The people's Republic of China Beijing second intermediate people's court

 

Civil judgment

 

(2007) the second issued Spain in the early Republican word no. 9625th

 

 The Crocodile Garments Co. Ltd., Li Xin Business Center No. 680 is domiciled in the people's Republic of China Hongkong Special Administrative Zone, Changsha Bay Road, 11 floor.

 

 Legal representative: Lin Jianming, executive director.

 

 Authorized agent in * *, State Department of Beijing city lawyer.

 

 Authorized agent of bovine * *, State Department of Beijing city lawyer.

 

 The Beijing new century apparel trade city field limited company, domiciled in the people's Republic of China Beijing Fengtai District sea Hu Tun neiliansheng shoes store.

 

 Legal representative: Bo Chengwu, chairman of the board.

 

 Authorized agent, * *, Beijing Zhongfu law firm lawyers.

 

 Attorney Jiang * *, Beijing Zhongfu law firm lawyers.

 

 Defendant: Ge Changneng, male, the Han nationality, born in January 10, 1973, Beijing City, Fengtai District new century clothing market 3063 operators, Du Qiao Zhen East Village to live in the people's Republic of China in Linhai city of Zhejiang province.

 

 Attorney Li, Beijing City, Beijing lawyer.

 

 The Crocodile Garments Co. Ltd. (hereinafter referred to as the crocodile company) sued the defendants, Beijing new century Apparel Trade City Co. Ltd. (hereinafter referred to as the new Century Co), Ge Chang to trademark infringement and unfair competition dispute case, the court, a collegial panel, in October 23, 2007 November 13th, the case was heard in public. The crocodile company agent in the * * * *, cattle, the new Century Co agent, * * * *, Jiang, the defendant Ge Changneng and attorney Li attended the court proceedings. Now the trial has been closed.

 

 The crocodile company claimed: the plaintiff has more than 50 years of operating history, "crocodile CROCODILE SINCE 1952 and map" trademark is the plaintiff is the use of the trademark, the use and promotion of the plaintiff continued for many years, the trademark of a high visibility in the industry and consumers. Ge Changneng sold the use of the trademark clothing in the new Century Co operating management in new century Apparel Trade City No. 3063 stalls, marked the factory name and address and telephone information, clothing tag, so that consumers mistakenly believe that GE Chang can be wholesale, retail Crocodile Garments from the plaintiff, or mistakenly believe that the existence of specific relations between the defendant and the plaintiff. The Ge Chang to infringement of the trademark right of the plaintiff, also constitutes unfair competition; new Century Co as a professional clothing wholesale market organizers and managers, provide premises for GE Chang, and Ge Chang can constitute joint tort. In view of the fact that the trademark is registered, the plaintiff requests that the trademark is well-known trademarks. The two defendant's infringement infringed upon their legitimate rights and interests, disrupting the normal market order on the grounds to the court, the request of the ruling two defendants to immediately stop the infringement and unfair competition behavior, that the plaintiff's "crocodile CROCODILE SINCE 1952 and map" trademark for the well-known trademarks, sentenced to two defendants to the plaintiff compensation for economic losses of 2900000 yuan and to stop the infringing act the reasonable cost paid 50000 yuan.

 

 The defendant argued that the new Century Co: the facts of this case is, Beijing in the new economic and trade limited company has temperature "business license of enterprise legal person" in July 25, 1996, including the scope of business "to the Beijing new century apparel trade city field". In May 27, 2003, Beijing Wen New Trade Co., the company name changed to Beijing new century clothing market Co., in June 17, 2003, the name changed again to Beijing new century apparel trade city field Co. Ltd, which is now the name. In July 10, 2002, Beijing temperature trade limited company and Ge Chang signed "brand woolen sweater market in Beijing new century office lease agreement", Ge Changneng leased the Beijing new century sweater market third layer A3063 booth. In March 24, 2003, Ge Changneng will stall transfer to Feng Jilong, the defendant asked Ge Chang and Feng Jilong handled industrial and commercial registration formalities, but the two sides did not handle business license, the operator shall name is still Ge Changneng. In May 25, 2006, Ge Changneng will stall short-term leased to Peng Mingxiang; March 7, 2007, Ge Changneng will be transferred to Xia Hailong booth.

