Dispute between Li Moubao and Shenzhen Tencent Computer System Co., Ltd. over trademark infringement | Does the duplicate name of public account and registered trademark constitute trademark infringement?

——Dispute over trademark infringement between Li Moubao and Shenzhen Tencent Computer System Co., LTD

Abbreviature of adjudication

1. Whether the name of the public account is the same as that of the registered trademark constitutes trademark infringement shall be judged by whether the use of the name of the public account by the subject of the public account is likely to cause public confusion.

2. The public account naming uniqueness rule does not violate the mandatory provisions of laws and regulations, nor does it infringe on the legitimate rights and interests of third parties, and has a certain necessity and rationality, and is binding on relevant network users.

3. In the case that the plaintiff's evidence is insufficient to prove that the other person's registration of the wechat public account has constituted trademark infringement, the defendant fails to pass the examination of the plaintiff's infringement complaint according to the naming uniqueness rules of the public platform, which does not constitute trademark aid infringement.

Typical significance

With the development of "Internet +" economy, the commercial value of platform account names has become increasingly evident. In order to maintain the good order of Internet platforms, major platforms have adopted the unique rules of account naming. The conflict between the uniqueness of the public account subject and the diversification of the trademark subject naturally exists and becomes increasingly prominent. How to solve the contradiction between the two is one of the new problems facing the judiciary. The judgment of this case analyzes the scope of protection of registered trademarks, the identification of trademark infringement, and the identification of infringement liability of network service providers at various levels, and reasonably determines the scope of rights of trademark right holders, taking into account the interests of right holders, network service providers and the public. This case was selected as one of the "Top Ten Typical Cases of Judicial Protection of Intellectual Property Rights in Digital Economy of Shenzhen Courts in 2022".

Abstract of judgment

Court/Case number	Nanshan District People's Court, Shenzhen City, Guangdong Province (2022) Guangdong 0305 No. 746, Early Republic of China
Cause of action	Trademark infringement dispute
Judge	Zhuo Chunyu
Court clerk	Chen Wanting
Party	Plaintiff: Li Moubao.






	Defendant: Shenzhen Tencent Computer Systems Co., LTD., 35th floor, Tencent Building, Zhongyi Road, Maling Community, Yuehai Street, Nanshan District, Shenzhen, Guangdong Province. Legal representative: Ma Huateng, Chairman. Agent AD litre: Jiang Tai, employee of the company.



Results of judgments and rulings	Dismiss all claims of plaintiff Li Moubao.
Referee time	17 June 2002 (This Judgment has taken effect)
Law of the case	Trademark Law of the People's Republic of China Article 56, Article 57, Civil Procedure Law of the People's Republic of China Article 67

Judicial document

Nanshan District People's Court, Shenzhen City, Guangdong Province

A civil judgment

(2022) Guangdong 0305 No. 746, Early Republic of China

Party

Plaintiff: Li Moubao.

Defendant: Shenzhen Tencent Computer Systems Co., LTD., 35th floor, Tencent Building, Zhongyi Road, Maling Community, Yuehai Street, Nanshan District, Shenzhen, Guangdong Province.

Legal representative: Ma Huateng, Chairman.

Agent AD litre: Jiang Tai, employee of the company.

Proceedings

The plaintiff Li Moubao and the defendant Shenzhen Tencent Computer System Co., LTD. (hereinafter referred to as Tencent) infringement of trademark disputes, the court on January 12, 2022 after the filing of the case, according to the law by a single judge in accordance with the ordinary procedures for public hearings. Plaintiff Li Moubao, defendant Shenzhen Tencent Computer System Co., Ltd. entrusted agent Jiang Tai to attend the court proceedings. The case is now closed.

