Guangdong Province High Court

Time:2004-12-13 Party: Qiu Jinghua, Chen Hongdao   Judge: Document number:(2003Guangdong high Famin) three with the word no.212No.

Appellant(The defendant in the original instance): Sanshui Huali Beverage Food Co. Ltd., address: Foshan city southwest of the town of Sanshui District Foreign Economic Development zone.

Legal representative: Qiu Jinghua, chairman of the board.

Attorney: Feng Jing, lawyer of Guangdong Jinxin founder.

Attorney: Lin Jianjun, Beijing Golden Bridge patent Proxy Companies patent agents, ID number:110108631009301.

Appellee(The plaintiff): Guangdong jiaduobao Food Co. Ltd., address: Changan Zhen Jin Xia Cun, Dongguan City, Guangdong province.

Legal representative: Chen Hongdao, chairman of the board.

Attorney: King in the Huai, Ye Xiuying, is the Guangdong party three and lawyer.

The appellant Sanshui Huali Beverage Food Co. Ltd.(Hereinafter referred to as Huali company)And the appellee Guangdong jiaduobao Food Co. Ltd.(Hereinafter referred to as the company)The well-known commodity decoration infringement dispute case, not because of Guangdong Province Foshan City Intermediate People's court2003.Buddha three French people at the beginning of the word no.19Civil judgment, and appealed to the hospital. The court, a collegial panel, the case was heard, has now been finalized.

The trial court found:

1993Years1Month20Day, Guangzhou Yangcheng tonic factory approved and registered by the626155No."Wang Laoji"Trademarks, approved the use of merchandise article32Class, the registration is valid from1993Years1Month20To2003Years1Month19Date.

1993Years9Month1Day, the trademark approved changes to registered by Guangzhou Yangcheng pharmaceutical Limited by Share Ltd Wang Laoji food and beverage company.

1997Years8Month28Day, Guangzhou Yangcheng pharmaceutical Limited by Share Ltd Wang Laoji food and beverage company the trademark transfer to the Guangzhou Pharmaceutical Holdings Limited, and by the State Trademark Bureau announcement.

2002Years11Month7Day, Guangzhou Pharmaceutical Holdings Limited has carried on the renewal of registration of the trademark registration, renewal of valid from2003Years1Month20To2013Years1Month19Day.

1997Years2Month13Japan, after the change of the trademarks of Guangzhou Yangcheng pharmaceutical Limited by Share Ltd Wang Laoji food and beverage company and hung(Group)Company Limited signed a trademark license contract,The contract hung(Group)Limited since1997The exclusive use of"Wang Laoji"Trademark production and salesRed paper packagingAndRed iron cannedThe right to the use of herbal tea, the effective date of the contract until the2011Years12Month31Date. Hung Road(Group)Company Limited has the right licensing Dongguan Che hung, the company to production; Dongguan Che hung, the company in1996Years5Month1The day began to entrust Guangdong International Container Co Ltd make red"Wang Laoji"Herbal tea beverage cans.

2000Years5Month2Day, again after the change the trademarks of Guangzhou Pharmaceutical Holdings Limited and Hong Road(Group)Company also signed a trademark license agreement, agreement will be registered as"Wang Laoji"The trademark license to Hung Road(Group)The company and Its Investment Co.(Including wholly owned)The exclusive use of the enterprise, and authorized hung(Group)Company Limited in Zhejiang Province, Guangdong Province within the scope of infringement"Wang Laoji"Registered trademark infringement may take legal means to stop. Dongguan Che hung, the company in1995Years9Month19The establishment of,1998Years8Month31Day off. The plaintiff JDB company1998Years9Month17The establishment, system(Hongkong)Hung Road(Group)Company owned business, business scope for a variety of beverage and food production and sales including fruit and vegetable juice, tea beverage.

