Plaintiff Guiyang Nanming Laoganma Flavor Food Co., Ltd. (hereinafter referred to as Laoganma Food Company)
Defendant Hunan Kazuki Watanabe musician Food Co., Ltd. (hereinafter referred to as Kazuki Watanabe musician Company).
Defendant Beijing Yansha Wangjing Shopping Center (hereinafter referred to as Wangjing Shopping Center)
The plaintiff Laodopted Mother Food Company and the defendant Kazuki Watanabe musician Company are both enterprises that produce flavor series condiments, and both take Laodopted Mother as their own product names. Plaintiff Laoganma Food Company, formerly known as Guiyang Nanming Shi Hui Hotel, was established in1June, 1994, founded by Ms. Tao Huabi, and is famous for its special lobster sauce.
In June, 1994, 1 1, the restaurant was changed to Guiyang Nanming Dow flavor food store, and the flavor food named Laoganma was introduced, especially Laoganma flavor lobster sauce, which was deeply loved by consumers. 1In August, 1996, the "Laoganma" flavored douchi produced and sold by this store used the packaging bottle stickers designed by the store manager Li Guishan.
Guiyang Nanming Dow Flavor Food Store was renamed Guiyang Nanming Dow Flavor Food Factory, 1997 1 1. 10, Guiyang Nanming Dow Flavor Food Store was finally renamed Laoganma Food Company. 1997 65438+On February 27th, Li Guishan applied to the State Patent Office for a patent on the design of the bottle sticker with Laoganma flavor, and was authorized by China National Intellectual Property Administration on August 22nd with the authorization number 1998.
1997 12.30, Li Guishan posted the bottle and product design in Guizhou Copyright Bureau for copyright registration. 1998 Guiyang Municipal People's Government listed Laoganmawei Douchi as a famous brand product in Guiyang, 19965438+ 10. In October, Guizhou Provincial Economic and Trade Commission and Guizhou Provincial Bureau of Technical Supervision confirmed Tao Huabi brand Laoganmawei Douchi as a famous brand product in Guizhou Province, 199 166. 1999, the plaintiff's "Laoganma" flavored douchi achieved sales of1300,000 yuan, and the products have been sold all over the country, and the enterprise paid taxes for the country150,000 yuan.
Defendant Kazuki Watanabe musician Company was established in September 2007 1997. 1997165438+10 In October, Kazuki Watanabe musician Company and Guiyang Nanming Tang Meng Food Factory signed the Cooperative Production Contract of Laoganma Series Condiments. According to the contract, Kazuki Watanabe musician Company and Guiyang Nanming Tang Meng Food Factory jointly produce Laoganma series condiments, Guiyang Nanming Tang Meng Food Factory provides the technology, and Kazuki Watanabe musician Company provides the equipment needed for production.
1997165438+10. In October, the "Laoganma" flavored douchi jointly produced by Kazuki Watanabe musician Company and Guiyang Nanming Tang Meng Food Factory began to go on the market. Compared with the packaging bottle sticker of "Laoganma" flavor douchi produced by the plaintiff Laoganma Food Company, the portrait of Ms. Liu was replaced by that of Ms. Liu.
199865438+1On October 20th, Kazuki Watanabe musician Company applied to China National Intellectual Property Administration for a patent for the design of the bottle label of Laoganma-flavored douchi designed by its legal representative Yi Changgeng. Compared with the bottle sticker pattern used by the company before, there is no substantial change except that the yellow oval pattern has become a yellow diamond pattern.
After preliminary examination, China National Intellectual Property Administration issued the design patent certificate of this bottle sticker to Huayue Company on June, 2000 1998 10. At the beginning of 1998, Kazuki Watanabe musician Company and Guiyang Nanming Tang Meng Food Factory, after applying for a patent for design, revised the bottle label of flavored douchi jointly produced by them according to the pattern, and the word "Laoganma" was still used in the revised bottle label.
On April 20th, 1998, Kazuki Watanabe musician Company signed a contract termination agreement with Guiyang Nanming Tang Meng Food Factory, which dissolved their joint venture relationship. Later, Kazuki Watanabe musician Company independently produced a series of condiments such as flavored lobster sauce, and still used Laoganma as the product name of flavored lobster sauce, and continued to use its patented bottle stickers for packaging.