 

 The new Century Co think, the plaintiff's "crocodile CROCODILE SINCE 1952 and map" trademark has not yet been approved as a registered trademark, not protected by trademark law; the evidence submitted by the plaintiff cannot prove that the trademark has been in mainland China known by the relevant public, it does not conform to the well-known trademark elements. The operator the plaintiff is not Chinese inland, so the sales will not be with the commodities produced unfair competition; commodity is not well-known commodity plaintiff business, the goods do not have the specific name, packaging, decoration, so the product does not exist unfair competition behavior. The goods were managed by Ge Changneng booth to sell, has nothing to do with the new Century Co. According to the agreement, the new Century Co is the operator apparel trade city field in the new century, the company's business is the market stalls rented for rental income, management behavior, does not participate in the sale of goods, the sales are the main responsible for booth booth. In this case the goods are to the lessee in Ge Chang stalls by the actual operator Peng Mingxiang sales, not the common fault of new Century Co on the sales of goods, there is no common tort. In the event of the commodity sales, new Century Co of the inventory to the stall, stall owners to operate "crocodile" brand products off shop. Visible, the new Century Co has taken timely and effective measures to stop, prevent illegal behaviors happen again, try to maximize the management responsibilities. The plaintiff did not provide evidence for the tort suffered the extent of the losses, and there is no proof of the defendant for the tort earnings, therefore the plaintiff's claim is not reasonable, should not be supported.

 

 The new Century Co that they did not carry out trademark infringement and unfair competition behavior, nor with Ge Changneng, Feng, Peng Mingxiang et al Jilong constitute joint tort, also cannot be established that the plaintiff claims the well-known trademark, the court rejected the plaintiff in the litigation request.

 

 The defendant Ge Changneng argued that: Beijing new century apparel trade city field booth No. 3063rd in 2006 February to 2007 2 monthly rent to Peng Mingxiang clothing business, the business operator what clothing, I don't know the defendant, the plaintiff should prosecute the offenders. The defendant did not intentionally infringe trademark rights, nor any infringement of the Trademark Act, the plaintiff sued the defendant has no basis in fact. The plaintiff claimed that the trademark is a non registered trademark, in accordance with the provisions of the Trademark Law of China, are not protected by law, the plaintiff's trademark infringement has no legal basis. Well known trademark must be approved by the State Administration for Industry and Commerce in accordance with legal procedures to be identified to confirm, the plaintiff claimed the unregistered trademark is well-known trademarks have no basis in fact. The plaintiff claims no factual and legal basis, the court rejected the plaintiff's request for litigation request.

 

 The court examined: the crocodile company in 1986 3 menstrual State Administration for Industry and Commerce approved by the Trademark Office, which made "crocodile", "CROCODILE" two registered trademarks, approved the use of goods are "shirt, pants, shirts and other clothes"; at the same time, the exclusive right to use a trademark achieved above two the plaintiff in the footwear products. The trademark after renewal, are currently in the validity period. Proceedings in this case, the plaintiff is not clear, on the basis of the right to exclusive use of a registered trademark in two alleged infringement.

 

 In December 18, 2003, the State Administration for Industry and Commerce Trademark Office to apply for registration of "crocodile CROCODILE SINCE 1952 and map" (see photo) trademark application category, is the twenty-fifth kind of "clothing", the application items including clothing, shoes, caps, etc.. The application for trademark registration has not yet approved.

 

 The State Copyright Bureau issued in February 12, 2007 two "copyright registration certificate", in which a content for the "Lin Weishan applicants (China Hongkong) submitted documents conform to specified requirements, the completion of created in October 8, 2003, and in October 23, 2003 in Beijing first published work" CROCODILE crocodile SINCE 1952 (black and white font) figure ", the applicant to the identity of the authors shall enjoy copyright." Another copy of certificate of the same content, the name of the work as "CROCODILE crocodile SINCE 1952 (black font) and beige bottom pattern". The work content and the same.

 

 The new Century Co original enterprise name is "Beijing Wen New Trade Co. Ltd.", founded in July 25, 1996, business scope includes "to the Beijing new century apparel trade city field", in June 17, 2003, the enterprise name change is the name. In July 10, 2002, Beijing temperature trade limited company and Ge Chang signed "brand woolen sweater market in Beijing new century office lease agreement", Ge Changneng leased the Beijing new century sweater market third layer A3063 booth. Ge Changneng as the manager for the "individual and industrial and commercial business license", "Beijing city premises was dated fashion market in Fengtai District new century No. 3063". In March 21, 2003, on the basis of the original lease agreement, the lessee directly to Feng Jilong change, but issued by Beijing Administration for Industry and Commerce Fengtai branch in November 14, 2005 of the "individual and industrial and commercial business license" business registration is still Ge Changneng. In March 7, 2007, Ge Chang and Xia Hailong "3063 stalls for transfer procedures" to the new Century Co submitted applications.

