civil judgment
Plaintiff Liu Changlong, male, Han nationality,1born on April 7, 970, lives at No.29-96, Yunhe South Road, Yangzhou City, Jiangsu Province.
Authorized Agent: Yang Hongyun, lawyer of Jiangsu Yangzhou Lihua Law Firm.
Authorized Agent: Li Ming, lawyer of Jiangsu Yangzhou Lihua Law Firm.
Defendant Nanjing Qin Chao Crock Restaurant Co., Ltd. has its domicile atNo.11Jiangdong North Road, Gulou District, Nanjing.
Legal representative Tian Chunyong, executive director.
Authorized Agent: Li Danian, lawyer of Shaanxi Zheng Zhi Law Firm.
Entrusted agent Hu Xiaojun, male, Han nationality, 1975, lives at No.93, Jiaojia Lane, Gaoyou City, Jiangsu Province.
The third person, Shaanxi Qin Chao Crock Catering Co., Ltd., lives at No.6 Jinhua North Road, xi, Shaanxi Province.
Legal Representative: Shen Yuejuan, board chairman.
Authorized Agent: Li Danian, lawyer of Shaanxi Zheng Zhi Law Firm.
Plaintiff Liu Changlong, defendant Nanjing Qinqin Crock Catering Co., Ltd. (hereinafter referred to as Nanjing Qinqin Company) and third party Shaanxi Qinqin Crock Catering Co., Ltd. (hereinafter referred to as Shaanxi Qinqin Company) were involved in a dispute over trademark infringement and unfair competition. After the court accepted the case, a collegiate bench was formed in accordance with the law and the trial was held in public. Plaintiff Liu Changlong and his entrusted agents Yang Hongyun and Li Ming, defendants Nanjing Qinqin Company entrusted agents Hu Xiaojun and Li Danian, and the third person Shaanxi Qinqin Company entrusted agent Li Danian to attend the lawsuit. The case has now been closed.
Liu Changlong, the plaintiff, claimed that in 2002, the plaintiff registered a crock noodle shop in the Qin Dynasty in Guangling District of Yangzhou City, and engaged in the retail of crock noodle snacks in the Qin Dynasty. The plaintiff obtained the trademark registration of Qin Zi on October 28th, 2004 and June 28th, 2005 respectively. In 2006, the plaintiff cancelled the noodle shop, and in 2007, Yangzhou Qinqin Catering Management Co., Ltd. was established in the form of sole proprietorship, devoted to the related business of "Qin Dynasty" crock noodles, and actively expanded new customers. At the beginning of 2007, many customers in Nanjing asked the plaintiff to join the cooperation, but after investigation, they all canceled their intention to cooperate. According to the customer's feedback, the defendant's enterprise name, the logo of the business place, and the words "Qin crock" and "national chain" were marked on the publicity materials, which made customers question the plaintiff and led to the plaintiff's plan to expand the Nanjing market. The plaintiff believes that the defendant directly registered the same words as the plaintiff's registered trademark as the font size and used it on the same commodity, and used the word "Qin Dynasty" in a prominent position inside and outside its business premises, which led to confusion and misunderstanding among the relevant public, infringed the plaintiff's exclusive right to use the trademark and constituted unfair competition. The defendant was sued to the court, demanding to stop infringing the plaintiff's exclusive right to use a registered trademark in the Qin Dynasty, immediately change the name of the enterprise, cancel the infringing contents on the signboards and publicity and advertising materials inside and outside the business premises, and compensate the plaintiff for a loss of 200,000 yuan.
The defendant Nanjing Qinqin Company and the third party Shaanxi Qinqin Company argued that the defendant used "Qinqin Pot" as the company name, and the use of the trademark was approved by the third party at present. The third party was established as early as 1999. 200 1, granted four groups of registered trademarks. In 2006, Tian Chunyong (the legal representative of the defendant) signed a franchise agreement with a third party, and the defendant obtained the right to use the trademark of the third party and registered the current enterprise name. The words "Qin dynasty crock" on the defendant's storefront and publicity materials are fundamentally different from and not similar to the plaintiff's trademark. The defendant did not infringe the plaintiff's exclusive right to use a trademark, nor did it constitute unfair competition, and requested to dismiss the plaintiff's claim.
It was found through trial that the Qin Dynasty crock noodle shop (individual industrial and commercial household) invested by the plaintiff in Guangling District of Yangzhou City was approved to be established on June 4, 2002 and cancelled on June 0, 2006. On June 28th, 2004 and June 28th, 2005, the plaintiff was approved to register the "Qin Trademark", with registration numbers of No.3563548 and No.3563547. The approved products were the 30th category: noodles, and the approved service items were the 43rd category: restaurants, cafeterias, fast food restaurants and self-service. On June 5438+1October 65438+July 2007, Yangzhou Qin Chao Catering Management Co., Ltd., which was established solely by the plaintiff, was approved for registration, and its business scope included hotel management, business information consultation, enterprise management consultation and personnel management consultation.
