Supreme People's Court

A civil judgment

(2021) Supreme Law Minzai 338

Retrial applicant (plaintiff of first instance, appellant of second instance) : China Resources (Group) Co., LTD. Address: 49 / F, China Resources Building, 26 Harbour Road, Wanchai, Hong Kong, HKSAR.

Legal representative: Li Muhan, senior deputy director of the legal Affairs Department of the company.

Agent AD litem: Zhang Yazhou, Lawyer of Beijing Jijia Law Firm.

Agent AD litem: Li Yonghang, lawyer of Beijing Jijia Law Firm.

Applicant for retrial: China Resources Intellectual Property Management Co., LTD. Address: Room 201, Building A, No.1 Qianwan 1st Road, Qianhai Shenzhen-Hong Kong Cooperation Zone, Shenzhen.

Legal representative: Li Muhan, Chairman and General Manager of the Company.

Agent AD litem: Zhang Yazhou, Lawyer of Beijing Jijia Law Firm.

Agent AD litem: Hou Yujing, Lawyer of Beijing Jijia Law Firm.

Respondent (defendant of first instance, appellant of second instance) : Huarun Lighting Store, Jinniu District, Chengdu. Address: AB1-7, Jinniu District, Chengdu City, Sichuan Province.

Operator: Liu Wenqiong, female, born on December 5, 1972, X nationality, living in Jinniu District, Chengdu City, Sichuan Province.

Agent AD litem: Xu Jingyuan, lawyer of Beijing Dongwei Law Firm.

Agent AD litem: Wang Xinyu, lawyer of Beijing Dongwei Law Firm.

Retrial of the applicant China Resources (Group) Co., LTD. (hereinafter referred to as China Resources Group) and China Resources Intellectual Property Management Co., LTD. (hereinafter referred to as China Resources Intellectual Property Company) for trademark infringement and unfair competition disputes with the respondent China Resources Lighting Store (hereinafter referred to as China Resources Store) in Jinniu District, Chengdu, If you are not satisfied with the civil judgment No. 174 of Sichuan Higher People's Court (2020), apply to the court for a retrial. On 29 September 2021, the Court issued civil Ruling (2021) No. 4375 of the Supreme Court to bring the case to trial. The court formed a panel in accordance with the law and held a public hearing of the case. The retrial included Zhang Yazhou and Li Yonghang, the agent AD litem of the applicant China Resources Group, Zhang Yazhou and Hou Yujing, the agent AD litem of China Resources Intellectual Property Company, Liu Wenqiong, the operator of the respondent China Resources Store, and Xu Jingyuan and Wang Xinyu, the agent AD litem of the respondent. The case is now closed.