Primary criterion

Plaintiff Li Moubao made a lawsuit request to the court:(1) The defendant is ordered to take legally necessary measures to protect the plaintiff's trademark rights, and stop the infringement of the plaintiff's exclusive right to use trademarks of categories 35, 38 and 42 of "people in a foreign land"; (2) The defendant was ordered to stop providing publicity, sales platforms and technical support to 31 operators of public accounts in its wechat public platform that infringed the plaintiff's exclusive right to use the trademark of "people in other places"; Iii. The defendant was ordered to allow the plaintiff to legally use the trademark of "People in a foreign country", and the founder to make an apology in a prominent position on the official website of Tencent's wechat public platform for one month; Iv. Review and judge the infringement of the plaintiff's trademark by 31 public accounts within the defendant's wechat public platform in a foreign country according to law, and order the defendant to bear joint liability for the infringement and compensate the plaintiff for the economic loss of RMB 4.99 million; 5. The legal costs of the case and the transportation expenses, accommodation expenses and time lost due to the plaintiff's rights protection shall be borne by the defendant. In the course of the lawsuit, the plaintiff changed the above third lawsuit request to "according to law, the defendant was ordered to apologize for one month in a prominent position on the official website of Tencent's wechat public platform."

Facts and reasons:The plaintiff is the legal holder of Class 35, Class 38, Class 42 of the "People in a Foreign Land" trademark, and the approved services include: advertising; Advertising; Television advertising; Online advertising on data communication networks; Advertising space rental; Advertising design; Acting as an intermediary (buying goods or services on behalf of another business); Compiling information into computer databases; Computer database information systematization; Computer database information classification; Radio broadcasting; Television broadcast; Cable TV broadcast; Telephone service; Computer aided information and image transmission; Satellite transmission; Electronic bulletin board service (communication service); Provide Internet chat rooms; Create and maintain websites for others; Hosting computer sites (websites) : converting tangible data and documents into electronic media; Installation of computer software; Provide instant connection services for the exchange of data between computer users; Computer programming; Computer system design; Technical research; Rental of CDS containing commercial and financial information; Computer software maintenance. The plaintiff applied to Tencent's wechat public platform for the registration of the "People in a Land" wechat public account based on three copies of the "People in a Land" trademark use right and its approved service items, so as to obtain the brand promotion services, sales platform services and other technical support of the wechat public platform, but the wechat public platform refused the application, on the grounds that: The name is repeated with the name of the existing public number, check the account with the same name, if you think that the existing name infringes on your legitimate rights and interests, you can make infringement complaints. The plaintiff found that there were 31 wechat public accounts on the wechat public platform that infringed the plaintiff's trademark rights of "people in a foreign land" and engaged in the approval service project of the trademark owned by the plaintiff. Based on the infringement facts, the plaintiff complained to the wechat public platform and the Industry and Commerce Bureau of Nanshan District of Shenzhen respectively, and provided three registration certificates of the "people in a foreign land" trademark. The plaintiff asked the wechat public platform and the 31 public accounts that infringed the plaintiff's "people in other places" trademark on the wechat public platform to stop the infringement. The wechat public platform failed to take necessary measures in accordance with the law, only made a reply to the plaintiff, and helped the operators within its platform to continue to carry out trademark infringement. Shenzhen Nanshan District Industry and Commerce Bureau refused to accept the Internet trademark infringement on the grounds that it was not under its jurisdiction, and pushed the plaintiff to the Internet Information Office, and the Internet Information Office website intellectual property complaints pointed the plaintiff back to the industry and Commerce Bureau. The plaintiff had no way to defend his rights, so he sued. The plaintiff registered the wechat public account of "People in a foreign country" and purchased services such as brand promotion from the defendant in a foreign country. The defendant refused the plaintiff's transaction request in order to safeguard the infringing acts in its platform and the defendant's illegal vested interests, resulting in the plaintiff being unable to normally use the trademark of the publicist in a foreign country, which violated Article 44 of the Protection of Consumer Rights and Interests, and the defendant shall bear joint and several liability. The defendant failed to fulfill legal obligations such as formulating rules for the protection of intellectual property rights and reviewing the business qualifications of operators within the platform; The defendant should know that the 31 operators infringing on the trademark of "people in a foreign land" in its platform have not obtained trademark licenses of categories 35, 38 and 42 of "People in a foreign land", in violation of articles 56 and 57 of the Trademark Law, and Articles 12, 15, 27 and 41 of the E-commerce Law, and jointly infringed the trademark rights of the plaintiff with 31 public accounts. The defendant shall bear joint liability. After receiving the complaint from the right holder, the defendant ignored the plaintiff's request for rights protection, refused to explain the reasons and did not stop the infringement. In accordance with Articles 7 and 13 of the Provisions of the Supreme People's Court on Several Issues relating to the Application of Law in the Trial of Civil Disputes concerning Infringement of the right of Information Network Dissemination, it constitutes knowing the relevant infringement of the right of information network dissemination and assisting the infringement. The defendant also violated articles 42, 43, 44 and 45 of the Electronic Commerce Law and should be held jointly liable. To sum up, Tencent's wechat public platform should have known, knew the infringement and helped trademark infringement. In order to protect the illegal interests of operators within its platform and its own illegal economic interests, it jointly infringed the plaintiff's trademark rights with 31 public accounts, and prevented the plaintiff from setting up a legitimate wechat public account in a foreign country, so as to make illegal profits. The circumstances are egregious. Pursuant to Article 2, 12, 15, 22, 27, 41, 42, 43, 44, 45 of the Law on Electronic Commerce, Article 178, paragraph 1, Article 1169, Article 1185, Article 1194, Article 1195, Article 1196, Article 1197 of the Civil Code, and article 44 of the Law on the Protection of the Rights and Interests of Consumers, Articles 56, 57 and 63 of the Trademark Law require the defendant to bear joint liability for joint infringement, compensate the plaintiff a total of 4.99 million yuan and the related costs incurred by the rights protection.

