Recently, we have been informed that, The Shanghai Intellectual Property Court (hereinafter referred to as the Shanghai Intellectual Property Court) made a decision regarding the dispute between appellant Shanghai Woxi Intelligent Technology Co., LTD. (hereinafter referred to as Woxi Company) and appellant Baidu Online Network Technology (Beijing) Co., LTD. (hereinafter referred to as Baidu Company) and the original defendant Zhengzhou Yalan Cosmetics Co., LTD. (hereinafter referred to as Yalan Company) over trademark infringement and false publicity Judgment. The Vermaline appeal is dismissed, and the original conviction is upheld.
Brief of the case
Baidu, the appellant, believes that The "Anysay intelligent robot" developed by Wo Xi Company and sold by Ya LAN Company infringes the exclusive right of Baidu's registered trademarks No. 15668021, No. 24315163, No. 27165477, No. 30569391, No. 13754556, No. 15667594 and No. 24315397. At the same time, Wo Xi company claims that its products are the world's first Baidu voice intelligent robot, the strongest brain robot, claiming that the company is the official partner of Baidu /AI/DUEROS, and its legal representative claims to be the founder of Xiaodu robot, which constitutes false propaganda. When selling and promoting the products accused of infringement, Yalan Company called it "the world's first Baidu voice intelligent robot", and when selling the membership card of "Small degree City Partner", it declared "DUEROS degree secret artificial intelligence partner", which constitutes unfair competition behavior of false publicity. Therefore, we request the court to immediately stop the infringement and compensate Baidu for the economic loss of 10 million yuan (trademark infringement of 8 million yuan, unfair competition of 2 million yuan) and reasonable expenditure of 200,000 yuan (including the purchase fee of 5,198 yuan, notary fee of 10,000 yuan, attorney's fee of 184,802 yuan).
Judgement of first instance
The court of first instance found that, with reference to the International Classification of Goods and Services for Trademark Registration, it comprehensively considered the popularity of Baidu's trademarks, the functions, uses, sales channels, and objects of the accused infringing goods. The accused infringing goods and the data processing equipment approved by the trademark No. 15668021 "XiaoDu" and No. 24315163 "Xiaodu Robot", the sound and image carrier playback device, portable media player and humanoid robot with artificial intelligence approved by the trademark No. 24315163 "Xiaodu Robot", The portable media player approved for use in trademark No. 27165477 "Small degree at Home" and the speaker speakers and bar speakers approved for use in trademark No. 30569391 "Small Degree at Home" are similar goods.
In Baidu's trademark No. 15668021 "XiaoDu", No. 27165477 "Xiaodu" and No. 30569391 "Xiaodu", "Xiaodu" is the main part of the identification. Among the trademarks accused of infringement "Xiaodu", "Xiaodu robot", "Smart Xiaodu" and "Understand your Xiaodu" used by Wuxi Company, "Robot" and "wit" are common words, which do not have the function of commodity source identification, and "small degree" is also the main part of the above logo. In the state of isolation and comparison, it is easy to misidentify the commodity source with the general attention of the relevant public. That is, it is mistaken that the voice-controlled robot products sold by Wo Xi Company have a specific connection with Baidu Company or Baidu Company's products using the registered trademarks involved in the case. Therefore, the above-mentioned alleged infringing mark is similar to Baidu's trademark No. 15668021, No. 27165477 and No. 30569391. In addition, the accused infringement of the "small degree robot" logo and Baidu company No. 24315163 "small degree robot" trademark constitutes the same trademark.
Worxi uses the same or similar trademark of Baidu in the promotion of similar products, and Yaran uses the same or similar trademark of Baidu in the promotion of products produced by Worxi. It constitutes an infringement of the exclusive right of Baidu's registered trademark No. 15668021, No. 24315163, No. 27165477 and No. 30569391.
