[introduction to the lawyer of this case] Wang Ning, a practicing lawyer of Liaoning Tongfang law firm, is one of the first lawyers to obtain the qualification of practicing lawyer of the Ministry of justice. During his practice, he has successively served as the legal adviser of Party and government organs, large state-owned enterprises, listed companies, financial institutions, foreign-funded enterprises, medical institutions, schools, associations, private enterprises, etc; He has also visited the United States several times to participate in business exchanges between China and the United States; In recent years, he has cooperated with lawyers in the UK, Beijing, Shanghai and Guangzhou to handle legal affairs related to intellectual property. As a lawyer, he has worked hard at the forefront of judicial practice from beginning to end, accumulated rich legal practice experience, and had insight into civil and commercial disputes, criminal defense, especially the legal issues involved in intellectual property, company legal affairs and real estate development and construction.
[key points of adjudication] whether the obligee enjoys the exclusive right to use a registered trademark shall be based on whether the trademark administration department registers it. The plaintiff has registered No. 15887773 and 18172664 registered trademarks in China, both of which are within the term of validity. As the obligee, the plaintiff enjoys the exclusive right to use the registered trademarks on clothing, shoes, hats and other commodities, which shall be protected by Chinese laws. Although the plaintiff's trademark has not been registered when the defendant defends that he started to sell the sports pants with the patterns involved in the case, his infringement after the plaintiff has obtained the exclusive right to use the registered trademark of the case according to law also constitutes an infringement of the plaintiff's exclusive right to use the registered trademark and cannot be exempted from liability for compensation.
[basic case] Adidas Ag began to use the trademark of "three stripes" in the 1960s. It has been well known to the Chinese public since China recorded the Argentina world cup in 1978. It entered the Chinese market in the 1970s and immediately began to produce, publicize and sell sportswear with the trademark of "three stripes". Adidas AG has applied for the registration of the "three stripes" trademark in many countries around the world. Although the registration time in Chinese Mainland is relatively late, it has actually established a high reputation and a stable corresponding relationship. Adidas Ag filed an application with the State Trademark Office on December 9, 2014, and obtained the trademark right No. 15887773 on September 28, 2017, filed an application with the State Trademark Office on October 28, 2015, and obtained the trademark right No. 18172664 on February 14, 2017.
In 2018, Adidas Ag found that an online store named "Dashan clothing and love flagship store" on tmall.com was selling pants with the trademark of "three stripes" on the side of pants, so it entrusted an agent to purchase and notarize the infringing goods under the supervision of the staff of the notary office, and filed a lawsuit with the Shenyang intermediate people's Court of Liaoning Province on June 7, 2018 according to the enterprise name shown in the certificate attached to the infringing goods, We request that the defendant Shenyang Aimeng Garment Co., Ltd. be ordered to stop the infringement and compensate 200000 yuan for the loss and 50000 yuan for the reasonable expenditure.
The Shenyang intermediate people's Court of Liaoning Province held a public hearing on August 20, 2018. Wang Ning, the litigation agent of the plaintiff Adidas AG, and the legal representative of the defendant Shenyang Aimeng Clothing Co., Ltd. attended the court.
The defendant Shenyang Aimeng Garment Co., Ltd. argued that the pants were imported from the Wuai Market, but the brand "Dashan Yilian" was mine. I started selling infringing goods in 2014, and the plaintiff's trademark was approved to be registered in 2017. I did not know that it was infringing. I checked three stripes on the Internet before selling pants, but they were not registered.
