Key laws involved in the case

Trademark Law of the People's Republic of China(hereinafter referred to as the "Trademark Law") Article 3, paragraph 1, the trademark that has been approved and registered by the Trademark Office shall be registered trademarks, including commodity marks, service marks, collective marks and certification marks. Paragraph 3 provides that a certification mark means a mark that is controlled by an organization having supervisory power over a certain commodity or service and used by an entity or individual other than that organization on its goods or services to prove the origin, raw materials, manufacturing methods, quality or other specific qualities of the commodity or service.

Trademark Act Article 16, paragraph 2, provides that a geographical indication is an indication indicating that a commodity originates from a certain region and that the specific quality, reputation or other characteristics of the commodity are mainly determined by the natural or human factors of that region.

Regulations for the Implementation of the Trademark Law of the People's Republic of China（As stipulated in paragraph 1 of Article 4, the geographical indications provided for in Article 16 of the Trademark Law may be applied for registration as certification marks or collective marks in accordance with the provisions of the Trademark Law and these Regulations. Paragraph 2 provides that where a geographical indication is registered as a certification mark, a natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request the use of the certification mark, and the organization controlling the certification mark shall allow it. Where a geographical indication is registered as a collective mark, a natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request to join a body, association or other organization registered with the geographical indication as a collective mark, and such body, association or other organization shall be accepted as a member in accordance with its articles of association; A body, association or other organization that does not require participation in the registration of the geographical indication as a collective trademark may also use the geographical indication properly, and the organization, association or other organization has no right to prohibit it.

Regulations for the Implementation of Trademark Law Article 49 If the generic name, figure or model of the goods contained in the registered trademark directly indicates the quality, main raw materials, functions, uses, weight, quantity or other characteristics of the goods, or contains a place name, the exclusive right holder of the registered trademark has no right to prohibit others from using it properly.

Judgement of first instance

Beijing Xicheng District People's Court

Civil judgment

(2020) Beijing 0102 Minchu 32154

Plaintiff: Wuchang Rice Association, No. 84 Jinshan Street, Wuchang City, Heilongjiang Province.

Legal representative: Chang Wei, President.

Proxy: Lee Kuan Yew, lawyer of Beijing Jingshi Law Firm.

Agent AD litem: Wang Xue, lawyer of Beijing Jingshi Law Firm.

Defendant: Beijing Jingdong Sanbai Lu Shidu E-commerce Co., LTD., Room 222, 2nd Floor, Block C, 18 Kechuang 11th Street, Beijing Economic and Technological Development Zone, Beijing.

Legal representative: Zhang Qi, Executive Director.

Agent AD litem: Rong Danhua, female, employee of Beijing Jingdong Three hundred Lu Shidu E-commerce Co., LTD.

Defendant: Taizhou Tianfu Rice Industry Co., LTD., domiciling in Jianguou Village, Zhuhong Town, Xinghua City, Jiangsu Province.

Legal representative: Teng Guihua, Chairman and General Manager.

Agent AD litem: Jiang Jiahao, male, employee of Taizhou Tianfu Rice Co., LTD.

The plaintiff Wuchang City Rice Association and the defendant Beijing Jingdong Sanbai Lu Du E-commerce Co., LTD. (hereinafter referred to as Jingdong Company), the defendant Taizhou Tianfu Rice Industry Co., LTD. (hereinafter referred to as Tianfu Rice Industry Company) infringement of trademark rights and unfair competition dispute case, after the court accepted, According to the "Decision of the Standing Committee of the National People's Congress on authorizing the Supreme People's Court to carry out the pilot reform of the Complicated and Simplified civil procedure in some regions", ordinary procedures were applied in accordance with the law, and the trial was held in public on March 9, 2021 by the judge Huang Qiuping. The plaintiff Wuchang Rice Association appointed agent Wang Xue, the legal representative of the defendant Tianfu rice company Teng Guihua and entrusted agent Jiang Jiahao to participate in the lawsuit. The defendant Jingdong company was subpoenaed by the court and did not appear in court to participate in the proceedings without good reason, and the court heard in absentia according to law. The case is now closed.

The plaintiff Wuchang Rice Association made a lawsuit request to the court: 1. Request to order the two defendants to stop the infringement immediately; 2. The two defendants were ordered to compensate the plaintiff for a total of 200,000 yuan in economic losses and reasonable expenses (including 193,980.1 yuan in economic losses and 6019.9 yuan in reasonable expenses, including 1,000 yuan in notary fees, 5,000 yuan in agency fees, and 19.9 yuan in the cost of purchasing goods); 3. The two defendants were legally ordered to bear the costs of the case. Facts and Reasons: The plaintiff is the registrant of registered trademark No. 1607996 "WUCHANG Wuchang and Map" and registered trademark No. 5789043 "Wuchang Rice". On April 27, 2012, the trademark "WUCHANG and Map" was recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce. In October 2019, the plaintiff found that a number of products in the "Chongming Island Food Flagship Store" operated by Tianfu Rice Company on the "Jingdong Mall" e-commerce platform used "Wuchang" as their search keywords. The plaintiff believes that in the online sales environment, keywords play the role of commodity names. Without the plaintiff's permission, Tianfu Rice Company highlighted the use of the core part of the trademark "Wuchang" logo as its trade name, in accordance with relevant laws and regulations, which infringed the plaintiff's exclusive right to use the registered trademark; On the other hand, the behavior of Tianfu rice industry company violates the principle of honesty and credit, and people mistakenly think that its products come from the five permanent, in order to seek unfair trading opportunities or competitive advantages, which constitutes unfair competition. As the operator of the "Jingdong Mall" e-commerce platform, Jingdong has the obligation and ability to supervise the business behavior of merchants operating on its platform and stop the infringement of merchants. Since 2018, the plaintiff has repeatedly sued its platform merchants for infringement, which Jingdong is very clear about, but Jingdong has never fulfilled its regulatory obligations as a platform operator, allowing the infringement to occur, and should be jointly and severably liable for compensation with Tianfu Rice Industry Company. The plaintiff acknowledges that the infringing goods have been removed from the shelves. The specific acts of the two defendants: 1. Jingdong Company, as the operator of Jingdong's network platform, should fulfill the obligation of careful inspection, but Jingdong Company failed to do so, Jingdong Company constitutes an infringement act to help Tianfu rice company to provide convenience for the infringement. 2. Tianfu Rice Industry Company uses "Wuchang" as its product title and search keyword in Jingdong's online platform. So the plaintiff appealed to the court.