China Resources Group and China Resources Intellectual Property Company applied for a retrial, claiming that the use of "China Resources Lighting" by the China Resources store infringed the exclusive right to use the registered trademarks of "China Resources" and "China Resources Vanguard" of No. 3843561. (1) The use of "China Resources lighting" in signs, walls inside and outside the store, body advertisements, sales documents, product price tags, etc. is a typical trademark use. (2) China Resources stores sell lamps and lighting products of various brands, and the services provided are similar to the "promotion (for others)" approved by the registered trademarks of "China Resources" and "China Resources Vanguard" in No. 776090 and No. 3843561. (3) The accused infringing logo "China Resources Lighting" is similar to the registered trademark of "China Resources" and "China Resources Vanguard", which is easy to cause confusion and misidentification by the relevant public. 2. The use of "China Resources Lighting" by the China Resources Store infringes the legitimate rights and interests of the well-known trademark of "China Resources" No. 773121. (1) "China Resources" trademark No. 773121 has been widely known by the relevant public after long-term use and is a well-known trademark. (2) The use of the accused infringing mark is easy to cause misidentification by the relevant public, weakening the significance of the well-known trademark of "China Resources", and there is a situation of improper use of the market reputation of "China Resources" well-known trademark and seeking improper benefits, which infringes the legitimate rights and interests of "China Resources" well-known trademark No. 773121, and should be prohibited. 3. The use of the business name containing the "China Resources" brand in the China Resources Store infringes the legitimate rights and interests of the registered trademarks of China Resources Intellectual Property Company No. 776090 "China Resources", No. 3843561 "China Resources Vanguard" and the well-known No. 773121 "China Resources", and also infringes the legitimate rights and interests of the corporate name of China Resources Group, and should be prohibited. 4. The use of "China Resources lighting" by the China Resources store is not reasonable and legitimate. A citizen shall have the lawful right to his or her name and may, of course, use his or her name reasonably. However, when a citizen uses his or her name commercially as a trademark or an enterprise name, he or she shall not violate the principle of good faith or infringe upon the prior rights of others. Knowing that the registered trademark or brand name of others has a high visibility and influence, China Resources stores still register the same business name as others, and prominent use of the same or similar trademark or brand name of others on similar goods or services is obviously malicious and easy to misidentify the relevant public, and its behavior does not belong to the fair use of name. It constitutes an infringement of the exclusive right to use a registered trademark and unfair competition. In summary, in accordance with the relevant provisions of the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law), the Anti-Unfair Competition Law of the People's Republic of China (hereinafter referred to as the Anti-Unfair Competition Law) and the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the Civil Procedure Law), China Resources Group and China Resources Intellectual Property Company apply to the Court for a retrial. Revoking the judgment of the first or second instance; 2. Ordered the China Resources Store to immediately stop infringing on the exclusive right to use the registered trademarks of China Resources Intellectual Property Company No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard"; 3. Ordered the stores of China Resources to immediately stop infringing the well-known trademark rights of China Resources Intellectual Property Company No. 773121; 4. Ordered the stores of China Resources to immediately stop using the enterprise name with the word "China Resources" and change its enterprise name within a time limit, and the changed enterprise name shall not contain the same or similar words as "China Resources"; 5. Ordered the stores of China Resources to publish a prominent statement in Chengdu Business Daily, West China Metropolis Daily and Chengdu Daily to eliminate the adverse impact of the alleged trademark infringement and unfair competition on China Resources Group and China Resources Intellectual Property Company; 6. Ordered the China Resources Store to compensate China Resources Group and China Resources Intellectual Property Company for the economic loss of 500,000 yuan; 7. Ordered the China Resources Store to compensate China Resources Group and China Resources Intellectual Property Company for legal fees, notary fees, investigation fees and other reasonable expenses to stop the infringement, totalling 70,000 yuan.

China Resources Store argued that 1. The use of "China Resources Lighting" by China Resources Store did not infringe upon the exclusive right to use the registered trademark of China Resources Intellectual Property Company. (1) The use of "China Resources Lighting" in the China Resources store is the use of the abbreviation of the enterprise name and does not belong to the use of trademarks. (2) The name "China Resources Lighting" comes from the name of the operator Liu Wenqiong's son, China Resources store does not have the intention of climbing. (3) "China Resources Lighting" has been used for nearly 20 years, after long-term operation, has a certain visibility in the local. (4) The services provided by the China Resources Store are not similar to the services approved for use by the trademark involved, and the trademark accused of infringement is not similar to the trademark involved. (5) There is a huge difference between the business premises of China Resources stores and China Resources Group, which will not cause confusion and misidentification by the relevant public. (6) China Resources Group and China Resources Intellectual Property Company did not submit evidence to prove that the alleged infringing marks would cause confusion and misidentification by the relevant public. 2. The use of "China Resources Lighting" by the China Resources Store does not infringe the well-known trademark rights of China Resources Intellectual Property Company. (1) The evidence submitted by China Resources Intellectual Property Company cannot prove that its trademark No. 773121 was well-known before 2002, and the well-known determination in the previous case does not necessarily constitute the basis for this case. (2) There is a huge gap between the approved use service of Trademark No. 773121 and the service provided by China Resources Store, so the use of the accused infringing mark by China Resources Store will not infringe the rights of trademark No. 773121. (3) The "China Resources Lighting" logo is not similar to Trademark No. 773121. 3. The name of the China Resources Store does not constitute unfair competition to China Resources Group. (1) There is no competitive relationship between China Resources Stores and China Resources Group. (2) Before the establishment of China Resources Store, China Resources Group did not have a reputation in the lighting sales industry. (3) The main scope of China Resources stores is different from that of China Resources Group, which will not cause misperception by the relevant public. 4. China Resources stores shall not be liable for infringement. To sum up, the judgment of the second instance found the facts clearly, the application of the law is correct, request to reject the retrial application of China Resources Group and China Resources Intellectual Property Company.

