Infringement dispute appeal

Lead: Infringement disputes refer to disputes arising from infringement of the legitimate civil rights and interests of others. The following is a sample of infringement disputes I collected, welcome to read.

Appellant: Kunming XX Packaging Materials Co., Ltd. (plaintiff in the original trial).

Domicile: XX Changyuan Road, Kunming High-tech Development Zone.

Legal Representative: Liu XX, chairman of the board.

Appellee: Yunnan XX Real Estate Development Co., Ltd. (defendant in the original trial)

Address: Gaoxin Merchants Building, Kunming High-tech Development Zone.

Legal representative Su XX, chairman of the board.

The appellant refused to accept the judgment (20 1 10) No.66 made by Kunming Intermediate People's Court of Yunnan Province on July 8, 2065 because of the infringement case of XX Real Estate Development Co., Ltd. in Yunnan Province, and filed an appeal according to law.

Appeal request:

1. Request the judge of second instance not only to maintain the appellant's claim (3)(4)(5)(6)(8) supported by the judgment of first instance, but also to judge that the appellant's claim (1)(2)(7) was not supported by the judgment of first instance.

2. The appellee was ordered to bear all the appraisal fees paid by the appellant for determining the loss.

3. The appellee was ordered to bear the legal costs of the original trial and the appeal fees.

Facts and reasons:

1. The original judgment never supported the claims of (1) (2) and (7) with insufficient reasons, and the three expenses were direct losses.

The Appellant demanded that the Appellee compensate the recognized GMP workshop for the cost of resuming normal production of 4,630,500.00 yuan, including eight sub-items, namely, (1) workshop rental cost1/62,500.00 yuan; (2) The cost of the purification project for building a clean workshop in the temporarily leased workshop is 1 123632.00 yuan; (3) The debugging fee for loading and unloading of soft package printing and compound machine equipment17130,000 yuan; (4) The loading and unloading debugging fee of PTP workshop is 2 1. 1.3 million yuan; (5) The debugging fee for loading and unloading the film blowing machine is 74,000 yuan; (6) The processing and debugging fee of version library is 6.5438+0.8 million yuan; (7) Because the clean workshop built by the leased workshop can only be used as a temporary transition, the second relocation cost is 520,000 yuan; (8) After moving back to the original site, the clean workshop purification project will be rebuilt, amounting to 6,543,800 yuan+0,350 yuan. The judgment of the original trial supports the above claims in items (3), (4), (5), (6) and (8), which is reasonable and legal. One of the reasons why it does not support claims (1) (2) and (7) is that the three expenses are not direct losses, which is wrong for the following reasons:

The appellant's behavior of building a temporary factory belongs to self-help in civil law, and its purpose is to minimize the damage caused by the appellee's tort. This kind of self-help behavior includes moving away and moving back. After identification, the factors that affected the original GMP production and operation were as long as 1.5 years, so it was necessary to move out, otherwise, the appellant would lose all customer resources, face the loss of rent, and face the risk of revocation of administrative license due to long-term suspension of production and business. And these losses will far exceed the reasonable cost of temporarily building a GMP clean workshop; It is also necessary to move back to the original site and rebuild the clean factory for production and operation, otherwise the appellant's direct economic loss is at least the value of the original GMP factory, that is, the appraisal conclusion of Ding Feng Judicial Appraisal Center is 9.85 million yuan. If the appellant does not move back to the original site for production and operation, he will lose the administrative license based on the original site for production and operation. In addition, applying for the same site selection administrative license will face a very difficult and long examination and approval process, and the result of examination and approval is minimal, that is, the appellant may no longer be allowed to continue his original production and business activities. Therefore, moving back to the original site to rebuild the clean workshop is also an inevitable part of self-help behavior. Reasonable expenses arising from self-help behavior shall be borne by the infringer. Items (3), (4), (5) and (6) are all expenses for handling and debugging factories and equipment, which are reasonable expenses for the removed part of self-help behavior, and the original judgment supports them. Item (1) is also a reasonable expense for the removed part of self-help behavior, but the original judgment is not supported, which is unreasonable in law and reason. In addition, the original judgment supported the request of item (8), that is, the cost of the purification project to rebuild the clean factory after moving back to the original site was 6,543,800 yuan+0,350 yuan, which also recognized that the act of moving back to the original site was part of self-help. At the same time, the original judgment held that the request in Item (8) was a direct loss caused by the appellee's tort, and that the reasonable expenses for self-help were a direct loss. In this case, self-help is obviously reasonable.