The defendant Jingdong company did not attend the court to participate in the lawsuit, but said in the written defense: First, Jingdong company, as a network platform service provider, did not participate in the sale of the accused infringing products, and Jingdong company has done its duty of care in advance and the obligation to review afterwards. Jd.com is the sole owner of the online platform www.jd.cm and does not participate in the sale of products. As an online platform, Jingdong company has publicized the name, contact information and other information of the seller on the website, and consumers will not regard the behavior of third-party sellers of Jingdong as the behavior of Jingdong Mall. In terms of prior duty of care, Jingdong signed a platform service agreement with merchants, and at the same time publicized on the home page of Jingdong Mall "Jingdong Open Platform Commodity Information Release Specifications" and "Jingdong JD.COM Open Platform Seller Points Management Rules" clearly requiring sellers not to publish commodity information that infringes on others' intellectual property rights. In terms of the obligation to remedy the situation after receiving the prosecution materials, Jingdong checked the relevant situation of the alleged infringing products at the first time and found that the alleged infringing products had been removed from the shelves. Jingdong did not know or should have known the alleged infringement in advance, and Jingdong did not participate in product sales, information uploading, distribution, etc., so it was not possible to check whether the product itself constituted an infringement of the plaintiff's trademark rights. The store opened by Tianfu Rice Company is one of millions of stores on Jingdong Mall. Before the plaintiff's notice, Jingdong company could not do the prior supervision of massive product information; After receiving the notice of the plaintiff, Jingdong also fulfilled the obligation of examination in the matter, stopped the infringement in time, and prevented the expansion of the loss of the right holder. Therefore, Jingdong neither knew nor should have known the infringements involved, subjectively had no fault, objectively had no factual infringements, and promptly prevented the expansion of infringement losses. Second, for the infringing products involved in the case, the plaintiff did not inform Jingdong company in advance and asked for deletion, which does not meet the relevant legal provisions, Jingdong company is also exempt from liability. Article 36 of the Tort Liability Law of the People's Republic of China stipulates that Internet users and Internet service providers who use the Internet to infringe on the civil rights and interests of others shall bear the tort liability. Where a network user uses a network service to commit an infringement, the infringed person has the right to notify the network service provider to take necessary measures such as deleting, blocking, and disconnecting the link. If the network service provider fails to take the necessary measures in time after receiving the notice, it shall be jointly and severally liable for the expanded part of the damage and the network user. Where a network service provider knows that a network user infringes on the civil rights and interests of others by using its network service and fails to take necessary measures, it shall be jointly and severally liable with the network user. The clause clearly states that the infringed person has a "notification obligation," but in this case, the plaintiff did not notify JD.com in a timely manner when he found the infringement, nor did he provide evidence to disconnect the link. According to the above facts and laws, for the fact that merchants sell products that infringe the rights of the plaintiff, before the lawsuit starts, if the plaintiff requires Jingdong company to bear the infringement liability, it must have the obligation to notify and provide evidence. Jingdong Company did not receive the notice and evidence before the commencement of the lawsuit, according to which Jingdong company did not slack in fulfilling its due obligations, nor did it cause the expansion of losses, and shall not be liable. Third, the products involved have been removed from the shelves, and there is no factual premise for the plaintiff to Sue JD.com to stop the infringement. After receiving the prosecution materials, Jingdong immediately verified the sales of the products involved on Jingdong Mall and found that the sales of the products had been stopped and the products involved had been removed from the shelves. Therefore, the factual basis for the plaintiff to Sue Jingdong no longer exists. To sum up, Jingdong, as an Internet platform provider, has fulfilled its reasonable audit and duty of care, and the products involved have been removed from the shelves, so the plaintiff's lawsuit claim against Jingdong has no factual basis, and the lawsuit claim against Jingdong should be rejected.

The defendant Tianfu Rice Industry Company argued that it requested the judgment to reject all the plaintiff's litigation requests, and the litigation costs of the case should be borne by the plaintiff. First, the products involved in the case of Tianfu Rice Company did not violate the plaintiff's registered trademark rights. Tianfu Rice Company is one of the few companies in the industry that has been determined to be a brand from the beginning of its establishment. Brand awareness has gone deep into the bone marrow and has become the basic belief of corporate culture and the key element of corporate success. From the initial trademark planning and registration to the introduction of an advertising agency, each process revolves around brand building. Therefore, Tianfu Rice Company greatly respects the plaintiff's intellectual property rights, but the products sold by Tianfu Rice Company have no connection with the plaintiff's "WUCHANG Rice" trademark "Wuchang Wuchang and Tu" trademark. The main business of Tianfu Rice company in the "Jingdong Mall" e-commerce platform is "Chongming Island food flagship store", which is mainly engaged in "Chongming Island" brand rice, cereals, edible oil, hairy crabs and other products. The "Chongming Island" brand words are highlighted in the product details page, and the product packaging is also clearly marked as "Chongming Island" brand. In the evaluation interface of consumers who buy Chongming Island brand products, there is no mention of the plaintiff's "WUCHANG rice" trademark and "Wuchang Wuchang and Tu" trademark. As a brand painstakingly developed by Tianfu Rice Industry Company, "Chongming Island" has formed a close corresponding relationship with Tianfu Rice Industry Company in the process of enterprise promotion, which can fully play a significant role in guiding the source of goods, and it has been proved that it does not lead to misidentification by relevant consumers in the actual sales process. 2. The plaintiff misunderstood the meaning of the keywords and misunderstood unfair competition in this case. The product title is a general term for "product name (keyword) + decorative words (modifier)". That is, it generally includes: product name (keyword) + logistics freight + service + sales method + product characteristics (modifier). According to the materials provided by the plaintiff, the dispute lies in the product title of Tianfu Rice Company's "2018 new rice [daily order 2 hours freshly ground straight] Chongming Island Rice 500g postal fragrant rice, Northeast Wuchang DaoHuaxiang Rice Farm rice". That is, "Chongming Island (product name) + free mail (logistics freight) +2018 new rice orders on the same day 2 hours freshly ground straight hair (service) + fragrant rice, rice, Saibei Wuchang Daoxiang rice, farm rice (product characteristics)". According to China's trademark law, the use of trademarks refers to the use of trademarks in commodities, commodity packaging or containers and commodity transaction documents, or the use of trademarks in advertising, exhibitions and other commercial activities to identify the source of goods. According to the daily life experience of the relevant public, "Wuchang" is a county-level city under the jurisdiction of Harbin City, Heilongjiang Province, and there is no "Wuchang rice" in the product details, product packaging, website pages, and consumer reviews of Tianfu Rice Company. Tianfu Rice Industry Company did not damage the WUCHANG rice Association "Wuchang rice" "Wuchang Wuchang and map" trademark enjoy the exclusive right to use the registered trademark. The "Chongming Island" brand operated by Tianfu Rice Industry Company has been highly directional and significant through long-term publicity and use, and has gained a certain popularity throughout the country. Based on consumers' consumption habits (Chongming Island is a southern brand, Wuchang rice is a northern brand) and long-term trust in the "Chongming Island" brand products, There is no possibility of confusing "Chongming Island" brand products with "Wuchang Rice". Tianfu Rice Company's promotion of products and brands is completely carried out in good faith to build the core brand of the enterprise, and because of the existence of the difference between the north and the south, as well as the fact that many consumers have never misidentified, it does not constitute unfair competition. Aiming at the huge audience groups from all over the country in the online sales channels, Tianfu Rice Industry Company actively carries out the publicity and promotion of "Chongming Island" brand products on large-scale e-commerce platforms such as "Taobao through Train", "Tmall Juhuasuan", "Jingdong", "Suning Tesco" and "Yihaodian", and actively participates in the promotional activities of large-scale shopping festivals such as "618" and "Double 11" on various platforms over the years. Accumulated exposure to billions. With the intensification of intellectual property protection in China, Tianfu Rice Company plans to further increase investment in intellectual property protection while increasing product and brand publicity, in order to enhance product market share, establish brand image, accumulate brand value, and maintain the intangible assets of the enterprise. If Tianfu rice company is similar to the meaning of "brand-name" said by the plaintiff, there is no need to invest heavily in brand publicity and promotion, and it will not get so much recognition and affirmation from consumers. The "Chongming Island" brand itself has formed its own inherent market and consumer groups after a lot of use and publicity by Tianfu Rice Industry Company, which will not lead consumers to mistake "Chongming Island" for "Wuchang rice". Third, the plaintiff sued Tianfu Rice Company to bear the loss of 200,000 yuan without facts and legal basis. The product involved in this case has nothing to do with the plaintiff's rights and interests, and consumers will not be confused about the specific source of the product. The plaintiff asked Tianfu Rice Industry Company to compensate for the infringement loss of 200,000 yuan, but did not provide any basis to explain how the loss compensation was calculated. Therefore, it should bear the adverse consequences of not being able to provide evidence for its own claims, and the 200,000 yuan loss compensation fee has no basis and should not be supported by the court. The plaintiff's behavior is a complete abuse of the right of action to consume judicial resources and bring undue interference to enterprises operating in good faith. Tianfu Rice Company has not produced consumer misidentification in the actual sales and operation process. Does not constitute trademark infringement and unfair competition, if the plaintiff's trademark involved in excessive protection, will infringe on the legitimate interests of others, request the court to reject the plaintiff's lawsuit request according to law.