199865438+In February, Hunan Provincial Economic and Trade Commission and Hunan Provincial Bureau of Technical Supervision awarded Kazuki Watanabe musician Company the certificate of "Laoganma" flavored fermented soybean with1998 as the title of famous brand product in Hunan Province. In May, 1999, Hunan Provincial Statistical Information Center awarded Kazuki Watanabe musician Laoganma produced by Kazuki Watanabe musician Company the title of "China Kazuki Watanabe musician Laoganma". Kazuki Watanabe musician Company spent a certain amount of advertising money to promote its "Laoganma" flavor of Douchi.
1In May, 999, the defendant Wangjing Shopping Mall began to sell the "Laoganma" flavor series condiments produced by Kazuki Watanabe musician Company to Beijing Xingshu Rongfunan Food Co., Ltd., and Wangjing Shopping Mall reviewed the business license, hygiene license, food and food product hygiene quality approval certificate, design patent certificate, tax registration and purchase and sale contract of Kazuki Watanabe musician Company provided by Beijing Xingshu Rongfunan Food Co., Ltd. The packaging bottle of Laoganma-flavored douchi produced by Kazuki Watanabe musician Company sold in Wangjing Shopping Mall is designed with the bottle sticker patented by Kazuki Watanabe musician Company.
The plaintiff Laoganma Food Company applied to the Trademark Office of the State Administration for Industry and Commerce for registration of Laoganma's trademark four times in August 1996, February 1996, May 1997 and April 1998 respectively, but was called Laoganma by the State Trademark Office. 1June 2, 9981day, the state trademark office approved the application for trademark registration of "Tao Huabi and Portrait".
1998 1 February 1 day, the defendant company applied to the State Trademark Office to register the trademark Laoganma, and the State Trademark Office announced the portrait of Liu and Laoganma of word mark. At present, the State Trademark Office has initially approved the registration of trademarks of Laoganma and Rabbit and Laoganma and Rabbit Liu. 1May, 1998 to1May, 1999, local industrial and commercial administrations investigated and dealt with a batch of products of douchi with the plaintiff's "Laoganma" flavor that appeared in Guiyang, Changsha, Pixian, Zunyi and Lanzhou.
In view of the above facts, the plaintiff Laoganma Food Company believes that the defendant Kazuki Watanabe musician Company stole the plaintiff company's enterprise name and product name without the permission of the plaintiff company, and imitated the bottle label design of the plaintiff company's products, which caused confusion and misunderstanding among consumers and seriously infringed on the plaintiff's legitimate rights and interests. The defendant Wangjing Shopping Mall illegally sold the counterfeit "Laoganma" products produced by the defendant Kazuki Watanabe musician Company, which also violated the legitimate rights and interests of the plaintiff company and should bear the tort liability.
Therefore, I appeal to Beijing No.2 Intermediate People's Court, requesting:
1. Require the defendant Kazuki Watanabe musician Company to immediately stop using the packaging and decoration similar to that of the plaintiff company's "Laoganma" flavored lobster sauce products; 2. Ask the defendant Kazuki Watanabe musician Company to stop using the plaintiff's company name and the plaintiff's product name "Laoganma" on all its products;
3. The defendant Kazuki Watanabe musician Company was ordered to destroy all existing labels and bottle stickers of infringing products;
4. Order the defendant Wangjing Shopping Center to immediately stop selling infringing products;
5. The defendant Kazuki Watanabe musician Company was ordered to apologize publicly to eliminate the influence;
6. Kazuki Watanabe musician Company was ordered to compensate the plaintiff for economic losses of 400,000 yuan;
7. The litigation costs in this case shall be borne by the two defendants.
Defendant Kazuki Watanabe musician Company argued that, firstly, the plaintiff's products were not well-known commodities. To judge the popularity of a commodity, we should make a comprehensive judgment from the aspects of commodity advertisement, sales history, sales volume and market share according to the evidence provided by the proposer. Although the plaintiff's product was rated as a famous brand product in Guizhou Province, the appraisal result does not mean that its product is also well-known in markets outside Guizhou Province.
On the contrary, the "Laoganma" flavored douchi produced by our company is more famous than the "Laoganma" flavored douchi produced by the plaintiff in a certain market, because the advertising coverage of our products is relatively large. From 1998 to 1999, our company spent more than 2.7 million yuan on advertising for its "Laoganma" flavor lobster sauce.
In terms of sales volume and market share, our products have moved from Hunan province to the whole country, from local brands to national brands. Judging from the market evaluation, our products have not only been recognized as well-known commodities in Hunan Province by the Hunan Provincial Administration for Industry and Commerce, but also won the 1997 China International Food Expo International Famous Brand Food Award.
