Recently, Beijing Baidu Network information Technology Co., LTD. (hereinafter referred to as "Baidu Network Information Company"), Baidu Online Network Technology (Beijing) Co., LTD. (hereinafter referred to as "Baidu Online Company") and Wenzhou Rich and Intellectual Property Rights Agency Co., LTD. (formerly Ruian Baidu Trademark Agency Co., LTD., hereinafter referred to as "Rich and Company") infringement of trademark rights and unfair competition dispute first instance civil judgment published.
When the defendant Fuhe company sells and promotes its products and services, it uses the same words as the trademarks involved in the case in its business name. Moreover, in the company's facade, wechat public number, third-party websites, staff wechat and other places, many times, a large number of use of "Baidu trademark", "Ruian Baidu" and "Baidu Trademark Agency Co., LTD.", "trademark registration to find Baidu" and other names and statements, the company's daily work to customers and other public also to "Baidu trademark" as a self-proclaimed.
The plaintiff Baidu and the two companies believe that the defendant registered the well-known trademark as the enterprise name and used it prominently in sales and publicity, and the public is easy to confuse the services provided by the defendant with the registered trademark of the two plaintiffs due to the popularity and significance of the trademark involved, and its behavior constitutes an infringement of the exclusive right to use the registered trademark. At the same time, the above acts of the defendant attached to the reputation of the two plaintiffs, and used the popularity of the trademarks involved to attract the attention of the relevant public to obtain improper benefits, which weakened the significance of the trademarks involved, harmed the interests of the two plaintiffs, caused market confusion and public misrecognition, and constituted unfair competition. As a professional trademark agency, the defendant has obvious illegal malice, huge profits and serious consequences of the violation, and should bear civil liabilities such as stopping the infringement, compensating for losses and eliminating the impact. In order to safeguard the legitimate rights and interests, in accordance with the relevant laws and regulations to bring the case, request the judgment as requested.
The court held that the defendant, knowing that the two plaintiffs involved in the case of No. 1579950 "Baidu" trademark has a high reputation, still copied the trademark without permission to use, subjectively there is fault, and its use of the accused infringing mark constitutes an infringement of the two plaintiffs No. 1579950 "Baidu" well-known trademark.
In this case, the well-known trademarks of the two plaintiffs involved in the case were registered first, and after years of continuous publicity and use, they already had high visibility and influence when the defendant company was established. The defendant knew that the well-known trademark involved in the case had enjoyed prior popularity and good reputation, but still registered and used it as a store name in the original enterprise name, and used it as an identifiable component of the name of the wechat public account and the name of the author, subjectively with the intention to cling to the goodwill of others. Objectively, it is easy to cause the relevant public to mistake it for having a certain relationship with the two plaintiffs, resulting in confusion and misidentification, which violates the principle of honesty and credit that should be followed as a market operator, and damages the legitimate rights and interests of Baidu Online company and Baidu Netcom company.
The verdict was as follows:
First, the defendant Wenzhou Fuhe Intellectual Property Agency Co., Ltd. immediately stop the infringement of the exclusive right to use the registered trademark of No. 1579950 "Baidu" and unfair competition, including stopping the use of "Baidu trademark" in the QR code of the wechat public account involved in the case, stop using the words "Trademark registration · Find Baidu" in the poster of the wechat public account involved in the case. Stop using the words "Baidu trademark" and "to find Baidu" on the poster, door header and plaque of the wechat mini program involved in the case, stop using the account name of "Ruian Baidu Trademark Agency Co., LTD." in the wechat public account involved in the case, stop using the author name of "Ruian Baidu Trademark" in the article published on the wechat public account involved in the case;
2. The defendant Wenzhou Fuhe Intellectual Property Agency Co., Ltd. shall compensate the plaintiff Baidu Online Network Technology (Beijing) Co., Ltd. and Beijing Baidu Netcom Technology Co., Ltd. for economic losses of 500,000 yuan and reasonable rights protection costs of 100,000 yuan, a total of 600,000 yuan, within 10 days from the effective date of this judgment;
Third, the plaintiff Baidu Online Network Technology (Beijing) Co., LTD., Beijing Baidu Netcom Technology Co., LTD.
Attached judgment:
First instance civil judgment on trademark rights infringement and unfair competition disputes between Beijing Baidu Netcom Technology Co., LTD., Baidu Online Network Technology (Beijing) Co., LTD
Ningbo Intermediate People's Court of Zhejiang Province
A civil judgment
(2021) Zhejiang 02 No. 1867 in the Early Republic of China
Plaintiff: Baidu Online Network Technology (Beijing) Co., LTD., Address: 2nd Floor, Baidu Building, No. 10 Shangdi 10th Street, Haidian District, Beijing.
Legal representative: Cui Shanshan, General Manager of the company.
Plaintiff: Beijing Baidu Network Communication Technology Co., LTD., Address: 3 / F, Baidu Building, No. 10 Shangdi 10th Street, Haidian District, Beijing.
Legal representative: Liang Zhixiang, manager of the company.
The two plaintiffs jointly appointed litigants: Lu Jiamu, lawyer of Zhejiang Haitai Law Firm.
The two plaintiffs jointly appointed litigants: Shen Yan, lawyer of Zhejiang Haitai Law Firm.
Defendant: Wenzhou Fuhe Intellectual Property Agency Co., LTD. (formerly Ruian Baidu Trademark Agency Co., LTD.), Address: Room 2002, Building 2, Wuyue Plaza, New City, Anyang Street, Ruian City, Zhejiang Province.
Legal representative: Pan Yuliang, Executive Director and general manager of the Company.
Agent AD litem: Yu Keke, former legal representative and shareholder of the company.
The plaintiff Baidu Online Network Technology (Beijing) Co., LTD. (hereinafter referred to as Baidu Online Company), Beijing Baidu Netcom Technology Co., LTD. (hereinafter referred to as Baidu Netcom Company) and the defendant Wenzhou Fuhe Intellectual Property Agency Co., LTD. (hereinafter referred to as Fuhe Company, formerly known as Ruian Baidu Trademark Agency Co., LTD.) infringement of trademark rights and unfair competition dispute, After the motion was enacted on August 26, 2021, the Court formed a collegial panel according to the ordinary procedures in accordance with the law. The two plaintiffs filed an application for property preservation with the court after filing the case, and the court made a (2021) Zhejiang 02 Civil Award No. 1867 in the early Republic of China on September 18, 2021, freezing the defendant's bank deposit of 5 million yuan, or seizing its equivalent property. The case was heard on March 29, 2022 with an exchange of evidence and a public hearing. Two plaintiffs Baidu network communication company, Baidu online company jointly entrusted litigant Lv Jiamu, Shen Yan, defendant Fu and company entrusted litigant Yu Keke attended the court to participate in the lawsuit. The case is now closed.
The plaintiff Baidu Netcom Company and Baidu Online Company made a lawsuit request to the court (after the change) : 1. That Baidu Online Company registered in Class 42 trademark No. 1579950 "Baidu" and No. 4096733 "Baidu"
”The trademarks are well-known trademarks; 2. Order the defendant to stop the infringement of the well-known trademark and unfair competition; 3. The defendant was ordered to publish an apology statement for 30 consecutive days on the top of his wechat official account and in national media (specifically China Market Regulator in the trial); 4. The defendant was ordered to compensate the two plaintiffs for economic losses of 5 million yuan and reasonable expenses of 100,000 yuan. Facts and Reasons: The plaintiff Baidu Online Company was established on January 18, 2000, and its business scope includes the development and production of computer software, etc., to provide technical support for the services related to Baidu, the world's largest Chinese search engine. The plaintiff Baidu Online Company is No. 1579950 "Baidu" trademark and No. 4096733“
”The registrant of the trademark (hereinafter referred to as the trademark involved), the commodity class is Class 42, and the registration date is May 28, 2001. The plaintiff Baidu Internet Communication Company is the owner and operator of www.baidu.com, and is authorized by the plaintiff Baidu Online company to use the trademarks involved in the case to provide services to users by using search engine technology. Before August 2007, the search engine using the trademark involved in the case has become the first product in the same industry market share for many years after the continuous use and publicity of the two plaintiffs, and has won a large number of domestic and foreign honors, recognized and known by the general public in China, and enjoys a high reputation. Therefore, before the defendant registered the enterprise name, the trademark involved has reached the degree of well-known trademark, and has established the only close connection with the two plaintiffs, constituting a well-known trademark in Class 42, which should be protected accordingly. The defendant Fuhe Company (formerly Ruian Baidu Trademark Agency Co., LTD.) was established in August 2007, and its business scope covers trademark agency, enterprise registration agency, corporate image, marketing planning, design, production, domestic advertising, business investigation, patent consulting, etc. When selling and promoting its products and services, it used the same words as the trademarks involved in the case in the company name, and used "Baidu trademark", "Ruian Baidu", "Baidu Trademark Agency Co., LTD.", "Baidu for trademark registration" and other names and sentences repeatedly and extensively in the company's facade, wechat public account, third-party websites, and staff wechat. In the daily work of the company, the public such as customers also use the "Baidu trademark" as a self-proclaimed. The defendant registered the well-known trademark as the enterprise name, and used it prominently in sales and publicity. The public is liable to confuse the services provided by the defendant with the registered trademark of the two plaintiffs due to the popularity and significance of the trademark involved, and its behavior constitutes an infringement of the exclusive right to use the registered trademark. At the same time, the above acts of the defendant attached to the reputation of the two plaintiffs, and used the popularity of the trademarks involved to attract the attention of the relevant public to obtain improper benefits, which weakened the significance of the trademarks involved, harmed the interests of the two plaintiffs, caused market confusion and public misrecognition, and constituted unfair competition. As a professional trademark agency, the defendant has obvious illegal malice, huge profits and serious consequences of the violation, and should bear civil liabilities such as stopping the infringement, compensating for losses and eliminating the impact. In order to safeguard the legitimate rights and interests, in accordance with the relevant laws and regulations to bring the case, request the judgment as requested.
The defendant Fuhe Company replied: First, the defendant company formerly known as Ruian Baidu Trademark Agency Co., Ltd. was established on August 9, 2007, the two plaintiffs had not yet obtained the well-known trademark qualification for the registered trademark involved, and the defendant company's enterprise name was legally registered before; 2. The trademarks applied for registration by the two plaintiffs are not in the 45th category, and the defendant did not know the registered trademarks of the two plaintiffs when registering the company, and subjectively there is no intention of infringement; Third, shortly after the establishment of the defendant company, had paid the plaintiff to carry out Internet search keyword promotion, when the contract with the defendant was an outsider Wenzhou Guoji Technology Co., LTD., the search keyword is "Rui 'an trademark registration", "Wenzhou company agent", etc., can show that the plaintiff has been aware of the existence of the defendant company, but did not raise objections; 4. The business of the defendant company is relatively simple, only involving trademark agency and registration, which does not overlap with the business scope of the two plaintiffs, and will not cause consumers to confuse and misidentify; 5. The defendant's registered scale is small and its business scale is limited, so far it is hovering on the verge of bankruptcy and planning to close its business, indicating that the publicity effect of the "Baidu" trademark has not been demonstrated, and as an independent company, the defendant has no relationship with the plaintiff, nor will it cause confusion and misidentification; 6. The defendant's use of the registered trademark involved in the case is not long, and in the previous administrative cases, law enforcement officers also suggested lenient treatment, which can prove that the defendant has no intention of infringement subjectively; In terms of registration fees, the plaintiff's fee of 1800 yuan was in 2007, when the network was underdeveloped, generally submitted by mail for registration, the registration fee was 1200 yuan, the fee quote was 1800 yuan, and now with the adjustment of the State Intellectual Property Office fees, the fee quote is also reduced, and the registration fee is 270 yuan today.