The plaintiff's legal representative Chen Hongdao had two for the product logo of appearance design patent applications. A patent for1995Years12Month28The name of the State Intellectual Property Office to apply for the"Beverage box label"Appearance design patent, patent No.95318534．6,1997Years1Month4Japan has been granted a patent right. After a patent for1996Years6Month5The name of the State Intellectual Property Office to apply for the"Pot stickers"Appearance design patent, patent No.96305519．4,1997Years6Month14Japan has been granted a patent right, patent right around two patents per capita for Chen Hongdao,1998Years12Month18Day, the patentee Chen Hongdao not in the specified period of time to pay a patent No.4The annual fee, the patent right"Beverage box label"Appearance design patent(Patent No.95318534 .6)Be terminated. After a patent additional request of color protection and approved, the patent right is in a valid state.1998Years10Month18Day, Chen Hongdao will the patent license to the plaintiff in the case study company monopoly implementation.

"Wang Laoji"Canned tea beverage products such as decoration with red color, the main view is prominent, attract sb.'s attention three yellow decorative text"Wang Laoji"Regular script characters,"Wang Laoji"Each side has two small Arial Black text, respectively"Herbal tea ancestor Wang Laoji, founded in the Qing Daoguang, for more than one hundred years of history"And"Wang Laoji according to ancestral secret recipe, using the finest herbal materials preparation, young and old, you visit, please recognize trademark"The upper part of the tank body, a dark brown decorative line, the decorative line from English"HerbalTea"And"Wang Laoji"The small white around the lower part of the tank body, a coarse to fine two lines decoration; rear view and main view is basically the same; the list of ingredients and anti-counterfeit bar code is Chinese left view and right view is English"Wang Laoji"Trademark is in accordance with the national standards must be marked content. In recent years, due to the plaintiff JDB company and hung Road(Group)Company promotion and the large number of advertising, so that"Wang Laoji"Canned tea drinks the best-selling products in major markets and regions, especially in Guangdong and Zhejiang have enjoyed a good reputation, well received by consumers, and achieved good economic benefit. Also check,"Wang Laoji"Trademark in1992Years and1998Years been rated as famous trademark of Guangdong province,1993Years and1998Was rated as Guangzhou famous trademark;2002Years4Month10Japanese canned"Wang Laoji"Herbal tea drink by the State Sports General Administration of sports equipment for the center awarded the use of propaganda, in its advertising, brand promotion and product packaging"China sports delegation for flag","The fourteenth Asian Games Chinese sports delegation partners"The title,"The fourteenth Asian Games China sports delegation only tea beverage"Title.

The defendant Huali company1998The first half of the year began to research and develop"Twenty-four taste"Herbal tea beverage products, to1998Years8Month1Japan promulgated standards herbal tea beverage series products, and began production in the same month"Twenty-four taste"Herbal tea beverage products.1998Years8Month31The company received sample sent to Japan, Foshan city health and epidemic prevention station of health inspection,1998Years9Month14Japan issued a report on the results of health examination.1998Years11Month13On the use of Huali company"Twenty-four taste"Packing pot of tea to the State Intellectual Property Office to apply for a design patent, this bureau at1999Years8Month7Japan granted the patent, and in1999Years10Month6Days notice.

The focus of controversy in this case are: the subject is suitable?Canned"Wang Laoji"Herbal tea is a well-known commodity?Whether a defendant's acts constitute infringement? How should bear civil liability?

The court thought:

One, about the plaintiff's qualification is the qualification problem. Litigious right is a kind of judicial protection of the rights of civil legal relationship established with the establishment of civil legal relations, the subject, which made action, the exercise of the right of appeal, the subject must have a direct relationship with the civil legal relationship. The company is the red canned"Wang Laoji"Herbal tea beverage legitimate operators and the actual producers, therefore the plaintiff JDB company as a controversial decoration use rights, is the main body of civil rights and obligations, and the defendant Huali company as infringing products"Twenty-four taste"Herbal tea operators, and the plaintiff belongs to the same industry competitors, competitive relationship, therefore the plaintiff JDB company has the right for alleged violations of canned"Wang Laoji"Acts of unfair competition, herbal tea beverage decoration to exercise their right to appeal, the plaintiff qualification.