The parties submitted evidence according to law around the claims, and the court organized the parties to exchange and cross examine evidence. The plaintiff Adidas Ag submitted 29 pieces of evidence around the lawsuit request. The defendant Shenyang Aimeng Garment Co., Ltd. has no objection to the plaintiff's evidence, and recognizes that pants are purchased from the defendant, but considers that they are not infringing. The defendant submitted four evidences, one of which was the news on Quanzhou website, proving that the plaintiff's trademark was not registered; Evidence 2: the administrative ruling of the Supreme People's court proves that the three stripes are not registered in China; Evidence 3: a pair of pants started to be sold on September 18, 2014. After the other party filed a lawsuit, I stopped selling them; Evidence 4: chat records of Taobao customer service, proving the start of sales and the time of off shelf. The plaintiff did not recognize the authenticity of evidence 1, 3 and 4, and held that evidence 2 was not the trademark in dispute in this case. The court determined the evidence of both parties as follows: whether the plaintiff enjoys the exclusive right to use a registered trademark shall be based on whether the trademark administration department registers it. In this case, the court will determine whether the defendant infringes the rights by integrating the evidence of the whole case. The court shall confirm and corroborate the evidence without objection of the parties.
According to the statements of the parties and the evidence confirmed after examination, the court finds the facts as follows:
The plaintiff registered according to law and enjoyed the exclusive right of the trademark involved in the case, and made a lot of use and publicity of the trademark involved in the case, which has a high reputation in the public. On March 9, 2018, the plaintiff entrusted an agent to apply to Beijing Dongfang notary office for evidence preservation, conduct online shopping notarization under the supervision of a notary, purchase infringing goods and seal them. The industrial and commercial file query results of Shenyang Aimeng Clothing Co., Ltd. show that the company was established on January 8, 2014, and its business scope is clothing, clothing, shoes and hats sales.
After trial, the court held that: the plaintiff was registered according to law and enjoyed the exclusive right of the trademark involved in the case. The defendant used the same trademark as the trademark involved in the case on the goods sold. It is easy to mistake the same trademark according to the attention of the general public, which belongs to the situation of using the same trademark as the registered trademark on the same kind of goods. Although the plaintiff's trademark has not been registered when the defendant defends that he started to sell the sports pants with the patterns involved in the case, his infringement after the plaintiff has obtained the exclusive right to use the registered trademark of the case according to law also constitutes an infringement of the plaintiff's exclusive right to use the registered trademark and cannot be exempted from liability for compensation.
[judgment result] i. the defendant Shenyang Aimeng Garment Co., Ltd. immediately stopped infringing the exclusive right of the plaintiff Adidas Ag No. 15887773 and 18172664 registered trademarks from the date when this judgment came into effect; 2、 The defendant Shenyang Aimeng Garment Co., Ltd. shall compensate the plaintiff Adidas Ag for the economic losses and reasonable expenses incurred to stop the infringement within ten days from the date of this judgment; 3、 The case acceptance fee is 5050 yuan, which shall be borne by the defendant.
[reason for judgment] the plaintiff is a company registered and established in the Federal Republic of Germany. The plaintiff has registered No. 15887773 and 18172664 registered trademarks in China, both of which are within the term of validity. As the obligee, the plaintiff enjoys the exclusive right to use the registered trademarks on clothing, shoes, hats and other commodities, which shall be protected by Chinese laws. According to the court trial comparison, there are three white parallel stripes with the same width at the outer seam of the two sports pants purchased by the plaintiff, which are almost identical with the plaintiff's registered trademark No. 15887773 and 18172664, and are composed of three parallel vertical stripes. The color of the stripes is in contrast with the background color of the pants. It is easy to mistake the same trademark according to the attention of the general public, It belongs to the case of using the same trademark as the registered trademark on the same commodity. Although the plaintiff's trademark has not been registered when the defendant defends that he started to sell the sports pants with the patterns involved in the case, his infringement after the plaintiff has obtained the exclusive right to use the registered trademark of the case according to law also constitutes an infringement of the plaintiff's exclusive right to use the registered trademark and cannot be exempted from liability for compensation.
[relevant articles] articles 57 and 63 of the Trademark Law of the people's Republic of China, Article 50 of the law of the people's Republic of China on the application of laws to foreign related civil relations, and Article 10, Article 16, paragraph 1 and paragraph 2, Article 17, and Article 21, paragraph 1 of the interpretation of the Supreme People's Court on Several Issues concerning the application of laws to the trial of Trademark Civil Dispute Cases.