After the trial, the court found the facts as follows:
1. The basis of the rights of the plaintiff's registered trademark
The plaintiff Baidu Online Company was approved by the State Intellectual Property Office to register No. 1579950 "Baidu" trademark, approved and registered on May 28, 2001, and renewed to be valid until May 27, 2031, approved for use in Class 42: Computer programming; Computer software design; Computer database access time rental; Computer software rental; Computer system analysis; Provide translation services by means of computer information network; Providing legal information in the form of computer information network; Provide computer information in the form of computer information network; Provide technical research information by means of computer information network.
The plaintiff Baidu Online company was approved by the State Intellectual Property Office registration No. 4096733"
”Trademark, registered on 14 July 2007, renewed until 13 July 2027, approved for use in Class 42: Computer programming; Computer software design; Computer system analysis; Computer program copying; Host computer site (website); Data conversion of computer programs and data (non-physical conversion); Provide instant connection services for the exchange of data between computer users; Provide technical research information in the form of computer information network; Providing computer information in the form of computational information networks; Restore computer data (cutoff).
Baidu Online Company (Party A, licensor) and Baidu Online Company (Party B, licensee) signed the Registered Trademark License Agreement. Baidu Online Company, as the right holder of the registered trademark involved in the case, authorized Baidu Online Company to use the "Baidu" trademark No. 1579950 and "Baidu" trademark No. 4096733 held by Baidu Online Company.
”The term of use of a trademark shall be ten years from the date of approval and registration of the trademark. If the trademark is renewed, the term of licensed use shall be automatically extended; The license type is general license, Baidu network communication company has no right to re-license others to use; The class of licensed goods/services is Class 42, limited to all services approved for use; In relation to the rights protection and infringement disputes of the registered trademarks licensed above, Baidu Internet Communication Company has the right to handle alone in its own name or jointly with Baidu Online company, including but not limited to complaints or litigation.
Ii. The popularity and reputation of the plaintiff's registered trademark involved
On August 23, 2006, the Internet Society of China proved that Baidu Online company used Baidu trademark search engine services in China's search engine industry in 2003 market share of 30.7%, 2004 market share of 44.7%, 2005 market share of 34.6%, three years in the same industry first. According to the China Internet Network Information Center, Baidu's preferred market share reached 76.9 percent in 2008; Among high-end users, Baidu's preferred market share increased to 57.9%; In 2008, Baidu relied on the expansion of the number of advertisers and the improvement of the ARPU of advertisers, accounting for 65.3% of the market revenue share. According to the survey of China Internet Network Information Center, Baidu ranked first in the market share of users' preferred (most frequently used) brands in 2009, accounting for 77.2%; In the market pattern of domestic search engine brands in 2009, Baidu's preferred market share increased by 0.3 percentage points annually to 77.2%, ranking in the first echelon. According to the financial report released by Baidu in 2010, the total revenue of Baidu in 2010 was 7.915 billion yuan, an increase of 78% over 2009, accounting for 73.1% of the domestic search engine market revenue. In 2011, Baidu's penetration rate among search engine users reached 98.3%, ranking first in the market. In October 2011, Baidu traffic accounted for 78% of the overall search engine traffic, ranking first in China's search engine traffic.
The 2004 China Search Engine Research report shows that in 2004 China search engine search traffic market share, Baidu accounted for the highest share; In 2004, Baidu accounted for the largest share of the most frequently used search engine websites by Chinese search engine users, at 44.7%; Baidu market share (usage) 33.1%, Baidu market share (revenue) 18.7%. According to the 2005 China Search Engine Annual Report, in 2005 China search engine search traffic market share, Baidu accounted for the highest share, 46.5%; In 2005, Baidu ranked first in the market share of Chinese search engines frequently used by users, with 87.5%. According to iResearch's fifth Internet user survey data, Baidu was the most commonly used search engine by Chinese search engine users in 2005, with a market share of 56.6%; In 2005, Baidu accounted for the largest share of web search user visits, 46.2%; In 2005, Baidu had the highest market share of 65.1% of the user visits to MP3 search. In 2005, Baidu had the highest market share of 52.3% in the number of user visits to image search. In 2005, the number of users visiting news search, Baidu reached 32.9%; Baidu market share (usage) 46.5%, Baidu market share (revenue) 28.7%. 2006 China search engine market share report shows that in 2006 search engine users use page search engine coverage shows that in December 2006 Baidu's coverage accounted for 87.9%, ranking first; In 2006, the number of search engine users using news search engine coverage shows that in December 2006, Baidu's coverage accounted for 67.2%, ranking first; The number of search engine users using image search engine coverage in 2006 shows that Baidu's coverage accounted for 70.2% in December 2006, ranking first; In 2006, the number of search engine users using music search engine coverage shows that in December 2006, Baidu's coverage accounted for 37.2%, ranking first; According to the monthly visits of search engine users using page search engine in 2006, Baidu's monthly visits reached 66.3% of the market share in December 2006, ranking first; According to the monthly visits of search engine users using news search engine in 2006, Baidu's monthly visits reached 71.2% of the market share in December 2006, ranking first. According to the monthly visits of search engine users using image search engine in 2006, Baidu's monthly visits reached 66.9% of the market share in December 2006, ranking first. According to the monthly visits of search engine users using music search engine in 2006, Baidu's monthly visits reached 79.6% of the market share in December 2006, ranking first; According to the monthly visits of search engine users using map search engine in 2006, Baidu's monthly visits reached 26.3% of the market share in December 2006, reaching the first place; Baidu accounted for the largest share of Chinese search engine operators' revenue in 2006, with 55.2%. In 2006, Baidu surpassed Yahoo to become the largest search engine operator in China by revenue. According to the 2007 China search engine market share report, Baidu accounted for 60.4% of the market revenue share in 2007, relying on the expansion of the number of advertisers and the increase of the ARPU of advertisers. According to iResearch Internet users continuous user behavior research system, Baidu web search visits market share reached 68.3% in 2007; At the end of 2007, Baidu further expanded its market share of web search visits, increasing its market share from 65.1% to 71.6%; According to iResearch Internet users continuous user behavior research system, Baidu music search visits market share reached 84.1% in 2007; According to iResearch Internet users continuous user behavior research system, Baidu image search visits market share reached 77.2% in 2007. In 2008, relying on the expansion of the number of advertisers and the improvement of the ARPU of advertisers, Baidu occupied 63.5% of the market revenue share. In 2008, Baidu's web search market requests accounted for 73.2%. Baidu's share of web search requests rose 2.8 percentage points to 76% in 2009. Baidu had 63.9% of the market revenue in 2009. In 2010, China's search engine market concentration increased sharply, and Baidu's revenue share reached 71.7%, an annual increase of 7.8 percentage points; In terms of traffic, Baidu reached 80.6%, an annual increase of 4.6 percentage points. In 2010, relying on existing resources and product advantages and further innovation, Baidu occupied 73.4% of the market revenue share in 2014, and continued to maintain a leading position. In 2010, Baidu gained most of this traffic with its brand influence, and its traffic share increased significantly, monopolizing 80% of the overall traffic in the market. In December 2011, Baidu's revenue share in the global search market surpassed Yahoo for the first time, jumping to the second place with 10.5%. In 2011, Baidu's revenue was 14.5 billion yuan, accounting for 76.8% of the total market size. Net profit of 8.61 billion yuan, net profit rate of 59.4%, up 14.5% compared with 2010; In 2011, Baidu's growth rate was significantly faster than Google, and Baidu's revenue in 2011 was about 1/16.5 of Google's. In 2012, Baidu's revenue was 22.3 billion yuan, accounting for 79.5% of the annual revenue of search engine enterprises, continuing to occupy the leading position in the industry; In 2012, Google led the global search engine with a traffic share of more than 80%, Yahoo is a solid second place, and Baidu is currently the fourth largest search engine in the world.
According to relevant media reports on the market share of China's Internet search engine industry, Baidu's market share in China ranked first in 2003; In 2004, Baidu's market share in China was 45% and revenue share was 37%. In 2004, Baidu's market share in China was 48.3%; In 2005, Baidu's market share was 34.6%, the first choice of users; In 2005, Baidu's market share in China was 46.5%; In 2006, Baidu's market share in China was 66.3%; In 2006, Baidu's market share in China was 53.3%; 2007 Baidu China market share of 60.00%; In 2007, Baidu's market share in China was 60%, 69.5% and 58% respectively. In the last quarter of 2004, Baidu accounted for 33.1% of the use of search engine users, ranking first; In the first quarter of 2005, Baidu accounted for 37.4% of search engine users, ranking first; In the last quarter of 2004, Baidu accounted for 42.9% of the use of web search functions by major search engine users, second only to Google; In the first quarter of 2005, Baidu accounted for 45.3% of the usage of web search functions among major search engine users, surpassing Google and ranking first. From the second quarter of 2004 to the first quarter of 2005, the most commonly used search engine website changes, Baidu for four consecutive quarters of user research proportion of more than 44%, in attracting loyal users, Baidu is in a leading position. According to relevant media reports on the market share of China's Internet search engine industry, Baidu's market share in China in 2008 was 64.4%, 73.2% and 63.4%, respectively. In 2009, Baidu's global market share was 9%, 63.9% and 73.2%, respectively. In 2010, Baidu wireless search market share of 41%; In 2010, Baidu's market share in China reached 70%, 68%, 64% and 70% respectively. In July 2011, Baidu's market share in China reached 81.31%; In 2011, Baidu China wireless search market share of 33.5%; In 2011, Baidu's market share in China was 78.3%; In 2012, Baidu's market share in China reached 80% and 78% respectively. In 2012, Baidu WEB map market share of 49.59%, wireless map market share of 32.57%.