To sum up, the appellant moved away from the original site and built a clean factory to engage in production and business activities, which was a necessary and reasonable self-help behavior against the appellee's persistent infringement. After the appellee's infringement ended, that is, after the harmful factors affecting the production and operation of the original GMP workshop were eliminated, the appellant had to move back to the original site to rebuild the clean production workshop, which was also an inevitable part of self-help behavior. Reasonable expenses arising from self-help behavior belong to the direct losses of the infringed, and the infringer shall compensate. The original judgment held that the losses in items (1) (2) and (7) were not direct losses, and the essence of its mistake was that it did not recognize the integrity of the self-rescue behavior in this case, divided the whole self-rescue behavior into several parts, and abandoned all the components without reason.

Second, the original judgment never supported the claim of item (1)(2)(7), and the loss of item (1)(2)(7) has a causal relationship with the appellee's tort liability law.

If the appellant does not save himself, the economic losses caused by the appellee's infringement will far exceed the reasonable expenses for saving himself, which has been expounded in the above appeal opinions. If there is no persistent infringement of the appellee, there will be no self-help behavior of the appellee. It is the appellee's persistent infringement that leads to the appellant's self-help behavior, and there is an inevitable causal relationship between the former and the latter. The original judgment held that item (3)(4)(5)(6)(8) had a causal relationship with the infringement, while item (1)(2)(7) had no causal relationship with the infringement. Its mistake lies in the inevitable causal relationship between the tort and the whole self-help behavior, and its essence lies in the failure to grasp the integrity of self-help behavior, which leads to the correlation between tort and self-help behavior.

Third, the reasons why the original judgment never supported (1)(2)(7) the claim were not sufficient. The loss of (1)(2)(7) does not overlap with the profit loss of GMP workshop from damage to resumption of production, and both are independent losses in self-help behavior.

The loss of profit during the period from the damage of GMP workshop to the resumption of production refers to the extra expenses incurred by Yongzhen Company to maintain normal production during the period from the suspension of production in GMP workshop to the completion of the first construction. Before the temporary workshop failed to put into production, the appellant implemented self-help behavior in order to reduce losses, that is, purchased PE film for production and operation, and the extra cost for this was profit loss, which was the direct loss caused by infringement, and its essence was the reasonable expenditure of self-help behavior. (1)(2)(7) is another independent and reasonable expenditure in the process of complete self-rescue. The profit loss from being damaged and unable to produce to resuming production has a time series relationship with the three losses, which are logically independent, not overlapping. The appellant's three losses were not filled, because the appellee only compensated for the loss of profits during the period from being damaged and unable to produce to resuming production. Therefore, the original judgment equates the three losses with the loss of profits during the period from production suspension to resumption of production, which is an inaccurate determination of the facts of this case.

Four. The appellee shall compensate the profit loss of GMP workshop from the time when it was damaged and unable to produce to the time when it resumed production, totaling 65,438 yuan +0.3276 million yuan.

This kind of loss is the direct loss caused by the appellee's tort, and there is an obvious causal relationship with this kind of tort, which has been recognized in the original judgment as reasonable and legal, so there is no need to repeat it here.

V. The losses determined by the appellant and the appraisal fees paid by the appellant shall be borne by the appellee.

The original judgment ordered the appellee to bear part of the appraisal expenses on the grounds that some items in the appraisal conclusion were not direct losses, namely (1) (2) and (7). According to the above facts and reasons, these three items are direct losses, and the reasons of the original judgment are not established, so the appellee should bear all the appraisal expenses, that is, 30,000 yuan.

Request the Higher People's Court to fully consider the facts and reasons of the appellant according to the facts and laws of this case and make a fair and just judgment according to law.

I am here to convey

Yunnan Provincial Higher People's Court

Appellant: Kunming XX Packaging Materials Co., Ltd.

Agent:

Model complaint of infringement dispute (II) Appellant: Guangdong xx Development Co., Ltd.

Defendant of the original trial: Zhejiang Hangzhou XX Co., Ltd..

