According to the provisions of the trademark law of China.
Article 57 Any of the following acts is an infringement of the exclusive right to use a registered trademark:
(1) Using the same trademark as its registered trademark on the same commodity without the permission of the trademark registrant;
(2) Without the permission of the trademark registrant, using a trademark similar to its registered trademark on the same kind of goods, or using a trademark identical with or similar to its registered trademark on similar goods is likely to cause confusion;
(3) selling goods that infringe upon the exclusive right to use a registered trademark;
(4) Forging or unauthorized manufacturing of registered trademark marks of others or selling forged or unauthorized registered trademark marks;
(five) without the consent of the trademark registrant, the registered trademark is changed and the goods with the changed trademark are put on the market again;
(6) Deliberately facilitating the infringement of the exclusive right to use a trademark of others and helping others to commit the infringement of the exclusive right to use a trademark;
(seven) causing other damage to the exclusive right to use a registered trademark of others.
Extended data:
Claim 94 1 1,000 yuan, and court compensation 8.32 million yuan. The famous sporting goods company Le Fei Sports Co., Ltd. (hereinafter referred to as Le Fei Sports) has made the latest progress in trademark rights protection.
Recently, Beijing Xicheng District People's Court (hereinafter referred to as Xicheng Court) made a first-instance judgment on the case that Le Fei Sports sued Zhejiang COSCO Shoes Co., Ltd. (hereinafter referred to as COSCO Shoes) and Rui 'an COSCO E-Commerce Co., Ltd. (hereinafter referred to as COSCO Electronics) for infringing the trademark rights of Feile series and unfair competition.
Ordered COSCO Shoes and COSCO Electronics to immediately stop the infringement and compensate the plaintiff for economic losses of 79 1 10,000 yuan and reasonable expenses of 4 1 10,000 yuan; The defendant Beijing JD.COM Sanbai Liushidu E-Commerce Co., Ltd. was ordered to take necessary measures such as deleting, shielding and disconnecting the infringing goods sold in "Jiefeile Flagship Store" in JD.COM Mall.
The judgment of this case not only set a new high in compensation since the establishment of the Intellectual Property Court of Xicheng Court, but also sounded the alarm for small and medium-sized enterprises. Relevant practitioners should establish an all-round and three-dimensional trademark strategy, do a full search in the trademark registration stage, and put an end to potential infringement.
When encountering trademark litigation, we should formulate corresponding litigation strategies according to our own trademark layout and case situation, and strive to solve intellectual property disputes at a lower cost.
The reason why this case has aroused widespread concern is not only that the brand involved has a high social reputation, but also that the plaintiff has filed a high claim of 94 10000 yuan and a high compensation of 8.32 million yuan.
According to the relevant person in charge of Xicheng Court, according to the plaintiff's claim, Xicheng Court made full use of the rules of evidence to determine the amount of compensation with the defendant's infringement profit, and combined with the relevant financial statements provided by the defendant, determined the subjective malice of the defendant's infringement by finding out the facts.
Applying the calculation method of triple punitive damages according to law, the economic loss was finally determined to be 79 10000 yuan, which fully supported the plaintiff's reasonable expenses of 4 10000 yuan.
Specifically, the court pointed out in the judgment that although the 20 15 annual enterprise income tax declaration evaluation report and the 20 16 annual balance sheet and income statement submitted by COSCO Shoes were not audited, the above financial data can be used as a reference for calculation without other evidence provided by the defendant.
Considering that there are three brands advertised by COSCO Shoes, but no evidence was provided to prove the sales volume and profit of each brand, the court presumed that the operating profit ratio of the accused goods involved in the case was one third of that of COSCO Shoes. According to the financial data submitted by COSCO Shoes, the total operating profit calculated in 20 15 and 20 16 years divided by 3 is 2.638 million yuan.
In addition, the defendants, such as COSCO Shoes, as operators of similar goods, should be aware of the popularity of the plaintiff's registered trademark, and continue to produce and sell infringing goods while knowing that the use of the defendant's logo involved in the case may seriously mislead consumers and lead to confusion and misunderstanding of the source of the goods, which has obvious subjective malice. Therefore, the compensation amount is determined according to three times the profit of COSCO Shoes due to infringement.
As for the reasonable expenses, the court held that the plaintiff provided the corresponding bills, and fully supported the reasonable expenses advocated by the plaintiff in view of the complexity of the case and numerous evidence materials.
Baidu Encyclopedia-People's Republic of China (PRC) Trademark Law
People's Daily Online-The word "trademark infringement" caused a fine of more than 8 million yuan.