On August 21, 2006, Wang Su, the entrusted agent of the applicant Baidu Online company, applied to Beijing Guoxin Notary Office for evidence preservation of the relevant content contained in the website http://www.archive.org. On the same day, the notary and the notary and Wang Su were in the notary office, and under the on-site supervision of the notary, Wang Su used the notary office computer to carry out a number of operations: open the computer and confirm the normal connection between the computer and the Internet and the printer. Click IE, enter http://www.archive.org in the address bar, press enter to access the page, copy and print the content of the page, type www.baidu.com in the box at the top of the page, click TakeMeBack to enter the page, copy and print the related content. Click the first and last item under "2000", "2001", "2002", "2003", "2004" and "2005" respectively to enter the corresponding page, and copy and print the specific page content. The corresponding page shows that from 2000 to 2005, the registered trademark of No. 1579950 "Baidu" was used continuously. On September 1, 2006, Beijing Guoxin Notary Office issued (2006) Beijing Certificate No. 2405.
On June 15, 2007, Jincheng Jinhuizhong Advertising Media Co., LTD. (Party A) and Baidu Online Company (Party B) signed the "Jinhuizhong Baidu Map Search Cooperation Agreement"; On June 29, 2007, Ctrip Computer Technology (Shanghai) Co., LTD. (Party A) and Baidu Online Company (Party B) signed the "Cooperation Agreement between Ctrip and Baidu"; On July 13, 2007, Beijing Xinhua Longjie Education Technology Co., LTD. (Party A) and Baidu Online Company (Party B) signed the "Cooperation Agreement between Xinhua Education Group and Baidu Company"; On November 6, 2007, Microsoft (China) Co., LTD. (Party A) and Baidu Online Co., LTD. (Party B) signed a digital music technology cooperation agreement; On March 13, 2008, Baidu Online (Party A) and Baofeng Network Technology Co., LTD. (Party B) signed the "Cooperation Agreement"; On April 1, 2008, Lenovo (Beijing) Co., LTD. (Party A) and Baidu Online Co., LTD. (Party B) signed the "Lenovo Outsourcing Service Agreement"; On April 1, 2008, Baidu Online (Party A) signed the "Baidu Alliance Activity Sponsorship Contract" with Chengdu Gongsoft Network Technology Co., LTD. (Party B). On January 14, 2009, Beijing Perfect Time Network Technology Co., LTD. (Party A) and Baidu Online Company (Party B) signed the "Cooperation Agreement between Perfect Time and Baidu"; On April 20, 2009, Baidu Online Company (Party A) signed the "Baidu Alliance Activity Sponsorship Contract" with Youvision (Beijing) Technical Service Co., LTD. (Party B). On April 23, 2009, Baidu Online (Party A) and Qiming Weichuang Investment Consulting (Shanghai) Co., LTD. (Party B) signed the "Baidu Alliance Activity Sponsorship Contract"; On April 21, 2010, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) signed the Baidu Promotion Service Contract with Meizhui Trading (Shanghai) Co., LTD. (Party B). On May 27, 2010, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) and Shanghai Superfast Network Technology Co., LTD. (Party B) signed the Baidu Promotion Service Contract; On July 19, 2010, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) signed the Baidu Promotion Service Contract with Blue Interactive Technology Development (Beijing) Co., LTD. (Party B). On July 26, 2010, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) and Edelway Advertising (Shanghai) Co., LTD. (Party B) signed the Baidu Promotion Service Contract; On January 13, 2011, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) signed the Baidu Promotion Service Contract with Beijing Tengxin Innovation Network Marketing Technology Co., LTD. (Party B). On February 17, 2011, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) signed the Baidu Promotion Service Contract with Shanghai Da Wen Culture Communication Co., LTD. (Party B). On May 4, 2011, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) and Shanghai Bijia Data System Co., LTD. (Party B) signed the "Baidu Promotion Service Contract"; On November 10, 2011, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) and Shanghai Lanfeiyu Advertising Co., LTD. (Party B) signed the "Baidu Promotion Service Contract"; On December 13, 2011, Baidu Online Network Technology (Beijing) Co., Ltd. Shanghai Software Technology Branch (Party A) and Anjieda (Beijing) Consulting Co., Ltd. Shanghai branch (Party B) signed the Baidu Promotion Service Contract; On February 23, 2012, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) signed the "Baidu Promotion Service Contract" with Shanghai Luokesun Culture Communication Co., LTD. (Party B); On February 28, 2012, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) and Shanghai Osanpai Advertising Communication Co., LTD. (Party B) signed the "Baidu Promotion Service Contract"; On April 18, 2012, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) signed the "Baidu Promotion Service Contract" with Shanghai Miruike Medical Beauty Clinic Co., LTD. (Party B). On May 8, 2012, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) and Shanghai Fuge Information Technology Co., LTD. (Party B) signed the "Baidu Promotion Service Contract"; On May 17, 2012, Baidu Online Network Technology (Beijing) Co., LTD. Shanghai Software Technology Branch (Party A) signed the "Baidu Promotion Service Contract" with Shanghai Leli E-commerce Service Co., LTD. (Party B).
According to the relevant search pages, a number of search items under the "Product complete" item on the home page of Baidu's search engine promoted the use of the registered trademark involved. Baidu search engine home page "Baidu Encyclopedia" product home page under the display of registered trademarks involved. The Baidu logo of the important festivals from 2005 to 2006 shows a graphic logo containing the word "Baidu", and the Baidu logo of the important festivals in 2009 and 2012 also shows a graphic logo containing the word "Baidu".
On July 15, 2019, Beijing Chuancheng Law Firm commissioned the Science and Technology Search Center of the National Library to search for the project "Related reports of Baidu in Chinese newspapers and periodicals", and multiple search reports on October 28 and November 28, 2019 respectively showed that In 2004, there were 85 reports related to Baidu in Huike Chinese Preservation Database, 223 in 2005, 133 in 2006, and 182 in 2007. The China Academic Journal Web Publishing Database (Tsinghua Tongfang Knowledge Network) had 34 articles related to Baidu in 2004, 68 in 2005, 57 in 2006, and 69 in 2007.
Published on May 9, 2012, the Internet search report titled "Baidu's development history: Baidu's Home Page photo collection over the years (multiple photos)" shows that the Baidu concept home page photo collection section displays No. 4096733.
”Registered trademark.
According to the relevant webpage records, through continuous investment, the registered trademarks involved in the "Sunshine Action" in 2010, "Rainbow Plan" in 2012, "Baidu Public Welfare Open Platform" in 2011, "Baidu Public Welfare Hour" in 2012, "Baidu Warm Search box" in 2012, and "smoking" in 2011. It was also displayed and promoted in public welfare activities such as "I don't do it" and "Go China" in 2012.
(3) Information on income, profits and taxes
Baidu Online company's 2004 annual audit report shows that its main business income is 101389622.23 yuan, main business profit is 72865363.63 yuan, income tax is 424135.21 yuan; Baidu Online company's 2005 annual audit report shows that its main business income is 288,701,388.41 yuan, main business profit is 230,930790.29 yuan, income tax is 6194,662.84 yuan; Baidu Online company's 2006 annual audit report shows that its main business income of 481020407.51 yuan, main business profit of 371440479.63 yuan, income tax of 28228238.35 yuan; Baidu Online company's 2007 annual audit report shows that its main business income of 630716605.17 yuan, main business profit of 436179380.42 yuan, income tax of 18862896.76 yuan; The annual audit report of Baidu Online Company in 2008 shows that its main business income is 1128800472.26 yuan, the main business profit is 788584102.53 yuan, and the income tax is 57957916.44 yuan. Baidu Online company's 2009 annual audit report shows that its main business income is 1563103513.72 yuan, main business profit is 1086481558.92 yuan, income tax is 81583273.97 yuan; Baidu Online company's 2010 annual audit report shows that its main business income is 2840876661.44 yuan, main business profit is 2255954059.51 yuan, income tax is 141547544.72 yuan; The 2011 annual audit report of Baidu Online Company shows that its main business income is 5526002862.29 yuan, main business profit is 4460022871.90 yuan, and income tax is 498457330.00 yuan. Baidu Online company 2012 annual audit report shows that its main business income 100XXXXXXXX.44 yuan, main business profit 8239208680.40 yuan, income tax 646327272.64 yuan.
(4) Publicity and promotion
On March 31, 2007, Baidu Online (Party A) signed the "Cooperation Contract" with Chengdu Dayu Weiye Advertising Co., LTD. (Party B). On May 14, 2007, Baidu Online Company (Party A) signed the "Cooperation Contract" with Shandong Shiguang Culture Development Co., LTD. (Party B). On June 28, 2007, Baidu Online Company (Party A) and Shanghai Dongjie Advertising Media Co., LTD. (Party B) signed the "Cooperation Contract" to cooperate in publicity and promotion.
On December 7, 2018, Xia Yi, the entrusted agent of the applicant Baidu Online company, came to the Beijing Founder Notary Office and said: In order to safeguard the legitimate rights and interests of the applicant, I hereby apply to the Notary Office for evidence preservation notarization in the process of browsing the relevant web pages. On the same day at the notary office, under the supervision of the notary and the notary office staff, Xia Yi used the computer there to perform several operations: turn on the computer, clear the computer cache, open the Internet Explorer browser, and type "http: / / www.kissbaidu.com/ ", enter the enter key, point to "2003", "2002", "2001", "2000", click on the page "view full article..." ; Enter http://www.cnetnews.com.cn/ in the address bar, enter the enter key, and enter Baidu.com 2002 search keyword list in the search bar. Take a screenshot of the related page and save it to the document. The notary printed the word document entitled "2018.12.7 Webpage Notarization - Evidence of Baidu's propaganda Use before 2003". According to the relevant web pages, before 2003, the home page of Baidu Tieba and other pages in Baidu's search engine, and the festival Logo were continuously used to publicize the "Baidu" trademark No. 1579950 involved in the case. On December 13, 2018, Beijing Founder Notary Office issued (2018) Beijing Founder Notary No. 07403.