[lawyer's opinion] as an agent lawyer, the purpose of protecting the legitimate rights of trademark holders is to protect the establishment of goodwill and maintain the market order and the interests of consumers under the legitimate business conditions. Based on the trademark law and relevant judicial interpretations, some trademarks with good goodwill and clear source identification function should be fully protected according to law even if they are registered late.
[key points of adjudication] whether the obligee enjoys the exclusive right to use a registered trademark shall be based on whether the trademark administration department registers it. The plaintiff has registered No. 15887773 and 18172664 registered trademarks in China, both of which are within the term of validity. As the obligee, the plaintiff enjoys the exclusive right to use the registered trademarks on clothing, shoes, hats and other commodities, which shall be protected by Chinese laws. Although the plaintiff's trademark has not been registered when the defendant defends that he started to sell the sports pants with the patterns involved in the case, his infringement after the plaintiff has obtained the exclusive right to use the registered trademark of the case according to law also constitutes an infringement of the plaintiff's exclusive right to use the registered trademark and cannot be exempted from liability for compensation.
[basic case] Adidas Ag began to use the trademark of "three stripes" in the 1960s. It has been well known to the Chinese public since China recorded the Argentina world cup in 1978. It entered the Chinese market in the 1970s and immediately began to produce, publicize and sell sportswear with the trademark of "three stripes". Adidas AG has applied for the registration of the "three stripes" trademark in many countries around the world. Although the registration time in Chinese Mainland is relatively late, it has actually established a high reputation and a stable corresponding relationship. Adidas Ag filed an application with the State Trademark Office on December 9, 2014, and obtained the trademark right No. 15887773 on September 28, 2017, filed an application with the State Trademark Office on October 28, 2015, and obtained the trademark right No. 18172664 on February 14, 2017.
In 2018, Adidas Ag found that an online store named "Dashan clothing and love flagship store" on tmall.com was selling pants with the trademark of "three stripes" on the side of pants, so it entrusted an agent to purchase and notarize the infringing goods under the supervision of the staff of the notary office, and filed a lawsuit with the Shenyang intermediate people's Court of Liaoning Province on June 7, 2018 according to the enterprise name shown in the certificate attached to the infringing goods, We request that the defendant Shenyang Aimeng Garment Co., Ltd. be ordered to stop the infringement and compensate 200000 yuan for the loss and 50000 yuan for the reasonable expenditure.
The Shenyang intermediate people's Court of Liaoning Province held a public hearing on August 20, 2018. Wang Ning, the litigation agent of the plaintiff Adidas AG, and the legal representative of the defendant Shenyang Aimeng Clothing Co., Ltd. attended the court.
The defendant Shenyang Aimeng Garment Co., Ltd. argued that the pants were imported from the Wuai Market, but the brand "Dashan Yilian" was mine. I started selling infringing goods in 2014, and the plaintiff's trademark was approved to be registered in 2017. I did not know that it was infringing. I checked three stripes on the Internet before selling pants, but they were not registered.
The parties submitted evidence according to law around the claims, and the court organized the parties to exchange and cross examine evidence. The plaintiff Adidas Ag submitted 29 pieces of evidence around the lawsuit request. The defendant Shenyang Aimeng Garment Co., Ltd. has no objection to the plaintiff's evidence, and recognizes that pants are purchased from the defendant, but considers that they are not infringing. The defendant submitted four evidences, one of which was the news on Quanzhou website, proving that the plaintiff's trademark was not registered; Evidence 2: the administrative ruling of the Supreme People's court proves that the three stripes are not registered in China; Evidence 3: a pair of pants started to be sold on September 18, 2014. After the other party filed a lawsuit, I stopped selling them; Evidence 4: chat records of Taobao customer service, proving the start of sales and the time of off shelf. The plaintiff did not recognize the authenticity of evidence 1, 3 and 4, and held that evidence 2 was not the trademark in dispute in this case. The court determined the evidence of both parties as follows: whether the plaintiff enjoys the exclusive right to use a registered trademark shall be based on whether the trademark administration department registers it. In this case, the court will determine whether the defendant infringes the rights by integrating the evidence of the whole case. The court shall confirm and corroborate the evidence without objection of the parties.