199965438+On February 22nd, the third party was approved and registered. On April 2 1 day, April 200 1 day, and May 14, respectively, the third party was approved to register the service trademark and commodity trademark of the "tile" graphic. On May 28th, 200 1, a third person registered the trademark of "Qin Dynasty Pot" (hereinafter referred to as the trademark 1) in words and graphics. The upper part of the trademark is a semicircle with a black background, and the semicircle contains a crock pattern. There is a Chinese character "Qin" in seal script on the crock, and the lower part of the semicircle is the bold character "Qin Dynasty pot" and its pinyin "Qi". On June 2, 2006, the third party was approved to register the trademark "Qin" (the trademark pattern is the trademark 1 upper semicircle, hereinafter referred to as trademark 2), and the approved service items are the 42nd category: residence (hotels, restaurants, guest houses), banquet preparation, restaurants, restaurants, massage and fast food. Valid until June 20th, 20 1 1. On May 27th, 2006, a third party and Tian Chunyong signed the A Qin Dynasty Crock Franchise Agreement, stipulating that the third party franchised Tian Chunyong to have the franchise right of Qin Dynasty crock in Nanjing, the third party enjoyed the franchise fee, and Tian Chunyong enjoyed the right to use the third party brand for a certain period. On June 20, 2006, 10, the defendant, invested by Tian Chunyong and Luo Chuntao as shareholders, was established upon approval, and its business scope was: manufacturing and selling Chinese food and catering management.
On July, 2007, the plaintiff applied to Nanjing Notary Office for evidence preservation. On that day, the plaintiff and notary took photos of the appearance of the defendant's hotel, and * * * got 12 photos. The photo shows that in the decoration of the defendant's shop, the trademark 1 is located at the highest part of the wall, and three groups of words "Qin Dynasty crock" with different fonts and colors are arranged vertically and horizontally on the wall below the trademark and on the upper left side of the shop door. There are several groups of crocks on the left side of the shop door, each group of crocks is decorated with trademark 2, and there is "Qin Dynasty crock" just below the trademark 2.
The defendant printed "Qin crock/national chain" and "Qin Terracotta Warriors and Horses" on the cover of his brochure; In the company profile of the manual, it is declared: "Qin Dynasty crock restaurant is the first traditional food and culture restaurant opened by Shaanxi Qin Dynasty crock catering development Co., Ltd. in An ... Qin Dynasty crock is mainly based on Qin Yun and absorbs the essence of restaurants in the ancient capital"; In Nourishing Health, it is recorded that "the special health care crock soup launched by Qin Crock Health Museum ..."; It is recorded in "Qin Lu Tang lue" that Qin Lu Tang was a tribute from Chu to Qin Shihuang ... Qin Shihuang was very happy after eating it and named it Qin Dynasty stew soup. ..... Qin dynasty crock revealed to the world "; The manual also records "Dream Back to Qin", "The crock in Qin Dynasty created an artistic conception of dreaming back to Qin for busy and noisy urbanites". Trademark 2 is also printed on the front cover and back cover of the manual, and the words "Qin Dynasty crock" are printed under trademark 2.
The defendant printed "Pinqin Pot" and the trademark 1 (next to the trademark).
The words "National Chain" and Pinyin are printed directly below), Qinqiang stew soup (this article is the same as the above-mentioned introduction of Qinqiang stew soup), and the trademark1is printed on the employee's business card and order card; The chopsticks cover is printed with the words "Qin Dynasty crock restaurant".
The plaintiff believes that the above behavior of the defendant constitutes infringement. On September 24, 2007, Gulou Branch of Nanjing Administration for Industry and Commerce issued a statement on the plaintiff's reflection of the defendant's trademark infringement, arguing that although the enterprise name plaque can be appropriately simplified, it should be reported to the registration authority for the record. The defendant did not use the enterprise name as required, which violated the Regulations on the Administration of Enterprise Name Registration. Therefore, the defendant was ordered to make corrections within 15 days and fined 1000 yuan.
During the trial, the plaintiff submitted the Franchise Contract, Franchise Application Form and Letter of Intent, Baidu search materials, newspapers and other evidence, which proved the fact that the plaintiff used various cooperation methods to promote its own brand in franchise development. During the trial, the plaintiff also submitted two additional letters of intent for cooperation, which proved that the plaintiff's customer made a mistake because of the defendant's infringement, which led to the failure of joining. The defendant and the third party think that they have no objection to the authenticity of Franchise Contract, Application Form, Letter of Intent and Newspaper, but they are irrelevant to this case, so they can't confirm the authenticity of Baidu's search materials, and the Letter of Intent for Cooperation exceeds the time limit for proof, so they will not be cross-examined.
The third party submitted newspapers and other evidence to prove that the third party began to promote its brand from 1999. The plaintiff has no objection to the authenticity in cross-examination, but the publicity should start from 200 1, which infringes the plaintiff's exclusive right to use a trademark.