 

 February 7, 2007, the plaintiff's attorney in Beijing new century apparel trade city three booth No. 3063 to the price of 200 yuan to buy a crocodile brand woolen sweaters, bags, clothing and clothing tag have "crocodile CROCODILE SINCE 1952 and map" trademark (with the attached map), clothing tag is shown on the factory name, the site the plaintiff, telephone, and made a name for "Peng Ming Hsiang" card, the card is printed with "crocodile CROCODILE SINCE 1952 and map" trademark (with photos), and marked "Hongkong Crocodile Garments Co. Ltd." words. The new Century Co to open the "Beijing city markets proprietary invoice". Beijing City Notary Office for the above facts after issued a certificate.

 

 Proceedings in this case, the new Century Co said, in the event of the commodity sales, the company has been involved in the inventory of booth, "crocodile" brand products off shop.

 

 The plaintiff to prove "crocodile CROCODILE SINCE 1952 and map" trademark is well-known degree, presented evidence the following categories: Crocodile Garments Co. Ltd. won a number of honorary certificates, trophies; crocodile (Zhongshan) Co. Ltd. won a number of honorary certificates, certificate; certificate crocodile T-shirt for outstanding brand, consumer satisfaction with the brand of the plaintiff; enterprise, product introduction to media reports; the plaintiff and the crocodile (Zhongshan) Co., Ltd. in actual use of the mark evidence, including fashion show invitations, publicity signs, posters, etc.; the plaintiff did advertising, including "CROCODILE SINCE 1952 and figure", "CROCODILE CROCODILE SINCE 1952" crocodile ", and the crocodile figure" (with photos); multiple copies of the franchise contract, the plaintiff submitted, the purpose is to prove the plaintiff has many joined the business, its product distribution throughout the country; the crocodile brand survey firm market survey report.

 

 In addition, the plaintiffs also submitted a crocodile trademark in the certificate of registration of the Hongkong Special Administrative Region, including the "crocodile CROCODILE SINCE 1952 and map" trademark (with photos).

 

 The plaintiff for the case, pay notarization fee 1510 yuan, attorney fees 20000 yuan, at the same time pay transportation costs and the purchase of infringing products cost.

 

 The facts mentioned above, and the certificate of trademark registration, trademark registration applications, "copyright registration certificate", "Beijing new century sweater market brand office lease agreement", Beijing Notary Office (2007) Beijing card through 1617th notarization, costs associated with notes and other evidence, and the parties to the statement documented evidence.

 

 This house believes that: the plaintiff crocodile company shall enjoy "crocodile", "CROCODILE" two registered trademark rights, but the plaintiff claimed clearly, in this case is not on the basis of the exclusive right to use the two registered trademark infringement allegations made, but requested that unregistered "crocodile CROCODILE SINCE 1952 and figure" (see photo) trademark is well-known trademarks, which advocates the implementation of the act in violation of the well-known trademark and unfair competition.

 

 According to the relevant legal provisions of our country, copy, imitate, others not in translation Chinese registered trademarks or the main part, in the same or similar goods is used as a trademark, likely to cause confusion, is the trademark infringement behavior. Determination of well-known trademark, the trademark awareness, consideration should be given to the sustainable use, advertising, protected records and other factors, comprehensive judgement.

 

 In this case, the plaintiff in 1986 March registered the "crocodile", "CROCODILE" two trademark rights, on the basis of the evidence submitted by the plaintiff, the long-term use of the registered trademark of two, both the obtained the award certificate, the product obtained in the market share, the signed many join contract, or market research reports and publications related to the published content, the direct manifestation of the brand is "crocodile" and "CROCODILE", rather than the plaintiff claims in the case of "crocodile CROCODILE SINCE 1952 and map" trademark. "Crocodile" and "CROCODILE" trademark registration based on the use of the visibility is not necessarily the "crocodile CROCODILE SINCE 1952 and figure" unregistered trademarks to produce the corresponding visibility.