Secondly, the product name, packaging and decoration of the "Laoganma" flavored douchi disputed in this case are not unique to the plaintiff. On the contrary, our company enjoys the patent right of design for the packaging and decoration of disputed goods. The plaintiff's product name is "Tao Huabi Laoganma flavored douchi" and the company's product name is "Laoganma flavored douchi". Although both parties use "Laoganma" in the product name, "Laoganma" is a popular title, which cannot be unique or exclusive to anyone. In terms of packaging and decoration, the packaging and decoration design of our products is our original work, and we have obtained the patent of appearance design.
Third, in fact, the packaging and decoration of the goods of both sides cannot cause misunderstanding among consumers. The plaintiff used "Tao Huabi brand" to define his products, which was enough to make consumers order foods with different local flavors. Although both products are condiments with soybeans and peppers as raw materials, one is from Guizhou and the other is from Hunan. Consumers with different tastes, different manufacturers, different places of origin, different brands and different rural conditions will not confuse the two products. To sum up, our actions do not constitute unfair competition, so we request the court to reject the plaintiff's claim.
Defendant Wangjing Shopping Mall argued that Kazuki Watanabe musician's products were purchased through legal channels, and the necessary examination was made, which had fulfilled the seller's due obligations. The plaintiff did not register Laoganma, so she did not enjoy the exclusive right to use the trademark, and she did not enjoy the exclusive right to mark Laoganma's food packaging pattern or other special rights. The plaintiff has no evidence to prove that its products are well-known commodities, so it is legal for the shopping center to sell condiments marked "Laoganma" produced by Kazuki Watanabe musician Company, and requests the court to dismiss the plaintiff's claim.
After trial, the court of first instance held that the law protects the legitimate rights of operators, and operators should follow the principles of voluntariness, equality, fairness, honesty and credibility in market transactions. Laoganma-flavored douchi produced by the plaintiff Laoganma Food Company has a certain historical process. From the historical evolution of Laoganma Food Company, it is not difficult to see that Laoganma, as the honorific title of Ms. Tao Huabi, the founder of the company, and as the product name of the company's flavored douchi, has been recognized and understood by consumers in specific regions.
It is precisely because of its unique historical background and unique taste that Laoganma Food Company's "Laoganma" flavored douchi has won a good reputation. As a commodity name, "Laoganma" has always been closely related to this enterprise and its flavor douchi. As a kind of food with less flavor, the plaintiff's product has a high market share in the field of similar goods in terms of its huge sales volume in the whole country. The high market share means that the product is deeply loved by consumers and enjoys a high reputation in a certain range.
In the past two years, many manufacturers have appeared all over the country, especially in the provinces where residents who like to eat Chili peppers gather. From the perspective of market economy, the reason why counterfeiters spare no effort to infringe upon their rights is that the market value and good market reputation of fake and shoddy products can bring them huge economic benefits.
To sum up, the "Laoganma" flavored douchi produced by the plaintiff Laoganma Food Company is deeply loved by consumers, and the legitimate rights and interests of the plaintiff Laoganma Food Company should be protected by law. The design of the packaging bottle and label of Laoganma-flavored douchi used by the plaintiff Laoganma Food Company is original and should be protected.
Defendant Kazuki Watanabe musician Company produces and sells the same product as plaintiff Laoganma Food Company-flavored fermented soybean. It used Laoganma as the product name of its series of condiments, including flavored douchi, because when it first used the product name, the plaintiff's "Laoganma" flavored douchi enjoyed a high reputation in a certain range, and the defendant lacked a reasonable basis for using the product name.
The bottle stickers used on the packaging bottles of Laoganma-flavored douchi produced by defendant Kazuki Watanabe musician Company and Guiyang Nanming Tang Meng Food Factory from June197 to early June/98 are similar to those produced by plaintiff Laoganma Food Company in terms of pattern design, color, content and text. Even the unique font of the word "Laoganma" designed and written by the plaintiff Laoganma Food Company is the same. The use of this word by the defendant Kazuki Watanabe musician Company is easy to confuse consumers and cause misunderstanding.