The above facts are confirmed by the plaintiff's and defendant's industrial and commercial registration materials, trademark registration certificates, notarial certificates, defendant's brochures, paper towels, chopsticks sets, reservation cards, employee's business cards, consumption invoices, investigation materials of industrial and commercial departments, franchise agreements, business licenses of third parties, trademark registration certificates and other evidences, as well as the evidence submitted by the above parties, court transcripts and cross-examination.
Plaintiff Liu Changlong and defendant Nanjing Qinqin Crock Catering Co., Ltd. (hereinafter referred to as Nanjing Qinqin Company) and the third person Shaanxi Qinqin Crock Catering Co., Ltd. (hereinafter referred to as Shaanxi Qinqin Company) are involved in the case of unfair competition dispute over trademark infringement. Defendants xi City of Shaanxi Province, Yangzhou City of Jiangsu Province, Qingyang City of Zhejiang Province, Ancient City, Yiwu City, Jinhua City, Nanjing City of Henan Province, Zhengzhou City, Heshui County of Kunming City of Yunnan Province and Zhengzhou Qinqin Crock Catering Co., Ltd.
We believe that the plaintiff's "Qin Dynasty" trademark has been approved and registered by China's trademark administration authorities, and it is still within the validity period, so the plaintiff enjoys the exclusive right to use the registered trademark and should be protected by law. But the crux of the problem lies in whether the defendant's related behavior constitutes trademark infringement and unfair competition as stipulated by law.
First, whether it constitutes trademark infringement. the trademark law of the people's republic of china
Items (1) and (5) of Article 52 stipulate: use a trademark that is the same as or similar to its registered trademark on the same or similar goods without the permission of the trademark registrant; If other damage is caused to the exclusive right to use a registered trademark of others, it is an act of infringement of the exclusive right to use a trademark. Item (1) of Article 50 of the Regulations for the Implementation of the Trademark Law of People's Republic of China (PRC) and Item (1) of Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes stipulate that it is misleading to use the same or similar mark as the name of a commodity with another person's registered trademark; Using the same or similar words with other people's registered trademarks as the company name on the same or similar goods is an act of "causing other damage to the exclusive right to use registered trademarks of others", which is easy to mislead the relevant public. It can be seen from the above provisions that whether the trademark, symbol and enterprise name accused of infringement are the same as or similar to those registered by others, and whether the enterprise name is obviously used on the same or similar goods is the key to judge whether it constitutes trademark infringement.
In this case, the defendant decorated the trademark 1 in his store, and printed it on paper towel packaging, employee business cards and order cards. Although the word "Qin crock" appeared, it was because the trademark 1 itself contained the above four words. The defendant did not list these four words separately for prominent use, but used the whole trademark 1. The 1 trademark is a combination of words and graphics, which is neither the same nor similar to the plaintiff's word mark, and the 1 trademark has been approved for registration and should be protected by law. The defendant's use was approved by a third party and did not constitute an infringement of the defendant's exclusive right to use a registered trademark.
The defendant's other behaviors of using the word "Qin crock" can be divided into two types: one is the behavior of using his own enterprise name, such as three groups of "Qin crock" arranged vertically and horizontally above the store door, Qin crock/national chain, Qin crock restaurant, Qin crock-based in Qin Yun, Qin Feng, Qin crock health pavilion and Qin crock gift recorded in the brochure, etc. Second, it is used as a trademark or commodity name, such as "watching Qin terracotta warriors and horses, simmering soup in Qin crock", "giving Qin crock a name" and "Qin crock is known to the world". Judging from the above usage, the defendant did not highlight the word "Qin Dynasty" alone, but used the word "Qin Dynasty crock" as a whole, and compared with the plaintiff's trademark, these four words are different or similar in sound, form and meaning. Therefore, the defendant's behavior does not constitute trademark infringement.
As for the defendant's propaganda of "Dream Back to Qin", it obviously refers to the dynasties in China's history, and the relevant public will not misunderstand it, so the propaganda does not constitute infringement. Although the industrial and commercial department punished the defendant, the reason for the punishment was not the infringement of the plaintiff's exclusive right to use a trademark, and the punishment was irrelevant to this case.
Second, whether it constitutes unfair competition. According to Article 2 of the Anti-Unfair Competition Law of People's Republic of China (PRC), operators should follow the principles of voluntariness, equality, fairness, honesty and credibility in market transactions and abide by recognized business ethics. Unfair competition refers to the behavior of operators who violate the provisions of this law, damage the legitimate rights and interests of other operators and disrupt the social and economic order. In this case, the defendant's business name "Nanjing Qinqin Crock Restaurant Co., Ltd." was registered according to law after being approved by China's industrial and commercial departments. Although there is the word "Qin" in it, the name should be "Qin crock". The name and current trademark used by the defendant come from the franchise contract signed by the defendant's legal representative and a third party, which enjoys legal sources and does not violate the principle of good faith. The defendant's use of the word "national chain" in decoration and publicity will not harm the plaintiff's legitimate rights and interests and will not constitute unfair competition against the plaintiff.