On January 8, 2008, Baidu Online Company (Party A) signed a Service Contract with Beijing Ruibo PR Consulting Co., LTD. (Party B), an outsider to the case, agreeing that Party B would provide services at the "Baidu Entertainment Boiling Point 2007 Annual Award Ceremony". On January 18, 2008, Baidu Online Company (Party A) signed the "Cooperation Contract" with Southern Metropolis Daily (Party B), an outsider to the case, agreeing that Party B would publish Baidu advertisements in Southern Metropolis Daily. On January 15, 2009, Baidu Network Communication Company (Party A) and Jiangsu Yingmai Culture and Media Co., LTD. (Party B) signed the "CCTV2009 Spring Festival Gala Cooperation Agreement", agreeing to release Baidu advertisements in the "Congratulatory list title" in the CCTV2009 Spring Festival Gala. On October 25, 2009, Baidu Online Company (Party A) and Beijing Taiping Shengshi Film and Television Advertising Co., LTD. (Party B) signed the "Baidu Image TVC Advertising Video Production Contract", agreeing that Party B would produce advertising videos for Baidu. On December 1, 2009, Baidu Online Company (Party A) signed an Advertising Release Contract with Beijing Tongxuyihe Advertising Co., LTD. (Party B), an outsider to the case, agreeing to publish Baidu advertisements in the Yangtze Evening Post and Liaoshen Evening Post. On May 27, 2010, Baidu Online (Party A) and Groupm (Shanghai) Advertising Co., LTD. Beijing Branch (Party B) signed the Media Service Agreement, agreeing that Party B would prepare media strategy for Baidu and arrange Baidu to place Baidu advertisements on Henan Satellite TV, Liaoning Life Channel and other media. On November 1, 2010, Baidu Online Company (Party A) and Shenzhen Xunlei Network Technology Co., LTD. (Party B) signed the Xunlei Network Advertising Release Contract, agreeing that Party A will place Baidu advertisements on Party B's download tools. On November 2, 2010, Baidu Online Company (Party A) and Shanghai Juli Media Technology Co., LTD. (Party B) signed the "Online Advertising Release Contract", agreeing that Party A will place flash type Baidu advertisements on pplive. In August 2010, Baidu Online Company (Party A) signed a Cooperation Agreement with Qianjun Wanbo (Beijing) Information Technology Co., LTD. (Party B), which stipulated that Party B would promote and report news for Baidu on the homepage of the website. On October 28, 2011, Baidu Online Company (Party A) and Guangzhou Boshi Advertising Co., LTD. (Party B) signed the "2011 New Marketing and Baidu Cooperation Agreement", agreeing that Party B would cover Baidu in the November 2011 issue of its magazine. On December 21, 2011, Baidu Online Company (Party A) and Xinhuanet Co., LTD. (Party B) signed the Advertising Contract, agreeing that Party A will place advertisements on the home page of Party B's website. On April 29, 2012, Baidu Online Company (Party A) signed the Advertising Distribution Agency Contract with Beijing Qicai Tongda Advertising Media Co., LTD. (Party B), an outsider to the case, agreeing that Party A would entrust Party B to publish Baidu map advertisements in Beijing bus bodies for a period of one month. On June 25, 2012, Baidu Online Company (Party A) and Beijing Yuexhang Digital Media Advertising Co., LTD. (Party B) signed the Digital Screen Advertising Publishing Business Contract, agreeing that Party A entrusting Party B to provide digital screen advertising services in the airport terminal. On November 20, 2012, Baidu Online Company (Party A) and Beiqinghang Media Advertising Co., LTD. (Party B) signed the Advertising Production Agreement, agreeing that Party B would produce advertising films for Party A.
1. Corporate honor. In October 2004, Internet Week certified Baidu (www.baidu.com) won the title of "2004 Top 100 Commercial Websites in China" in the 2004 Top 100 Commercial Websites in China. In June 2005, China Electronic Information Industry Development Research Institute China Computer newspaper certification Baidu Online company won the textile, leather industry, clothing, shoes and hats, luggage industry, machinery and industrial manufacturing, toys, gifts, crafts, jewelry industry, medicine, health products, electronics, electricity industry users the most satisfied Internet marketing platform. In June 2005, at the first Internet Marketing Conference of China Electronics and Information Industry Development Institute, Baidu Online company was awarded the engine Baidu was also awarded the top ten cases of China's brand building in 2005. On September 1, 2006, Baidu search engine was awarded the Top Ten innovative software products of China's software industry in 2006. In 2006, Baidu search engine was rated as "the most satisfied Internet bidding ranking marketing platform for enterprise users". In June 2005, at the first Internet Marketing conference sponsored by the China Institute of Electronic Information Industry Development, Baidu Online company was rated as "the most satisfied Internet marketing platform for small and medium-sized enterprise users". In 2005, Baidu Bidding Ranking was rated as "the best online marketing Service of the year" by readers of "China Business News". In December 2005, the organizing committee of China Enterprise Marketing Innovation Award issued the award certificate, which certified Baidu Online company to win the 2005 "China Enterprise Marketing Innovation Award". Baidu Online was also named the most growing emerging company in 2005. The world's largest Chinese search review readers preferred brand search engine. On December 20, 2009, it was awarded the Top 100 Chinese brands list and the top 20 independent innovation brands in the Republic of China for 60 years. In December 2010, it was awarded the best Web Search Engine Award. On August 7, 2010, it was awarded the 2010 Brand China Huabu Award. In January 2011, it was awarded the 2010 Zhongguancun Top Ten Outstanding brands and other awards. In 2012, the company advertising won the Effie Effectiveness Award Bronze. In 2012, the company's advertising won the Gold Award of the Asia Pacific Advertising Special Award of The Times Chinese Advertising Awards. In 2012, "Go China - Baidu Olympic Interactive Marketing" won the Bronze Award of the Asia-Pacific Advertising Special Award of The Times Chinese Advertising Award.
2. Award certificate. In August 2012, Baidu Online Company was ranked 37th in "China's Top 100 Private Enterprise Service Industry". In December 2013, Baidu Netcom's project "A new generation of search engine based on frame computing" was awarded the first prize of the Science and Technology Award of the Chinese Society of Electronics. In August 2014, Baidu Online Company was ranked 23rd among the top 100 Private enterprise service industries in China in 2014. In August 2014, Baidu Online Company was ranked 102nd among China's top 500 Private Enterprises in 2014. In August 2015, Baidu Netcom's project "Research and industrialization of Internet Machine Translation Core Technology based on big Data" was awarded the Science and Technology Award of China Electronics Society. The plaintiff company was also awarded the 2015 Brand China China Spectrum Award. In August 2015, Baidu Online was ranked 19th among China's top 100 Private enterprise service Industries in 2015. In August 2015, Baidu Online Company was ranked 58th among China's top 500 Private Enterprises in 2015. In November 2015, the trademark of Baidu Online company won the "China Trademark Gold Award". In December 2015, Baidu Netcom's project "Internet machine Translation core technology and Industrialization based on big Data" won the second prize of the National Science and Technology Progress Award. In August 2016, Baidu Online Company was ranked 15th among China's top 100 Private enterprise service Industries in 2016. In June 2017, Baidu Network Communication Company was named the 2016 Beijing radio and television public service advertising special support project of the third type of communication institutions. In August 2017, Baidu Online Company was ranked the third in 2017 China's Top 100 Internet Enterprises. In December 2017, Baidu Online company was ranked as the TOP50 listed enterprises of Chinese cultural Enterprise Brand Value in 2017. In August 2017, Baidu Online company was ranked 45th among China's top 500 private enterprises. In August 2017, Baidu Online Company was ranked 20th among China's top 100 private enterprise service industries. In October 2018, Baidu Online Company was ranked 6th in Beijing's Top 100 Private Enterprises in 2017. In October 2018, Baidu Online company was ranked No. 1 in 2017 Beijing's top 100 Private Enterprise cultural Industry. In October 2018, Baidu Online Company was ranked No. 1 in 2017 Beijing Top 100 Private Enterprises for Science and Technology Innovation.
3. Certificate list. On December 5, 2000, Beijing Municipal Commission of Science and Technology issued the "Software Enterprise Certification", which identified Baidu Online company as a software enterprise. On May 25, 2001, Baidu Online Company's Baidu Internet Affairs project was awarded the software product registration certificate. In August 2002, Baidu Online was accepted as a member of China Software Industry Association. On May 19, 2003, Baidu Online was accepted as a group member of Beijing Software Industry Association. On January 1, 2009, Baidu Online Company was rated as A tax credit enterprise. On August 25, 2009, Baidu Online was awarded Zhongguancun High-tech Enterprise. On December 31, 2010, Baidu Online Company was awarded the key software enterprise certificate within the national planning layout. On October 28, 2011, Baidu Online Company obtained the high-tech enterprise certificate.
4. Corporate leadership honors. The leader of the plaintiff company was awarded the title of Top Ten IT Men in China in 2003 and 2004; Top 10 IT Upstarts in 2004; 2004 China Software Industry Outstanding youth; 2005 China Securities Industry Person of the Year; The Most Influential Business Leader 2005-2008; 2009 China Wealth Leader; 2010 Capital Outstanding Talent Award; Top 10 most respected entrepreneurs of listed companies in China in 2010; The Most Influential Business Leader of 2010; 2011 Business Person of the Year; 2012 China Best CEO; The most influential People of 2012.
(6) The record of protection as a well-known trademark
On March 22, 2008, the List of Well-known Trademarks newly recognized by the Trademark Office Business Judge published in the "China Industry and Commerce News" recorded that Baidu Online company uses the "Baidu" registered trademark in the International Classification of Goods and Services for trademark registration to provide Internet search engine services in the form of computer information network as a well-known trademark.
On March 5, 2008, the Trademark Office of the State Administration for Industry and Commerce issued the ruling No. 122 Shang Ping Chi [2008] that Baidu Online company uses the "Baidu" registered trademark in Class 42 of the International Classification of Goods and Services for trademark registration to provide Internet search engine services in the form of computer information network as a well-known trademark.
On June 18, 2020, the State Intellectual Property Office issued (2020) trademark No. 62334 No. 31786215 "Baidu Magic lamp search trademark not registered decision", It is found that the trademark "Baidu" registered by the opponent and used in the service of Class 42 "Providing Internet search engine by means of computer information network" has been well known through publicity and use, and has been awarded Trademark Act Article 13 Protection.
On October 12, 2020, the State Intellectual Property Office issued Shang Pingzi [2020] No. 0000256236 "On No. 17289197 'Yunjiu Baidu YUNJIUBAIDU and Tu' trademark invalidation Request Ruling" affirmed, The trademark "Baidu" of Baidu Online Company was well known to the relevant public in the Category 42 "Provision of Internet search engine services by means of computer information network" before the date of filing of the disputed trademark (June 25, 2015), so the application for registration of the disputed trademark has been constituted in 2013Trademark Act The circumstances referred to in Article 13, paragraph 3.
On October 13, 2020, in the Shang Pingzi [2020] No. 0000256232 "Ruling on No. 18130487 'Famous Liquor Baidu' Trademark Invalidation Request" issued by the State Intellectual Property Office, It is considered that the trademark "Baidu" of Baidu Online Company was known to the relevant public in Class 42 "Provision of Internet search engine services by means of computer information network" before the date of filing of the disputed trademark (October 22, 2015). Therefore, the application for registration of the disputed trademark has been constituted in 2013 Trademark Act The circumstances referred to in Article 13, paragraph 3.
On October 15, 2020, the State Intellectual Property Office issued Shang Pingzi [2020] No. 0000258680 "On No. 22557862 'Aluminum Baidu and Tu' trademark invalidation Request Ruling" that the applicant has accumulated its own reputation on the "Baidu" trademark through continuous publicity and use. The registered use of the disputed trademark (applied for registration on January 9, 2017) will improperly use the goodwill accumulated by the cited trademark and thus damage the interests of the applicant, so the registration of the disputed trademark has constituted 2013Trademark Act The circumstances referred to in Article 13, paragraph 3.
On November 17, 2020, the State Intellectual Property Office issued Shang Pingzi [2020] No. 0000297605 "On No. 19184412 'CHEBAIDU and Tu' trademark invalidation Request Ruling" affirmed, The "Baidu" trademark of Baidu Online Company was known to the relevant public in Class 42 "Provision of Internet search engine services by means of computer information network" before the date of filing of the disputed trademark (March 1, 2016). Therefore, the application for registration of the disputed trademark has constituted 2013 Trademark Act The circumstances referred to in Article 13, paragraph 3.