The parties submitted evidence in accordance with the litigation request, and the court organized the parties to exchange and cross-examine evidence. The court shall confirm and corroborate the evidence that the parties have no objection to. On the evidence and facts in dispute, the Court finds as follows:

1. The ownership and popularity of the trademark involved in the plaintiff's case

On July 21, 2001, Wuchang Rice Association registered No. 1607996 "" trademark by the Trademark Office of the State Administration for Industry and Commerce, and approved the use of commodities for Class 30: rice, rice products. The trademark was valid from July 21, 2001 to July 20, 2011, after which the trademark was renewed and the validity was extended to July 20, 2021. On December 21, 2007, Wuchang Rice Association was approved by the Trademark Office of the State Administration for Industry and Commerce to register No. 5789043 "Wuchang Rice" trademark, and the approved use of commodities was Category 30: rice. The term of validity was from December 21, 2007 to December 20, 2017, after which the trademark was renewed and extended to December 20, 2027.

On March 23, 2018, Wuchang Rice Association notarized the trademark registration certificates corresponding to the above two trademarks, and the notarization matters are the original and copy of the Trademark Registration Certificate, which were notarized by the Notary Office of Wuchang City, Heilongjiang Province, and issued notary certificates (2018) Minzi No. 741 and 740 in the Black Five certificates.

The "Management Rules for the Use of Wuchang Rice Certification Trademarks" formulated by Wuchang Rice Association makes clear the conditions for the use of No. 1607996 "Wuchang Rice" certification trademarks, the application procedures for use, the rights and obligations of trademark licensed users, management and protection. Among them, Article 11 stipulates: meet the "Wuchang rice" certification trademark conditions, should handle the following matters: 1. The parties sign the License Contract for Certifying Trademarks; 2. The applicant obtains the Standard Certificate of Certificator; 3. The applicant receives the certification trademark mark; 4. The applicant pays the management fee. In addition, the above administrative rules also stipulate that the user of the "Wuchang Rice" certification trademark shall not license others to use the trademark. In addition, the rules governing the use of certification marks for trademark No. 5789043 "" are similar to those for trademark No. 1607996.

On September 16, 2015, Beijing Fangzheng Notary Office issued (2015) Beijing Zhengneijing Certificate No. 12414 "Notary" set out the Chinese trademark online search process, the attached search results show that on April 27, 2012, "" trademark was recognized by the State Administration for Industry and Commerce Trademark Office as a well-known trademark.

China Brand network shows that from 2018 to 2020, in the top 100 regional brands (geographical indication products), "Wuchang Rice" ranked sixth, sixth and fifth respectively. In addition, "Wuchang Rice" participated in the 2017IRE Guangzhou Rice Exhibition, and the second China Wuchang Rice Festival was successfully held in 2020 with the help of the World High-end Rice Industry Conference.

2. Relevant facts of the alleged infringement

On December 18, 2019, the (2019) Jinnan Certificate No. 1444 issued by the Nankai Notary Office of Tianjin stated that the authorized institution of Wuchang Rice Association entrusted agent Huo Lily to browse web pages and purchase goods on the "jd.com" website of Jingdong Company. "Notarial certificate" shows that in the Jingdong company "jd.com" website enter "Wuchang", the search results can be seen Tianfu rice company's "Chongming Island" rice products. Click on the product named "2018 New rice [same-day order 2 hours freshly ground straight] Chongming Island Rice 500g postal fragrant rice rice Sai Northeast Wuchang DaoHuaxiang Rice Farm rice", you can enter the product details page, the page shows the store name is "Chongming Island food flagship store", the product price is 19.9 yuan, the cumulative evaluation of 300+. The product details page and the product packaging all advertise the contents of "Chongming Island" and "Chongming Island rice". Huo Lili spent 19.9 yuan to buy the product. In addition, the "Chongming Island Food flagship Store" also has a price of 108.8 yuan of rice with the name of "Saibei Wuchang Daoxiang" for sale, with a cumulative evaluation of 500+; The price is 66.9 yuan. The rice whose name includes "Wuchang Daoxiang of Northeast China" is sold with a cumulative evaluation of 200+; The price is 118.8 yuan. The rice whose name includes "non-Northeast Wuchang Daoxiang" is sold, and the cumulative evaluation is 3700+. The online shop operator qualification information publicity page shows that the "Chongming Island food flagship store" is the main business of Tianfu Rice Company.

3. Other facts

The Jingdong company submitted a screenshot of the store search, and all parties recognized that Tianfu Rice Company had stopped using the words "Saiwuchang" in the name of the product. However, the plaintiff believes that in the "Chongming Island food flagship store" with "Wuchang" as a keyword search, the product can still be found, and the infringement of the two defendants has not stopped.

In order to prove that its products and the "Chongming Island" trademark are well-known, Tianfu Rice Industry Company submitted to the court product testing reports, product packaging drawings, advertising invoices, certificates of honor, sales contract invoices and other evidence. The plaintiff argues that even if the defendant is well-known, that does not exonerate him.

The court believes that: combined with the trademark registration certificate submitted by the plaintiff Wuchang Rice Association, it can be determined that Wuchang Rice Association is the owner of No. 1607996 "" registered trademark and No. 5789043" Wuchang Rice "registered trademark, and has the right to bring the case during the validity of the trademark.

Article 3 (1) of the Trademark Law of the People's Republic of China (hereinafter referred to as the "Trademark Law") stipulates that trademarks approved and registered by the Trademark Office shall be registered trademarks, including goods trademarks, service marks, collective marks and certification marks. Paragraph 3 provides that a certification mark means a mark that is controlled by an organization having supervisory power over a certain commodity or service and used by an entity or individual other than that organization on its goods or services to prove the origin, raw materials, manufacturing methods, quality or other specific qualities of the commodity or service.

Article 16 (2) of the Trademark Law stipulates that a geographical indication is a sign indicating that a commodity originates from a certain region, and that the specific quality, reputation or other characteristics of the commodity are mainly determined by the natural or human factors of the region.

Article 4, paragraph 1, of the Regulations on the Implementation of the Trademark Law of the People's Republic of China (hereinafter referred to as the "Regulations on the Implementation of the Trademark Law") provides that the geographical indications provided for in Article 16 of the Trademark Law may be applied for registration as certification marks or collective marks in accordance with the provisions of the Trademark Law and these Regulations. Paragraph 2 provides that where a geographical indication is registered as a certification mark, a natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request the use of the certification mark, and the organization controlling the certification mark shall allow it. Where a geographical indication is registered as a collective mark, a natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request to join a body, association or other organization registered with the geographical indication as a collective mark, and such body, association or other organization shall be accepted as a member in accordance with its articles of association; A body, association or other organization that does not require participation in the registration of the geographical indication as a collective trademark may also use the geographical indication properly, and the organization, association or other organization has no right to prohibit it.