Two, canned"Wang Laoji"Herbal tea is well-known products, packaging and decoration companies use the JDB is unique. The well-known commodity should have certain popularity in the market, the public aware of the relevant goods. In that cannot in any of the goods to know whether the conditions necessary for the well-known goods, but should take the goods are higher in the relevant market in the field of visibility conditions."Wang Laoji"Tea has a long history, for many years in the domestic and international market reputation, almost make known to every family in Guangdong and Southeast Asia, and marketing products throughout the country, with its reliable product quality, favored by consumers, and"Wang Laoji"Trademark in1992Years and1998Years been rated as famous trademark of Guangdong province,1993Years and1998Was rated as Guangzhou famous trademark,2002Years4Month10By the State Sport General Administration of sports equipment for the center awarded the use of propaganda, in its advertising, brand promotion and product packaging"China sports delegation for flag","The fourteenth Asian Games Chinese sports delegation partners"The title,"The fourteenth Asian Games China sports delegation only tea beverage"Title. In this regard, the defendant Huali company has no objection. Therefore,"Wang Laoji"Herbal tea is in the market has a certain reputation, and are known by the relevant public goods, should be recognized as a well-known commodity, so canned"Wang Laoji"Herbal tea drinks as"Wang Laoji"A herbal tea series products, and the well-known commodity"Wang Laoji"Herbal tea are inseparableDongguan, and hung from the company1996Years have begun to use the decoration, and put in a lot of advertising, so it should be is a well-known commodity."Wang Laoji"Canned tea decoration is held by the commodity, according to the State Administration for Industry and Commerce Bureau issued "on the prohibition of counterfeit well-known commodity specific name, packaging, decoration of the acts of unfair competition regulations" article3Article2The provisions of paragraph:"As mentioned in these Provisions refers to the special, commodity name, packaging, decoration for the general non related products, and have a significant distinguishing features". Visible, identified specific mainly to see whether the relevant goods for general and has significant distinguishing features, the sexes are interrelated, and does not need any departments and grant. This case the plaintiff JDB company in its products"Wang Laoji"Tea beverage of decoration, in the text, color, pattern and arrangement, meaning clear, unique design, the decoration color, pattern and its name com., have a significant distinguishing features, not for the general merchandise, peculiar to the commodity, should be recognized as the specific packaging and decorating the goods, shall be protected by law. The fake canned"Wang Laoji"Herbal tea beverage decoration, is an act of unfair competition shall be prohibited.

Three, the defendant Huali company"Twenty-four taste"Whether the herbal tea beverage decoration constitute infringement problems. Be accused of infringing products canned"Twenty-four taste"Decoration and canned tea beverage"Wang Laoji"Herbal tea beverage packaging pattern decoration are compared, both are basically the same, the same logo background color, text color, text alignment position are similar, although between commodity name, trademark, enterprise name, slightly different, that does not affect the decoration almost like, from the whole observation, the canned"Twenty-four taste"The decoration and the herbal tea beverage cans"Wang Laoji"Tea beverage of the same decoration style. These same elements are sufficient to cause the canned"Wang Laoji"Herbal tea beverages and canned"Twenty-four taste"Confused herbal tea beverage, easy to enable consumers to purchase may mistake mistake. As to whether the packing and decorating the defendant case v. struggle logo into the free public domain problem,This case is the dispute of unfair competition infringement of well-known goods packaging decoration, and non patent infringement, even if the interior appearance design patent, as long as the packaging is the packaging and decoration of famous product specific and early to the defendant should be protected, therefore the defendant that the claim evidence of well-known goods packaging decoration litigation has entered a free the public domain problems, shall not be accepted. The Chinese company has packaging tank design patent is in the right, not enough to packaging and decorating special defense prior to enjoy the famous goods right. As for whether the defendant priority issues. According to the plaintiffs, approved the assignment of the approval issued by the State Administration for Industry and Commerce Trademark Bureau registered trademark "proof" can confirm that the626155No."Wang Laoji"A trademark registrant has legal by the Guangzhou Yangcheng pharmaceutical Limited by Share Ltd Wang Laoji food and beverage company changed to Guangzhou Pharmaceutical Holdings Limited. In the"Wang Laoji"Trademark rights of people before and after the change, two per capita to license the rights hung(Group)Exclusive use of limited company"Wang Laoji"Trademark, from the above1997The trademark license contract can be seen hung(Group)Company Limited in1995The year began with the soleUse"Wang Laoji"Trademark productionRed cannedThe right to the use of herbal tea. Hung Road(Group)Company has the right, in the1996The design of the dispute of the decoration and licensed to the Dongguan Hong Tao company to produce, Dongguan Hung Road in1996Years5Month1The day began to entrust Guangdong International Container Co Ltd manufacture red"Wang Laoji"Packaging and labeling tea beverage packaging, thus the dispute began to use. Dongguan Che hung, the company in1998Years8Month31Days after the cancellation, hung(Group)Company Limited in1998Years9Month17Japan established the plaintiff in the case study company, and allowed him to continue with this dispute packaging logo red canned"Wang Laoji"Herbal tea beverage.