Appellee: Wang XX

The appellant refused to accept the civil judgment of Hangzhou Intermediate People's Court of Zhejiang Province (2008) Hangmin Sanchuzi No.403 for the case of trademark infringement dispute with appellee Wang XX, and appealed to your hospital.

Appeal request:

1. Request to cancel the first, second, third and fourth judgments of civil judgment No.403 (2008) of Hangmin Sanchuzi.

2. The appellee was ordered to bear the legal costs of the first and second trials of this case.

Facts and reasons:

1. What did the appellant use? Zhong Kai Audio & Video Company? 、? Zhong Kai culture? 、? Zhong Kai culture advocates the production of Zhong Kai blockbusters? 、? Zhong Kai TV series? Text marks belong to the rational use of their own enterprise names, rather than the use of trademark marks, and trademarks have very little recognition effect on audio-visual enterprises.

The original judgment held that the appellant used it prominently in his commodities, packaging and publicity for many years? Zhong Kai TV series? 、? Zhong Kaida (new) movie? 、? Zhong Kai Audio & Video Company? Logo text? Zhong Kai? Characters have played a guiding role in consumers' identification of the producers of goods, and their function of identifying the source of goods has been fully demonstrated, which should belong to trademark identification and then be recognized as trademark use. The appellant disagreed for the following reasons:

1, the original judgment ignored a fact, and so did the appellant's name? Zhong Kai? In business activities, the logo that guides consumers to identify commodity producers must be a trademark, and the font size can also distinguish different commodity sources. Moreover, in this case, the appellant included his registered trademark Z-shaped graphics and the above trademark? Zhong Kai? The font size of the text logo is used together, followed by the Z-shaped graphic trademark, followed by the abbreviation and full name. This usage continues to this day. Since the appellant already has a registered trademark, it is unnecessary? Zhong Kai? Besides, is the trademark used by the appellant on the front of the audio-visual product? Honorable products of Zhong Kai culture? The way to use, indicating that the main distributor of audio-visual products is the appellant, other secondary positions to use? Zhong Kai? This also shows the identity of the theme. On the same audio-visual product, on the one hand, the original judgment found that the appellant used it? Zhong Kai culture? Belonging to the use of font size, on the one hand, it is considered to be using? Zhong Kai Audio & Video Company? Logo belongs to the use of trademarks, and such a distinction is really unconvincing. Also, since it is determined that the appellant uses it? Zhong Kai culture? Does not constitute trademark infringement, why did the first judgment order the appellant to stop using it in the text of the judgment? Zhong Kai culture? Where's logo?

2. The original judgment did not take into account the characteristics of the audio-visual industry. The original judgment found that the appellant used the above-mentioned written signs in a prominent position, which was biased. In fact, the information that audio-visual products distribution enterprises need to convey to consumers in the prominent position of audio-visual products is not their own trademarks or font sizes, but the star stills, tidbits, large fonts and prominent program names in video programs, as well as the names of directors and main actors, production companies, and other graphic information, which takes up a lot of space and aims to attract consumers' attention and let them know at a glance what a program is. Therefore, the appellant's use of the above-mentioned text logo on audio-visual products is not necessary to be prominent and eye-catching compared with the graphic information of video programs that need to be disseminated.

3. For a specific film and television program, the distribution enterprise in the audio-visual industry is exclusively authorized by the copyright owner in China, and there is only one audio-visual product for the same program exclusively distributed or distributed in the domestic market. Moreover, the purpose of consumers buying VCD and DVD of a certain program is to appreciate the content of the program. We can know what the program is from the information such as the name, stills, director, starring role and brief introduction of the film and television program marked on the surface of the audio-visual product envelope. Ordinary consumers can't mistakenly choose to buy the second program of the same audio-visual product because of confusion. Moreover, when buying VCD and DVD, most consumers pay little attention to who is the distributor of the purchased program, and no one cares about the trademark of the distributor, and no consumers look for audio-visual products according to the trademark. The reason is very simple, that is, the audio-visual products of the same program are exclusively distributed in the market or only distributed by an audio-visual company. Different from air conditioners, computers and other commodities, the products produced and sold by these different enterprises have the same functions and uses and can be substituted for each other. On the contrary, the audio-visual products of the same program can be replaced with each other. Therefore, whether it is a brand name or a trademark, the recognition effect on the audio-visual enterprises in the audio-visual industry is very small. So, in this case, the appellant naturally didn't use the unknown intention? Zhong Kai? In a jointly registered trademark? Zhong Kai? Mark the motivation to improve your business reputation or popularity.