Article 49 of the Regulations on the Implementation of the Trademark Law stipulates that the generic name, figure or model of the commodity contained in a registered trademark, or directly indicates the quality, main raw materials, functions, uses, weight, quantity or other characteristics of the commodity, or contains a place name, the exclusive right holder of a registered trademark has no right to prohibit others from using it properly.

According to the above provisions, certification marks are different from commodity marks in that they are not marks that indicate the origin of the goods, but marks that indicate specific qualities such as the origin of the goods. In other words, a certification mark does not indicate that the goods originated from the registrant of the certification mark, but that it is up to the registrant of the certification mark to certify specific qualities such as the origin of the goods. The right to exclusive use of a certification mark is also different from the right to exclusive use of a commodity mark, in that the registrant of a certification mark cannot use the certification mark on the goods provided by himself, but can only allow others to use the certification mark. Whether the rights of certification trademark are infringed cannot be judged based on whether the alleged infringing act is easy to cause confusion among the relevant public about the source of the goods, but whether the alleged infringing act is easy to cause the relevant public to misidentify the specific quality such as the origin of the goods.

Article 18 (2) of the Measures for the Registration and Administration of Collective Trademarks and Certification Marks stipulates that the legitimate use of the geographical indication in Article 4 (2) of the Implementation Regulations of the Trademark Law refers to the legitimate use of the geographical name in the geographical indication.

According to the above provisions, certification marks are used to indicate the origin of goods, raw materials, manufacturing methods, quality or other specific qualities of the mark. Certification trademark is to prove to the public that a certain product or service has a specific quality, certification trademark registrant rights to retain, manage, maintain the certification trademark as the core, should allow its goods in line with the certification trademark marked by the specific quality of natural persons, legal persons or other organizations to properly use the certification trademark name.

In this case, the trademark involved is used as a geographical indication to prove the registration of the trademark, that is, to prove that the origin of the commodity is within the specific production area of Wuchang rice, and the specific quality of the commodity is mainly determined by natural factors in the area, to prove that the rice commodity using the trademark has the specific quality stipulated in the Management Rules. Wuchang Rice Association, as the registrant of the trademark, shall allow the use of the certification mark for natural persons, legal persons or other organizations whose commodities meet the specific quality. In addition, it cannot deprive natural persons, legal persons or other organizations that have not requested the use of the certification mark, but whose goods are actually produced in the specific production area of Wuchang Rice, of the right to properly use the place name in the certification mark. However, at the same time, for the natural persons, legal persons or other organizations whose goods are not produced in the specific production area of Wuchang Rice marked the trademark on the goods, Wuchang Rice Association has the right to prohibit and investigate its responsibility for violating the right to certify the trademark according to law. Specifically in this case, the plaintiff claimed that a number of products in the store involved in the infringement, the defendant insisted that the case should only be on the plaintiff notarized the purchase of products for trial, in the case of the defendant does not agree to the different infringement of the case, the court only on the plaintiff notarized the purchase of the product sales behavior infringement review. The alleged infringing commodity involved is rice, which falls within the scope of approved use of the registered trademark No. 1607996 "" and the registered trademark No. 5789043" Wuchang Rice ". The "Wuchang" logo used by Tianfu Rice Company is the main part of the registered trademark No. 1607996 "" and the registered trademark No. 5789043" Wuchang Rice ", both of which are similar trademarks. The documented evidence cannot prove that the alleged infringing rice products are produced in the specific production area of Wuchang rice, in this case, Tianfu Rice Company's use of "Wuchang" as a trade name lacks legitimacy. In the Internet sales environment, this use undoubtedly makes the relevant public in the use of "Wuchang" keyword search, can retrieve the goods of Tianfu rice company, although it used the word "match" before the "Wuchang", but in the case of a large number of words in the name of the product, regardless of the primary and secondary. This kind of use is not enough to distinguish the origin and specific quality of the rice products of Tianfu Rice Industry Company. The "Wuchang" logo also plays the role of certification trademark, which is easy to cause the public to misunderstand the quality of the product and connect the product with the "Wuchang" geographical indication certification trademark. Therefore, the behavior of Tianfu Rice Industry Company infringes the trademark rights of the plaintiff. Wuchang Rice Association has the right to prohibit such acts and investigate its responsibility for violating the rights of certification trademarks according to law.

As for the plaintiff's claim to stop infringement, the court believes that the evidence on the record can prove that the defendant has stopped using the words "Wuchang" in the product name, and the parties have no objection to this, so the plaintiff's request for the defendant to stop infringement has no factual basis, and the court no longer supports it. As for the fact that "rice products can still be retrieved when Wuchang is retrieved in the store" claimed by the plaintiff, the court believes that the search results are captured and matched by the backend system of Jingdong through specific algorithm rules on the data related to the commodity names that meet the search rules in many commodities, and the words "Wuchang" have been stopped in the search name. According to the search method and search results of Wuchang Rice Company, this use method will not play an identification role and cause confusion, and does not constitute an infringement of trademark rights and unfair competition, so the court does not support its claim.

As for the amount of compensation for losses, in view of the fact that the Wuchang Rice Association has not provided evidence to prove the economic losses suffered by it due to the infringement or the interests gained by the defendant due to the infringement, the amount of economic losses claimed by the Wuchang Rice Association is too high, and the court does not support it in full. The court will make a decision based on the popularity of the trademark involved, the types and sales prices of the infringing goods, the sales scope and sales quantity of the product, the contribution rate of the trademark, the degree of fault of the defendant and other factors. As for the reasonable expenses claimed by the Wuchang Rice Association such as attorney's fees and notary fees, the Wuchang Rice Association has not submitted relevant bills to prove it, but considering that there are lawyers acting as its agents in this lawsuit and submitting notarial certificates as evidence, the expenses of attorney's fees and notary fees are necessary and reasonable expenses, so the court will follow the principles of relevance, necessity and rationality. Reasonable expenses such as legal fees shall be determined according to the proportion of the amount of support for the economic loss claimed.

As to whether Jingdong should bear the liability for compensation, the court held that, from the operator information published on the website of Jingdong, it can be seen that Jingdong, as the owner of the Jingdong platform, provides a public platform for information exchange between the two sides of the buying and selling behavior. Jingdong is only a provider of the online trading platform and does not participate in the commodity transactions between the buyers and sellers. There is no substantive audit obligation on the products and web pages, and there is no evidence to show that it knows or should know the infringement of Tianfu Rice Company on its platform subjectively, and the product link has been disconnected, so Jingdong company should not be liable for compensation, the court rejects the plaintiff's claim.

As for the unfair competition act complained by the plaintiff, the Court held that the anti-unfair Competition Law is a limited supplement to the trademark Law and other specialized intellectual property laws, and there is no need to apply the anti-unfair competition law for repeated evaluation when the trademark law has been applied to evaluate a specific act. Therefore, the court does not support this part of the plaintiff's claim.