On December 29, 2020, the (2020) Civil Judgment No. 32 of Xiang 01 Minhua issued by the Intermediate People's Court of Changsha, Hunan Province, determined that Baidu Online's trademark No. 1579950 had reached well-known status before April 25, 2014, and could be identified as a well-known trademark in the case.
On November 25, 2020, the Supreme People's Court issued a civil decision No. 4068 of the Supreme Law, which determined that when the applicant invested in the establishment of the relevant enterprise (December 8, 2005) and applied for the registration of the relevant trademark, the trademark No. 1579950 of Baidu Online Company was already well known to the relevant public in China.
On October 12, 2020, the (2020) Min01 Minchu 88 Civil judgment issued by the Fuzhou Intermediate People's Court of Fujian Province affirmed that before July 19, 2016, the trademark No. 1579960 "Baidu" has become a well-known trademark widely known by the relevant public in China.
On September 15, 2020, the Beijing Intellectual Property Court issued an administrative judgment No. 7721 (2020) Beijing 73 Line Chu, which found that before the filing date of the contested trademark (December 17, 2013), the trademark of "Baidu" had been well known to the relevant public in Class 42 "Providing Internet search engine services by means of computer information network". And has been protected many times.
On September 24, 2020, Beijing Intellectual Property Court issued an administrative judgment No. 11867 (2019), which found that before the filing date of the trademark dispute (November 11, 2013), Baidu Online had been operating and promoting the trademark on a large scale for many years on the service of "providing computer information in the form of computer information network". It has been widely known to the relevant public and has constituted a well-known trademark.
On November 5, 2018, the Shenzhen Intermediate People's Court of Guangdong Province issued the (2013) Shenzhen-China Law Zhimin Chuzi No. 348 Civil Judgment, which found that Baidu Online Company registered and used the trademark "Baidu" No. 1579950 in Class 42 "Providing Internet search engine services by means of computer information network". It has reached famous status no later than August 2009.
On November 19, 2019, the Guangdong Provincial High People's Court issued a civil judgment (2019) No. 1615 of the end of the Yue People's Court, which concluded that "Therefore, the well-known trademark of the Baidu trademark in the case will be examined by the Court of first instance before August 11, 2009, the date of the establishment of Shenzhen Billion Baidu Company, and it is not appropriate." "Even if the well-known review time of Baidu's trademark in this case is advanced to 2006 and even the establishment time of Shenyang Baidu barbecue store claimed by the appellant in December 2005, the evidence in this case is sufficient to prove that Baidu had reached a well-known state at that time."
On November 30, 2020, the Civil judgment No. 9769 (2019) Min 0203 issued by the Siming District People's Court of Xiamen, Fujian Province, concluded that "The disputed domain name was registered on July 25, 2003, before which Baidu took this as the core part of the trademark and enterprise name, and it has a high visibility and influence. And in the relevant public perception has established a specific relationship with the two plaintiffs, and the disputed trademark is recognized as a well-known trademark."
On August 5, 2020, the Civil Judgment No. 9770 (2019) Min 0203 issued by the Siming District People's Court of Xiamen, Fujian Province concluded that Baidu Online Company obtained the exclusive right to use the registered trademark No. 1579950 "Baidu" in 2001, and Baidu Netcom Company was authorized to obtain the right to use the trademark. The "Baidu" trademark has also been identified as a well-known trademark.
On August 21, 2020, the (2020) Beijing Bank Final 2819 Administrative Judgment issued by the Beijing Higher People's Court found that before the filing date of the contested trademark (i.e. November 20, 2012), No. 1579950 "Baidu" trademark was used in the service of "providing computer information in the form of computer information network". It has been widely known to the public in China and constitutes a well-known trademark.
On August 21, 2020, the (2020) Beijing Bank Final 2820 administrative Judgment issued by the Beijing Higher People's Court determined that the trademark No. 1579950 "Baidu" constituted a well-known trademark in the service of "providing computer information in the way of computer information network" before the date of registration of the contested trademark application (that is, September 30, 2016).
On August 17, 2012, the Beijing Higher People's Court issued the (2012) Gao Xing End Word No. 1081 administrative judgment that before the date of application for registration of the disputed trademark (before April 13, 2005), No. 1579950 "Baidu" trademark has become a well-known trademark widely known by the relevant public in China.
On April 6, 2012, the Beijing Intermediate People's Court issued an administrative judgment No. 776 (2012) that before the application for registration of the disputed trademark (before April 13, 2005), The trademark "Baidu" registered and used by Baidu Online in "providing Internet search engine services by computer information network" has become a well-known trademark widely known by the relevant public in China.
On March 10, 2020, Beijing Intellectual Property Court issued an administrative judgment No. 8219 (2019) that Baidu Online Company registered and used the trademark No. 1579950 "Baidu" in the "provision of Internet search engine services by computer information network". Before the date of application for registration of the disputed trademark (November 20, 2012), it has been widely known to the relevant public in China and constitutes a well-known trademark.
On March 10, 2020, Administrative Judgments No. 8215, 8216 and 8217 issued by the Beijing Intellectual Property Court (2019) affirmed that the trademark No. 1579950 of "Baidu" registered and used by Baidu Online in "providing Internet search engine services by means of computer information network", Before the date of application for registration of the disputed trademark (September 30, 2016), it has been widely known to the relevant public in China and constitutes a well-known trademark.
On September 4, 2018, the (2018) Beijing Bank Final 4124 Administrative Judgment issued by the Beijing Higher People's Court found that Baidu Online company registered and used the trademark "Baidu" No. 1579950 in the "provision of Internet search engine services by computer information network" before the application for registration of the disputed trademark (May 21, 2012). It has been widely known to the relevant public in China and constitutes a well-known trademark.
On July 22, 2019, the (2019) Jin 0116 Minchu No. 47 civil judgment issued by the People's Court of Tianjin Binhai New Area affirmed that the "Baidu" trademark and brand name have been relatively well-known and well-known to the public, and Baidu products have also won more praise and honor in the industry.
3. Facts related to the alleged infringement
On September 14, 2020, Zhang Chengcheng, the entrusted agent of the applicant Baidu Online company, said that he needed evidence and applied to the West Lake Notary Office of Hangzhou City, Zhejiang Province for evidence preservation in the browsing process of mobile phone wechat. On September 15, 2020, the notary public and the staff of the Notary Office supervised Zhang Chengcheng to perform several security acts on the mobile phone (brand: Huawei) provided by the Notary Office in the second office of Domestic business Department on the second floor of the Notary Office: In the wechat search, enter "Ruian Baidu trademark" to search for the public number, click the search result "Ruian Baidu Trademark Agency Co., Ltd." to enter the public number, click "Ruian Baidu Trademark Agency Co., Ltd." to view the relevant information of "about the public number", click "pay attention to the public number", enter "Baidu" in the public number search, Click Add Friend in wechat, enter "133XXXX****" to search, the corresponding wechat account information will appear; Enter "135XXXX****" to search, the corresponding micro signal information will appear; The above information is captured, photographed during the corresponding operation, and burned to a CD for sealing. The relevant notarization process shows that the main body of the wechat public account named "Ruian Baidu Trademark Agency Co., LTD." is the defendant, and the wechat public account has published several push articles, such as "Want to play Tiktok? Sorry, please register the trademark first" released on November 8, 2019. On November 9, 2019, the "Business philosophy learned by" Chicken Feathers Flying to the Sky "- The first talk about the full class registration, and on November 12, 2019, the" Double 11 came, Taobao Store was blocked. Why?" On November 13, 2019, "Hangzhou Songcheng" sued Kaifeng "Little Songcheng" for infringement and won 1.5 million Yuan ", and on November 14, 2019, "Attention. New scam of trademark Registration: Your trademark was rejected." At the end of the push articles, the words "Baidu Trademark Agency Co., LTD." are displayed, and the business scope is marked with "trademark registration, patent application, copyright registration, enterprise certification, international registration, brand planning, overseas companies, agency companies, industrial and commercial agents, logo design", etc., and the customer service hotline and mobile phone contact information are also displayed. And "trademark registration · Find Baidu" and other words. According to the notarization and forensics process, the account still published relevant push articles as of March 18, 2021, and showed the words "Baidu Trademark Agency Co., LTD.", "Trademark registration · Find Baidu", and also showed its business scope and contact information. Related search process also shows, enter "133XXXX****" to search, the corresponding wechat account information appears as "Ruian Baidu trademark - Qingqing 133XXXX****"; Enter "135XXXX****" to search, the corresponding wechat message appears as "Ruian Baidu - trademark design - extraordinary". On September 21, 2020, the West Lake Notary Office of Hangzhou City, Zhejiang Province issued the Notary certificate (2020) Zhejiang Hangxi Zhengmin Zi No. 21250.
On September 21, 2020, Wang Weijia, the entrusted agent of the applicant Baidu Online company, said that it used the mobile side forensics system of the Ngenyuan Notary Office of Ningbo City, Zhejiang Province (APP name: Ngenyuan Notarization) to carry out video forensics solid evidence of the relevant status quo of the Wuyue SOHO20 floor of Ruian City, Wenzhou City, and applied to the notary Office for evidence preservation notarization on the same day due to the need for rights protection. The "Video forensics" function of the mobile side forensics system of the notary Office's electronic evidence platform can record real-time video through the mobile phone camera held by the operator, stamp and digitally sign the real-time electronic data, and store it in the notary Office database. The notary Office's mobile forensics system can ensure the originality and integrity of the electronic data obtained. On September 22, 2020, the notary public logged in to the Notary Office's electronic evidence platform management system, applied for the forensics information of the corresponding order number, and took a screenshot to print. On September 27, 2020, the NGERng Notary Office of Ningbo City, Zhejiang Province issued the Notary Certificate (2020) NGERNG No. 21.
On September 14, 2020, Zhang Chengcheng, the entrusted agent of the applicant Baidu Online company, called it fixed evidence and applied to the West Lake Notary Office in Hangzhou, Zhejiang Province for the preservation of the phone call process between him and the relevant personnel. On the same day, under the supervision of the notary public and the staff of the notary office, Zhang Chengcheng used his own mobile phone (No. : 157XXXX****) to dial 12117 time station, and the telephone voice time was reported at 16:29 Beijing time; After the time announcement, Zhang Chengcheng dials 05776585**** and talks with the operator; Zhang Chengcheng dials 135XX****XX and talks with the operator. The staff of the notary Office used the digital camera provided by the notary Office to film the above-mentioned dialling process of Zhang Chengcheng, and obtained a piece of camera data. After the camera data was burned into a CD at the notary Office, the CD was sealed by the notary. On September 21, 2020, the West Lake Notary Office of Hangzhou City, Zhejiang Province issued the Notary certificate (2020) Zhejiang Hangxi Zhengmin Zi No. 21251.