The defendant argues

The defendant, Tencent, argued:1. The plaintiff is a wechat user, and Tencent is the operator of wechat. The relationship between the original and the defendant is a network service contract. When the plaintiff registers and uses the wechat public account product, it shall comply with the wechat Public Platform Service Agreement and special rules. The plaintiff could not register the "People in a land" wechat public account because it did not meet the relevant special rules, Tencent has informed the reason and provided infringement complaints. On December 25, 2014, the wechat public platform adjusted the wechat authentication naming rule, that is, the naming uniqueness rule of public accounts. Tencent announced the "Instructions on the Naming Rules for wechat Certified Accounts" and the "Principles of Naming Uniqueness for Public Platforms" on the official website of Tencent Customer Service, and publicly notified the "Adjustment of the Naming Rules for wechat Authentication" through the official website of the wechat public platform, namely the wechat official public account, clearly informing users that "the name of the newly registered public account will not be the same name as the account that has obtained wechat certification." According to Article 2 of the "wechat Authentication Account Naming Rules", "the unique principle of authentication naming principles for wechat authentication accounts: the account name must not be the same as the registered account name, otherwise it will not pass the account name audit." According to the principle of Naming Uniqueness of the public Platform, it is known that "the public platform is currently named uniquely, and the newly registered/certified public number cannot be the same name as the successfully registered public number." In this case, because there is a public account in the wechat platform earlier than the plaintiff registered and used the name of "people in a foreign country", according to the above special rules, the plaintiff cannot name its public account as "people in a foreign country". The plaintiff has made infringement complaints, and Tencent has reviewed and responded to the plaintiff's infringement complaints. Second, the operator of the public number "people in a foreign land" has its own registered trademark, the rest of the public number in the platform only involves the words "people in a foreign land" in the name, which does not belong to the scope of protection of the plaintiff's trademark category, Tencent, as a network service provider, can not identify the existence of infringement, so the plaintiff's infringement complaints are not approved. 1, the public number "People in a foreign land" by Jiangsu Juju Information Technology Co., LTD., the company itself has "people in a foreign land" word combination of class 39 registered trademark, its public number earlier than the plaintiff registered, and based on the registered trademark through the trademark protection of wechat certification, Tencent as a network service provider, can not identify the infringement of the public number. 2. For the infringement of several public accounts claimed by the plaintiff, the rest of the public accounts in the platform only involve the words "people in a foreign land" in their names, such as "Northeast people in a foreign land", "Ningyuan people in a foreign land", "people living in a foreign land", etc. The simple use of the name of the public number does not belong to the scope of protection of the plaintiff's trademark category, or even does not belong to the trademark use. It is only a descriptive use of a generic word. Tencent, as the operator of wechat, needs to balance the interests of rights holders, wechat users and other parties, in the case of infringement cannot be identified, such as only because of the plaintiff's infringement complaints, such as hasty removal of the platform involving the name of the account "people in a foreign country", it is also unfair to the main body of the public number, and is not conducive to maintaining the order of platform operation. If the plaintiff insists on infringement, it can negotiate with the public number subject involved or settle the lawsuit. If the court finds infringement, Tencent can take relevant measures. Third, the public account naming uniqueness rule does not violate the law, nor does it violate any user rights and interests, and is a necessary rule to maintain the good order of the wechat public platform. As a network service provider, the defendant formulated platform rules to maintain the order of the platform. The rules are necessary and reasonable in order to protect the rights and interests of the platform users and maintain the good order of the platform. First of all, the rules are conducive to protecting the uniqueness and brand of the public account, protecting the rights and interests of the original creators of the public account, preventing the emergence of fake, counterfeit and copycat accounts in the platform, and maintaining the good order of the public platform. Secondly, this rule makes the public account unique and significant, so that wechat users can more conveniently retrieve the corresponding account through the account name, which is conducive to improving the experience of wechat public platform users. We media platforms such as Baijia, Dayu and Toutiao all adopt the unique rule of account naming, which is the necessary rule to protect the rights and interests of we media accounts. In addition, this rule does not affect the use of the plaintiff's trademark on the wechat public account platform. From the plaintiff's trademark certificate, it can be seen that the plaintiff enjoys trademark rights in the goods and services approved by Class 35, 38 and 42 for the specific picture and text combination of "people in a foreign land". The plaintiff only cannot name the public account as "People in a foreign land", and it can use the picture and text combination trademark held by the public account for the profile picture, the public account published articles or small programs. The plaintiff's use of the trademark pattern was not affected. In this case, the plaintiff's claim is actually an expanded and excessive use of its trademark rights, which will infringe on the legitimate rights and interests of other users. In summary, the court is requested to reject all the plaintiff's claims.