In summary, in accordance with the Trademark Law of the People's Republic of China Article 3 (1), paragraph 3 (3), paragraph 2 (16), the Trademark Law of the People's Republic of China Implementation Regulations Article 4 and Article 49, the Interpretation of the Supreme People's Court on Several Issues relating to the Application of Law in the Trial of Trademark Civil Disputes Article 9 (2), Article 64 (1) and Article 69 of the Civil Procedure Law of the People's Republic of China stipulate that the judgment is as follows:

1. The defendant Taizhou Tianfu Rice Industry Co., Ltd. shall compensate the plaintiff Wuchang Rice Association for the economic loss of 20,000 yuan and reasonable expenses of 5,000 yuan within 10 days from the effective date of this judgment;

2. Reject other claims of the plaintiff Wuchang Rice Association.

If the defendant Taizhou Tianfu Rice Industry Co., Ltd. fails to fulfill its obligation to pay money within the period specified in this judgment, it shall pay double the interest on the debt during the delay in performance in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China.

The case acceptance fee of 4,300 yuan shall be borne by the plaintiff Wuchang Rice Association for 1,000 yuan (already paid), and by the defendant Taizhou Tianfu Rice Industry Co., Ltd. for 3,300 yuan (to be paid within seven days from the effective date of this judgment).

If you are not satisfied with this judgment, you 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 other parties, and appeal to the Beijing Intellectual Property Court. If the appeal fee is not paid within seven days after the expiration of the appeal period, the appeal shall be automatically withdrawn.

Judge Huang Qiuping

June 3, 2011

Judge Assistant Gao Tian

Clerk Marina

Judgment of second instance

Beijing Intellectual Property Court

Civil judgment

(2021) No.2531, Minend, Beijing 73

Appellant (defendant of the original trial) : Taizhou Tianfu Rice Industry Co., LTD., domicile: Jianguou Village, Industrial concentration Area, Zhuhong Town, Xinghua City, Jiangsu Province.

Legal representative: Teng Guihua, Chairman and General Manager.

Agent AD litem: Jiang Jiahao, male, employee of Taizhou Tianfu Rice Co., LTD.

Appellee (original plaintiff) : Wuchang Rice Association, domicile No. 84 Jinshan Street, Wuchang City, Heilongjiang Province.

Legal representative: Chang Wei, President.

Proxy: Lee Kuan Yew, lawyer of Beijing Jingshi Law Firm.

Agent AD litem: Wang Xue, lawyer of Beijing Jingshi Law Firm.

Defendant of the original trial: Beijing Jingdong Three hundred Lu Shidu E-commerce Co., LTD., Room 222, 2nd Floor, Block C, No. 18, Kechuang 11th Street, Beijing Economic and Technological Development Zone, Beijing.

Legal representative: Zhang Qi, Executive Director.

Agent AD litem: Rong Danhua, female, employee of Beijing Jingdong Three hundred Lu Shidu E-commerce Co., LTD.

The appellant Taizhou Tianfu Rice Industry Co., LTD. (hereinafter referred to as Tianfu Rice Industry Co., LTD.), the appellant Wuchang Rice Association and the original defendant Beijing Jingdong Sanbai Lu Shidu E-commerce Co., LTD. (hereinafter referred to as Jingdong Company) due to trademark infringement and unfair competition dispute, If you do not accept the (2020) Beijing 0102 Civil judgment No. 32154 (hereinafter referred to as the judgment of first instance) made by the Xicheng District People's Court of Beijing (hereinafter referred to as the Court of First Instance), you shall file an appeal to the court. After accepting the case on July 16, 2021, the Court formed a collegial panel in accordance with the law and tried the case. Teng Guihua, the legal representative of the appellant Tianfu Rice Industry Company, and Jiang Jiahao, the agent AD litem of the appellant Wuchang Rice Association, and Wang Xue, the agent AD litem of the appellant Wuchang Rice Association, were in court for questioning, but Jingdong Company was legally summoned by the court and did not appear in court. The case is now closed.

Tianfu Rice Company's appeal request: 1. Request to revoke the first instance judgment, and amend the judgment to reject the appellant's claim according to law; 2. The litigation costs of the second instance shall be borne by the appellee. Facts and reasons: 1. The original trial court held that: if you enter "Wuchang" in the "www.jd.com" website of Jingdong Company, the "Chongming Island" rice products of Tianfu Rice Industry Company can be found in the search results, which is inconsistent with the facts. According to Article 4 of the operation procedure description on page 2 of the notary certificate, the buyer searches for "Wuchang" and enters the search result page, but does not see Chongming Island-related products. According to the brand library recommended by the system above, the buyer clicks "Brand-Chongming Island" and enters the search result page for products exclusive to Chongming Island. From this operation process can not be determined is the search of the "five permanent" after the appearance of my family's goods. Notary certificate page 2 operation procedure description Article 4 screenshot annotation can be explained. However, as mentioned on page 10 and page 11 of the judgment (2020) Beijing 0102 No. 32154 at the beginning of the Republic of China, entering "Wuchang", the search results of Tianfu Rice Company's "Chongming Island" rice products are not consistent with the facts. According to page 8 of the notarial certificate, when you enter "Wuchang" in the "jd.com" website of JD.com, no products of our company appear. The plaintiff of the first instance has not provided evidence to prove that "Chongming Island" rice products of Tianfu Rice Industry Company appear in all the displayed results of the search for "Wuchang", only five products are displayed. The mouse stays on the "Chongming Island" brand in the first line of brand display box, and the name of Chongming Island is displayed below the brand LOGO. Clicking on the brand shows the results on page 10 of the notary. According to page 10 of the notarial certificate, the results displayed are: All results > Brand: Chongming Island * The following five products are not the results displayed after searching "Wuchang", but the brand exclusive products of Chongming Island. Second, our company has no intention to infringe the trademark rights and interests of Wuchang Rice Association on the network platform. The main transaction channel of Internet transactions comes from search, from page 8 of the notarial certificate, it can be seen that in fact, with the "Wuchang" label entered into the Jingdong platform search engine, there will be no pictures of our company's Chongming Island rice products. Tianfu Rice company in their own physical goods packaging with their own trademarks, and there is a strong identification, there is no "Wuchang" logo, consumers will never be our rice mistaken for "Wuchang rice". Third, according to the provisions of the Notary Law of the People's Republic of China and the Rules of Notarization Procedure, the notary certificate of the Wuchang Rice Association is notarized in the online purchase process of the Jingdong website, and the notarization demonstration process does not contain the necessary cleanliness inspection steps in the notary certificate, excluding the uniqueness of the website and the purity of the browser, which cannot prove the effectiveness of the evidence. In fact, only after the brand "Chongming Island" was selected in the notarial certificate could the disputed products appear in the search results. Wuchang Rice Association misled the trial in the order of evidence screenshots, and did not provide the video recording of the scene on the attached page of the notarial certificate. It cannot be ruled out that there are other programs in the computer to modify the display of the web page, or manually modify the code of the web page. There are problems with the procedure of notarization. Screenshots alone cannot prove the consistency of shopping, and in fact a search of "Wuchang" did not find the disputed product. 4. The appellant repeatedly stated to the court before the hearing that the notarial certificate provided by Wuchang Rice Association was not clear, the screenshots of the disputed products appearing in the key dispute focus search "Wuchang" were even more vague, and the pictures and titles could not be seen clearly. The justice time to the appeal time was more than two years, but the original trial court still did not provide corresponding clear evidence. The appellant mistakenly believed that the appellant had found the disputed Chongming Island products after searching "Wuchang" on the Jingdong platform. V. The main business of the disputed product on the "Jingdong Mall" e-commerce platform is "Chongming Island Food Flagship Store", which mainly sells "Chongming Island" brand rice. The "Chongming Island" brand is highlighted in the product details page, and the product package is clearly marked as "Chongming Island" brand, and the appellant's "Wuchang" trademark is not mentioned in the evaluation interface of consumers. Facts have proved that there is no misunderstanding among the relevant public, and consumers are fully able to make their own judgments, which is in line with the principle of fair market. Vi. On March 22, 2021, the appellant sent the first instance supplementary defense opinion letter of the defendant Tianfu Rice Industry to the Xicheng District People's Court of Beijing. The contents described in the letter were not mentioned in the first instance judgment, and neither the appellant nor the first instance court gave an explanation.

