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Judgment of Tort Action against Beijing Wal-Mart Stores Inc.
来源: 作者: Chinapoo时间: 2013-4-19 14:13:50

 

People’ Republic of China

Beijing No. 1 Intermediate Peoples Court

Civil Judgment

 (2010) Y.Z.M.C.Z. No. 11109

 

Plaintiff LI Daozhi, Male, born on March 30, 1972, Spanish Nationality, Director of Shanghai Castel Wine Co., Ltd., Domicile: Room 706, Building A, East Garden Residence, No. 1, Huiqiao Road, Wenzhzou City, Zhejiang Province, People’s Republic of China.

Authorized agent: WANG Guoqiang, Beijing Jingze Law Firm

Authorized agent: LIU Donghai, Beijing Jingze Law Firm.

Defendant: Beijing Wal-Mart Stores Inc. Zhichun Road Branch, Domicile: the First Floor Underground, The Ground Floor and Second Floor, Building 4, No. 48 Jia, Zhichun Road, Haidian District, Beijing, Peoples Republic of China.

Legal Representative: LIU Aihua, General Manager

Defendant Beijing Wal-Mart Stores Inc. Domicile: No. 158, Fushi Road, Shijingshan District, Beijing, PRC

Legal Representative: CHEN Yaochang, Chairman

The common authorized agent of those two defendants is FAN Hongli, Female, born on October 1, 1971, employee of Beijing Wangshi Baili Commercial Co., Ltd., Domicile: Room 2608, Building 330, Third Zone, Wangjing Xiyuan Residence, Chaoyang District, Beijing City, PRC.

Plaintiff LI Daozhi filed a lawsuit against the defendant Beijing Wal-Mart Stores Inc. Zhichun Road Branch, (hereinafter referred to as Wal-Mart, Zhichun Road Branch), Beijing Wal-Mart Stores Inc. (hereinafter referred to as Wal-Mart) for the dispute of infringement upon the exclusive right to use registered trademark.formed collegiate bench according to law, and heard this case publicly on November 23, 2010. Authorized agents of the plaintiff LI Daozhi are WANG Guoqiang and LIU Donghai, authorized agent of defendants Wal-Mart Zhichun Road Branch, Wal-Mart: FAN Hongli purchased a bottle of produced by Yantai Changyu Castel Chateau Co., Ltd. Notary Office notarized such purchasing behavior. After inspection at court, this court found that the package, label and brochure attached are all marked with “Changyu Castel Chateau”. LI Daozhi accused that such product is a infringing product, because package and label of such product used the trademark of “卡斯特”.

All facts mentioned above are proved by the Trademark Registration Certificate issued by Trademark Office of China, Approval Certificate of Registered Trademark Transfer, Certificate of Renewal of Registration, Notarial Certificate issued by Beijing Fangyuan Notary Public Office, PRC, the commodity, Authorized Representation Contract, Invoice and Statements of two parties, etc.

This court believed that the behavior of infringing upon the exclusive right to use the registered trademark constituted the violation of the exclusive right to use such registered trademarks according to the stipulations of Item 2, Article 52, Trademark Law of Peoples Republic of China (hereinafter referred to as Trademark Law.

In this case, the exclusive right to use the registered trademark of Li Daozhi shall be protected legally after obtaining the right of registered trademark 卡斯特” through transfer upon the approval of the Trademark Office of China. The contested product in this case is wine, which belongs to the same type of products marked with the trademark “卡斯特”. In commercial activities, trademarks are used to indicate the origins of products, so that, relevant publics can distinguish the different marketing entities of providing the same type of products. The characters of “Changyu · Castel Chateau” are outstandingly marked in the packages, labels and brochure attached of the commodity of “Changyu Castel Chateau Cabernet Gernischt Selected dry red wine” involved in this case. The manufacturer of the commodity involved is Yantai Changyu Castel Chateau Co., Ltd., but there is no “·” in its name. The use of “Changyu · Castel Chateau” in commodity involved by its manufacturer does not fall into the normal use of enterprise, but possesses the function of marking its origin. And the defendant purchased a bottle of Changyu Castel Chateau Cabernet Gernischt Selected dry red wine produced by Yantai Changyu Castel Chateau Co., Ltd. Notary Office notarized such purchasing behavior. After inspection at court, this court found that the package, label and brochure attached are all marked with “Changyu Castel Chateau”. LI Daozhi accused that such product is a infringing product, because package and label of such product used the trademark of “卡斯特”.

Plaintiff spent 30,000 Yuan in total for the counsel fee in stopping the sales activity involving the infringement of trademarks.