On September 14, 2020, Zhang Chengcheng, the entrusted agent of the applicant Baidu Online company, said that he needed fixed evidence and applied to the notary Office on the same day to preserve evidence during the browsing process of the relevant web pages. On the same day, the notary and staff were in the office of the second Department of Domestic Business on the second floor of the Notary Office, and the notary and staff supervised Zhang Chengcheng's several security behaviors on the computer: In Baidu search, enter "2016 Zhejiang trademark agency application list" to search, click the second link showing "List │2016 Zhejiang trademark agency application list", click to enter; Slide the mouse to browse; Return, in Baidu search, enter "2015 Zhejiang trademark agency volume ranking"; Click to display "2015 Zhejiang Trademark Agency volume ranking", click to display "2015 Zhejiang Trademark Agency volume ranking (top 100) │ Industry │..." Click to enter, slide the mouse to browse the webpage content of "2015 Zhejiang Trademark Agency volume ranking", and print the relevant process. The relevant webpage shows that the defendant (the original name "Ruian Baidu Trademark Agency Co., LTD.") ranked 10th in the list of trademark agency applications in Zhejiang Province in 2016, and 26th in the list of trademark agency applications in Zhejiang Province in 2015. On September 21, 2020, the West Lake Notary Office of Hangzhou City, Zhejiang Province issued the Notary certificate (2020) Zhejiang Hangxi Zhengmin Zi No. 21249.
On May 28, 2021, the Ruian City Market Supervision Administration issued the Ruian City Supervision Office word (2021) No. 10064 Administrative penalty decision, which determined the facts as follows: On October 21, 2020, the law enforcement personnel of the bureau inspected the defendant company according to the complaint of Baidu online company agents. After on-site inspection, law enforcement officers found that the entrance of the company's gate was marked with the words "Baidu trademark", and the company's wechat public account page was marked with the words "Baidu trademark · Find Baidu", which is suspected of violating the provisions of Article 6, paragraph 4 of the Anti-Unfair Competition Law of the People's Republic of China. On November 17, 2020, the law enforcement officers of the Bureau inspected the defendant's business premises in accordance with the law and found that the words "Baidu trademark" had been removed from the door of the company and replaced with the words "Ruian Baidu Trademark Agency Co., LTD.", and the law enforcement officers on the spot browsed the company's wechat public number and found that the original content of the public number had been deleted. No substantive content and links. The bureau believes that the company name of the party, Ruian Baidu Trademark Agency Co., Ltd. and the above behavior are enough to cause people to mistakenly believe that there is a specific connection with others, which belongs to the second item of Article 6 of the Anti-Unfair Competition Law of the People's Republic of China: "Operators shall not carry out the following acts of confusion, (2) Unauthorized use of enterprise names (including abbreviations, shop names, etc.), social organization names (including abbreviations, etc.), names (including pseudonyms, stage names, translated names, etc.) that have certain influence on others;" Provides for acts of unfair competition. Therefore, in accordance with the relevant provisions, ordered the party to register the name change in time after receiving the penalty decision, and before the name change, the bureau replaced its name with a unified social credit code, and decided to give the party a light penalty of 10,000 yuan.
On March 17, 2022, applicant Shen Yan searched for the wechat public account of "Ruian Baidu Trademark Agency Co., LTD.", showing that the main body of the account is an enterprise, the name is Ruian Baidu Trademark Agency Co., LTD., and the unified social credit code/organization code is 91330381666154284R. Search the wechat mini program named "Ruian Baidu Trademark agency" to display the corresponding merchant introduction with words such as "Ruian Baidu trademark - State Trademark Office filing agency" and display the plaque text such as "Baidu trademark". Search for the mini program named "Ruian Trademark Agency" to show that the main body of its account is Ruian Baidu Trademark Agency Co., LTD., the service category is legal service platform, and the specific forensics process is supported by the corresponding trusted time stamp authentication certificate.
Relevant records show that the defendant applied for registration of 2,095 trademarks from October 28, 2020 to October 9, 2021.
According to the fee standard published by the third-party promotion website "Zhongshang 114" on August 24, 2009, the defendant's fee standard for trademark registration fee (application) business is 1,800 yuan/piece. The company also announced the corresponding fee standards for collective, certification trademark registration, cancellation of trademark acceptance fees, trademark review and acceptance fees, trademark opposition fees, trademark infringement fees, acceptance and recognition fees and other services.
4. Information about the subject of the defendant and other relevant information
The defendant's original name is Ruian Baidu Trademark Agency Co., LTD., founded on August 9, 2007, with a registered capital of 100,000 yuan. The original legal representative is Yu Keke. The company changed its name to Wenzhou Fuhe Intellectual Property Agency Co., Ltd. on October 11, 2021, and the current legal representative is Pan Yuliang. Corporate image planning; Copyright agency; Marketing planning; Graphic design; Market subject registration agent; Enterprise management consulting; Brand management; Consulting and planning services; Certification consulting (except for projects subject to approval according to law, independently carry out business activities according to law with business licenses). Licensed items: Patent agency; Certification services (projects subject to approval in accordance with the law may not carry out business activities until approved by the relevant departments, and the specific business projects shall be subject to the approval results).
According to the excerpts of the 2020 National Intellectual Property Service Industry Statistical Survey Report and 2021 National Intellectual Property Service Industry Statistical Survey Report issued by the State Intellectual Property Office, the average operating income of the national intellectual property service agencies in 2018 was 3.315 million yuan, the average profit was 616,000 yuan, and the average operating profit rate was 18.6%. In 2019, the average operating income was 3.514 million yuan, the average profit was 686,000 yuan, and the operating profit rate was 20.2%. In 2020, the average operating income is 3.348 million yuan, the average profit is 539,000 yuan, and the average operating profit rate is 16.1%. The industry average operating profit rate of the national IP service industry in 2018-2020 is 18.3%.
Upon the plaintiff's application, the Court obtained from Ruian City Tax Bureau of the State Administration of Taxation the defendant's ordinary VAT invoice, annual enterprise income tax return, VAT tax return, monthly (quarterly) pre-payment tax return of enterprise income tax from October 2018 to September 2021, etc. The operating income of the defendant company from October 2018 to September 2021 amounted to 1743167.57 yuan.
It was also found that the defendants and their shareholders had applied for a number of registered trademarks.
It is found that the two plaintiffs have paid some reasonable rights protection expenses for the litigation of this case.
The above facts include the trademark registration certificate and trademark approval renewal registration certificate submitted by the two plaintiffs and the registered trademark license agreement; Use of the search products and services of the registered trademark involved, the product homepage of Baidu Encyclopedia, the logo used by the homepage of Baidu website to celebrate important festivals over the years, the Search Report of National Library Science and Technology Search Center from 2000 to 2018, (2006) Notarial Certificate No. 2405, the development history of Baidu and the home page of Baidu over the years, Part of the service contract of the two plaintiffs from 2007 to 2012, audit report from 2007 to 2012, part of the awards and honors won by the two plaintiffs and the "Baidu" website, part of the personal awards and honors won by the leaders and founders of the two plaintiffs, (2018) Notarial Certificate No. 07403 of Jingfang Zhengneijing, The "List of well-known Trademarks newly recognized by the Review and Adjudication Committee of the Trademark Office" published by the A3 version of China Industry and Commerce News on March 23, 2008, the Trademark Chi Chi [2008] No. 122 document issued by the Trademark Office of the State Administration for Industry and Commerce, the trademark objection ruling, the court judgment, and the ruling letter that identified the trademark involved as a well-known trademark. Part of the plaintiff's advertising publishing contracts from 2007 to 2012, advertising sample photos issued by the Internet Society of China on the market share in the industry, excerpts from the China Internet Development Report from 2009 to 2012, iResearch's market analysis report on the Chinese search engine industry from 2004 to 2012, Some media reports on the market share of China's Internet search engine industry, Xinhua's report on Baidu's election as the top ten cases of China's brand Building in 2005 and Baidu's participation in the evaluation, some qualification certificates obtained by the two plaintiffs, information introduction of public welfare activities, public welfare awards and related reports; (2020) Notary Certificate No. 21250, 21251, (2020) Notary Certificate No. 21, Zhejiang Yong Certificate; In recent years, the defendant's part of the business agent list, the Swiss City Supervision Office word (2021) No. 10064 administrative penalty decision, IP360 forensic data preservation certificate, preservation documents, video of the forensic process, (2020) Zhejiang Hangxi Xinmin Word No. 21249 notarial certificate, the defendant through the media reported some negative news, the defendant involved in the court ruling; The defendant's wechat public account and mini program time stamps, video screenshots; The defendant company from October 12, 2018 to October 11, 2021 agent trademark registration application inquiry form; The defendant's trademark business and fee standard time stamp; Legal service entrustment contract, attorney fee invoice; From 2004 to 2006, Baidu Online company capital verification Report, excerpts from the 2020 National Intellectual Property Service Industry Statistical Survey Report, excerpts from the 2021 National Intellectual Property Service Industry Statistical Survey Report, trademark details applied by the defendant, trademark details applied by the defendant's shareholders Pan Xiaoyu and Yu Keke, and the defendant's legal representative Pan Yuliang, And the parties' statements and other documented evidence to corroborate.
In addition, the defendant also submitted a screenshot of wechat chat records and payment records at the trial to prove that the defendant had paid the plaintiff to pay for the promotion of Internet search keywords at the beginning of its establishment, the search keyword was "Rui 'an trademark registration" and "Wenzhou company agent", and the company that signed the contract with the plaintiff was Wenzhou Guoji Technology Co., LTD., an outsider in the case. The two plaintiffs have objections to the authenticity and relevance of their cross-examination. After examination, the court found that the aforementioned keywords used by the defendant did not contain the word "Baidu", and the behavior of paying to promote the Internet search keywords had no legal correlation with the infringement facts accused in this case, which could not prove that the two plaintiffs agreed with the defendant to use "Baidu" as a trademark or enterprise name. These evidences are difficult to achieve the purpose of the defendant's proof, the court does not consider.
The Court believes that this case is a dispute of infringement of trademark rights and unfair competition. The focus of the dispute in this case is: (1) Whether the trademark involved constitutes a well-known trademark; (2) Whether the alleged infringement infringes on the plaintiff's exclusive right to use the registered trademark involved and whether it constitutes unfair competition; 3. What civil liability should the defendant bear if infringement is constituted?
1. Whether the trademark involved constitutes a well-known trademark
(1) Whether it is necessary to initiate judicial recognition of well-known trademarks for the two trademarks involved in this case
In line （accordance） with Trademark Law of the People's Republic of China Article 13, paragraph 1, where the right holder believes that the relevant rights of a trademark that has been well known to the relevant public have been infringed, he may request protection of a well-known trademark according to law. For well-known trademarks that are well known to the public, the law gives a higher level of cross-class protection than ordinary trademarks. In addition, according to the provisions of Article 2 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Dispute Cases involving the protection of well-known Trademarks, the right holder takes the well-known trademark as the factual basis for violation by the accused infringer Trademark Law of the People's Republic of China In a lawsuit brought for infringement of trademark rights on the basis of the provisions of Article 13, the people's court may make a determination as to whether the trademark concerned is well-known or not if it deems it really necessary in the light of the specific circumstances of the case.