In this case, in the publicity process of Anysayx3 voice intelligent robot operated by Woxi Company, its brand "Anysay" and "Xiaodu" are used as product logos at the same time, or its product is directly referred to as "Xiaodu" and "Xiaodu robot", which is easy to make the relevant public mistake that the source of the product is related to Baidu. This creates confusion about the origin of the product. On the other hand, Baidu's "small degree" series of registered trademarks itself is not a generic name of the commodity, nor does it directly describe the quality of the commodity, the main raw materials, functions, uses and other characteristics. The AnysayX3 voice intelligent control robot developed by Woxi Company was unveiled on October 13, 2018, and the relevant publicity, promotion and sales were far later than the registration application date of the registered trademark involved and the listing of Baidu's products, which does not constitute prior use.
At the same time, Woxi Company called its product "strongest brain robot" in its publicity in order to emphasize the artificial intelligence features of its product, but "strongest" belongs to the top term, which violates the relevant provisions of the Advertising Law of the People's Republic of China. Moreover, when Woxi Company advertised its product as "strongest brain robot", it attached the brand awareness of Baidu Company. Make consumers confuse the products of the two, constituting false propaganda. Secondly, Worxi's promotion of its legal representative as the "founder of Xiaodu Robot" constitutes false propaganda. Finally, the company claims that it is an official partner of Baidu /AI/DUEROS in order to gain popularity of Baidu, which constitutes false propaganda. In addition, Wo Xi Company and Yalan company said in their operation and publicity that the AnysayX3 voice intelligent robot product operated/sold by them is the world's first Baidu voice intelligent robot.
Whereas Baidu has not provided evidence to prove the actual losses suffered by Baidu as a result of the trademark infringement and false advertising by Worxi and Yalan, and the benefits gained by the Defendants as a result of the infringement, The court of first instance took into account the high visibility and influence of Baidu's registered trademark and "small degree" series of products in the industry, the degree of subjective fault of Wolxi and Yalan, the fact that the accused infringing products have entered Baidu's AI market, Wolxi's external publicity that 5,000 units of the products involved have been snapped up, and the infringement is both trademark infringement and false The amount of compensation payable by Worxi and Yaran shall be determined, as appropriate, by factors such as publicity, the way in which Worxi and Yaran used the alleged infringing mark, the duration of the alleged infringing act and the price of the alleged infringing product.
The court of first instance ruled: 1. As of the effective date of this judgment, Wo Xi Company and Yalan Company shall immediately stop the infringement of the exclusive right to use the registered trademark of Baidu Company No. 15668021, No. 24315163, No. 27165477 and No. 30569391, and compensate Baidu Company for the economic loss caused by the infringement of 3.5 million yuan. Yalan Company shall bear joint and several liability for 2,000 yuan of the compensation; Wo Xi Company and Yalan Company shall compensate Baidu Company for the economic losses caused by the false publicity of 100,000 yuan and 10,000 yuan respectively, and compensate Baidu company for reasonable expenses of 120,000 yuan and 20,000 yuan.
Judgment of second instance
The appellant Wo Xi Company submitted an appeal request to the Shanghai Intellectual Property Court against the judgment of first instance: request to cancel the civil judgment No. 56156 of Shanghai Pudong New Area People's Court (2019) in accordance with the law, and amend the judgment to reject the appellant's claim of first instance in accordance with the law.
Facts and reasons: 1. The court of first instance wrongly determined that the Appellant's act constituted trademark infringement. 1. The accused infringing goods of the Appellant are not similar to the goods approved for use by the registered trademark involved. 2. The registered trademark or product logo used by the "AnysayX3 robot" developed and sold by the Appellant does not constitute the same or similar trademark with the registered trademark owned by the Appellant, so the Appellant has not infringed the Appellant's exclusive right to use the registered trademark. 3. The Appellant's use of "small degree" as a wake-up word and the mention of "small degree" in the product introduction are non-trademark fair use and will not cause consumer confusion.