All facts mentioned above are proved by the Trademark Registration Certificate issued by Trademark Office of China, Approval Certificate of Registered Trademark Transfer, Certificate of Renewal of Registration, Notarial Certificate issued by Beijing Fangyuan Notary Public Office, PRC, the commodity, Authorized Representation Contract, Invoice and Statements of two parties, etc.

This court believed that the behavior of infringing upon the exclusive right to use the registered trademark constituted the violation of the exclusive right to use such registered trademarks according to the stipulations of Item 2, Article 52, Trademark Law of Peoples Republic of China (hereinafter referred to as Trademark Law.

In this case, the exclusive right to use the registered trademark of Li Daozhi shall be protected legally after obtaining the right of registered trademark 卡斯特” through transfer upon the approval of the Trademark Office of China. The contested product in this case is wine, which belongs to the same type of products marked with the trademark “卡斯特”. In commercial activities, trademarks are used to indicate the origins of products, so that, relevant publics can distinguish the different marketing entities of providing the same type of products. The characters of “Changyu · Castel Chateau” are outstandingly marked in the packages, labels and brochure attached of the commodity of “Changyu Castel Chateau Cabernet Gernischt Selected dry red wine” involved in this case. The manufacturer of the commodity involved is Yantai Changyu Castel Chateau Co., Ltd., but there is no “·” ‘in its name. The use of “Changyu · Castel Chateau” in commodity involved by its manufacturer does not fall into the normal use of enterprise, but possesses the function of marking its origin, which is the essence of trademarks.

According to the regulations of Trademark Law of China, The exclusive right to use a registered trademark is limited to the trademark which has been registered and to the goods in respect of which the registration has been made. A person infringes the exclusive right to use a registered trademark if he uses a trademark that is identical with or similar to a registered trademark in relation to identical or similar goods without the consent of the owner of the registered trademark. The infringing good involved in this case use the mark of 卡斯特”, which is same with the characters “卡斯特” in the registered trademark of plaintiff LI Daozhi, such commodity infringed upon the exclusive right to use the registered trademark. The behavior of selling such infringing products by defendants constitutes trademark infringement toward the plaintiff LI Daozhi.

In this case, as the retailer of such infringing commodity, the defendant produced evidences to prove the origin and supplier of such commodity. Thus, the defendants shall not assume compensation liability, but bear the liability of stopping the selling of infringing products, and the relevant reasonable expenses of trademark owner in preventing the defendants from selling the infringing commodity. With respect to reasonable expenses mentioned above, because plaintiff LI Daozhi only claimed the attorney fee, thus, this court takes into consideration such part based on the actual circumstance of this case.

In conclusion, according to article 118, General Rules of Civil Law of Peoples Republic of China; Item 2, Article 52, Items 1, 3, Article 56, Trademark Law, Peoples Republic of China, Article 17, and Explanation of People’s Supreme Court on Several Questions of Law Application in Civil Issues of Trademarks, and this court made following judgments:

1.        Defendants Beijing Wal-Mart Stores Inc. Zhichun Road Branch and Beijing Wal-Mart Stores Inc. shall cease to sell Changyu Castel Chateau Cabernet Gernischt Selected dry red wine from the effective date of this verdict.

2.        Defendants shall make payment of 20,000 Yuan to plaintiff LI Daozhi as the reasonable expenses in preventing defendants from selling the infringing product within 15 days after the effective date of this verdict.

If defendants Beijing Wal-Mart Stores Inc. Zhichun Road Branch and Beijing Wal-Mart Stores Inc. fail to fulfill their payment obligation within the designed period specified in this verdict, they shall double the debit interest during the delay performance according to Article 229, Civil Procedure Law of the People’s Republic of China.

The total litigation fee is 1,050 Yuan, plaintiff LI Daozhi shall assume 350 Yuan (already paid), and defendants Beijing Wal-Mart Stores Inc. Zhichun Road Branch and Beijing Wal-Mart Stores Inc. shall jointly assume 700 Yuan (which shall be paid within 7 days after the effective date of this verdict).

If unsatisfied with this verdict, plaintiff LI Daozhi can file an appellate petition and corresponding duplicates to Beijing Higher Peoples Court and make advance payment of litigation fee for appeal within 30 days after the date of service of this verdict; defendants Beijing Wal-Mart Stores Inc. Zhichun Road Branch and Beijing Wal-Mart Stores Inc. can file an appellate petition and corresponding duplicates to Beijing Higher Peoples Court and make advance payment of litigation fee for appeal within 15 days after the date of service of this verdict.

 

 

Chief Judge: QIANG Ganghua

Acting Judge: CHEN Wenxuan

Peoples Juror: WANG Yanyu

 

March 18, 2011

 

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