A brief account of the case
KOHLER Company (KOHLER CO.) is the owner of the registered trademark of "Kohler", the approved use of goods including toilets, urinals (sanitary facilities), etc., the above trademark is within the validity period. A Guangdong law firm was authorized by Kohler to defend the infringement of Kohler's intellectual property rights in China.
On March 22, 2021, A Guangdong law firm reported to the Jiangyin Market Supervision Bureau that there were counterfeit goods with the registered trademark of "KOHLER" in Company A. Jiangyin Market Supervision Bureau then went to A company on-site inspection, found 29 boxes (1 piece/box) "KOHLER" brand squat toilet, provided by B company, has not been installed. After identification, Kohler company did not produce the product, the product involved in the case is counterfeit Kohler company registered trademark goods. Jiangyin Market Supervision Bureau filed an investigation that the behavior of Company B has constituted the sale of goods infringing on the exclusive right of others to use registered trademarks, but in view of the investigation of company B has not yet installed counterfeit products, did not cause actual losses to the quality of the renovation project, according to law, it was given a lighter punishment Trademark Law of the People's Republic of China （(hereinafter referred to as theTrademark Act ）Article 60 of the provisions of the second paragraph, make an administrative punishment decision, punishment for company B: 1. Confiscate counterfeit "KOHLER" brand squat toilet 29; 2. A fine of 40,020 yuan. Company B is not satisfied with the punishment, and believes that its purchase case involved squatting toilets were legally obtained, and the authenticity of the purchase was also checked, and the duty of reasonable care was fulfilled Trademark Act It can stop selling and should not be punished by fines and confiscation of products. Therefore, B company filed an administrative lawsuit with the court to request the cancellation of the administrative punishment decision made by Jiangyin Market Supervision Bureau.
Judge the reason
Jiangyin Court held that: Company B purchases counterfeit "KOHLER" squatting toilets from others. As a professional in the decoration industry, company B has more experience and advantages on how to judge the authenticity of decoration building materials than ordinary consumers, and also bears heavier inspection, verification and other obligations of care, but Company B has not signed a purchase contract with the supplier when purchasing goods from others. Nor did they ask for the supply list, receipt, legal purchase invoice and other materials. Only the photocopy of the inspection report provided by the supplier, whose authenticity cannot be confirmed, cannot prove that Company B has fulfilled its full duty of care, let alone prove that the goods involved in the case purchased by it have been legally obtained.
Company B sells goods that infringe on the exclusive right to use a registered trademark of others, and cannot prove that the goods are legally acquired by it, according to Jiangyin Market Supervision Bureau Trademark Act Article 60 of the second paragraph, the confiscation of counterfeit goods involved in the case, a fine of 40020 yuan of administrative penalties, the facts are clear, sufficient evidence, legal procedures, accurate application of the law. Company B's claim to revoke the penalty has no factual and legal basis, which is not supported according to law, and the lawsuit request of Company B is finally rejected.
The judge said the law
This case is the first intellectual property administrative case concluded by Jiangyin Court in 2022.Trademark Act Article 60, paragraph 2, where a person who sells a commodity without knowing that it infringes on the right to exclusive use of a registered trademark and can prove that the commodity has been lawfully acquired by himself and that the supplier has been identified, the administrative department for industry and commerce shall order him to stop the sale. For how to judge "can prove that the commodity is legally acquired by oneself",Regulations for the Implementation of Trademark Law Article 79 provides four circumstances, respectively: (1) there is a supply list and payment receipt legally signed by the supplier and verified by the supplier or approved by the supplier; (2) There is a purchase contract signed by both parties and verified to have been truly performed; (3) There is a legal purchase invoice and the items recorded in the invoice correspond to the commodities involved; (4) Other circumstances that can prove lawful acquisition of the commodities involved. In this case, Company B does not meet any of the above lawfully acquired circumstances. And the seller's duty of care is equal to its status and the popularity of the trademark, and the professional practitioners have a higher duty of care for the goods that infringe the exclusive right of the registered trademark. As a practitioner in the decoration industry, B company has a high duty of care for the authenticity of the well-known bathroom products it procured. Company B has failed to demonstrate that it exercised its duty of due care and, therefore, that it procured the goods in question lawfully. After the court ruled in accordance with the law, Company B realized that its infringement was illegal and finally served the judgment.
By adjudicating according to law, Jiangyin Court has effectively played the judicial review function of administrative adjudication of intellectual property administrative law enforcement, supervised and supported administrative organs to administer intellectual property according to law, maintained the order of intellectual property administrative administration, and promoted the administrative protection of intellectual property. At the same time, it also effectively cracked down on trademark infringement and illegal acts, and further promoted the integrity management and healthy development of market players in the decoration and building materials industry.
Source: Jiangyin People's Court
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