Shanghai ROSEMOUNT Instrument Co., Ltd. registered Emerson's Chinese trademark "ROSEMOUNT", which was brought to court by Emerson in Shanghai last year. The conclusion is that the defendant used a logo similar to the registered trademark "Rosemount" on the same commodity without the plaintiff's permission, which constituted an infringement on the plaintiff's exclusive right to use the trademark, and the defendant should bear civil liability for stopping the infringement and compensating for the losses. The judgments are as follows:
Civil Judgment of the People's Republic of China * * * and Shanghai Higher People's Court
(28) Hu Gao Min San (Zhi) Zi No.115
Appellant (defendant in the original trial) Shanghai Rosemount Instrument Co., Ltd., domicile of the People's Republic of China * * and No.88 Fumin Road, Songjiang High-tech Park, Shanghai, China-
legal representative: Ryan, chairman of the board of directors of this company.
entrusted agent: gu xiaorong, lawyer of Shanghai Zhongxin law firm.
entrusted agent: Mao youming, lawyer of Shanghai Zhongxin law firm.
the appellee (plaintiff in the original trial) is Rosemount Inc, whose domicile is 82 Market Boulevard, Chanhassen, MN 55317, United States of America.
the authorized representative is John Michael Groves, director of intellectual property for Emerson Asia Pacific.
Authorized agent: Huang Song, lawyer of Shanghai Branch of Junhe Law Firm.
entrusted agent: Zhao Fang, lawyer of Shanghai Branch of Junhe Law Firm.
The appellant, Shanghai Rosemount Instrument Co., Ltd., refused to accept the civil judgment of Shanghai No.1 Intermediate People's Court (27) No.36, and appealed to our court for the dispute over infringement of trademark exclusive right. After the court accepted the case, it formed a collegiate bench according to law and held a public hearing on September 25, 28. The appellants' entrusted agents Gu Xiaorong and Mao Youming of Shanghai Rosemount Instrument Co., Ltd., the appellee's authorized representative John Michael Groves, the translator Ding Yu and his entrusted agents Huang Song and Zhao Fang attended the lawsuit. The case has now been closed.
the court of first instance found through trial that on March 3, 1982, the plaintiff obtained the trademark registration certificate No.155718 issued by the People's Republic of China and the State Administration for Industry and Commerce for "ROSEMOUNT", which was approved by the Trademark Office of the People's Republic of China and the State Administration for Industry and Commerce (hereinafter referred to as the State Trademark Office), and the validity period of the trademark registration has been extended to March 29, 212. The approved commodities are classified as Category 9 of the International Classification of Commodities, namely, industrial and aviation pressure sensors and electronically controlled pressure sensors, temperature sensors and electronically controlled temperature sensors and attack angle sensors.
On August 23rd, 1989, China Instruments published the article "Rosemount Company intends to establish a wholly-owned enterprise in China"; On May 9, 199, the front page of China Instrument Newspaper published the article "Rosemount Instrument Company of the United States is optimistic about the China market"; On April 7, 1993, the article "Shanghai Rosemount Co., Ltd., the largest joint venture in China's instrument industry, officially signed the contract" published in China Instrument Newspaper reported that "Shanghai Automation Instrument Company and Rosemount Company of the United States, based on the principle of equality and mutual benefit, through active and friendly negotiations between the two sides, It is agreed to establish a joint venture' Shanghai Rosemount Co., Ltd.' in Pudong New Area of Shanghai in accordance with the Law of the People's Republic of China on Sino-foreign Joint Ventures and other relevant laws and regulations ... Rosemount Company of the United States was founded in 1956, which is the largest automatic instrument company in the United States and a world-famous instrument and control system manufacturing company ... "Published in China Instrument Telegraph on July 3, 1996. In the second issue of Petrochemical Automation in 1999, the article "Experience of Using 351 Series Pressure and Differential Pressure Transmitter of Rosemount Company" written by Hu Weigang of Yangzi BASF Styrene Series Co., Ltd. was published. Thermal Automation of Thermal Power Plant (3rd and 4th issues in 24, 2nd and 3rd issues in 25), China Cement (6th issue in 25) and Modern Chemical Industry (8th, 1th, 12th issue in 25, 5th and 9th issue in 26). The advertising headlines mainly include "Rosemount differential pressure flow better measurement scheme", "Rosemount 288 intelligent pressure transmitter" and "Rosemount 1151 pressure transmitter with continuous improvement of legendary performance today and long-time verification", etc., and the telephone numbers of Emerson Process Management offices are printed at the bottom of the publicity page. Published in Iron and Steel (No.9-11 in 26, No.1 and No.3-5 in 27), China Electric Power (No.1, No.2 and No.6 in 27) and Modern Chemical Industry (supplement in 26, No.1-6 in 27). Logo