The court thought,Specific packaging and decorating significant features can not be separated with a well-known commodity, which is characterized by anti unfair competition law can be generated for the decoration of exclusive use right based on, but this kind of exclusive use right whether to produce packaging depends only on the product awareness in the relevant public and market, commodity reached some knowledge of the exclusive use right, decoration of the people's Republic of China according to "Anti Unfair Competition Law" the provisions of article fifth and produce, and belongs to the well-known goods since the date of the legitimate operators, and with the goods between different legal operator by the following.The defendant claims priority problem, should see the accused infringement before the packaging whether goods become well-known commodity and open the decoration, the use of canned"Twenty-four taste"Time can not be with the herbal tea beverage decoration itself using canned"Wang Laoji"Compared with the herbal tea beverage packaging decoration time, because early in the1996Dongguan Che hung, the company had started to use the litigation decoration identification, the time was earlier than the time of use, and the plaintiff in the case from the inception of the legitimate successor has the right to the use of a well-known commodity packaging. Thus, the prior use defense can not be established, the claim shall not be adopted. To sum up,Packaging the Huali company uses is similar to a well-known commodity in its products, violated the "PRC Anti Unfair Competition Law", constitute unfair competition, should undertake the corresponding civil liability.

Four, about to assume civil liability. Due to the use of"Twenty-four taste"Herbal tea beverage packaging logo constituted an infringement of the right of well-known goods packaging decoration, therefore the plaintiff requests the defendant to stop use and"Wang Laoji"Herbal tea similar packaging logo, the destruction of existing the outer packaging, to stop selling the pot with tea and other litigation request, should be supported, but for the plaintiff50Request problem million yuan compensation for the plaintiff did not provide their own losses, or the defendant profit evidence, and not for the evidence preservation before an action against the defendant and the defendant did not lift hand, evidence of infringement profit, production quantity and profit and thus unable to accurately calculate the infringing products, factors only according to the accused infringement continued time, sales scope, as well as the plaintiff to stop the infringement, reasonable expenses paid for investigation, as appropriate, to determine the amount of compensation.

To sum up, according to the "PRC Anti Unfair Competition Law" fifth article(Two)The twentieth item, and "general rule of the civil law" provisions of article 134th, the decision as follows: one, the Sanshui Huali Beverage Food Co. Ltd. legally effective judgment in this post immediately stop using and the Guangdong jiaduobao Food Co. Ltd. canned"Wang Laoji"Herbal tea beverage packaging similar canned"Twenty-four taste"Herbal tea beverage packaging decoration, decoration and destroy all inventory of the infringement and to stop selling infringing products with packaging of tea. Two, the Sanshui Huali Beverage Food Co. Ltd., ten days after the legally effective judgment in compensation to the plaintiff to Guangdong jiaduobao Food Co. Ltd., in the currency10Million yuan. The case acceptance fee10010Element, the defendant Sanshui Huali beverage food limited burden.