Wuchang Rice Association argued: the court of first instance applied the law correctly, identified the facts clearly, and requested to maintain the judgment of first instance. The equipment used by the notarization is the equipment of the Tianjin Notary certificate, which is operated under the supervision of a notary and the procedure is legal. The original notarial certificate has been handed over to the court of first instance, and the recorded content has been confirmed by the court of first instance. The goods involved in the case were shipped by the Appellant's shop, and now the Appellant has no legal basis to overturn the fact with the unclear notarial certificate. Keyword search can play a role in identifying the source of the goods. Although the title of the appellant's goods bears the word "Wuchang", the association with the Wuchang cannot be damaged, and the appellant has registered a trademark with the words "Wuchang", and should be aware of the existence of the appellant's trademark. Since the appellant insisted in the first instance that only the goods purchased in this case should be tried, this case only involves one product.

Jd.com declined to comment.

Wuchang Rice Association made a lawsuit request to the court of First instance: 1. Request to order Tianfu Rice Company and Jingdong Company to stop the infringement immediately; 2. Ordered Tianfu Rice Industry Company and Jingdong Company to compensate the plaintiff of Wuchang Rice Association for economic losses and reasonable expenses totaling 200,000 yuan (including economic losses of 193,980.1 yuan, reasonable expenses of 6019.9 yuan, reasonable expenses including notary fees of 1,000 yuan, agent fees of 5,000 yuan, and the cost of purchasing goods is 19.9 yuan); 3. According to law, Tianfu Rice Company and Jingdong Company were ordered to bear the litigation costs of the case.

The court of first instance found the facts:

I. Ownership and popularity of the trademark involved in Wuchang Rice Association

On July 21, 2001, Wuchang Rice Association registered No. 1607996 "" trademark by the Trademark Office of the State Administration for Industry and Commerce, and approved the use of commodities for Class 30: rice, rice products. The trademark was valid from July 21, 2001 to July 20, 2011, after which the trademark was renewed and the validity was extended to July 20, 2021. On December 21, 2007, Wuchang Rice Association was approved by the Trademark Office of the State Administration for Industry and Commerce to register No. 5789043 "Wuchang Rice" trademark, and the approved use of commodities was Category 30: rice. The term of validity was from December 21, 2007 to December 20, 2017, after which the trademark was renewed and extended to December 20, 2027.

On March 23, 2018, Wuchang Rice Association notarized the trademark registration certificates corresponding to the above two trademarks, and the notarization matters are the original and copy of the Trademark Registration Certificate, which were notarized by the Notary Office of Wuchang City, Heilongjiang Province, and issued notary certificates (2018) Minzi No. 741 and 740 in the Black Five certificates.

The "Management Rules for the Use of Wuchang Rice Certification Trademarks" formulated by Wuchang Rice Association makes clear the conditions for the use of No. 1607996 "Wuchang Rice" certification trademarks, the application procedures for use, the rights and obligations of trademark licensed users, management and protection. Among them, Article 11 stipulates: meet the "Wuchang rice" certification trademark conditions, should handle the following matters: 1. The parties sign the License Contract for Certifying Trademarks; 2. The applicant obtains the Standard Certificate of Certificator; 3. The applicant receives the certification trademark mark; 4. The applicant pays the management fee. In addition, the above administrative rules also stipulate that the user of the "Wuchang Rice" certification trademark shall not license others to use the trademark. In addition, the rules governing the use of certification marks for trademark No. 5789043 "" are similar to those for trademark No. 1607996.

On September 16, 2015, Beijing Fangzheng Notary Office issued (2015) Beijing Zhengneijing Certificate No. 12414 "Notary" set out the Chinese trademark online search process, the attached search results show that on April 27, 2012, "" trademark was recognized by the State Administration for Industry and Commerce Trademark Office as a well-known trademark.

China Brand network shows that from 2018 to 2020, in the top 100 regional brands (geographical indication products), "Wuchang Rice" ranked sixth, sixth and fifth respectively. In addition, "Wuchang Rice" participated in the 2017IRE Guangzhou Rice Exhibition, and the second China Wuchang Rice Festival was successfully held in 2020 with the help of the World High-end Rice Industry Conference.

2. Relevant facts of the alleged infringement

On December 18, 2019, the (2019) Jinnan Certificate No. 1444 issued by the Nankai Notary Office of Tianjin stated that the authorized institution of Wuchang Rice Association entrusted agent Huo Lily to browse web pages and purchase goods on the "jd.com" website of Jingdong Company. "Notarial certificate" shows that in the Jingdong company "jd.com" website enter "Wuchang", the search results can be seen Tianfu rice company's "Chongming Island" rice products. Click on the product named "2018 New rice [same-day order 2 hours freshly ground straight] Chongming Island Rice 500g postal fragrant rice rice Sai Northeast Wuchang DaoHuaxiang Rice Farm rice", you can enter the product details page, the page shows the store name is "Chongming Island food flagship store", the product price is 19.9 yuan, the cumulative evaluation of 300+. The product details page and the product packaging all advertise the contents of "Chongming Island" and "Chongming Island rice". Huo Lili spent 19.9 yuan to buy the product. In addition, the "Chongming Island Food flagship Store" also has a price of 108.8 yuan of rice with the name of "Saibei Wuchang Daoxiang" for sale, with a cumulative evaluation of 500+; The price is 66.9 yuan. The rice whose name includes "Wuchang Daoxiang of Northeast China" is sold with a cumulative evaluation of 200+; The price is 118.8 yuan. The rice whose name includes "non-Northeast Wuchang Daoxiang" is sold, and the cumulative evaluation is 3700+. The online shop operator qualification information publicity page shows that the "Chongming Island food flagship store" is the main business of Tianfu Rice Company.

3. Other facts

The Jingdong company submitted a screenshot of the store search, and all parties recognized that Tianfu Rice Company had stopped using the words "Saiwuchang" in the name of the product. However, the Wuchang Rice Association believes that in the "Chongming Island food flagship store" with "Wuchang" as a keyword search, the product can still be found, and the infringement of Tianfu Rice Company and Jingdong company has not stopped.

In order to prove that its products and the "Chongming Island" trademark are well-known, Tianfu Rice Industry Company submitted product testing reports, product packaging drawings, advertising invoices, certificates of honor, sales contract invoices and other evidence to the court of first instance. Wuchang Rice Association believes that even if Tianfu rice company is well-known, it can not be exempted from liability.

The court of first instance held that:

In combination with the trademark registration certificate submitted by Wuchang Rice Association, it can be identified that Wuchang Rice Association is the owner of No. 1607996 "" registered trademark and No. 5789043" Wuchang Rice "registered trademark, and has the right to bring a lawsuit during the validity of the trademark.