Second, the original judgment supports the appellee? Zhong Kai? There is no legal basis for the right of action before the transfer of the combined trademark, and there is no factual basis for ordering the appellant to compensate for economic losses according to the right of action.

1. The appellant believes that the existence of civil substantive rights is the basis and premise of exercising the right of civil prosecution. The right of civil prosecution is the right of judicial relief, which belongs to the right of public law (constitution) and is derived from the right of civil substantive rights. The right of civil prosecution cannot be transferred separately from the right of substantive rights. In trademark infringement cases, only trademark registrants and interested parties have the plaintiff's subject qualification, and the determination of infringement is based on the plaintiff's substantive rights, that is, the exclusive right to use a trademark. The defendant infringed the trademark right, not the right of appeal, which is the right of relief given by the state when the trademark right is infringed. Therefore, the original judgment supports the appellee's right? Zhong Kai? It is not appropriate to combine the litigation rights before trademark transfer as discretionary compensation to extend the time span of infringement.

2、? Zhong Kai, Pinyin and Graphics? Taizhou Zhong Kai Industrial Co., Ltd. (hereinafter referred to as Taizhou Zhong Kai), the registrant of combined trademarks, is a manufacturer of various architectural coatings, and has registered all goods and services at the same time? Zhong Kai? Combination trademark, but isn't Taizhou Zhong Kai only used for architectural coatings? Zhong Kai? Except for combined trademarks, they are not actually used in most commodities in an attempt to gain improper benefits in the future. Will Taizhou Zhongkai meet? Zhong Kai? In the nearly ten years before the exclusive right to use the combined trademark on the ninth category of goods was transferred to the appellee, the name of a similar group that was not approved for use was called? 090 1 computer and external equipment? CD-ROM (0906 17) and compact disc (090588) in have been used in two blank CD-rom products, and the similar group names are? 0908 audio-visual equipment? Audio and video products have used CD-ROM (audio and video C090039), CD-r 090587 and CD-r 090587. Because? Zhong Kai? There is no fact that the combined trademark is actually used on the above five categories of goods. Zhong Kai? The corresponding relationship between combined trademarks and the above five categories of goods has not yet been established. Trademark identification does not imply the commercial reputation of the above five categories of goods, nor does it contain information that enables the relevant public to judge who the providers of the above five categories of goods are. In front of ordinary consumers, it does not have the proper recognition function of trademarks, and has not yet formed a certain consumer group in the market. The appellants' use of Zhong Kai audio-visual products, Zhong Kai audio-visual reputation production, Zhong Kai culture, Zhong Kai cultural reputation production, Zhong Kai TV series and Zhong Kai film logos on the envelopes of audio-visual products (VCD and DVD) will not be the same as that enjoyed by Taizhou Zhong Kai who only registered audio-visual products but did not actually use them? Zhong Kai? The conflict of trademark exclusive rights of combined trademarks has caused economic losses to Taizhou Zhong Kai. Therefore, even if the appellee? Zhong Kai? Supporting the right of appeal before the transfer of the merged trademark, the original judgment of the appellant to compensate for economic losses lacked factual basis.

3. The appellant has no motivation to hitchhike or stand next to a well-known brand, no subjective intention to confuse, no prominent use of the company name, no misleading to the relevant public, and his behavior does not constitute trademark infringement.

1. The appellee failed to submit? Zhong Kai? Failing to submit relevant materials such as the duration, degree and geographical scope of any publicity work of the combined trademark, including the use of? Zhong Kai? The output, sales volume, sales revenue, profits and taxes, sales area and other related materials of the combined trademark goods. So? Zhong Kai? The reputation of the combined trademark has not yet been formed, and it is not a well-known trademark. The original judgment found that the appellant used it? Zhong Kai culture? Wait for the sign and? Zhong Kai? What is missing when the combined trademarks are similar? Fame Is this important factor related to the judicial interpretation of the Supreme Court? When judging whether a trademark is similar, we should consider the distinctiveness and popularity of a registered trademark. The rules don't match. The appellant and the appellee belong to different administrative regions: one is in Guangzhou and the other is in Taizhou, Zhejiang. Zhong Kai? Combination trademark is neither a well-known trademark nor a well-known trademark. Therefore, the appellant has neither the motivation of hitchhiking or standing beside famous brands, nor the subjective intention of confusing people.