 The appellant Sanshui Huali beverage food limited company refuses to accept the decision, appeal to the court. Request:

To withdraw the first instance judgment, and dismiss the Guangdong jiaduobao food limited company litigation request, and take the case of a second instance cases, litigation costs. The fact that:1A judgment ascertaining the facts, part of the error, is the subject of rights the appellant Guangdong JDB company is not specific to a well-known commodity decoration right:1.This controversy is Chen Hongdao personal decoration design and authorized, is their permits to Dongguan hung company, appellee Guangdong jiaduobao Food Co. Ltd., a judgment that is hung(Group)Limited design and licensing Dongguan Hong Tao companies use, belonging to the facts wrong;2.A trial that the Guangdong jiaduobao Food Co., the use of decoration is cancelled Dongguan Hung Road, after the use, is wrong;3.The cancelled Dongguan Hong Tao companies invested in advertising as the basis, that is the production of goods is a well-known commodity, the Guangzhou Yangcheng pharmaceutical Limited by Share Ltd"Wang Laoji + graphics"Trademark"The famous"As the appellee's goods"The well-known"The facts wrong, l..2This dispute, packaging and decoration decoration is not specific to a well-known commodity, the appellant goods did not cause confusion with the appellee goods, not in conformity with the provisions on "decoration of famous product specific anti unfair competition law". The appellant's use behavior does not constitute infringement.

The appellee Guangdong Jiabao beverage & Food Co Ltd said in reply: a court finds that the facts are clear, the applicable law is correct, request the court of second instance shall be maintained."Wang Laoji"Herbal tea is decorated by the appellant of famous product specific decoration, the appellant"Twenty-four taste"Herbal tea decoration and the appellee"Wang Laoji"Herbal tea decoration phase approximation, causing consumers to misidentification and confusion, constitute infringement, should bear the corresponding legal responsibility according to law.

The school find out the trial, the court of first instance to find out the facts, the court for confirmation.

Find out the other, in the second trial, the appellant Sanshui Huali Beverage Food Co., submitted to the three new evidence. Evidence1.JDB"Herbal tea beverage cans and photos, evidence2.Bao Zhilin"Herbal tea beverage cans appearance design patent announcement and picture, show that the dispute is not decoration"Wang Laoji"Herbal tea beverages. Evidence3.Twenty-four taste"Herbal tea and photos, purchase invoices, proof"Twenty-four taste"Herbal tea is Guangdong folk traditional herbal tea, known to the consumers. The appellee think the evidence: the evidence and the case without relevance.

Also see: Sanshui Huali Beverage Co., to review the State Intellectual Property Office patents Commission request declaring the patent No.96305519.4Appearance design patent right invalid,2004Years6Month22Day, review the State Intellectual Property Office patents commission to make the6216On the examination of the request for invalidation decision, declaring the patent No.96305519.4Appearance design patent is invalid, reason is: the patentee Chen Hongdao in Patent No.96305519.4An application for a patent for design has been applied for patent of appearance design is almost the same with the patent designed and patented(Patent No.95318534.6For Chen Hongdao, the patent right, the patent at1998Years12Month18Japan, for failing to pay patent fee is terminated.)According to the invention, the same one patent shall be granted to the provisions, declaring the patent No.96305519.4All invalid design patent; Guangdong jiaduobao food limited company also to review the State Intellectual Property Office patents Commission for declaration of Sanshui Huali Beverage Co., patent No.19983052018Appearance design patent right invalid,2004Years8Month30Day, review the State Intellectual Property Office patents commission to make the6360On the examination of the request for invalidation decision, declaring the patent No.19983052018Appearance design patent is invalid, reason is: application date prior patent No.96305519.4Appearance design patent(Patent man-made Chen Hongdao)And the patent number19983052018Appearance design, though the words and patterns of the main text pattern and small different, but the only alternative text content simple, effect is not sufficient to produce significant; because both uses a very similar pattern layout and the same color, resulting in the overall design of the two will produce similar visual effects, to ordinary consumers, in practical use, therefore, they should be design is similar, according to the patent law the twenty-third regulation, patent No.19983052018The appearance design is not in conformity with the provisions of the patent law of the licensing conditions, invalidated the patent right.

