Basic case
The plaintiff Lanzhou Foci Company is a joint-stock company established by the former Shanghai Foci Pharmaceutical Co., LTD., which moved west to Lanzhou in 1956. It is a manufacturer of many well-known traditional Chinese medicine products and was named "Chinese Time-honored Brand" by the Ministry of Commerce in December 2006. On April 21, 1996, the "Foci" trademark was registered and continues to be used by Foci.
The defendant, Xi 'an Foci Company, is a limited company registered and established in September 2006, mainly engaged in the production and manufacture of disinfection and topical drugs. In addition to labeling its products with its factory name, the company mainly uses its own "Jian Jian" trademark. In 2011, Lanzhou Foci Company and Xi 'an Foci Company had communication and negotiation on the issue of enterprise name, but ultimately did not reach an agreement.
The plaintiff believes that the defendant infringes on its legitimate rights and interests, and appeals to the court for an order: the defendant stops infringing on the plaintiff's "Foci" China Time-honored brand and the exclusive right to use the "Foci" trademark, the defendant changes its business name and publishes it in the newspaper to eliminate the impact, and compensates the plaintiff for reasonable losses including rights protection costs.
The defendant argued that it did not constitute infringement and should not be liable for compensation. The name of Xi 'an Foci Company originates from the sense of "I Buddha compassion" slogan when the company founder went out to play, which is not the attachment of the plaintiff's name and does not have infringement malicious intent. Moreover, the company always uses the company's full name and the company's own trademark on its products, never highlighting the use of the word "Buddha Ci".
Focus of the case
Xi 'an Foci Company registered "Foci" trademark as an enterprise name registered by Lanzhou Foci Company should be a trademark infringement act? Or an act of unfair competition?
Hearing of the case
First of all, to determine whether it constitutes trademark infringement. Although the defendant Xi 'an Foci Company marked the full name of the enterprise in many places on its product packaging, the font used was uniform and consistent, which belonged to the legitimate indication of the real name of the product manufacturer. Moreover, on the outer packaging, Xi 'an Foci Company used its own registered trademark "Jian Jian", and did not use the word "Foci" prominently. Therefore, the average consumer obviously will not think that Xi 'an Foci Company uses the "Foci" trademark on the product packaging, or the "Jian Jian" and the "Foci" trademark constitute confusion.Therefore, Xi 'an Foci Company did not infringe upon the plaintiff's exclusive right to use the registered trademark "Foci".
Secondly, judge whether it constitutes unfair competition. The main business of Xi 'an Foci Company and the production and operation field of Lanzhou Foci Company are highly overlapping, and both have the duty of care to respect the legitimate rights and interests of others in the business field of the same industry and make appropriate avoidance. Since moving to Lanzhou in 1956, Lanzhou Foci Company has been engaged in pharmaceutical research and development, manufacturing and sales business, with a wide range of products and a wide range of sales. Lanzhou Foci Company's enterprise name and registered trademark of "Foci" have strong influence and significance. Xi 'an Foci Company has the objective conditions to understand or contact Lanzhou Foci Company in terms of business field, geographical location and time interval. Under such circumstances, if Xi 'an Foci Company adopts a highly similar corporate name to Lanzhou Foci Company, the relevant consumers may mistake Xi 'an Foci Company as a local affiliated enterprise of Lanzhou Foci Company, or there are other close and specific connections, which will lead to misidentification and confusion of the relationship between the two companies. At the same time, because the word "Buddha Ci" is not an inherent Chinese word, it is rarely used in daily life, so it has a high degree of originality and differentiation. In this case, Xi 'an Foci Company is obviously not convincing enough to explain the reason and rationality of using the word "Foci" in its enterprise name. Therefore,It can be concluded that Xi 'an Foci Company in the registration, unauthorized use of Lanzhou Foci company has a certain influence of the enterprise name and registered trademark "Foci" behavior constitutes unfair competition to Lanzhou Foci Company, should bear the corresponding civil liability.
verdict
In the end, the court ordered the defendant Xi 'an Foci Company to stop using the word "Foci" in the company name, product packaging and description, to publish the company name change statement in the China Market Supervision News, and to compensate the plaintiff Lanzhou Foci Company for damages including reasonable rights protection costs. After the judgment was made, neither the original nor the defendant filed an appeal.
The judge said the law
Registered trademarks and business names play similar legal roles in market economic activities. Both of them are designed to distinguish the goods and services provided by specific producers and operators from other operators, so that the relevant public can effectively identify the providers of specific goods or services, so as to guide consumption choice and provide quality assurance. It is one of the controversial issues in the field of intellectual property law to judge the legal liability of using another person's registered trademark as an enterprise name. In judicial practice, the main legal fact to distinguish the two depends on whether there is a prominent use of other people's registered trademarks in the name, specifically, it can produce two different legal results:
First, the unauthorized registration of another person's registered trademark as an enterprise name, standardized use of the enterprise name in business activities, did not carry out prominent use of the registered trademark part of the behavior. When the relevant public comes into contact with such goods or services, they will often not form the first impression that the goods or services come from the registered trademark holder, which will not constitute trademark infringement. However, the use of another's registered trademark as an enterprise name generally constitutes the similarity with another's trademark, product, service or name, which leads the relevant public to mistakenly believe that there is a specific relationship between the two, such as licensing, cooperation, joint venture, etc., resulting in improper attachment and use of others' goodwill. Therefore, the people's court will generally find such acts as acts of unfair competition,The perpetrator shall bear the legal responsibility under the anti-unfair competition law.
Second, the registration of another person's registered trademark as an enterprise name, prominent use in business activities, will constitute Trademark Act The act of "trademark use" as provided for in Article 48. Actions such as highlighting, enlarging or placing the words identical with others' registered trademarks in the most prominent position of the product packaging will often mislead consumers, and lead the relevant public to mistake the relevant prominent part of the enterprise name for others' trademarks, thus incorrectly identifying the source of the goods and thus deviating from the general unfair competition behavior. It constitutes "trademark use" in the meaning of trademark law. Therefore, the people's court will determine when trying such casesThe doer shall bear the liability of trademark infringement ultimately.
Source: Xi 'an Intermediate People's Court
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