Article 3 (1) of the Trademark Law of the People's Republic of China (hereinafter referred to as the "Trademark Law") stipulates that trademarks approved and registered by the Trademark Office shall be registered trademarks, including goods trademarks, service marks, collective marks and certification marks. Paragraph 3 provides that a certification mark means a mark that is controlled by an organization having supervisory power over a certain commodity or service and used by an entity or individual other than that organization on its goods or services to prove the origin, raw materials, manufacturing methods, quality or other specific qualities of the commodity or service.

Article 16 (2) of the Trademark Law stipulates that a geographical indication is a sign indicating that a commodity originates from a certain region, and that the specific quality, reputation or other characteristics of the commodity are mainly determined by the natural or human factors of the region.

Article 4, paragraph 1, of the Regulations on the Implementation of the Trademark Law of the People's Republic of China (hereinafter referred to as the "Regulations on the Implementation of the Trademark Law") provides that the geographical indications provided for in Article 16 of the Trademark Law may be applied for registration as certification marks or collective marks in accordance with the provisions of the Trademark Law and these Regulations. Paragraph 2 provides that where a geographical indication is registered as a certification mark, a natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request the use of the certification mark, and the organization controlling the certification mark shall allow it. Where a geographical indication is registered as a collective mark, a natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request to join a body, association or other organization registered with the geographical indication as a collective mark, and such body, association or other organization shall be accepted as a member in accordance with its articles of association; A body, association or other organization that does not require participation in the registration of the geographical indication as a collective trademark may also use the geographical indication properly, and the organization, association or other organization has no right to prohibit it.

Article 49 of the Regulations on the Implementation of the Trademark Law stipulates that the generic name, figure or model of the commodity contained in a registered trademark, or directly indicates the quality, main raw materials, functions, uses, weight, quantity or other characteristics of the commodity, or contains a place name, the exclusive right holder of a registered trademark has no right to prohibit others from using it properly.

According to the above provisions, certification marks are different from commodity marks in that they are not marks that indicate the origin of the goods, but marks that indicate specific qualities such as the origin of the goods. In other words, a certification mark does not indicate that the goods originated from the registrant of the certification mark, but that it is up to the registrant of the certification mark to certify specific qualities such as the origin of the goods. The right to exclusive use of a certification mark is also different from the right to exclusive use of a commodity mark, in that the registrant of a certification mark cannot use the certification mark on the goods provided by himself, but can only allow others to use the certification mark. Whether the rights of certification trademark are infringed cannot be judged based on whether the alleged infringing act is easy to cause confusion among the relevant public about the source of the goods, but whether the alleged infringing act is easy to cause the relevant public to misidentify the specific quality such as the origin of the goods.

Article 18 (2) of the Measures for the Registration and Administration of Collective Trademarks and Certification Marks stipulates that the legitimate use of the geographical indication in Article 4 (2) of the Implementation Regulations of the Trademark Law refers to the legitimate use of the geographical name in the geographical indication.

According to the above provisions, certification marks are used to indicate the origin of goods, raw materials, manufacturing methods, quality or other specific qualities of the mark. Certification trademark is to prove to the public that a certain product or service has a specific quality, certification trademark registrant rights to retain, manage, maintain the certification trademark as the core, should allow its goods in line with the certification trademark marked by the specific quality of natural persons, legal persons or other organizations to properly use the certification trademark name.

In this case, the trademark involved is used as a geographical indication to prove the registration of the trademark, that is, to prove that the origin of the commodity is within the specific production area of Wuchang rice, and the specific quality of the commodity is mainly determined by natural factors in the area, to prove that the rice commodity using the trademark has the specific quality stipulated in the Management Rules. Wuchang Rice Association, as the registrant of the trademark, shall allow the use of the certification mark for natural persons, legal persons or other organizations whose commodities meet the specific quality. In addition, it cannot deprive natural persons, legal persons or other organizations that have not requested the use of the certification mark, but whose goods are actually produced in the specific production area of Wuchang Rice, of the right to properly use the place name in the certification mark. However, at the same time, for the natural persons, legal persons or other organizations whose goods are not produced in the specific production area of Wuchang Rice marked the trademark on the goods, Wuchang Rice Association has the right to prohibit and investigate its responsibility for violating the right to certify the trademark according to law. Specifically in this case, Wuchang Rice Association claims that a number of products in the store involved in the infringement, Tianfu Rice company insists that the case should be heard only on the products purchased by Wuchang Rice Association notarized, and Tianfu Rice company does not agree to deal with different infringement cases. The court of first instance only examined whether the sales of this product purchased by Wuchang Rice Association was infringing. The alleged infringing commodity involved is rice, which falls within the scope of approved use of the registered trademark No. 1607996 "" and the registered trademark No. 5789043" Wuchang Rice ". The "Wuchang" logo used by Tianfu Rice Company is the main part of the registered trademark No. 1607996 "" and the registered trademark No. 5789043" Wuchang Rice ", both of which are similar trademarks. The documented evidence cannot prove that the alleged infringing rice products are produced in the specific production area of Wuchang rice, in this case, Tianfu Rice Company's use of "Wuchang" as a trade name lacks legitimacy. In the Internet sales environment, this use undoubtedly makes the relevant public in the use of "Wuchang" keyword search, can retrieve the goods of Tianfu rice company, although it used the word "match" before the "Wuchang", but in the case of a large number of words in the name of the product, regardless of the primary and secondary. This kind of use is not enough to distinguish the origin and specific quality of the rice products of Tianfu Rice Industry Company. The "Wuchang" logo also plays the role of certification trademark, which is easy to cause the public to misunderstand the quality of the product and connect the product with the "Wuchang" geographical indication certification trademark. Therefore, the behavior of Tianfu Rice Industry Company infringes the trademark right of the Wuchang Rice Association. Wuchang Rice Association has the right to prohibit such acts and investigate the liability for infringement of trademark rights.

For the Wuchang Rice Association to stop the infringement, the court of first instance held that the evidence on the record can prove that Tianfu Rice company has stopped using the words "Wuchang" in the product name, and all parties have no objection to this, so the Wuchang Rice Association requested Tianfu Rice company to stop the infringement has no factual basis, and the court of first instance no longer supports it. As for the fact that "rice products can still be retrieved when Wuchang is searched in the store" claimed by the Wuchang Rice Association, the court of first instance held that the search results were captured and matched by the backend system of Jingdong through specific algorithm rules to capture and match the data related to the commodity names that meet the search rules in many commodities. In the search name has stopped the use of "Wuchang" in the case, Wuchang rice company said in the Tianfu rice company specific brand store search, from the search method and search results, this use will not play an identification role and cause confusion, do not constitute infringement of trademark rights and unfair competition, so the court of first instance did not support its claim.

As for the amount of compensation for losses, in view of the fact that the Wuchang Rice Association has not provided evidence to prove the economic losses suffered by it due to the infringement or the interests gained by the defendant due to the infringement, the amount of economic losses claimed by the Wuchang Rice Association is too high, and the court of first instance will not support it in full. The court of first instance will make a decision according to the popularity of the trademark involved, the types and sales prices of the infringing goods, the sales scope and sales quantity of the product, the contribution rate of the trademark, the fault degree of Tianfu Rice Company and other factors. As for the reasonable expenses claimed by the Wuchang Rice Association such as attorney's fee and notary fee, the Wuchang Rice Association did not submit relevant bills to prove it, but considering that there are lawyers acting as its agents in this lawsuit and submitting notarial certificates as evidence, the expenses of attorney's fee and notary fee are necessary and reasonable expenses, so the court of first instance will, based on the principles of relevance, necessity and reasonableness. Reasonable expenses such as legal fees shall be determined according to the proportion of the amount of support for the economic loss claimed.