Judicial finding of fact

(Trademark No. 7848743, Source: Zhizhibao Trademark Database)

Found on trial，The registered trademark of No. 7848743 "(designated color)" is the Network Service Department of Xincheng District, Hohhot City, and the approved use of service items is Category 35, advertising; Advertising; Television advertising; Online advertising on data communication networks; Advertising space rental; Advertising design; Acting as an intermediary (buying goods or services on behalf of another business); Compiling information into computer databases; Computer database information systematization; Classification of computer database information (deadline), registration is valid from February 7, 2011 to February 6, 2021. The printed copy of the trademark information submitted by the plaintiff shows that the applicant for the trademark has been changed to the plaintiff, and the trademark is renewed and valid until February 6, 2031.

(Trademark No. 6170749, Source: Zhizhibao Trademark Database)

No. 6170749 "(designated color)" trademark is registered by the Network Service Department of Xincheng District, Hohhot City, approved to use the service item for Class 38, radio broadcasting; Television broadcast; Cable TV broadcast; Telephone service; Computer-aided information and image transport; Satellite transmission; Electronic bulletin board service (communication service); Internet chat rooms available (deadline), registration is valid from July 21, 2010 to July 20, 2020. The printed copy of the trademark information submitted by the plaintiff shows that the applicant for the trademark has been changed to the plaintiff, and the trademark is renewed and valid until July 20, 2030.

(Trademark No. 5798432, Source: Zhizhibao Trademark Database)

The registered trademark 5798432 "(designated color)" is Li Moubao, the plaintiff, and the approved use of services is Class 42, creating and maintaining websites for others; Host computer site (website); Converting physical data and documents into electronic media; Installation of computer software; Provide timely connection services for data exchange between computer users; Computer programming; Computer system design; Technical research; Rental of CDS containing commercial and monetary information; Computer Software Maintenance (deadline), registration is valid from April 7, 2010 to April 6, 2020. The printed copy of the trademark information submitted by the plaintiff shows that the trademark is valid until April 6, 2030, after renewal.

