, statements and debates must be approved by the presiding judge. 3. Observers must abide by the following disciplines: 1. No recording, video recording or photography is allowed without permission; 2. No walking around or entering the trial area at will; 3. No speaking or asking questions; 4. No applause, making noises, making noises or other acts. Behavior that hinders trial activities; 4. Litigation participants and observers should turn off communication equipment such as pagers and mobile phones. 5. Litigation participants and observers should immediately stop speaking and violating court rules after hearing the sound of the gavel. [09:18:58]

[Clerk]: Please all stand up and invite the presiding judge and judges to enter the court. Everyone, please take a seat. [09:19:18]

[Clerk]: Report to the presiding judge that the attorneys of both parties have arrived in court, and the court preparations are ready for the hearing. [09:19:35]

[Presiding Judge]: The court is now in session. The Beijing Second Intermediate People's Court today held a public hearing in accordance with the provisions of the ordinary procedures of the Civil Procedure Law on the unfair competition dispute case of Beijing Kaixinren Information Technology Co., Ltd. v. Beijing Qianoak Internet Technology Development Co., Ltd. This court formed a collegial panel in accordance with the law, consisting of Judge Liu Wei served as the presiding judge, judges Han Yufeng and Zhou Xiaobing participated in the collegial deliberations, and clerk Sun Chunwei served as court recorder. After review, Li Yunde and Wang Wei serve as the authorized agents of Beijing Kaixinren Information Technology Co., Ltd., and Xu Jing and Zhang Hairuo serve as the authorized agents of Beijing Qianoak Internet Technology Development Co., Ltd. The procedures for participating in the litigation are legal and the qualifications are valid, and they are allowed to participate. litigation. [09:22:58]

[Presiding Judge]: We now announce the litigation rights and obligations of the parties. According to the relevant provisions of the Civil Procedure Law, the parties equally enjoy the following rights in litigation: state facts, debate and make requests. The court grants the right to mediation; the plaintiff has the right to withdraw the lawsuit and the defendant has the right to counterclaim; the right to present new evidence; and the right to apply for recusal. The parties shall bear the following litigation obligations: the obligation to obey court orders and abide by court order; the obligation to truthfully state facts; the obligation to exercise litigation rights in accordance with the law and not abuse them; and respect the judge and the other party and agent.

[Presiding Judge]: Did both parties hear clearly the rights and obligations announced above? [09:23:32]

[Plaintiff]: I heard you clearly.

[Defendant]: I heard you clearly. [09:23:45]

[Presiding Judge]: Do both parties request the recusal of the members of the collegial panel?

[Plaintiff]: Not applying.

[Defendant]: Not applying. [09:24:00]

[Presiding Judge]: The following is a court investigation. First, the plaintiff will state the claim and the facts and reasons for the lawsuit.

[Plaintiff]: Litigation claims: 1. Request the court to order the defendant to stop using "Kaixin.com" and names similar to "Kaikai.com" as website names; 2. Request the court to order the defendant to compensate for economic losses. 10 million yuan; 3. Request the court to order the defendant to make a public apology; 4. Request the court to order the defendant in this case to stop using the kaixin.com domain name. 5. Request the court to order the defendant to bear all litigation costs of this case. [09:28:22]

[Plaintiff]: The facts and reasons are that in March 2008, the plaintiff established a website, "Kaixin.com", and the main part of the network domain name is "Kaixin.com" ” in Chinese Pinyin. The plaintiff also owns the exclusive trademark rights of the "Kaixin" trademark approved and registered by the Trademark Office of the State Administration for Industry and Commerce. "Kaixin.com" is the plaintiff's legal use of its trademark rights. Due to the unique creativity of "Kaixin.com", it aroused strong response from the majority of Internet users soon after the website was launched. The number of registered users increased month by month, making Kaixin.com's global ranking equal to that of Sina and Sohu in just a few months after its launch. , NetEase and other well-established well-known websites that have been developed for more than ten years are approaching and become a brand new well-known website. Related situations of Kaixin.com are often widely reported by many media. Many domestic and foreign investors were optimistic about the prospects of "Kaixin.com" and rushed to negotiate investment matters with the plaintiff. [09:29:14]

[Plaintiff]: In October 2008, the plaintiff saw reports from many media about the "copycat version" of Kaixin.com, so he launched an investigation. After searching on the Internet, it was confirmed that the defendant also launched "Kaixin.com" with the same name on October 14, 2008, and the domain name used was Chinese Pinyin. Not only does the defendant's website have the same name as the plaintiff's website, the main part of the domain name is the same, the defendant's website has exactly the same service functions, service objects, and service content, but the design style of its homepage is also very similar to the plaintiff's "Kaixin.com". The defendant's behavior caused a large number of uninformed Internet users to register and use the defendant's "Kaixin.com" because they could not distinguish between real and fake "Kaixin.com". As a result, the rising trend of the plaintiff's registered users significantly slowed down, and a large number of potential users were lost. The plaintiff's legal Equity suffered huge losses. [09:29:59]