Therefore, the above behavior of defendant Kazuki Watanabe musician Company constitutes unfair competition, and defendant Kazuki Watanabe musician Company should bear corresponding legal responsibilities. Defendant Kazuki Watanabe musician Company shall not use Laoganma-flavored Douchi packaging bottle sticker similar to the plaintiff Laoganma Food Company except for continuing to use the design patent. The amount of economic compensation demanded by the plaintiff Laoganma Food Company is on the high side, and our court will determine it according to the actual situation of this case. In view of the fact that the trademark of the defendant "Laoganma Liu Hetu" has been preliminarily approved and registered by the State Trademark Office, the plaintiff Laoganma Food Company requested the company to stop using the product name of "Laoganma" on all its products, and the request for public apology was not supported by our hospital. The packaging bottle and label of Laoganma-flavored douchi produced by Kazuki Watanabe musician Company sold by the defendant Wangjing Shopping Mall have obtained the patent of design, and the sales behavior of the defendant Wangjing Shopping Mall did not infringe the legitimate rights and interests of the plaintiff Laoganma Food Company, so the plaintiff Laoganma Food Company did not support the lawsuit of the defendant Wangjing Shopping Mall.
To sum up, according to the provisions of Article 2, paragraph 1, and Article 5, paragraph 2 of the Law of People's Republic of China (PRC) against Unfair Competition, the court of first instance made a judgment: 1 Defendant Kazuki Watanabe musician Food Company stopped using and destroyed its bottle stickers similar to Laodopted Mother's flavored lobster sauce of plaintiff Laodopted Mother Food Company before obtaining the design patent; 2. The defendant Kazuki Watanabe musician Food Company compensated the plaintiff Laoganma Food Company for the economic loss of 654.38 yuan+500,000 yuan; 3. Reject other claims of the plaintiff Laoganma Food Company.
The plaintiff Laoganma Food Company and the defendant Kazuki Watanabe musician Food Company refused to accept the first-instance judgment and appealed. The trial of the second instance confirmed that as the cause of the case was an unfair competition dispute, what the obligee requested to protect was the unique name, packaging and decoration right of its well-known goods, which belonged to two types of intellectual property rights with the patent right. When different types of intellectual property rights conflict, the people's court shall follow the principle of good faith and protect the legitimate civil rights and interests of citizens and legal persons. Therefore, Kazuki Watanabe musician Food Company claims that the infringement of Laoganma Food Company does not constitute a defense on the grounds that it enjoys the patent right of design.
The trademarks that Laoganma Food Company and Kazuki Watanabe musician Food Company respectively applied for registration are under trial by the State Trademark Review and Adjudication Board, and neither of them has obtained the trademark rights. Because Laoganma Food Company used Laoganma's unique name and its packaging and decoration behavior on flavored douchi products before Kazuki Watanabe musician Food Company, Kazuki Watanabe musician Food Company used its bottle stickers for product packaging and decoration, and used Laoganma as the product name, which has caused confusion to consumers, and its behavior belongs to unfair competition and constitutes infringement on Laoganma Food Company.
Because Laoganma Food Company did not provide the profits from its infringement, the court ruled according to the actual situation. Kazuki Watanabe musician Food Company spent nearly 1998- 1999 on advertising for this product. According to business practice, operators usually earn more profits than advertising investment. Therefore, Laoganma Food Company's claim for compensation of 400,000 yuan from Kazuki Watanabe musician Food Company should be supported.
Yansha Shopping Center sells infringing products produced by Kazuki Watanabe musician Food Company, and Laoganma Food Company requires it to stop selling infringing products. The reason is justified and the court supports it. Therefore, the court of second instance made a judgment according to the provisions of Article 2, Paragraph 1, Article 5, Paragraph 1 (2) of People's Republic of China (PRC) Anti-Unfair Competition Law and Article 153, Paragraph 3 of People's Republic of China (PRC) Civil Procedure Law:
First, cancel the judgment of the court of first instance;
2. Kazuki Watanabe musician Food Company stopped using the product name "Laoganma" on flavored fermented soybean products;
3. Kazuki Watanabe musician Food Company stopped using bottle labels similar to those produced by Laoganma Food Company.
4. Kazuki Watanabe musician Food Company compensated Laoganma Food Company for its economic loss of 400,000 yuan;
5. Yansha Shopping Center stopped selling the "Laoganma" flavor lobster sauce produced by Kazuki Watanabe musician Food Company;
6. Kazuki Watanabe musician Food Company apologized to Laoganma Food Company in the national newspaper.
Guangzhou Yang Fang Intellectual Property Agency Co., Ltd.