The two plaintiffs requested identification of the "Baidu" trademark No. 1579950 and No. 4096733 involved“
”The trademarks are well-known trademarks, both trademarks contain the word "Baidu", and the service items approved for use are Class 42. No. 1579950 "Baidu" Baidu trademark approval services include computer programming; Computer software design; Computer database access time rental; Computer software rental; Computer system analysis; Provide translation services by means of computer information network; Providing legal information in the form of computer information network; Provide computer information in the form of computer information network; Provide technical research information by means of computer information network. Number 4096733"
”Trademark approval services include computer programming; Computer software design; Computer system analysis; Computer program copying; Host computer site (website); Data conversion of computer programs and data (non-physical conversion); Provide instant connection services for the exchange of data between computer users; Provide technical research information in the form of computer information network; Providing computer information in the form of computational information networks; Restore computer data (cutoff). The aforementioned service items and the business scope of the defendant "General items: trademark agency, corporate image planning, copyright agency, marketing planning, graphic design, market subject registration agent, enterprise management consulting, brand management, consulting planning services, certification consulting (in addition to the projects subject to approval according to law, independently carry out business activities according to law with business licenses); License items: patent agency, certification services (according to law, subject to approval of the relevant departments before the approval of business activities, specific business projects subject to the approval results) and engaged in trademark, copyright, patent agency and other intellectual property services as well as enterprise management consulting, planning services are classified into different categories. In this case, the earliest time node of the alleged infringement occurred was August 2007, which was No. 4096733“
”The registration time of the trademark is only a few months, and the use of the alleged infringement is "Baidu" text, rather than containing“
”The graphic identification of the words. Therefore, if the "Baidu" trademark No. 1579950 registered earlier (that is, May 2001) can be identified as a well-known trademark, it is enough to enable the two plaintiffs to obtain adequate relief, so the case only needs to examine whether the "Baidu" trademark No. 1579950 of the two plaintiffs is well-known at the time of the alleged infringement, without the need to examine No. 4096733“
”Whether the trademark is well-known shall be determined. Accordingly, whether the alleged infringement infringes on No. 4096733 based on the principle of cross-class protection of well-known trademarks“
”Trademark exclusive right, the court will no longer review.
(2) The "Baidu" trademark No. 1579950 involved in the case has met the standards for recognition of well-known trademarks
In line （accordance） with Trademark Law of the People's Republic of China Article 14 provides that the determination of a well-known trademark shall take into account the extent to which the relevant public is aware of the trademark, the duration of the use of the trademark, the duration, extent and geographical scope of any publicity work of the trademark, the record of the protection of the trademark as a well-known trademark, and other factors in which the trademark is well-known. According to the provisions of Article 4 and 5 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving the Protection of Well-known Trademarks, the people's court shall determine whether a trademark is well-known on the basis of the fact that it is well-known and take it into comprehensive consideration Trademark Law of the People's Republic of China The factors provided for in Article 14, except where the circumstances of the case do not require consideration of all the factors provided for in that article to be sufficient to determine that the mark is well-known. Where the party claims that the trademark is well-known, it shall, according to the specific circumstances of the case, provide "the market share, sales area, profits and taxes of the goods in which the trademark is used, the duration of the use of the trademark, the mode, duration, degree, capital investment and geographical scope of the publicity or promotional activities of the trademark, and the record that the trademark has been protected as a well-known trademark." The market reputation enjoyed by the mark and other facts proving that the mark is well known ". Article 7 (1) of the judicial interpretation provides that: where a well-known trademark has been recognized by a people's court or administrative department before the alleged infringement of trademark rights or acts of unfair competition occurred, and the defendant does not object to the fact that the trademark is well-known, the people's court shall recognize it. Article 8 of the judicial Interpretation provides that: For a trademark that is well known to the public within the territory of China, where the plaintiff has provided basic evidence that its trademark is well-known, or the defendant does not object, the people's court shall confirm the fact that the trademark is well-known. The defendant in this case was established on August 9, 2007, combining the market share, profits and taxes of the two plaintiffs in using the registered trademark services involved, the continuous use time of the registered trademark involved, the relevant publicity of the registered trademark involved and the degree of public awareness of the trademark involved, the record of the registered trademark protection by well-known trademarks, and the market reputation of the registered trademark services and rights subjects involved, etc. It is enough to determine that the trademark No. 1579950 "Baidu" involved in the case has been widely known to the relevant public in China after a long period of publicity and use, and it should be determined that the trademark has reached a well-known degree in 2007 when the alleged infringement occurred.
(2) Whether the alleged infringement infringes on the plaintiff's exclusive right to use the registered trademark involved and whether it constitutes unfair competition
(1) Whether the defendant constitutes trademark infringement
In line （accordance） with Trademark Law of the People's Republic of China Article 57 (7), Article 1 (2) of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes Concerning Trademarks, and Article 10 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving the Protection of Well-known Trademarks, Where copying, imitating or translating a well-known trademark registered by another person or its major part is used as a trademark on different or dissimilar goods, misleading the public and causing possible damage to the interests of the well-known trademark registrant, it shall be an act that causes other damage to the exclusive right to use a registered trademark of another person. Where the plaintiff requests that the defendant be prohibited from using a trademark or enterprise name identical with or similar to the plaintiff's well-known registered trademark on dissimilar goods, the people's court shall, in light of the specific circumstances of the case, make a decision after taking into account the following factors: (1) the degree of prominence of the well-known trademark; (2) the extent to which the well-known trademark is known to the public in relation to the goods using the trademark or the name of the enterprise against which the lawsuit is filed; (3) the degree of connection between the goods using the well-known trademark and the goods using the trademark or enterprise name against which the lawsuit is filed; (4) Other relevant factors.
The plaintiff clearly accused of infringing the trademark rights involved in the case: the defendant used "Baidu trademark" in the two-dimensional code of the wechat public account, used the words "trademark registration · Find Baidu" in the poster of the wechat public account, and used the words "Baidu trademark" and "find Baidu for trademark" in the poster, door header and plaque of the wechat mini program; By registering a large number of trademarks for sale, the defendant and its shareholders defamed the market reputation of the plaintiff's well-known trademarks.
In this regard, the analysis of the court is as follows: In this case, No. 1579950 "Baidu" trademark has reached a well-known state at the time of the alleged infringement. In addition to the recognition function of ordinary trademarks, well-known trademarks can also show the good quality of the goods and services they mark, and should be given stronger protection. When providing intellectual property services, the defendant used "Baidu trademark" in the QR code of the wechat public account operated by it, the words "Trademark Registration · Find Baidu" in the poster on the wechat public account, and the words "Baidu trademark" and "find Baidu for trademark" in the poster, door header and plaque of the wechat mini program operated by it. It plays an indicative role in the relevant public identification of service sources, which belongs to the use behavior in the meaning of trademark law. Among them, a significant part of the word "Baidu" is the same as the word trademark of "Baidu" No. 1579950 involved in the case, which constitutes a copy of the well-known trademark involved. Although the intellectual property services provided by the defendant are neither the same nor similar to the category of registered trademark approval services involved in the case, the registered trademark involved in the case has constituted a well-known trademark with high visibility and market reputation and is widely known by the relevant public. In addition, the defendant prominently used the trademarks involved in the case and publicized them in such ways as "Baidu trademark", "Trademark registration · Find Baidu" and "find Baidu if you want the trademark", and actively associated the services it provided with the trademarks involved in the case. Moreover, the defendant and its shareholders had registered a large number of trademarks for sale, so the use of "Baidu" could easily lead to confusion among the relevant public about the source of the services. It is mistaken that the services provided by the use of the accused infringing marks come from the plaintiff Baidu Online Company, Baidu Netcom Company, or there is a specific association relationship with the two plaintiffs, which constitutes misleading to the relevant public. The defendant argued that its use of the word "Baidu" was known and approved by the plaintiff, including that it had purchased search ranking keywords from the plaintiff and signed an agreement with Wenzhou Guoji Technology Co., LTD., an outsider to the case, so it could be reasonably trusted that the use had been known and approved by the plaintiff. In this regard, the court held that the evidence on the record shows that the defendant paid for the Internet keyword promotion did not authorize it to use the "Baidu" trademark No. 1579950 in the intellectual property services outside the cooperation content. At the same time, the trademark authorization generally does not exist in the way of presumptional and implied, so the defendant has no right to use the two trademarks. There is no reasonable reason to believe that it has obtained authorization to use the trademark in question.
To sum up, the defendant, knowing that the two plaintiffs involved in the case of No. 1579950 "Baidu" trademark has a high reputation, still copied the trademark without permission to use, subjectively there is fault, its use of the accused infringing mark, constitutes an infringement of the two plaintiffs No. 1579950 "Baidu" well-known trademark.
(2) whether the defendant constitutes unfair competition
The plaintiff was explicitly accused of unfair competition acts: the defendant's business name before the change of name "Ruian Baidu Trademark Agency Co., LTD." is without the plaintiff's permission, the plaintiff's well-known trademark "Baidu" as a brand, misleading the public, enough to cause people to mistakenly believe that there is a specific connection with the plaintiff, constituting an act of unfair competition as stipulated in Article 6, paragraph 4 of the Anti-Unfair Competition Law. The defendant's wechat public account name "Ruian Baidu Trademark Agency Co., LTD." and the author's wechat public account name "Ruian Baidu Trademark" belong to the well-known trademark "Baidu" as an identifiable element in the wechat public account name and the author's name without the plaintiff's permission, misleading the public. It is enough to cause people to mistakenly believe that there is a specific connection with the plaintiff, and it also constitutes an act of unfair competition under Article 6, paragraph 4 of the Anti-Unfair Competition Law.
The court considers that，Trademark Law of the People's Republic of ChinaArticle 58: "Where a registered trademark or an unregistered well-known trademark of another person is used as a shop name in an enterprise name, misleading the public and constituting an act of unfair competition, it shall be dealt with in accordance with the Anti-Unfair Competition Law."”Anti-unfair Competition Law of the People's Republic of ChinaArticle 6, Paragraph 4, stipulates: "Business operators shall not carry out other acts of confusion that are sufficient to cause people to be mistaken for another person's goods or have a specific connection with another person, or cause people to be mistaken for another person's goods or have a specific connection with another person." Decision of the Supreme People's Court on ApplicationAnti-unfair Competition Law of the People's Republic of China Article 13, paragraph 2, provides: "Where a business operator uses another person's registered trademark or unregistered well-known trademark as a shop name in an enterprise name and misleads the public in such confusion as to cause people to be mistaken for another person's goods or to have a specific connection with another person, the people's court may make a determination in accordance with paragraph 4 of Article 6 of the Anti-Unfair Competition Law."