The 3th page of the textbook Process Testing Instrument (1st edition in September, 1999, 5th printing in June, 26) for secondary specialized schools has a section devoted to "1151SMART type intelligent transmitter", which states that "1151SMART type intelligent transmitter produced by Rosemount Company in the United States is a transmitter with microcomputer for intelligent field use ..."; The introduction of "intelligent differential pressure transmitter" in the national key textbook "Control Instruments and Computer Control Devices" (1st edition in September, 22, 5th printing in March, 27) is "There are many types of intelligent differential pressure transmitters currently in practical use, with different structures, but they are similar in overall structure. Firstly, the working principles and characteristics of the representative Honeywell ST3 differential pressure transmitter and Rosemount 351C differential pressure transmitter are briefly introduced, and then the 1151 intelligent differential pressure transmitter of Zhejiang University Central Control Company is introduced in detail. These transmitters all use HART communication to transmit information. " The chapter on "351S pressure transmitter" on page 79 of the measurement training textbook "Course of Automatic Measurement of Natural Gas" (1st edition in July, 24, first printed in July, 24) mentions "Rosemount 351S series instruments from Emerson Process Management Company ..." The planning textbook of colleges and universities "Automatic Detection Technology" (1st edition in August, 24, It was printed for the first time in August, 24. The chapter on "Capacitive Pressure (Differential Pressure) Transmitter" on page 95 states that "At present, Xi 'an, China and Beijing have successively imported 1151 series capacitive pressure transmitters from Rosemount Company of the United States ..." Chemical Instrument and Automation, a national planning textbook for the 11th Five-Year Plan of general higher education (4th edition, September, 26, It was printed for the second time in January 27). In the chapter on "Intelligent Pressure Transmitter" on page 46, it is stated that "The following is a brief introduction of its working principle by taking the Fisher-Rosemount 351C intelligent differential pressure transmitter of the United States as an example ..."
The Articles of Association of Shanghai Rosemount Co., Ltd. on March 3, 1993 shows that, The English name of Rosemount Shanghai Co., Ltd. is Rosemount Shanghai Co., Ltd., and the investors are Shanghai Automation Instrument Company and Rosemount Company (USA), with investment ratios of 4% and 6% respectively. On September 8, 22, Shanghai Rosemount Co., Ltd. applied to change its business name to Emerson Process Control Co., Ltd., and its alternate name was Emerson Process Management Co., Ltd. On September 26, 22, Shanghai Administration for Industry and Commerce approved the change of the name of Shanghai Rosemount Co., Ltd. to Emerson Process Control Co., Ltd. After the equity transfer, the investors of Emerson Process Control Co., Ltd. have been changed to Emerson Electric (China) Investment Co., Ltd. and Emerson Electric (Swiss) Holding Company.
the defendant was established on November 11th, 24, and the name of the company was approved for use at the time of establishment registration. On May 22nd, 26, the company was pre-approved by Shanghai Administration for Industry and Commerce to change its name to Shanghai Rosemount Instrument Co., Ltd., that is, its current name.
On June 1st, 25, He Xiaobo, the entrusted agent of Shanghai Branch of Beijing Haiwen Law Firm, logged on the website with the address, and the words "SHANGHAI ROSEMENT" and "Rosemont Shanghai" were displayed in the upper left corner of the website. Shanghai Notary Office notarized the contents of the above-mentioned web pages, and issued the Notary Certificate (26) No.9149. The defendant recognized that the website involved in the notarization was the website of his company.