The plaintiff claims that it has made actual use of the above trademark through the establishment of the website "www.rztxw.net" and the opening of the Douyin account "People in a Foreign land".

In October 2021, the plaintiff applied for the registration of the "People in a Land" wechat public account on the wechat public platform, and failed to pass the audit, on the grounds that "the name is repeated with the name of the existing public account, check the account with the same name, and if you think that the existing name infringes on your legitimate rights and interests, you can make infringement complaints." On October 29, 2021, the plaintiff submitted a complaint of "impersonating others" to the wechat public platform for 39 wechat public accounts such as "People in a foreign country", "Qingyang people in a foreign country", "Northeast people in a foreign country", and "Ningyuan people in a foreign country". The complaint was described as "the owner of 35, 38, and 42 types of trademark use rights in a foreign country. And according to the scope of trademark use rights engaged in relevant industries, but failed to succeed, and found that a large number of people in other places to use the trademark use rights, engaged in Internet, advertising, information release, intermediary and other services, seriously damaged my trademark rights and interests, I hope the wechat public platform to stop in time, and protect my rights and interests, I will provide publicity window for Tencent strangers social." The wechat public account platform responded to the infringement complaint review and failed to pass, on the grounds that "your complaint did not really and fully prove the existence of impersonation of the account, so it cannot be dealt with temporarily." Due to the infringement complaint failed, the plaintiff to Shenzhen Nanshan District Industry and Commerce Bureau, the central Network Information Office for complaints.

The defendant said that the reason why the plaintiff's infringement complaints were not reviewed is that the operator of the public number "people in a foreign land" (wechat signal renzaitaxiangcn) has a registered trademark itself, and the rest of the public number in the platform only involves the words "people in a foreign land" in the name, which does not belong to the scope of protection of the plaintiff's trademark category. Tencent, as a network service provider, No infringement could be found. Screenshots of the public account "People in a foreign Land" (wechat renzaitaxiangcn) submitted by the defendant show that the main body of the public account is Jiangsu Zuju Information Technology Co., LTD. The public account is as follows: The "People in the Countryside" project takes the guiding ideology of the League Central Committee, the China Youth Federation, the Youth League Working Committee and the General Chamber of Commerce as the principle, and aims at public welfare services to build a service platform for fellow townspeople! Committed to serving people living, learning, employment, entrepreneurship, growth, success in other communities! The public account has also passed the trademark protection of wechat certification, the trademark name is "people in a foreign land", the trademark category is Class 39, valid until July 27, 2028. The screenshots of the official website of the State Intellectual Property Office submitted by the defendant show that the applicant of No. 25623618 "People in a foreign land" registered trademark is Jiangsu Zuju Information Technology Co., LTD., and the approved service category is Class 39. Including car rental, vehicle sharing services, arranging excursions, transporting passengers, transportation reservations, travel accompaniment, travel reservations, arranging yacht trips, chauffeur services, providing driving directions for travel, etc., the trademark is valid from July 28, 2018 to July 27, 2028. The defendant also submitted the wechat platform search screenshot, claiming that the wechat public platform has only one "people in a foreign land" public account, and the rest are only names with "people in a foreign land" words, including "Northeast people in a foreign land", "people in a foreign land", "Ningyuan people in a foreign land", "Guangxi people in a foreign land", etc. The words involved in the plaintiff's trademark are not significant. The name of the public number in the platform does not belong to the trademark use.