According to the statements of the parties and the evidence confirmed after examination, the court finds the facts as follows:
The plaintiff registered according to law and enjoyed the exclusive right of the trademark involved in the case, and made a lot of use and publicity of the trademark involved in the case, which has a high reputation in the public. On March 9, 2018, the plaintiff entrusted an agent to apply to Beijing Dongfang notary office for evidence preservation, conduct online shopping notarization under the supervision of a notary, purchase infringing goods and seal them. The industrial and commercial file query results of Shenyang Aimeng Clothing Co., Ltd. show that the company was established on January 8, 2014, and its business scope is clothing, clothing, shoes and hats sales.
After trial, the court held that: the plaintiff was registered according to law and enjoyed the exclusive right of the trademark involved in the case. The defendant used the same trademark as the trademark involved in the case on the goods sold. It is easy to mistake the same trademark according to the attention of the general public, which belongs to the situation of using the same trademark as the registered trademark on the same kind of goods. Although the plaintiff's trademark has not been registered when the defendant defends that he started to sell the sports pants with the patterns involved in the case, his infringement after the plaintiff has obtained the exclusive right to use the registered trademark of the case according to law also constitutes an infringement of the plaintiff's exclusive right to use the registered trademark and cannot be exempted from liability for compensation.
[judgment result] i. the defendant Shenyang Aimeng Garment Co., Ltd. immediately stopped infringing the exclusive right of the plaintiff Adidas Ag No. 15887773 and 18172664 registered trademarks from the date when this judgment came into effect; 2、 The defendant Shenyang Aimeng Garment Co., Ltd. shall compensate the plaintiff Adidas Ag for the economic losses and reasonable expenses incurred to stop the infringement within ten days from the date of this judgment; 3、 The case acceptance fee is 5050 yuan, which shall be borne by the defendant.
[reason for judgment] the plaintiff is a company registered and established in the Federal Republic of Germany. The plaintiff has registered No. 15887773 and 18172664 registered trademarks in China, both of which are within the term of validity. As the obligee, the plaintiff enjoys the exclusive right to use the registered trademarks on clothing, shoes, hats and other commodities, which shall be protected by Chinese laws. According to the court trial comparison, there are three white parallel stripes with the same width at the outer seam of the two sports pants purchased by the plaintiff, which are almost identical with the plaintiff's registered trademark No. 15887773 and 18172664, and are composed of three parallel vertical stripes. The color of the stripes is in contrast with the background color of the pants. It is easy to mistake the same trademark according to the attention of the general public, It belongs to the case of using the same trademark as the registered trademark on the same commodity. Although the plaintiff's trademark has not been registered when the defendant defends that he started to sell the sports pants with the patterns involved in the case, his infringement after the plaintiff has obtained the exclusive right to use the registered trademark of the case according to law also constitutes an infringement of the plaintiff's exclusive right to use the registered trademark and cannot be exempted from liability for compensation.
[relevant articles] articles 57 and 63 of the Trademark Law of the people's Republic of China, Article 50 of the law of the people's Republic of China on the application of laws to foreign related civil relations, and Article 10, Article 16, paragraph 1 and paragraph 2, Article 17, and Article 21, paragraph 1 of the interpretation of the Supreme People's Court on Several Issues concerning the application of laws to the trial of Trademark Civil Dispute Cases.
[lawyer's opinion] as an agent lawyer, the purpose of protecting the legitimate rights of trademark holders is to protect the establishment of goodwill and maintain the market order and the interests of consumers under the legitimate business conditions. Based on the trademark law and relevant judicial interpretations, some trademarks with good goodwill and clear source identification function should be fully protected according to law even if they are registered late.
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