In the 5th issue of Petrochemical Automation in p>26, there was an advertisement about pressure transmitter. The words "SHANGHAI ROSEMENT" and "Rosemount Shanghai" were printed in the upper left corner of the advertisement page, and the main body of the advertisement was "Rosemount International Group Co., Ltd. Shanghai Representative Office" in the lower right corner. The telephone number, website address and address were 86-21-57735656, Shanghai Songjiang High-tech Park respectively.
on April 1th, 27, the outsider purchased five smart pressure transmitters (RMB 2,7 yuan RMB 2,3 yuan RMB 2) with specifications and models of 351CD2E22B3M4AS5L2N1W2 and 351TG4E2A21B3M4A, respectively, and obtained two product publicity materials. The Notary Office of Jing 'an District, Shanghai notarized the above-mentioned purchase process with evidence preservation, and issued the Notary Certificate (27) Hu Jing Zheng Jing Zi No.999. The words "Rosemount Shanghai" are printed on the cover, LCD display header and shell nameplate of the pressure transmitter purchased by notarization, among which "Rosemount Shanghai" on the upper right corner of one nameplate is also marked with "TM" logo, and "Shanghai Rosemount" is also displayed above the words "Rosemount Shanghai" on the LCD display header; In addition, "SHANGHAI ROSEMENT" and "Rosemount Shanghai" are printed on the outer packaging box and product certificate of the pressure transmitter, and the words "Rosemount Shanghai" are also printed on the upper right corner of each page of the Quick Installation Manual attached to the packaging box.
On June 27th, 27, Shen Yujie, the entrusted agent of Shanghai branch of Beijing Haiwen Law Firm, connected to the Internet and searched for "Shanghai Rosemount Instrument Co., Ltd." through Google. By clicking the link of the search results, he could enter various pages with the introduction of the defendant company. The addresses and telephone numbers displayed on the pages were No.88 -7, Fumin Road, Songjiang High-tech Park, Shanghai. Among them, there is a rectangular box in the company introduction materials displayed by the defendant on the Instrument Business Network (www.171835.com), and the words in the box are "Rosement" (marked with "TM" on the right) and "Rosemount"; The brand involved in the basic information released by the defendant on Power Tiger Network (www.dianlihu.com) is shown as "Rosemount"; Enter the webpage with the address of /web/en/index.asp, and "SHANGHAI ROSEMENT" is displayed in the upper left corner of the webpage (marked with "TM" on the right side). Shanghai Notary Office notarized the contents of relevant web pages for evidence preservation, and issued (27) Shanghai Zheng Jing Zi No.5272 Notary Certificate.
On October 29th, 27, the outsider went to the defendant to buy a set of products with the nameplate marked "Model 351 Intelligent Transmitter" at a price of RMB 1,9 yuan. Shanghai Notary Office notarized the above-mentioned purchase process with evidence preservation, and issued the Notary Certificate (27) No.8848. Compared with the previously notarized pressure transmitter, the words "Shanghai Rosemount" or "Shanghai Rosemount" are no longer on the nameplate, product certificate and Quick Installation Manual, but "Shanghai Rosemount" is still printed in many places on the product cover and LCD display meter, and "Shanghai Rosemount" is also displayed above the words "Shanghai Rosemount" on the LCD display meter, and "Shanghai Rosemount" is also printed on the product outer packaging box.
the words "Rosemount" and "ROSEMENT" are printed on the cover of the 23rd issue of 27, which shows the name, address and telephone number of the defendant company on the back cover; "SHANGHAI ROSEMENT" and "Shanghai Rosemont" are printed on the upper right corner of the front cover and the upper left corner of the back cover of the promotional materials of Newborn China and 351, 1151 Intelligent Pressure Transmitter, and "Shanghai Rosemont" is also printed on the upper right corner of all the inner pages of 351, 1151 Intelligent Pressure Transmitter. The back cover of these two promotional materials is printed with the name, address and telephone number of the defendant company.
It is also found that on November 23rd, 24, Shanghai Rosemont Industrial Co., Ltd. applied for the registration of "ROSEMENT" and "Rosemont" trademarks on the ninth category of goods, and the State Trademark Office issued the Notice of Acceptance of Registration Application on January 27th, 25, in which the date of the preliminary announcement of "ROSEMENT" trademark was May 7th, 27, and the date of the preliminary announcement of "Rosemont" trademark was 27.
on August 22nd, 26, the plaintiff applied to register the trademark "Rosemount" on the ninth category of goods.
in the lawsuit of first instance, the plaintiff claimed that the pressure transmitter accused of infringement and the pressure sensor in the goods approved for use by the registered trademark involved in the lawsuit were the same goods, while the other products operated by the defendant in the relevant evidence materials were similar goods, such as turbine flowmeter, scraper flowmeter, electromagnetic flowmeter, vortex flowmeter and pressure sensor. After the trial, the plaintiff stated in writing that in this case, he only advocated the relevant infringement facts involving the pressure transmitter, but reserved to file a separate lawsuit against similar goods for alleged infringement.