The Summary of Discussions on Several Issues Concerning the Trial of Civil Cases of Intellectual Property Rights (V) of Zhejiang Higher People's Court clearly stipulates some issues concerning the trial of trademark infringement cases: regarding the resolution of the conflict between trademark rights and enterprise name rights, misunderstanding and confusion should be taken as the premise of identifying infringement, which is the key to case characterization and case handling. Only the trademark is the same as the trade name, but it does not have the conditions of confusion or possible confusion, and it cannot be judged as infringement. Xi Xiaoming, vice president of the Supreme Court, stressed at the symposium on intellectual property trial of national courts held in Chongqing on February 27th, 2008 that for the infringement of using the same or similar trademarks on the same commodity or similar commodities without the permission of the trademark owner, in addition to the case of using the same trademark on the same commodity, confusion factors should be considered when identifying other situations, and the strength and scope of protection should be determined according to the distinctiveness and popularity of registered trademarks. On April 2 1 2009, the Supreme Court issued "Opinions of the Supreme People's Court on Several Issues Concerning the Overall Situation of Intellectual Property Trial Service under the Current Economic Situation" (Fa Fa [2009] No.23), which once again emphasized the above viewpoints.

Fourth, what will the original judgment be? Reverse confusion? It is really inappropriate to apply this theory to this case.

1, the original judgment thinks? Zhong Kai? After the appellant's long-term repeated use and publicity, the written logo has been obtained? Zhong Kai? Characters and symbols have strong distinctiveness, forming a certain consumer market. When it comes to? Zhong Kai? Does the owner of a combined trademark use legal registration on his own goods? Zhong Kai? When consumers combine trademarks, they often associate them with the appellant Zhong Kai Culture Company according to the formed inertia thinking, and mistakenly think that the goods are related to the appellant Zhong Kai Culture Company, which leads to confusion about the market subjects or sources of the two commodities. so this is it？ Reverse confusion? Theory, should? Reverse confusion? This theory only exists in American cases.

2. Since the implementation of China's Trademark Law from 65438 to 0982, two amendments have not been recognized? Reverse confusion? Theory; Judicial documents such as judicial interpretation and reply of the Trademark Law promulgated by the Supreme Court have not been recognized? Reverse confusion? Theory, just a few days ago, April 2, 20091day, the latest judicial document issued by the Supreme Court, namely "the Supreme People's Court's Opinions on Several Issues Concerning the Overall Situation of Intellectual Property Trial Services under the Current Economic Situation" (Fa Fa Fa Fa [2009] No.23), was also not recognized? Reverse confusion? Theory. Therefore, in practice, is it applicable? Reverse confusion? Be cautious in theory!

3. Does this case not apply? Reverse confusion? The basic facts of the theory. The reasons are as follows: The appellant is not a Fortune 500 company in the world or China, and has suffered losses year after year. The appellant did nothing but sell audio-visual products through traditional channels. Zhong Kai? Identify a large number of large-scale advertising activities for marketing? Saturated bombing, or extensive advertising, there is no suppression of the appellee? Zhong Kai? There is no possibility of reverse confusion caused by trademark combination, and there is no possibility of appellee? Zhong Kai? Intention to take the combined trademark as your own.

4. Whether it is forward confusion or reverse confusion, the direction or order of confusion is different, but the result should be confusion. As mentioned above, the audio-visual products of the same program are exclusively distributed in the market or only distributed by an audio-visual enterprise. There is no premise that the audio-visual products of the same program can be replaced with each other, so there is no possibility of confusion among ordinary consumers.

Verb (short for verb)? Zhong Kai? If the combined trademark is not actually used in audio-visual products, the appellant should not be judged to be liable for compensation.