In this case, the well-known trademarks of the two plaintiffs involved in the case were registered first, and after years of continuous publicity and use, they already had high visibility and influence when the defendant company was established. The defendant knew that the well-known trademark involved in the case had enjoyed prior popularity and good reputation, but still registered and used it as a store name in the original enterprise name, and used it as an identifiable component of the name of the wechat public account and the name of the author, subjectively with the intention to cling to the goodwill of others. Objectively, it is easy to cause the relevant public to mistake it for having a certain relationship with the two plaintiffs, resulting in confusion and misidentification, which violates the principle of honesty and credit that should be followed as a market operator, and damages the legitimate rights and interests of Baidu Online company and Baidu Netcom company. The defendant argued that it did not know the registered trademark of the two plaintiffs at the time of registration, the enterprise name was legally registered before, the lack of facts and legal basis, and its behavior has constituted unfair competition.
3. What civil liability should the defendant bear
About taking responsibility. The defendant infringes on the trademark rights of Baidu Online Company and Baidu Netcom Company, and constitutes unfair competition, and shall bear the corresponding civil liability. In view of the fact that the defendant has taken the initiative to stop using the original enterprise name "Ruian Baidu Trademark Agency Co., LTD." and the plaintiff has also abandoned the litigation request for the infringement, the court will no longer rule that it stop using the original enterprise name.
About the amount of compensation. The plaintiff believes that the defendant, as a company engaged in intellectual property-related business, should know the popularity of the "Baidu" trademark, and the defendant claims that it has done keyword promotion in the Baidu search engine after its establishment, but still uses the same words as the plaintiff's well-known registered trademark "Baidu" in its business name, wechat public number name and business publicity posters, mini programs, door headings, plaques, etc. Constitute trademark infringement and unfair competition, belong to the knowledge of the law, malicious degree is obvious. The defendant used the "Baidu" trademark for up to 14 years from its establishment in 2007 to the change of the company name in 2021, and the infringement lasted for a long time, a wide range and a serious case, so punitive damages should be applied. According to the 2,095 trademark registration applications of the defendant in the three years before the name change × the fee standard publicized by the defendant of 1,800 yuan/piece × the average profit rate of the national intellectual property service industry from 2018 to 2020 of 18.3%, the operating profit is 690,000 yuan, which is used as the base of punitive damages, and the maximum punitive damages are applicable. The amount of punitive damages is 4.14 million yuan. This part is only the profit of the defendant's trademark application business. As a trademark agency, the defendant's business also includes trademark opposition, trademark review, trademark litigation, etc. Considering the profit of this part of business, the lawsuit requested the court to order the defendant to compensate the two plaintiffs for economic losses of 5 million yuan and reasonable costs of 100,000 yuan, which has legal and factual basis.
With regard to the punitive damages claimed by the plaintiff, the Court held that Article 1185 of the Civil Code of the People's Republic of China provides that: "Where the intellectual property rights of others are intentionally infringed and the circumstances are serious, the infringed person has the right to request corresponding punitive damages." Article 1, paragraph 1, of the Interpretation of the Supreme People's Court on the Application of Punitive Damages in the Trial of Civil Cases of Infringement of Intellectual Property Rights provides that: "Where the plaintiff claims that the defendant intentionally infringes its intellectual property rights lawfully enjoyed and the circumstances are serious, and requests the defendant to bear the liability for punitive damages, the people's court shall examine and handle the case according to law."Trademark Law of the People's Republic of China Article 63 (1) : "The amount of compensation for the infringement of the right to exclusive use of a trademark shall be determined according to the actual losses suffered by the right holder as a result of the infringement; If the actual loss is difficult to determine, it may be determined in accordance with the interests the infringer has obtained as a result of the infringement. If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined by reference to the multiple of the license fee of the trademark. Where the right to exclusive use of a trademark is maliciously infringed, and the circumstances are serious, the amount of compensation may be determined at not less than one time but not more than five times the amount determined in accordance with the above-mentioned methods. The amount of compensation shall include reasonable expenses paid by the right holder to stop the infringing act."Anti-unfair Competition Law of the People's Republic of ChinaArticle 17 (3) provides: "The amount of compensation for a business operator injured by an act of unfair competition shall be determined on the basis of the actual losses it has suffered as a result of the infringement; If the actual loss is difficult to calculate, it shall be determined according to the benefits the infringer has gained from the infringement. Where a business operator maliciously infringes on trade secrets and the circumstances are serious, the amount of compensation may be determined at not less than one time but not more than five times the amount determined in accordance with the above-mentioned methods. The amount of compensation shall also include reasonable expenses paid by the operator to stop the infringing act."
The court noted that the fee standard of the trademark registration business involved in the plaintiff through the third-party promotion website "Zhongshang 114" query evidence, the release date is August 24, 2009, the defendant said that the standard is more than ten years ago, the current fee is only about four or five hundred yuan, in the absence of other effective evidence to support the case, The fee standard of 1800 yuan is difficult to be used as the base basis for determining punitive damages in this case. Therefore, it is difficult to determine the base of punitive damages in this case based on the available evidence.
In addition, in view of the fact that the two plaintiffs have not provided evidence to prove the losses suffered due to the infringement and the specific amount of the defendant's profits from the infringement, the court applies statutory compensation in light of the actual situation of the case, and notes that the trademark of "Baidu" No. 1579950 involved in the case is a well-known trademark, in which "Baidu" is both the name of Baidu Online company and Baidu Netcom company. The popularity of trademarks and names radiates and influences each other, which are widely known to the relevant public. The defendant takes the initiative to associate the services provided by himself with the registered trademarks involved, and combined with the nature and characteristics of the intellectual property services provided by the defendant, objectively, the market confusion caused by the infringement is more likely. On this basis, factors such as the degree of subjective fault of the defendant and the severity of the circumstances of the tort are comprehensively considered, in particular: 1. As a company engaged in intellectual property-related business, the defendant registered "Baidu" as the shop name in the original enterprise name without justifiable reasons, and failed to fulfill its duty of reasonable care to avoid the registered trademark involved in the business process after its establishment, even when it claimed to have used Baidu search engine for keyword promotion after its establishment. Still use the same words as the well-known trademark "Baidu" in its enterprise name, wechat public account name and business publicity posters, mini programs, door headers, plaques, etc., subjective attachment to the corporate reputation and service reputation of the two plaintiffs, "free-riding" intention is obvious, and can be identified as infringing intent; 2. The defendant has committed infringement since its establishment in 2007. Only among the 2,095 trademarks applied for by the defendant from October 2018 to September 2021, the scope of enterprise customers involved 11 provinces and cities including Zhejiang, Shanghai, Anhui, Fujian, Shandong, Hebei, Guangdong, Jiangxi, Jiangsu, Chongqing and Beijing, and the infringement lasted for a long time. A wide range; 3. The "Baidu" trademark No. 1579950 involved in the case is a well-known trademark with high visibility and reputation; 4. Considering the complexity of the case, the actual workload, and the actual expenses of lawyers, the plaintiff did pay a certain amount of reasonable expenses for defending his rights; 5. The defendant has taken the initiative to stop using the original enterprise name "Ruian Baidu Trademark Agency Co., LTD."; It is determined that the defendant shall compensate the plaintiff for the economic loss of 500,000 yuan, and bear the reasonable expenses of 100,000 yuan for the plaintiff's rights protection, totaling 600,000 yuan.
As for the plaintiff's request to order the defendant to publish an apology statement for 30 consecutive days on the top of his wechat public account and in the national media (which in the trial was clearly the China Market Supervision Newspaper), the Court considers that the evidence on the record is difficult to prove that the alleged infringement has caused material damage to the plaintiff's personal rights and interests. And the defendant has taken the initiative to stop using the original enterprise name "Ruian Baidu Trademark Agency Co., LTD.", so the appeal is no longer supported by the judgment.
In summary, according to Trademark Law of the People's Republic of China (as amended in 2019) Article 13, paragraph 1, Article 14, paragraph 1, Article 58, and Article 63,Anti-unfair Competition Law of the People's Republic of China(Amended in 2019) Article 6 (2), (4), and (17), Article 1 (2) of the Interpretation of the Supreme People's Court on Several Issues Relating to the Application of Law in the Trial of Cases Involving Civil Disputes over Trademarks, Articles 2, 4, 5, and 7 of the Interpretation of the Supreme People's Court on Several Issues Relating to the Application of Law in the Trial of Civil Disputes Involving the protection of Well-known Trademarks, Article 13 (2) of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of the Law of the People's Republic of China against Unfair Competition, and Article 67 (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
First, the defendant Wenzhou Fuhe Intellectual Property Agency Co., Ltd. immediately stop the infringement of the exclusive right to use the registered trademark of No. 1579950 "Baidu" and unfair competition, including stopping the use of "Baidu trademark" in the QR code of the wechat public account involved in the case, stop using the words "Trademark registration · Find Baidu" in the poster of the wechat public account involved in the case. Stop using the words "Baidu trademark" and "to find Baidu" on the poster, door header and plaque of the wechat mini program involved in the case, stop using the account name of "Ruian Baidu Trademark Agency Co., LTD." in the wechat public account involved in the case, stop using the author name of "Ruian Baidu Trademark" in the article published on the wechat public account involved in the case;
2. The defendant Wenzhou Fuhe Intellectual Property Agency Co., Ltd. shall compensate the plaintiff Baidu Online Network Technology (Beijing) Co., Ltd. and Beijing Baidu Netcom Technology Co., Ltd. for economic losses of 500,000 yuan and reasonable rights protection costs of 100,000 yuan, a total of 600,000 yuan, within 10 days from the effective date of this judgment;
Third, the plaintiff Baidu Online Network Technology (Beijing) Co., LTD., Beijing Baidu Netcom Technology Co., LTD.
If the payment obligation is not fulfilled within the period specified in this judgment, it shall be in accordance with Article 260 of the Civil Procedure Law of the People's Republic of China and the relevant judicial interpretation. Double the payment of the interest on the debt for the period of late performance (double part of the interest on the debt = the pecuniary debt, other than interest on the general debt, as determined by the legal instrument in force in which the debtor has not yet paid it).
Case acceptance fee of 47,500 yuan, property preservation fee of 5,000 yuan, a total of 52,500 yuan, by the plaintiff Baidu Online network Technology (Beijing) Co., Ltd. and Beijing Baidu Network information Technology Co., Ltd. jointly bear 23,162 yuan, the defendant Wenzhou Fuhe Intellectual Property Agency Co., Ltd. bear 29,338 yuan.
If the parties are not satisfied with this judgment, both parties may, within 15 days from the date of service of the judgment, submit an appeal to the court, and submit copies according to the number of the other party, and appeal to the Zhejiang Provincial Higher People's Court.
People's juror Yan Dongmiao
(Source: Shenzhen Trustworthy comprehensive China Judgment Document Network, intellectual industry)
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