I have collected the following sample articles of defense for tort liability disputes for your reference!
Reply to tort liability disputes (1)
Respondent: Xxx , male, Han nationality, born on X month X, 19XX, address: XX, Guangdong Province.
ID number: XX.
Respondent: Guangdong Opal Mobile Communications Co., Ltd., domicile: No. XX, Chang'an Town, Dongguan, Guangdong Province, legal representative: XX.
Due to the trademark infringement dispute case filed by the respondent against the respondent (2011) Dongyifaminwuchuzi No. XX, we hereby make the following defense to the litigation claims raised by the respondent and request the court to do so. be adopted.
The respondent does not agree with all the claims of the respondent. The claims of the respondent have no basis. The court is requested to reject all the claims of the respondent in accordance with the law.
1. The OPPO mobile phone trademark is not a well-known brand trademark.
According to the materials submitted by the respondent, the ?OPPO? trademark was originally registered in the Cayman Islands by Blue Sky Investment Co., Ltd., and the registration period was from April 28, 2008 to April 2018. January 27th.
Dongguan Oppo Mobile Communications Co., Ltd. acquired the registered trademark "OPPO" from Blue Sky Investment Co., Ltd. on December 28, 2008, and changed it to Guangdong Oppo Mobile Communications on December 29 of the same year. Ltd.
By August 20xx, the respondent Guangdong Oppo Mobile Communications Co., Ltd. had used the registered trademark "OPPO" for less than a year, and the relevant public did not know much about this trademark.
Therefore, from the length of time the respondent has used the OPPO mobile phone trademark, it can be inferred that it did not constitute a brand trademark in 20xx.
2. The sales of the mobile phones involved in the case against which the respondent is sued have legal sources. The respondent has no intention of infringement and does not need to bear infringement liability.
The mobile phone involved in the case that the respondent was sued had a legal source. The respondent purchased it from XX Taiping Electronics City through formal and legal channels. Regarding this fact, the Dongguan Administration for Industry and Commerce submitted by the respondent The Administrative Penalty Decision No. 9XX of the East Industrial and Commercial Directorate (20xx) provided counter-evidence.
According to Article 56 of the Trademark Law, if you sell goods that are not known to infringe the exclusive rights of a registered trademark, and you can prove that you obtained the goods legally and explain the supplier, you will not be liable for compensation.
Therefore, it can be seen that the respondent did not intentionally infringe the respondent OPPO’s trademark exclusive rights and does not need to bear any infringement liability.
As for the administrative penalty decision of the Dongguan Administration for Industry and Commerce submitted by the respondent, it cannot of course be used as a basis for determining that the respondent’s trademark infringement was intentional.
Administrative penalties are not imposed based on the subjective intention of the parties, while civil trademark infringement requires the subjective intention of the parties.
Because the respondent’s mobile phone involved in the case has a legal source, the respondent did not intentionally infringe the trademark, and therefore does not need to bear liability for trademark infringement.
3. The respondent’s request for compensation of RMB 50,000 in damages has no basis and should not be supported by the court in accordance with the law.
On the one hand, according to Article 2 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation": The parties concerned are responsible for providing evidence to prove the facts on which their claims are based.
If there is no evidence or the evidence is insufficient to prove the factual claims of the parties, the party who bears the burden of proof shall bear the adverse consequences. ?Article 76 stipulates that if a party has only his own statement and cannot provide other relevant evidence for his own claims, his claims will not be supported. ?.
The respondent immediately requested the respondent to compensate 50,000 yuan for infringement losses, but did not provide any basis to explain how the amount of compensation was calculated. Therefore, it should bear the burden of proving its claim. Due to the adverse consequences, the 50,000 yuan compensation fee should not be supported by the court because it has no basis.
On the other hand, according to Article 56 of the Trademark Law, if the respondent cannot prove the losses it claims to have suffered due to the respondent’s trademark infringement, then the amount of compensation for trademark infringement should be Compensation shall be made based on what the respondent considers to be the benefits derived from the respondent's infringement.
According to the content of the administrative penalty decision No. XX submitted by the Dongguan Administration for Industry and Commerce (20xx) submitted by the respondent, the purchase price of the 21 mobile phones involved in the case was 450 yuan/unit. , and the selling price was only 520 yuan per unit, only three mobile phones involved were sold, the sales revenue was only 1,560 yuan, and the profit was only 210 yuan.
Therefore, even if the respondent really sells a mobile phone that the respondent believes infringes on its trademark exclusive rights, the respondent’s benefit from the infringement is only 210 yuan. According to the provisions of the Trademark Law, the respondent’s infringement compensation The amount is only 210 yuan.
However, the respondent made nonsense of its unfounded demand for 50,000 yuan in infringement compensation, which was entirely for the purpose of seeking huge profits through litigation.