In the trial, the plaintiff clearly asserted that the case was caused by a dispute over trademark infringement, and clearly accused the defendant of providing platform services for the 31 "People in other places" public accounts that carried out the infringement, which constituted helping the infringement. According to the opinions submitted by the plaintiff after the court, the specific public accounts include: People in another country (wechat renzaitaxiangcn), Northeast people in another country (wechat dbr0411), Ningyuan people in another country (wechat NR-ZTX), Enshi people in another country (wechat nmmmm9), Guangxi people in another country (Wechat gxrztx), Ganyu people in another country (wechat gh_c469bdb5) 8c45), Hengxian people in another place (wechat hxzx530300), Tongcheng people in another place (wechat tctx0556), Lichuan people in another place (wechat lcrztx), Wengyuan people in another place (wechat gh_d3bb82edce3c), Yanbian people in another place (wechat gh_e8661742cb29), People from Henan (hnzaitaxiang), people from Jinzhai (NJXY899), Hakka (kjrztx), people from Yongcheng (ycrztx), people from Xiushui (gh_be82803fb816), people from Hulunbuir (r1) 88******07), Longchuan people in other places (wechat ID lcrlcr01), Shaanxi people in other places (wechat ID xarztx), Sichuan and Chongqing people in other places (wechat ID gh_6047d272e541), Guangyang Store (wechat ID gh_609d03369278), people in other places (Wechat ID taxia) ng123960), people in a foreign country (wechat signal gh_873d8c2ebf25), people in a foreign country with you (Wechat signal rztxyntx2020), children's wear people in a foreign country (wechat signal gh_27ddb54a9197), people living in a foreign country (Wechat signal rztx135******39), people in a foreign country north Drifts (wechat signal rztx88), hello people in a different place (wechat signal cctv20190601), Northeast people in a different place (Wechat signal dongbr66yyds), people in a different place to read home (Wechat signal gh_17833d4ddcc6), people in a small shop in a different place (Wechat signal gh_55b34503749e) and so on . The plaintiff confirmed that there is no direct evidence to prove that the above-mentioned 31 public accounts constitute trademark infringement, but that the names of the above-mentioned public accounts all contain the words "people are in a foreign land", and the main business is social networking, publishing information, advertising, etc., which can be reasonably presumed to constitute trademark infringement. The defendant does not recognize this, that although the above public account itself can be used for publicity and release of information, but the actual operation of the business is difficult to confirm, only the name of the public number with "people in a foreign country" words, can not identify the existence of trademark infringement. The defendants also claimed that the public account renzaitaxiangcn (wechat signal renzaitaxiangcn) had not published any article content and was not actually used.

The defendant also submitted the following evidence: 1. (2020) The notary certificate No. 033632, proving that when users register to use the wechat public account, they must check the "wechat Public Platform Service Agreement" to complete the registration. Article 1.3 of the Agreement stipulates: "The contents of this Agreement also include the relevant agreements, service statements, business rules and announcement guidelines that Tencent may continue to release about this service (hereinafter collectively referred to as' special Rules'), and the above contents shall be an integral part of this Agreement once officially released, and you shall also abide by it." According to the above agreement, the plaintiff shall abide by the "special rules" issued by Tencent's official website, namely, the Instructions on the Naming Rules of wechat Verified Accounts and the Naming Uniqueness Principle of Public Platforms in this case; 2, (2017) Shenyan Certificate No. 3303 Notarial certificate, proving that "wechat Authentication Account Naming Rules" and "Public Platform Naming Uniqueness Principle" have clearly stated the naming uniqueness of the public platform, so in the case of the public account registered earlier than the plaintiff and use the name of "people in the country", the plaintiff can not repeat the use of "people in the country" as the name; 3. (2022) Shenqian Certificate No. 5506 Notarial certificate, which proves that wechat official announced the new rules for the authentication and naming of wechat public accounts through its official website and official public account, clearly informing and explaining the principle of naming uniqueness of public platforms; 4. (2022) Shenqian Certificate No. 5408 Notarial certificate, proving that hundreds, Big Fish, Headlines, Sohu and other we-media platforms have adopted the account naming uniqueness rule. The plaintiff recognizes the authenticity and legality of the above evidence, but believes that it has not registered a wechat public account, so the wechat Public Platform Service Agreement has nothing to do with it, and the naming uniqueness rules of the public platform deprive it of its legal rights, and most of the public accounts with the words "people are in a foreign land" violate its trademark rights.

The above facts, There are trademark registration certificate, (2020) Shenqian Certificate No. 033632 Notarial certificate, (2017) Shenyan Certificate No. 3303 Notarial Certificate, (2022) Shenqian Certificate No. 5506 Notarial Certificate, (2022) Shenqian Certificate No. 5408 notarial certificate, public number query screenshot printout, web page printout and other evidence and court records in the volume of evidence, Enough to confirm.