As to whether Jingdong should bear the liability for compensation, the court of first instance held that, from the operator information published on the website of Jingdong, it can be seen that Jingdong, as the owner of the Jingdong platform, provides a public platform for information exchange between the two sides of the buying and selling behavior. Jingdong is only a provider of the online trading platform and does not participate in the commodity transaction between the buyers and sellers. There is no substantive audit obligation for products and web pages, and there is no evidence to show that it knows or should know the infringement of Tianfu Rice Company on its platform subjectively, and the commodity link has been disconnected, so Jingdong company should not be liable for compensation, the court of first instance rejected the claim of Wuchang Rice Association.

As for the unfair competition act sued by the Wuchang Rice Association, the court of first instance held that the anti-unfair Competition Law is a limited supplement to the trademark Law and other specialized intellectual property laws, and there is no need to apply the anti-unfair competition law for repeated evaluation when the trademark law has been applied to evaluate a specific act. Therefore, the court of first instance did not support this part of the claim of the Wuchang Rice Association.

In summary, in accordance with the Trademark Law of the People's Republic of China Article 3 (1), paragraph 3 (3), paragraph 2 (16), the Trademark Law of the People's Republic of China Implementation Regulations Article 4 and Article 49, the Interpretation of the Supreme People's Court on Several Issues relating to the Application of Law in the Trial of Trademark Civil Disputes Article 9 (2), Article 64 (1) and Article 69 of the Civil Procedure Law of the People's Republic of China stipulate the following judgments: (1) Taizhou Tianfu Rice Industry Co., Ltd. shall compensate Wuchang Rice Association for economic losses of 20,000 yuan and reasonable expenses of 5,000 yuan within 10 days after the first instance judgment takes effect; 2. Reject other claims of Wuchang Rice Association.

In the second instance, Tianfu Rice Company submitted a copy of the business license of Wuchang Branch of Taizhou Tianfu Rice Co., Ltd. and a trademark registration certificate No. 15671840.

Wuchang Rice Association submitted Tianfu rice Industry company to apply for registration of "Wuyuan regular production", "ground five Dao regular", "black five soil regular", "mountain five water regular" trademark information, the status of the above trademarks are displayed waiting for substantive review.

The other facts ascertained by the Court are consistent with the facts ascertained by the court of first instance, and the facts ascertained by the court of first instance shall be confirmed by the court upon examination.

The above facts are supported by the evidence submitted by the two parties in the cases of first and second instance, the trial records of the court of first instance, and the interrogation records of the court.

The court believes that the focus of the case is whether Tianfu Rice Company has violated the exclusive right to use the registered trademark of Wuchang Rice Association. In this regard, the court found the following:

First of all, the appellant claims that according to the notary record and print-out page 8 of (2019) Jinnan Certificate No. 1444, the Appellant's products are not displayed after searching for "Wuchang" on "Jingdong Mall", but according to the notary operation step 4, after searching for "Wuchang" and clicking on "Brand - Chongming Island", the Appellant's products can be displayed. That is, page 10 of the printed notarial certificate, which shows that the title of the Appellant's product contains the words "Saiwuchang". In addition, the appellant claims that the notarial certificate (2019) Jinnan Certificate No. 1444 does not record the cleaning inspection steps, so there are problems with the notarial procedure, and the notarial certificate is not clear, resulting in it being unable to see. In this regard, the court believes that the printed version of the notarial certificate was obtained by using the computer login of the notary office. In the case that the appellant has not provided sufficient evidence to overturn the notarized facts, and the appellant has expressed sufficient opinions on the notarized content of the notarized certificate during the second instance, the court recognizes the validity of the notarized certificate and the notarized facts.

Secondly, according to the provisions of Article 57 of the Trademark Law of the People's Republic of China, without the permission of the trademark registrant, the use of the same trademark with its registered trademark or similar trademark on the same kind of goods, which is easy to cause confusion, is an infringement of the exclusive right to use a registered trademark. According to the provisions of Article 9 and Article 10 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Trademark Civil Dispute Cases, trademark identical means that the trademark accused of infringement is compared with the registered trademark of the plaintiff, and there is basically no visual difference between the two; Similar trademark refers to the comparison between the trademark accused of infringement and the plaintiff's registered trademark, the font, pronunciation, meaning or graphic composition and color of the text, or the overall structure after the combination of its various elements is similar, or the three-dimensional shape and color combination are similar, which may cause the relevant public to misidentify the source of the goods or think that the source of the goods has a specific connection with the plaintiff's registered trademark; The identification should be based on the general attention of the relevant public as the standard, both the whole of the trademark and the main part of the trademark should be compared, the comparison should be carried out separately in the state of isolation of the object of comparison, and consider the request to protect the significance and popularity of the registered trademark. In this case, according to the above notarial record, the appellant used the words "Wuchang" in the title of the infringing product, and the infringing product rice and the appellee's trademark No. 1607996 and trademark No. 5789043 approved commodities constitute the same or similar commodities. The words "Wuchang" contained in the title of the infringing product involved in the case are highly similar to the main part of the appellee's trademark "Wuchang" in terms of text composition and call, constituting an approximate logo.

Finally, the appellant claims that its use of "Northeast Wuchang Daohuaxiang Rice" is descriptive, and the descriptive use in the sense of trademark law refers to the situation of reasonable use of another person's registered trademark in order to describe or explain the name or other matters of its own goods, and the descriptive use should clearly exclude the situation where the identification has the function of identifying the source of goods. In this case, although the title of the infringing product contains its brand "Chongming Island", it does not affect the trademark recognition function of the words "Wuchang" contained in the title. After a limited search with "Wuchang" as the keyword and "brand - Chongming Island", it can be shown that the infringing product can also prove that it has played the role of trademark recognition. The two trademarks involved in the case are used as geographical indications to prove the trademarks, indicating that the approved goods come from a specific region and have a specific quality. In the case that the appellant has not submitted evidence to prove that the infringing products actually come from a specific region of the geographical indication and have a specific quality, considering that the two trademarks involved in the case have gained a high reputation through use, Therefore, the appellant's use of the words "Wuchang" in the infringing products is objectively easy to cause the relevant public to confuse and misrecognize the specific quality of the infringing products such as the origin of the infringing products. To sum up, the appellant's act infringes upon the appellee's exclusive right to use the registered trademark, which the court of first instance found to be legally based, and this court confirms it.

To sum up, the reasons for the appeal of Tianfu Rice Company are lacking in facts and legal basis, and the court does not support them. The judgment of the first instance is clear in determining the facts and correct in applying the law, which shall be upheld by the court according to law. In accordance with the provisions of Article 177, paragraph 1 (1) of the Civil Procedure Law of the People's Republic of China, the Court decides as follows:

The appeal was dismissed and the original judgment upheld.

The case acceptance fee of 425 yuan is borne by Taizhou Tianfu Rice Industry Co., LTD. (already paid).

This judgment is final.

Chief Judge Li Xiang

Judge Van Medo

Judge Ma Xingfang

January 14, 2002

Judge Assistant Yang Liuqing

Clerk Liang Nannan

Source: Deep assurance

Planning editor | Xiao Li

Reviewed by | Zhaocheng Pan