 

 On the basis of the plaintiff submitted "copyright registration certificate", "crocodile CROCODILE SINCE 1952 and map" trademark was completed in October 8, 2003 creation, and first published in October 23, 2003, the trademark shall be published after it is put into use in the. Therefore, the plaintiff before October 23, 2003 are engaged in all the market operation, the propaganda and goodwill achieved with the trademark logo has nothing to do.

 

 Since 2003 October, the plaintiff is in its business process began to use "crocodile CROCODILE SINCE 1952 and map" trademark, and the trademark of the corresponding propaganda, but based on the available evidence, and consider all the relevant factors, the claim of the plaintiff "crocodile CROCODILE SINCE 1952 and map" trademark for the well-known trademark, the lack of evidence, the court shall not support. The plaintiff hereby claims two the accused infringing its trademark rights, lack of evidence, the court shall not support.

 

 The accused Ge Chang signed the lease agreement, Beijing City, Fengtai District new century clothing market 3063 stalls, and as a manager for the "individual and industrial and commercial business license", while GE Chang can put forward the stalls leased to others, but the Beijing Municipal Administration of industry and Commerce Fengtai Branch issued the "individual business license" on the registration of operators still Ge Chang, bear corresponding responsibility management behavior so Ge Chang can deal with the booth.

 

 The plaintiff's attorney in Beijing new century apparel trade city three layer 3063 stalls to buy the commodity, the commodity packaging bags, clothing and clothing tag have "crocodile CROCODILE SINCE 1952 and map" trademark, and clothing tag is shown on the factory name, the site, called the. Because the commodity sales prices significantly lower than the market price of products, and the accused Ge Chang can provide a legitimate source of the goods, the goods shall be regarded as the plaintiff's trademark counterfeiting. Sales of the counterfeit trademark, and the corresponding with the production and operation of information goods, easy to make consumers mistakenly believe that the commodity is the production, sales of goods, or the sellers and the plaintiff has certain relation, the act of unfair competition. The Ge Changneng manager as the Beijing new century Apparel Trade City No. 3063 stalls, should bear the legal responsibility to stop sales of the infringing goods, and the corresponding compensation for losses. The Institute will be based on the sales price discretion to determine the amount of profits of sellers, so as to determine the specific amount of compensation; the Institute will be based on the actual circumstances of the case, considering the plaintiff for the rationality and necessity of the litigation fee paid to support, as appropriate. The plaintiff 2900000 yuan compensation and 50000 yuan of reasonable costs are too high, the court shall not full support.

 

 The new Century Co as the clothing market of the contractor, signing the lease agreement and specific operators have legitimate business qualification, according to the market of the behavior, it has fulfilled the reasonable management responsibilities, and the tort occurred to take the corresponding measures, the plaintiff asked the lack of legal basis of the new Century Co tort liability claims, the court shall not support.

 

 To sum up, in accordance with the "PRC Trademark Law" fourteenth, "the Supreme People's Court on the trial of civil cases of trademark disputes applicable law interpretation of several issues" second, "the people's Republic of China, the Anti Unfair Competition Law" article fifth (three), twentieth, "general rule of the civil law" article 134th (a), article (seven) the provisions of item, the decision as follows:

 

 One, the defendant Ge Changneng shall come into force on the date the judgment day to immediately stop the sale behavior;

 

 Within ten days of the plaintiff's crocodile Garment Ltd economic losses two thousand yuan and reasonable litigation expenses three thousand yuan two, the defendant Ge Changneng shall come into force on the date the judgment day;

 

 Three, rejected the plaintiff crocodile Garment Ltd's other claims.

 

 If not according to the period specified in the judgment to the payment of money obligations, should be in accordance with the "Regulations of PRC Civil Procedure Law" article 232nd, double payment of interest on debt during the delay in performance.

 

 The case acceptance fee 30 400 yuan, the crocodile limited burden The 29 000 element (paid), the defendant Ge Changneng burden 1400 yuan (to pay within seven days after the effective date of this judgment).

 

 If refusing to accept the judgment, the plaintiff Crocodile Garments Co. Ltd. the verdict can be delivered within thirty days from the date of the new century, Beijing apparel trade city field Co. Ltd, Ge Chang can be served in the verdict within fifteen days from the date of the petition, and in accordance with the number of the other party to submit a copy of the statement of complaint, appeal in the people's Republic of China, the Beijing Municipal Higher People's court.

 

 

 

 The presiding judge Liu*

 

 Acting judge beam * *

 

 Acting judge von*

 

Share share seven years in December 19th two

 

 The bookNoteMember  Lang * *