2. The court of first instance wrongly determined that the Appellant's conduct constituted false publicity. As a private enterprise with complete licenses, the Appellant independently developed and sold the AnysayX3 robot. In combination with a series of close cooperation with the appellee, the Appellant believed that it met the standards of cooperation partners set by the appellee. Therefore, when promoting the AnysayX3 robot, the Appellant called itself a partner of Baidu and used the registered trademark of the Appellee. However, such use is only descriptive use, not trademark use, and the Appellant did not intentionally use the appellee's registered trademark for false publicity.
Iii. The actual transaction amount of the Appellant was far lower than the amount determined by the court of first instance, and did not cause serious economic losses to the Appellant nor earn high profits. Under this premise, the court of first Instance found that there was no factual basis for requiring the Appellant to compensate the Appellant 3.5 million yuan for trademark infringement and 100,000 yuan for false publicity.
The respondent, Baidu, argued that,The appellant's behavior constitutes trademark infringement and unfair competition, and the judgment of the first instance is reasonable. 1. The Appellant constitutes trademark infringement. The appellant's use of Xiaodu and Xiaodu robots as trade names is to indicate the source of the goods, which is a typical trademark use. The registered trademarks of the appellant involved in the case were all registered earlier than the time when the appellant used the trademarks involved in the case. There was no prior use as claimed by the Appellant, and the Appellant's subjective malice of trademark infringement was obvious. 2. The Appellant constitutes unfair competition. The appellant's claim that it is the founder of Xiaodu machine and Baidu AI partner is false propaganda, and how it promotes its Xiaowo robot has nothing to do with the case. 3. The amount of the first instance judgment shall be maintained, and the appellant is not only a seller, but also a manufacturer. The appellee learned from limited channels that the appellant's profit amount was at least 300 million yuan, and it was a unicorn enterprise, so the amount of the first instance judgment was not high, and it was not enough to make up for the appellee's loss. In summary, the court of second instance is requested to reject the appeal request and uphold the original judgment.
The Court of second instance held that the focus of the dispute in this case is: first, whether the appellant's alleged infringement constitutes an infringement of the appellant's exclusive right to use the registered trademark in question (No. 15668021, No. 24315163, No. 27165477, No. 30569391); 2. Whether the appellant's alleged infringement constitutes an act of unfair competition with false publicity; Third, whether the amount of compensation awarded in the first instance is reasonable.
Regarding the first focus of the dispute, the Shanghai Intellectual Property Court held that the court of first instance found that the accused infringing products and the four Category 9 registered trademarks involved in the approved use of goods constitute similar goods, and it is not improper, and it is upheld. The appellant acquiesces that Caiyi uses "Xiaosu" as a wakeword when processing the accused infringing products, which is also a trademark infringement in itself. The technical problems and scope of application of the Dueros system are not grounds for exemption from trademark infringement, nor are they grounds for "Xiaosu robot" to become a common name for intelligent electronic products.
As for the second focus of dispute, the Shanghai Intellectual Property Court held that the first instance court's decision on the establishment of false publicity was not improper. When the Appellant promoted its "AnysayX3 robot" product, it overused the commercial resources of the appellee, which went beyond the reasonable scope and reached the extent of causing misunderstanding among the relevant public, misleading consumers and thus constituting false publicity. The court disapproves of the appellant's grounds of appeal.
Regarding the third issue, the Shanghai Intellectual Property Court held that, first of all, combined with other evidence, the scope of the Appellant's infringement was not necessarily limited to the supply contract; Secondly, in intellectual property infringement disputes, the damage caused by the infringement to the right holder will often exceed the profit of the infringer. The court of first instance also took the aforementioned factors into account when deciding the amount of damages awarded, so the appellant's reason for appeal was not accepted.
In the end, the Shanghai Intellectual Property Court ruled in accordance with the law: reject the appeal and maintain the original judgment. (Source: Intellectual Property Finance)
Attached second instance judgment:
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