[Plaintiff]: The plaintiff believes that through his own efforts, the plaintiff has made "Kaixin.com" a well-known website, and the three words "Kaixin.com" have a huge influence on the Internet. The popularity and influence of the plaintiff are based on the market competitive advantage condensed by the plaintiff’s wisdom and innovation, and the plaintiff named its website after its own registered trademark and used the pinyin of its registered trademark as the network domain name for legal use. The plaintiff's inviolable rights. The defendant used the plaintiff's registered trademark as the website name and domain name without the plaintiff's permission, which not only infringed on the plaintiff's trademark rights, but also caused confusion among Internet users about two websites with the same name, the same design style, and the same service content, thereby causing confusion among Internet users. The defendant effortlessly achieved the competitive advantage that the plaintiff had achieved through careful planning, hard work and innovation. The defendant's behavior violated the principle of fairness and good faith, constituted unfair competition, and caused huge economic and reputational losses to the plaintiff. [09:30:52]

[Plaintiff]: The plaintiff in this case owns the "Kaixin" registered trademark No. 833997 in Class 42, and the approved services include computer rental. The plaintiff used the registered trademark for services similar to computer rentals (website services) as a service brand to establish Kaixin.com. Through the plaintiff’s efforts, the plaintiff’s Kaixin.com has become the unique name of a well-known website. Use has also become a well-known trademark. The domain name used by the defendant is the Chinese pinyin of the main part of the plaintiff's registered trademark "Kaixin" and the name of the plaintiff's well-known website "Kaixin.com". Therefore, the defendant's domain name is legally consistent with the plaintiff's registered trademark, the name of the plaintiff's well-known website and the plaintiff's Kaixin.com. The domain name used is similar enough to cause misunderstanding among the relevant public. The defendant does not enjoy any legal rights and interests in kaixin and has no legitimate reason to use the domain name. Moreover, the defendant uses the domain name with obvious malice. Therefore, the defendant's use of the name "Kaixin.com" and this domain name have caused serious misunderstanding among the public and damaged the plaintiff's legitimate rights and interests. In order to protect the plaintiff's legitimate rights and interests, the plaintiff applied to add a claim to the lawsuit and requested the court to order the defendant to stop using the domain name.

To sum up, in order to safeguard the legitimate rights and interests of the plaintiff and the order of competition in the Internet service industry, and to stop the defendant’s infringement, the plaintiff filed a lawsuit in accordance with the law and requested the court to support the plaintiff’s claim in accordance with the law. [09:32:16]

[Presiding Judge]: Next, the defendant Beijing Qianoak Internet Technology Development Co., Ltd. will state its defense opinions.

[Defendant]: (Submit application for suspension in court) 1. Request to suspend the proceedings in this case. The reasons are: first, in this case, the plaintiff can and can only claim trademark rights, but has no right to claim unique name rights for well-known services. The Supreme People's Court (2002) Min San Zhong Zi No. 1 Judgment clearly stated that the unique name of a well-known service is protected as an unregistered commercial mark. Once the service name is registered as a trademark, the attribute of the unique name of the well-known service is lost. And has the exclusivity of a registered trademark. The plaintiff has acquired the trademark, and has also claimed the registered trademark as the basis of rights in this case. Therefore, it has lost the right to claim the unique name of the well-known service for the "happy" logo. Trademark rights are the only thing it can claim in this case. Rights basis. [09:38:22]

[Defendant]: Secondly, the plaintiff claimed that the defendant’s services were similar to the computer rental service for which it was registered, but the defendant had already registered the computer rental service on October 23. The registered trademark "Happy" filed an application for cancellation after not being used for three consecutive years. Since the only right basis claimed by the plaintiff in this case is unstable, and the outcome of this case should be based on the result of cancellation of non-use for three years, the defendant requested to suspend the litigation in this case and continue the litigation after the trademark cancellation issue is resolved. [09:39:20]

[Defendant]: 2. On the basis of retaining all the above opinions, we will make a brief defense to the plaintiff’s claims. [09:47:58]

[Defendant]: 1. The defendant is not qualified. The operating entity of the defendant Kaixin.com is Thousand Oaks Netscape, an outsider in the case, not the defendant in this case. [09:48:26]

[Defendant]: 2. The use of the "Happy" website name does not constitute infringement. (1) The service item approved by the plaintiff is computer rental, which belongs to category 42, while the defendant provides online communication and entertainment space to the public, including online gaming services, which belongs to category 41. The two services are not similar and do not constitute trademark infringement. . (2) The existing evidence cannot prove that the plaintiff's "Kaixin" website had become a "well-known" website before October 2008. Therefore, the defendant's use of "Kaixin" does not constitute an infringement of the name rights of well-known websites. [09:48:51]