In order to achieve the purpose of seeking huge profits, the respondent even used improper relationships to copy the administrative penalty materials claimed to be from the Dongguan Municipal Administration for Industry and Commerce a year ago as evidence for prosecution of trademark infringement. It has also sued mobile phone retailers on a large scale in the Pearl River Delta and other regions. It is very obvious that the respondent's so-called rights protection is just a cover, and its real purpose is to collude with others to maliciously defend rights and seek high profits.
Therefore, we request the court to reject the respondent’s unreasonable request in accordance with the law.
4. The respondent’s request that the respondent publish the so-called apology statement containing a promise not to infringe again in Dongguan Daily and Southern Metropolis Daily is groundless in law.
As mentioned above, the respondent has not infringed the respondent's trademark at all, so it does not need to bear any infringement liability.
If it constitutes an infringement, the infringement is very minor and does not have any impact on the reputation of the respondent. Apology falls within the scope of personal infringement, and this case does not constitute personal loss at all.
The respondent does not need to publish the so-called apology statement containing a promise not to infringe again in Dongguan Daily and Southern Metropolis Daily.
To sum up, the respondent’s claim has no basis.
The respondent is just a small individual business owner. Now his business is very bleak and is almost closed. The entire store is worth only a few tens of thousands of yuan, and it can no longer withstand any slight economic impact.
Therefore, we request the court to comprehensively consider the above facts and the overall situation of building social harmony, and reject all claims of the respondent in accordance with the law.
Sincerely
Dongguan First People’s Court
Respondent: Guangdong Shangzhihe Law Firm: Lawyer Tian Fayuan
Infringement Liability Dispute Reply (2)
BMW Germany (hereinafter referred to as the complainant) filed a complaint against Beijing BMW Automotive Service Co., Ltd. (hereinafter referred to as the respondent) for trademark infringement. The respondent now responds again as follows:
1. The standard for determining service trademark infringement should be higher than the standard for determining product trademark infringement.
Based on the above characteristics, services are less likely to confuse consumers than goods.
Therefore, when determining service trademark infringement, strict principles should be applied, that is, the standard for determining infringement should be raised.
This case is an issue of service trademark infringement. Whether it constitutes infringement should be carefully considered.
2. The determination of service trademark infringement should be based on whether confusion is caused.
3. The respondent’s use of “BMW” on its official seal will not confuse the relevant public and should not be considered an infringement.
First of all, the relevant public who receive BMW car maintenance services are very special.
1. The number of people is very small; 2. The level is very high; 3. The cognitive ability is strong.
The possibility of confusion among the relevant public about maintenance services is very small.
We should be sure that the owners of BMW cars are not stupid enough to repair their BMWs when they see "BMW" on the stamp.
In short, the respondent’s behavior is unlikely to confuse the relevant public.
Therefore, the respondent should not be found to have infringed the copyright.
4. The respondent’s business name has prior rights and should be maintained.
Beijing BMW Automotive Service Co., Ltd. was registered with the State Administration for Industry and Commerce on May 29, 1992.
That is to say, on May 29, 1992, the respondent owned the right to the company name as stipulated in the "General Principles of the Civil Law" and other laws and regulations.
However, the complainant obtained the exclusive right to use the BMW trademark in automobile maintenance services on September 28, 1995, 3 years and 4 months later than the respondent. According to Article 1 of the Trademark Law, Article 31 stipulates that the respondent has the right to cancel the applicant's "BMW" trademark based on the prior corporate name rights.
5. The complainant did not have any rights to "BMW" before "Bail" was changed to "BMW".
The car produced and sold by the German BMW Company was originally called "Baier" in China. It was precisely because the respondent became the complainant's authorized repairer and, at the suggestion of the complainant, Bayer was changed to BMW.
After that, the German BMW company registered the "BMW" trademark.
Reply to Tort Liability Dispute (3)
Respondent:
Respondent: Guangdong Opal Mobile Communications Co., Ltd., domicile: Dongguan, Guangdong Province No. Xx, Chang'an Town, legal representative: XX.
Due to the trademark infringement dispute case filed by the respondent against the respondent (2011) Dongyifaminwuchuzi No. XX, we hereby make the following defense to the litigation claims raised by the respondent and request the court to do so. be adopted.
The respondent does not agree with all the claims of the respondent. The claims of the respondent have no basis. The court is requested to reject all the claims of the respondent in accordance with the law.
1. The OPPO mobile phone trademark is not a well-known brand trademark.
According to the materials submitted by the respondent, the ?OPPO? trademark was originally registered in the Cayman Islands by Blue Sky Investment Co., Ltd., and the registration validity period was from April 28, 2008 to April 2018. January 27th.
Dongguan Oppo Mobile Communications Co., Ltd. acquired the registered trademark "OPPO" from Blue Sky Investment Co., Ltd. on December 28, 2008, and changed it to Guangdong Oppo Mobile Communications on December 29 of the same year. Ltd.
By August 20xx, the respondent Guangdong Oppo Mobile Communications Co., Ltd. had used the registered trademark "OPPO" for less than a year, and the relevant public did not know much about this trademark.
