Identification And Responsibility Bearing Of Well-Known Trademarks In The Conflict Between Enterprise Name And Trademark Right

In the dispute of unfair competition between the enterprise name and trademark right conflict, if the defendant's goods or services are identical or similar to the goods or services approved by the plaintiff's registered trademark, we can directly consider the factors such as the popularity of the trademark, and judge whether the defendant's behavior constitutes unfair competition. It is not necessary to identify the well-known trademark. In the determination of the amount of compensation, when punitive damages can not be applied, the subjective malice of the defendant should be fully considered and the amount of the legal compensation should be increased moderately.

The plaintiff Kang Cheng investment (China) Co., Ltd. is the trademark owner of the famous chain store "big run hair" (trade mark No. 5091186). Since the first large supermarket was opened in Shanghai in 1998, 318 comprehensive supermarkets have been successfully opened in mainland China. The defendant, Da RFA investment company, has named itself "big run FAT INVESTMENT LIMITED" without authorization, and has used the above name in the operation to constitute unfair competition behavior using the plaintiff's well-known trademark in the name of the enterprise. In addition, the defendant has highlighted the use of the plaintiff's "big run fat" trademark and the combination of "big run fat" and "DRF" in his website and the actual operation and publicity. He also intended to confuse the consumers and infringe the plaintiff's trademark right. Therefore, Kang Cheng company filed a lawsuit and requested the court to decide that the company would stop infringement, eliminate the impact and compensate for the economic loss of 5 million yuan.

According to the trial of the Shanghai intellectual property court, the defendant knew that the plaintiff had registered the trademark involved in the case, and still used the same brand name as the trademark involved in the enterprise name. Even if it was used in a standardized way, it was still enough to cause confusion and misidentification between the relevant enterprises and the plaintiff. Therefore, the defendant was sentenced to stop using the word "big run fat" in the name of the enterprise, and to eliminate the influence and compensation for the plaintiff. Economic loss 3 million yuan.

After the first instance decision, the defendant refused to accept the appeal. After hearing the case, the Shanghai Higher People's court dismissed the appeal and upheld the original judgment. This case is a typical case of infringement of trademark right by enterprise name. In this case, the analysis and judgement of whether it is necessary to identify a well-known trademark and tort civil liability in the dispute of unfair competition between enterprise name and trademark is of reference significance for similar cases in the future.

According to the provisions of article second (two) of the Supreme People's Court on the interpretation of several issues concerning the application of law in the field of civil disputes involving the protection of well-known trademarks, a lawsuit against trademark infringement or unfair competition initiated by the enterprise name and its well-known trademark is the same or similar reason. The parties concerned take the trademark well-known as the factual basis, and the people's court considers it necessary if it is based on the specific circumstances of the case, and determines whether the trademark is well-known. In this case, according to the above provisions, the plaintiff asserted that the defendant had unlawfully registered the plaintiff's well-known trademark "big run fat" as the name of the enterprise and constituted unfair competition, and requested the court to consider that the trademark was a well-known trademark.

According to the above provisions, not all cases involving the conflict between the right to name and trademark rights of a company must be based on the identification of the trademark concerned as a well-known trademark. Only when it is necessary is it necessary to identify the trademark concerned as a well-known trademark. The "really necessary" situation should refer to the industries in which the accused infringed enterprises are different or different from the commodities approved by the trademark concerned. In this case, the plaintiff's "big run fat" trademark has been approved to be used in the supermarket business. The business scope of the defendant is in the same service range as the "big run" brand. Therefore, there is no need to identify the "big run fat" trademark as a well-known trademark.

In this case, the court took into consideration the factors such as the time of "Da Yun Fa" trademark, the scale of the plaintiff's operation, sales volume and market ranking, and so on. As a competitor of similar businesses, the defendant, in knowing that the plaintiff has registered the use of the "big run fat" trademark, still uses the same name as "big run fat" trademark in the enterprise name, and the unfair competition intention of subjectively climbing the "big fat" trademark is very obvious. Based on the high visibility of "big run fat" trademark, even if the name of the enterprise is used, it is still enough to cause confusion and misidentification between the relevant public and the plaintiff.

In composition Unfair competition Under the circumstances, the defendant shall bear the civil liability for stopping the infringement. However, how to bear the civil liability for stopping infringement is not uniform in practice. We believe that judging from the point of view of better execution, it is more advantageous for the judgment to stop using the trademark of the plaintiff as the font size. Moreover, it is not necessary to stop using the name of the enterprise containing the trademark of the plaintiff, and the defendant may also directly write off the relevant enterprises. Therefore, in this case, the way to stop infringement is to stop using the word "big run fat" immediately. Enterprise name Instead of asking the defendant to change the size of the enterprise name.

According to the provisions of the first paragraph of article sixty-third of the trademark law, the Act implemented by Da Rand Company satisfies the requirement of "malicious infringement of trademark rights and serious circumstances". However, the calculation basis of punitive damages is the plaintiff's loss, the defendant's profit or the royalty of the involved trademark, but the above methods can not be applied in this case. Therefore, the "determination of the above method" of the basis of punitive damages amount does not exist, and the amount of punitive damages can not be determined. However, since the trademark law has already stipulated punitive damages, it is explained that the trademark damage compensation system should follow the dual goal of filling losses and punishing torts. As a statutory compensation system for calculating the way of compensation for damages, it should also have the dual functions of compensation and punishment. When determining the amount of legal compensation, the defendant's subjective malice can be considered as one of the considerations. Therefore, when determining the statutory compensation, the court will consider the defendant's tort maliciously. In combination with the factors such as the popularity of the plaintiff's trademark, the court ordered the defendant to pay 3 million yuan of compensation.

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