Also identify,2003Years2Month13Day, Guangdong jiaduobao Food Co. Ltd. of Guangdong Province to Foshan City Intermediate People's Court: the defendant, request any Sanshui Huali Beverage Food Co., discontinue use and"Wang Laoji"Herbal tea similar pot stickers, destroyed the outer packaging of existing, to stop selling the tank mount and packaging of tea products, compensation for economic losses50Million yuan.

　　This house believes that: the case of famous product specific decoration disputes over infringement. According to "Anti Unfair Competition Law" fifth article(Two)Provisions, constitute an infringement of famous commodities decoration right should have two elements: one is the right to enjoy the famous commodities decoration right. Two is the use of the allegedly infringing decoration and other well-known commodity caused confusion, the buyer is mistaken as the well-known commodity.

In this case, the appellee Guangdong jiaduobao food limited company on its use"Wang Laoji"Canned tea beverage packaging could enjoy the famous commodities decoration from the right, whether the goods belong to the well-known goods and the decoration is special decoration two aspects to be identified.

First of all, the"Wang Laoji"Canned tea drinks are well-known commodity. Involved in the case"Wang Laoji"Canned tea drinks in Guangdong area for the vast number of consumers are aware, occupies a large share in the tea beverage market, enjoy a relatively high visibility, in Guangdong area should belong to a well-known commodity."Wang Laoji"Mark in1998Was rated as a famous brand of Guangdong Province and Guangzhou city.2002By the State Sports General Administration of sports equipment for the center awarded the use of propaganda, in its advertising, brand promotion and product packaging"China sports delegation for flag","The fourteenth Asian Games Chinese sports delegation partners","The fourteenth Asian Games China sports delegation only tea beverage". Dongguan Che hung, the company from1996Year started using the decoration in the canned tea beverage, and put a lot of advertising for the product promotion.These facts further corroboration of this case"Wang Laoji"Canned tea belongs to a well-known commodity.

A trademark is a mark of commodity, with recognition of the quality function of commodities, there is an inherent connection between famous and well-known both trademarks.The appellant Sanshui Huali beverage & Food Co., think"Wang Laoji"The famous and the commodity using the well-known trademark is independent and that the case of trademark"Wang Laoji"Canned tea belongs to the identification of famous product and Guangdong traditional"Wanglaoji Herbal Tea"Confused, advocate the case"Wang Laoji"Canned tea does not belong to a well-known commodity, reason is insufficient; secondly, the"Wang Laoji"Canned tea beverage special decoration decoration is belongs to goods. In this case"Wang Laoji"Canned tea drinks on the decoration, in the text, color, pattern and arrangement, unique design, the decoration color, pattern and its name com., have a significant distinguishing features, not for the general merchandise, peculiar to the goods should be specific, well-known goods decoration. The appellant submitted"JDB"Herbal tea beverage cans and photos and"Bao Zhilin"Herbal tea beverage cans appearance design patent announcement and picture, and can not fully prove that the dispute is not decoration"Wang Laoji"Unique herbal tea beverage packaging. The Appellant maintains the"Wang Laoji"Canned tea drinks the decoration does not belong to the special decoration and belongs to the category of goods for general decoration is not set up.

　　The unique decoration for a well-known commodity right is with the unique decoration used on goods, when the goods become well-known commodities, and produce an exclusive use of a civil rights, the rights and the well-known goods are inseparable, enjoyed by the well-known goods legitimate operators, operators and changes with the well-known goods and the new legal operator by the following.In the1996Years, Dongguan Hong Tao companies have started in the canned"Wang Laoji"Using the case of herbal tea beverage on decorating identifier, and a large amount of advertising, so that the products become well-known commodities, the decoration in the"Wang Laoji"Canned tea drinks on the use of time was earlier than the time of use, the appellee is"Wang Laoji"Canned tea beverage legitimate operators, following the right by the unique decoration of a well-known commodity, so it is the subject of rights in the case of famous product specific decoration right. The appellant believes the case just right of famous product specific has been with the Dongguan Hong Tao, cancellation and loss, the appellee is not the subject of right of claim, reason not established, the court shall not accept.