The court held that

The court considers that，This case is a dispute over trademark infringement. According to the trademark registration certificate and trademark query printed copy submitted by the plaintiff, in the absence of contrary evidence, it can be determined that the plaintiff is involved in the case of 7848743"(color specified) ", No. 6170749"(color specified) ", 5798432"(designated color) "registered trademark right holder, within the validity period of the registration of the trademark involved, its trademark exclusive right is protected according to law.

In this case, the plaintiff Zhang defendant provides platform services for the 31 "people in other places" public accounts that are infringing, which constitutes infringement and infringes on their exclusive right to use registered trademarks. The Court holds that three conditions must be met for the perpetrator to constitute a aiding tort, that is, there is a direct infringement, the perpetrator objectively provides assistance to the direct infringer, and the perpetrator is subjectively at fault. As far as this case is concerned, to determine that the defendant constitutes a helping infringement, the premise is to identify the existence of direct infringement, that is, the plaintiff should prove that the 31 names involved contain "people in a foreign land" or similar words of the public number constitute trademark infringement. In this case, the plaintiff claimed that the 31 public numbers involved in the trademark infringement reason is that the name of the public number contains "people in a foreign country" or similar words, in this regard, the court comments as follows:

First of all, the exclusive right to use a registered trademark shall be limited to the trademark approved for registration and the goods approved for use. The so-called approved trademark registration, also known as registered trademark, refers to the trademark that has been approved for registration after examination. The so-called "approved use of goods" refers to the specific goods in the specified class of goods approved for use at the time of trademark registration. The trademark approved for registration and the goods approved for use are the two specific standards for determining the scope of protection of the exclusive right to use a registered trademark. These two standards are interdependent and indispensable, and together constitute the scope of protection of the exclusive right to use registered trademarks. In this case, the plaintiff's approved trademarks are"

(Specify color) ","

(Specify color) ","The services approved for use are the corresponding services in categories 35, 38 and 42, within this specific scope, the plaintiff enjoys the exclusive right to use its registered trademark, that is, the right to exclude the use of others, but beyond this specific scope of protection, the plaintiff has no right to prohibit the fair use of others. In particular, the term "people in a foreign land" itself belongs to the common vocabulary of the public domain, unless others malicious attachment, otherwise the trademark owner has no right to prohibit others from using the word properly.

Secondly, trademark use refers to the use of trademarks on commodities, commodity packaging or containers and commodity transaction documents, or the use of trademarks in advertising, exhibitions and other commercial activities to identify the source of goods. Trademark use is the premise of judging whether it constitutes trademark infringement. In this case, the plaintiff only provided evidence to prove that the name of the public number involved contains "people in a foreign land" or similar words, but did not prove that such use is used for commercial activities, and has played the function of identifying the source of goods or services, so the existing evidence is not enough to prove that the name use of "people in a foreign land" or similar words by the public number involved constitutes trademark use.

Finally, even if it constitutes trademark use, whether it constitutes trademark infringement should be judged based on whether the use of "people in a foreign land" or similar words by the public account involved in the case is likely to cause public confusion, that is, whether the relevant public is likely to misidentify the source of the goods or services or think that the source is specifically related to the services provided by the plaintiff. In this case, although the plaintiff obtained the trademark exclusive rights of registered trademarks No. 7848743, No. 6170749 and No. 5798432 in class 35, 38 and 42 service items, on the one hand, the plaintiff did not provide evidence to prove that the actual operation business of the wechat public account involved in the case belongs to the service category approved for use of the trademark involved. From the evidence provided by the plaintiff regarding the use of the trademark, the significance and popularity of the trademark have not yet reached the level that the relevant public has a specific association between the words "people in a foreign land" and the services provided by the plaintiff. Therefore, the existing evidence is not sufficient to prove that the use of "people in a foreign land" or similar words by the public account involved in the case will easily cause the relevant public to confuse the source of goods or services of the plaintiff and the public account involved in the case.

