Core reading
The number of trademark infringement cases is increasing and is marked by the diversity, stereotyping and networking of violations。
Increased adjudication of reparations encourages rights-holders to be proactive in defending their rights from the standpoint of judicial protection, to defend them, to impose severe penalties for more violations and to create a fair and orderly market environment。
Da yunfa filed a complaint against da yunfa investment ltd. For copying, china gold v. China old gold, ruyi and ruyee in a court of law ... These cases, which appear to be defunct, have been trademark infringement cases in the shanghai intellectual property court since last year。
It looks like a simple word game, but behind it is the market's sword. From simple imitations, copying of pseudonyms to malicious brand-taking, unfair competition, and online shop-sales, trademark infringement cases are becoming increasingly complex。
Increase the amount of compensation awarded and severely punish violations such as the "punto"
In the last two years, many large-haired supermarkets have emerged everywhere, but the rights holders of the “big-haired” trademarks, kang sung investment (china) ltd., have not been pleased because they are not homemade. Originally, the owners of these supermarkets were the grand yunde investment company, inc., which, after its establishment, used the “big yunde” trademark to promote union stores, shop numbers, service signs, etc., directly into the “big yune” of kang sung corporation。
“the diversity and stereotypic nature of the violations are prominent features of such cases.” the shanghai court of intellectual property considered that “in such torts, the alleged infringers often obtain legally valid business words and trademarks through formal business name registration, reasonable transfer of trademarks, registration of trademarks, renewal of registered trademarks, etc., but in the course of their use they are torts through a series of forms of deformation, ultra-wide use, and combination use”
In the past year, kang sung brought dae-da investment limited before the court, and the shanghai court of intellectual property decided in the first instance to pay $3 million in financial losses, including the reasonable costs of kang-sung. At the beginning of this year, the supreme people's court of shanghai upheld the judgement in second instance。
Three million yuan, the maximum amount of compensation for the violation of trademark rights. In the lugobos trademarks case in germany, the shanghai court of intellectual property decided in first instance to compensate the plaintiff for economic loss and reasonable expenses, which amounted to $4. 99 million more than the maximum amount of damages for violation of the trademark rights。
“the court determines this standard of compensation in the hope of achieving the twin objectives of compensation and punishment.” according to judge yang, the shanghai court of intellectual property rights, “the scale and length of the violations in such cases is such that they not only mimic the trademark of the right-holder, but also give rise to false propaganda, confusion and the subjective malice of the violation. If the infringer is a subjective and malicious violation of the legitimate rights of others, we must take serious disciplinary measures to protect intellectual property rights and preserve market order, provided that evidence is established.”
It's hard to prove the damage caused by the sale of fake goods by friends
“the number and complexity of trademark infringement cases are increasing.” yang zheng, in 2015, the shanghai court of intellectual property rights collected 199 trademark infringement cases, of which 31 were foreign-related; in 2016, the number increased to 244 and 123 foreign-related cases。
The existing trademark act provides for the amount of compensation for the violation of trademarks, for the benefit of the infringer for the violation during the violation, or for the loss suffered by the infringer during the violation, including reasonable expenses incurred by the infringer to stop the violation. In practice, however, it is difficult to prove damages. For example, with the emergence of new economic patterns and marketing patterns, abuse and shaming are becoming more clandestine, with fewer risks and costs of abuse, and the rights-holders ' costs are becoming higher。
“for example, the sale of tort products by micro-cities and friends makes evidence difficult.” suh fei, a judge of the shanghai court of intellectual property rights, said that “the purchasers do not normally voluntarily inform the outside world that they have purchased tort products. The rights-holders of the products that have been violated are not aware of the existence of these circles and, when problems are discovered, the group is quickly dissolved.”
Increased adjudication of reparations is also an incentive for rights holders to be proactive in defending their rights from the standpoint of judicial protection, to be bold and assert their rights, to be more severely punished for violations and to create a fair and orderly market environment。
Internet store public sales leave, joint and several responsibility for service delivery websites
Over the years, other types of internet-related intellectual property rights-related disputes have been emerging, in addition to friends-circle sales, and how can intellectual property trials respond to this new challenge
In march this year, the shanghai intellectual property court concluded a dispute over trademark rights involving online marketing platforms. In november 2013, the sorbonne company discovered that the “twenty years of blue dreams” and the “blue dreams” of the sorbonne were very similar to those purchased on the kuba business city on the united states-based online website. In addition, the “blue vip classic” overpacks and bottle shapes sold on its website are very similar to the “blue sea” of soyuz。
In a paper complaint, the internet store and the website were brought before a court of law, holding that they had jointly sold and profited from the products in question, in violation of the right of the company to register trademarks. The court of first instance sentenced the u. S.-american online website, the company kuba, to a joint infringement of the right of the company to exclusive use of registered trademarks, such as the “yang river”, and the shanghai court of intellectual property rights upheld the decision in second instance。
The u. S. Company, kuba, is dissatisfied: it is a web-based service platform, and after receiving a letter from a lawyer, the website has broken the link to the goods in question and has done its dues. Why take joint and several responsibility
In this case, the cooperation agreement between tortor and kuba clearly states that the quba network provides e-commerce platforms and online surcharges for the enterprise, which pays a fixed percentage of commissions to kuba, both of which are joint ventures. The entire settlement process was transferred to the united states online website。
“the case sounded an alarm for the co-operators of the platform.” judge fan jingbo of the shanghai court of intellectual property rights analysed that “if it is clear in the contract that the platform's operator and the merchant are in a cooperative relationship, that they are in receipt of the goods, payment of commissions, etc., the two may be considered to be in a joint venture, and that the types of services they provide bear the risks and responsibilities of each other, and that the co-operators have a corresponding duty of reasonable care and review”