Through the above analysis, can identify Guangdong jiaduobao food limited company on its use"Wang Laoji"Canned tea beverage packaging to enjoy the famous commodities decoration right.

In the famous commodities decoration right infringement, in addition to review to identify the right people decorate is a well-known commodity specific decoration, the use to the allegedly infringing decoration is caused by confused with other well-known goods, the buyer is mistaken as the famous judge products. If litigation decoration approximate degree reached sufficient to cause confusion with the well-known commodity, so that buyers mistake is a well-known commodity level, should be found to constitute infringement, otherwise, will not constitute infringement. The same or approximate the judgment for the commodity decoration, is the general attention of consumer goods as the observation criteria. The cause and the well-known goods"Confusion","Mistake"Including the actual cause confusion, mistake and may cause confusion, mistake. The case will be accused of infringing products canned"Twenty-four taste"Decoration and canned tea beverage"Wang Laoji"Herbal tea beverage packaging pattern decoration are compared, both are basically the same, the same logo background color, text color, text alignment approximation, although the name of commodity, trademark, enterprise name, slightly different, does not affect the decoration approximation, from the overall observation, the appellant production canned"Twenty-four taste"Herbal tea beverage decoration and the appellee canned"Wang Laoji"Herbal tea beverage of the same decoration style. Review of the State Intellectual Property Office patents Commission made in the article6360On the examination of the request for invalidation decisions that, though the words and patterns of the main text pattern and small different, but the only alternative text content simple, effect is not sufficient to produce significant; because both uses a very similar pattern layout and the same color, resulting in the overall design two may produce similar visual effects on the general consumers in the actual use of the process, it also explains the two highly similar evidence. The highly similar decoration enough to cause consumers will be canned"Wang Laoji"And canned"Twenty-four taste"Confused herbal tea beverage, cause misidentification, false purchase may, constitute violations of famous commodities decoration right. The appellant"Twenty-four taste"Herbal tea is Guangdong folk traditional herbal tea, the majority of consumers are familiar with, to the case of canned"Twenty-four taste"And canned"Wang Laoji"Herbal tea beverage discrimination claims, is"Twenty-four taste"Herbal tea and"Wang Laoji"Distinction tea name with the decoration of commodity is approximate confused, the reason is insufficient, the court shall not support.

The appellant Sanshui Huali Beverage Food Co. Ltd. to use is similar to a well-known commodity decoration on their products, causing confusion with the rights of the people of a well-known commodity, so that buyers mistake is a well-known commodity, violating human rights on the basis of "the people's Republic of China Anti Unfair Competition Law" fifth article(Two)Right, just enjoy special provision of famous goods constitute infringement, should bear corresponding civil liability. In tort damages amount, because the appellee's infringement damages and the appellant due to infringement profit are cannot be ascertained, the original judgment according to the tort of time, the sale of infringing products and to stop the infringement and reasonable cost paid, in accordance with the law, sentenced to10Million is not inappropriate, and both parties have no objection, the court recognized.

To sum up, the trial court finds that the facts are clear, correct application of the law, shall be maintained. According to the "PRC Civil Procedure Law" article 153rd(A)The provisions of item, the decision as follows:

Dismiss the appeal and upheld the original sentence.

The second case acceptance fee10010Yuan, shall be borne by the appellant Sanshui Huali Beverage Food Co. ltd..

This judgment is the final judgment.

Chang Lin Guanghai trial  

Acting judge Huang Weiming  

Acting judge Qiu Yongqing  

Two00In December 13th four

Secretary Yuanlin Hengchun