Therefore, from the length of time the respondent has used the OPPO mobile phone trademark, it can be inferred that it did not constitute a brand trademark in 20xx.
2. The sales of the mobile phones involved in the case against which the respondent is sued have legal sources. The respondent has no intention of infringement and does not need to bear infringement liability.
The mobile phone involved in the case that the respondent was sued had a legal source. The respondent purchased it from XX Taiping Electronics City through formal and legal channels. Regarding this fact, the Dongguan Administration for Industry and Commerce submitted by the respondent The Administrative Penalty Decision No. 9XX of the East Industrial and Commercial Directorate (20xx) provided counter-evidence.
According to Article 56 of the Trademark Law, if you sell goods that are not known to infringe the exclusive rights of a registered trademark, and you can prove that you obtained the goods legally and explain the supplier, you will not be liable for compensation. Therefore, it can be seen that the respondent did not intentionally infringe the exclusive rights of the respondent OPPO’s trademark and does not need to bear any infringement liability.
As for the administrative penalty decision of the Dongguan Administration for Industry and Commerce submitted by the respondent, it cannot of course be used as a basis for determining that the respondent’s trademark infringement was intentional.
Administrative penalties are not imposed based on the subjective intention of the parties, while civil trademark infringement requires the subjective intention of the parties.
Because the respondent’s mobile phone involved in the case has a legal source, the respondent did not intentionally infringe the trademark, and therefore does not need to bear liability for trademark infringement.
3. The respondent’s request for compensation of RMB 50,000 in damages has no basis and should not be supported by the court in accordance with the law.
On the one hand, according to Article 2 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation": The parties concerned are responsible for providing evidence to prove the facts on which their claims are based.
If there is no evidence or the evidence is insufficient to prove the factual claims of the parties, the party who bears the burden of proof shall bear the adverse consequences. ?Article 76 stipulates that if a party has only his own statement and cannot provide other relevant evidence for his own claims, his claims will not be supported. ?.
The respondent immediately requested the respondent to compensate 50,000 yuan for infringement losses, but did not provide any basis to explain how the amount of compensation was calculated. Therefore, it should bear the burden of proving its claim. Due to the adverse consequences, the 50,000 yuan compensation fee should not be supported by the court because it has no basis.
On the other hand, according to Article 56 of the Trademark Law, if the respondent cannot prove the losses it claims to have suffered due to the respondent’s trademark infringement, then the amount of compensation for trademark infringement should be Compensation shall be made based on what the respondent considers to be the benefits derived from the respondent's infringement.
According to the content of the administrative penalty decision No. XX submitted by the Dongguan Administration for Industry and Commerce (20xx) submitted by the respondent, the purchase price of the 21 mobile phones involved in the case was 450 yuan/unit. , and the selling price was only 520 yuan per unit, only three mobile phones involved were sold, the sales revenue was only 1,560 yuan, and the profit was only 210 yuan.
Therefore, even if the respondent really sells a mobile phone that the respondent believes infringes on its trademark exclusive rights, the respondent’s benefit from the infringement is only 210 yuan. According to the provisions of the Trademark Law, the respondent’s infringement compensation The amount is only 210 yuan.
However, the respondent made nonsense, and the unfounded demand for 50,000 yuan in infringement compensation was purely for the purpose of seeking huge profits through litigation.
In order to achieve the purpose of seeking huge profits, the respondent even used improper relationships to copy the administrative penalty materials claimed to be from the Dongguan Municipal Administration for Industry and Commerce a year ago as evidence for prosecution of trademark infringement. It has also sued mobile phone retailers on a large scale in the Pearl River Delta and other regions. It is very obvious that the respondent's so-called rights protection is just a cover, and its real purpose is to collude with others to maliciously defend rights and seek high profits.
Therefore, we request the court to reject the respondent’s unreasonable request in accordance with the law.
4. The respondent’s request that the respondent publish the so-called apology statement containing a promise not to infringe again in Dongguan Daily and Southern Metropolis Daily is groundless in law.
As mentioned above, the respondent has not infringed the respondent's trademark at all, so it does not need to bear any infringement liability.
If it constitutes an infringement, the infringement is very minor and does not have any impact on the reputation of the respondent. Apology falls within the scope of personal infringement, and this case does not constitute personal loss at all.
The respondent does not need to publish the so-called apology statement containing a promise not to infringe again in Dongguan Daily and Southern Metropolis Daily.
To sum up, the respondent’s claim has no basis.
The respondent is just a small individual business owner. Now his business is very bleak and is almost closed. The entire store is worth only a few tens of thousands of yuan, and it can no longer withstand any slight economic impact.
Therefore, we request the court to comprehensively consider the above-mentioned facts and the overall situation of building social harmony, and reject all claims of the respondent in accordance with the law.
Sincerely,
Dongguan First People’s Court