[Defendant]: 3. The use of the domain name does not constitute infringement. The defendant acquired the domain name earlier than the plaintiff acquired the trademark. The plaintiff does not have any legal and effective prior rights and interests in "Kaixin". Therefore, the defendant's use of the domain name "Kaixin" does not constitute infringement. [09:49:25]

[Defendant]: 4. The defendant did not commit any act to slander the plaintiff’s goodwill. The constitutive element of defamation of goodwill is that the operator fabricates and spreads false facts to damage the business reputation of competitors. The defendant never made such a statement. As for whether users have misunderstood the two Kaixin.com and whether they will attribute the defendant's evaluation to the plaintiff, this is only the consequence of using the same website name claimed by the plaintiff and does not constitute commercial defamation. The plaintiff has issues with the application of law. Serious error. [09:49:44]

[Defendant]: 5. The defendant did not copy the plaintiff’s homepage. The website model that combines online communication and entertainment space with online game services is not original to the plaintiff, and the design of the website homepage is not unique to the defendant. Yes, the same or similar parts of the homepage are determined by the service nature and functions of this type of website and belong to universal design. [09:50:03]

[Defendant]: 6. For the amount of damages, the plaintiff used a calculation method based on a decrease in profits, but its calculation method has no legal basis. At the same time, profits refer to a decrease in profits. The plaintiff simply substituted income for profits, which was not in compliance with the law. At the same time, there is no causal relationship between the decrease in his income and the defendant’s use of Kaixin. Request to dismiss all the plaintiff’s claims. [09:50:26]

[Plaintiff]: As for the defendant’s application to suspend the litigation on the grounds of trademark cancellation, we believe that regardless of whether the defendant’s cancellation application can be approved, the rights of the trademark before it is canceled still remain It belongs to the plaintiff and does not affect the trial of this case and the litigation should not be suspended. [09:57:43]

[Defendant]: To add, we ask the court to hear this case only on the basis of trademark infringement.

The plaintiff's act of accepting the trademark determined that it had chosen between the registered trademark right and the unique name right of the well-known service. It was clear that the registered trademark was used to protect the website name "Happy" used by the plaintiff on the website. The basis of the plaintiff's rights itself was determined. of. [09:58:26]

[Presiding Judge]: The following is the presentation and cross-examination of evidence, and the specific work will be presided over by the judge in charge, Zhou Xiaobing. First, the plaintiff will state the evidence you submitted in response to your lawsuit. How many pieces of evidence did you provide to the court, plaintiff? [10:10:52]

[Plaintiff]: For the first time, the plaintiff provided seven sets of 30 pieces of evidence. Four pieces of evidence were added to the second hearing, and one page of evidence was added today to the defendant's last evidence. There are currently 35 pieces of evidence. (Submit) [10:11:09]

[Presiding Judge]: In view that before the trial, this court has organized both parties to check the original evidence of this case, and both parties have issued preliminary cross-examination opinions. , today, the plaintiff is asked to briefly state the names and proving purposes of these sets of evidence. [10:11:35]

[Plaintiff]: The first set of evidence is that you enjoy trademark rights, domain names, and unique name rights. Evidence 1. Kaixin registered trademark certificate; Evidence 2. Table of distinction; Evidence 3. Statement of the assignor of the registered trademark; Evidence 4. Notarized materials of the plaintiff’s registered domain name; Evidence 5. Certification; Evidence 6. Printed copy. [10:13:25]

[Plaintiff]: The second group of evidence that the plaintiff’s website is a well-known website: Evidence 7, Internet search results; Evidence 8, comparison results; Evidence 9, award-winning information; Evidence 10 , Number of registered users; Evidence 11. Foreign websites’ reports on Kaixin.com; Evidence 12. Foreign media’s reports on Kaixin.com.

The third group of evidence shows that the plaintiff’s Kaixin.com was counterfeited by the defendant: Evidence 13, the plaintiff’s homepage; Evidence 14, the defendant’s website homepage. [10:14:11]

[Plaintiff]: The fourth set of evidence of confusion between the two parties’ websites: Evidence 15, Baidu search results; Evidence 16, page comparison of both parties’ websites; Evidence 17, general public’s understanding of Comments after Kaixin.com went online.

The fifth group of defendants has evidence of subjective malice: Evidence 18, information on both parties receiving awards on the same stage; Evidence 19, the defendants publicly made non-infringing remarks; Evidence 20, the defendants’ behavior of counterfeiting Kaixin.com aroused public concern Extensive comments; Evidence 21, Beijing TV station Capital Economic News’ report on two Kaixin.com; Evidence 22, Beijing Qianoak Internet Technology Development Co., Ltd.’s rush to purchase Kaixin.com domain names; Evidence 23, defendant’s website ICP license check