1. Trademark is a sign to distinguish different sources of goods or services. Only when the goods with trademarks are put on the market can a certain relationship be established between the relevant public and the obligee, so that the relevant public can recognize the brand and shop, and finally realize the value of the trademark. If a trademark is only registered and not used, then it is completely impossible for the trademark to establish some connection with the relevant public, and there is no trademark right. In reality, only the real goods produced and sold by different manufacturers circulate in the market, will there be an objective premise of confusion. In fact, neither the registrant Taizhou Zhong Kai nor the appellee actually used the audio-visual product? Zhong Kai? Combination trademark.

2. On May 28th, 2007, Taizhou Zhong Kai will be involved in the lawsuit? Zhong Kai, Pinyin and Graphics? The registered trademark of this combination was transferred to the appellee, and the goods approved to use this combination trademark belong to all the goods in 22 approximate groups except 0905, 09 17 in category 9, involving as many as 877 kinds of goods. The appellant believes that no enterprise can produce and sell so many commodities, not to mention that the appellee is a natural person, which is even more impossible. Therefore, the appellant has reason to believe that the appellee has accepted it? Zhong Kai? The motive of obtaining improper benefits from combined trademarks is very obvious. There are many enterprises associated with 877 kinds of goods. Once the appellant's behavior is found to constitute infringement, it will be a disaster for domestic enterprises, which conforms to the provisions of the Trademark Law to safeguard the reputation of trademarks and promote the development of socialist market economy, and shall be stopped according to law. Next to the famous brand? Hitchhiking? This kind of behavior violates the spirit of legislation.

3. the Supreme People's Court's latest Opinions on Several Issues Concerning the Overall Situation of Intellectual Property Trial Service under the Current Economic Situation (Fa Fa Fa Fa [2009] No.23) stipulates that the relationship between the actual use of registered trademarks and civil liability should be properly handled, so that civil liability is conducive to encouraging the use of trademarks, activating trademark resources and preventing improper opportunism in the use of registered trademarks. Where the registered trademark requested for protection is not actually put into commercial use, the civil liability can be determined mainly by ordering to stop the infringement, and the fact that it is not actually used can be considered as appropriate when determining the liability for compensation. Except for the reasonable expenses paid for rights protection, if there is no actual loss or other damage, compensation will generally not be determined according to the profits of the accused infringer; If the registrant or assignee only uses the registered trademark as a tool to claim rights without actual intention, it may not be compensated; If the registered trademark specified in the Trademark Law has been discontinued for three consecutive years, the claim for damages may not be supported. If the parties have no malice in the conflict of rights between a registered trademark and an enterprise name caused by historical reasons, they should solve the conflict fairly and reasonably according to the specific circumstances of the case, taking into account historical factors and the current situation of use, and should not simply identify it as trademark infringement or unfair competition. Therefore, the appellant believes that even if the appellant's behavior is identified as infringement, it should not bear a huge compensation of 300,000 yuan.

Finally, the original judgment recognized the appellant's full name? Zhong Kai Cultural Development Communication Co., Ltd.? What is the font size? Zhong Kai culture? This is not true. What is the full name of the appellant's company? Guangdong xx development co., ltd? And administrative divisions? Guangdong? , no? Spread? This word, the font size is not? Zhong Kai culture? , but? Zhong Kai? Culture only represents the characteristics of the industry.

To sum up, the Appellant believes that since the establishment of Appellant 1998 1 10, the Appellant has the exclusive right to use the legally registered enterprise name and font size, and the use of abbreviations with font size on the packaging of audio-visual products and websites is purely goodwill; Neither the registrant Taizhou Zhong Kai nor the appellee actually used the audio-visual product? Zhong Kai? Combination trademark? Zhong Kai? Combination trademarks do not have the proper recognition function of trademarks in front of ordinary consumers, and have not yet formed a certain consumer group in the market. Objectively, there is no premise fact that the appellant has the motivation to hitchhike and be next to famous brands, subjectively, there is no intention to confuse the public and mislead the public. This case doesn't apply? Reverse confusion? The basic fact of this theory is that the appellant's reasonable use of the enterprise name did not infringe the appellee's exclusive right to use a registered trademark. Therefore, please support the appellant's appeal according to law.

I am here to convey

Zhejiang Higher People's Court

Appellant: Guangdong xx Development Co., Ltd.