To sum up, the plaintiff's evidence is not enough to prove that the 31 wechat public accounts involved in the case have constituted trademark infringement. According to the naming and uniqueness rules of the public platform, the defendant did not pass the examination of the plaintiff's infringement complaint, subjectively there is no fault. The plaintiff's claim that the defendant constitutes trademark infringement has no factual and legal basis, and the court does not support it.

Results of judgments and rulings

In summary, in accordance with Articles 56 and 57 of the Trademark Law of the People's Republic of China and Article 67 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

Dismiss all claims of plaintiff Li Moubao.

The case acceptance fee of RMB 46,720 has been paid in advance by the plaintiff Li Mou Bao and shall be borne by the plaintiff.

If he is not satisfied with this judgment, he may, within 15 days from the date of service of the judgment, submit an appeal to the court, and make copies according to the number of the other party, and appeal to the Intermediate People's Court of Shenzhen, Guangdong Province.

Judge Zhuo Chunyu

June 17, 2002

Clerk Chen Wanting

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The defendant Wang Mou, without the permission of the right holder, commissioned a Shanghai biotechnology Co., Ltd. to produce an eye cream printed with the registered trademark freezeframe. In March and July 2019, the two sides signed two procurement contracts. Defendant Wang instructed a Shanghai biotechnology Co., Ltd. to produce a total of more than 150,000 fake freezeframe brand eye cream, with a total price of more than 3.45 million yuan. After the completion of production, Wang, as the general distributor, sold some of the eye cream involved to domestic distributors and then sold it to consumers. Later, some consumers reflected that the eye cream was counterfeit goods, so the case. After the incident, the public security organs to seize the eye cream to identify, are counterfeit goods. The defendant Wang Mou was arrested by the public security organs, denied the above criminal facts.

2023-03-24

Detail

Guangdong High Court issued six typical cases of intellectual property crimes

Typical criminal cases of intellectual property rights in Guangdong courts 1, Yan and others counterfeiting registered trademarks - punishing the trademark crime of "second-hand refurbished" electrical appliances disguised as "original genuine products" 2, Yang Moumou, Wang Mou copyright infringement case - Combating the crime of online film and television works piracy 3, PI Moumou trade secret infringement case - Punishing the crime of former employees violating the technical secrets of the original enterprise Four, Dong Mou and others counterfeit registered trademark case - severely punish the crime of manufacturing and selling counterfeit registered trademark masks Five, Wang Mou's sale of counterfeit registered trademark case - Combat electric bullet window new form of trademark crime Six, Gao Mou repeatedly sold counterfeit registered trademark case - punish the trademark crime of live broadcasting with goods to know fake sales

2023-01-04

Detail

Compensation more than 10 million yuan! Judgment on trademark infringement and unfair competition of "Jager"

Recently, the Beijing Intellectual Property Court concluded a case concerning "Jager" trademark infringement and unfair competition. After trial, the court ordered the three defendants, Shenglola (Qingdao) Wine Co., LTD. (referred to as Shenglola Company), Hefei Puyuan Trading Co., LTD. (referred to as Puyuan Company), and Sing Mou to immediately stop trademark infringement and unfair competition, and publish a statement to eliminate the impact. And compensate the plaintiff Master Zagamist European Company (referred to as Master Company) economic losses, punitive damages, reasonable expenses of more than 10 million yuan.

2022-12-16

Detail

The use of "Beijing Erguotou" was convicted of infringement

The story starts with two enterprises Beijing Red Star Co., LTD. (hereinafter referred to as Red Star Company) Xianghe Jingyun Distillery (hereinafter referred to as Jingyun Distillery) In 2018, Red Star found that the packaging of wine products produced by Jingyun Distillery and Red Star Company's No. 4600693 three-dimensional graphic trademark, whether from the overall composition or local information to compare, Both constitute substantial similarity and are suspected to constitute trademark infringement.

2022-12-05

Detail

The unauthorized use of geographical indications to prove trademarks constitutes trademark infringement

2023-05-08

Detail

CASE

Dispute between Li Moubao and Shenzhen Tencent Computer System Co., Ltd. over trademark infringement | Does the duplicate name of public account and registered trademark constitute trademark infringement?