China Resources Group filed suit with the Court of First instance to request: 1. Order the China Resources Store to immediately stop infringing on the exclusive right of the registered trademark of China Resources Group No. 776090 and No. 3843561 China Resources Vanguard; 2. Ordered the stores of China Resources to immediately stop infringing the rights of the well-known trademark of China Resources Group No. 773121; 3. Order the stores of China Resources to immediately stop trademark infringement by using the same or similar words with "China Resources" in their store operations, advertising, promotion and other activities; 4. Ordered China Resources stores to immediately stop using the company name with the word "China Resources"; 5. Ordered the China Resources store to publish a prominent statement on the infringement in Chengdu Business Daily, West China Metropolis Daily and Chengdu Daily to eliminate the impact; 6. Ordered the China Resources Store to compensate China Resources Group for the economic loss of 500,000 yuan; 7. Ordered the China Resources Store to compensate China Resources Group for legal fees, notarization fees, library search fees, evidence preservation notary fees, lawyer investigation and evidence collection fees, staff investigation and evidence collection fees and other reasonable expenses incurred in investigating and stopping trademark infringement and unfair competition, totaling 70,000 yuan.

The Court of First instance found out after trial: on January 21, 1995, approved by the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office), China Resources Group obtained No. 776090 "China Resources" trademark, approved service items for Class 35, including marketing (for others), the trademark after renewal, the registration period until January 20, 2025. On April 7, 2006, with the approval of the Trademark Office, China Resources Group obtained No. 3843561 "China Resources Vanguard" trademark, approved service items for Class 35, including marketing (for others), the trademark after renewal, the registration period until April 6, 2026. On December 7, 1994, with the approval of the Trademark Office, China Resources Group obtained the trademark No. 773121 "China Resources", the approved service item is Class 36, including capital investment, the trademark is renewed, the registration period is valid until December 6, 2024. In 2013, the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce issued the ruling on the review of trademark Objection No. 01465, which determined that the registered trademark No. 773121 "China Resources" had been widely known and enjoyed a high reputation among the relevant public before July 5, 2005. Recognized as a well-known trademark on capital investment services. Beijing First Intermediate People's Court made (2014) the first Bank of China (Zhi) Chu Zi No. 9633 administrative judgment, determined that before June 9, 2009, No. 773121 "China Resources" registered trademark in the "capital investment" and other related services were widely known by the relevant public, constitute a well-known trademark.

China Resources Store is an individual business, its business name registered in May 31, 2002, the operator Liu Wenqiong, business address is Chengdu Jinfu lighting trading Market AB1-7, registered capital of 5000 yuan, business scope: wholesale and retail lighting. In addition to running CR stores, Liu Wenqiong also set up CR Lighting Business Department in Chenghua District on October 18, 2006, which is located in No. ×× Building ××, Chenghua District, Chengdu City, Sichuan Province. Liu Wenqiong on the above two stores unified use of "China Resources lighting" to promote. The son of China Resources store operator Liu Wenqiong was named China Resources and was born on May 25, 2001.

On March 1, 2017, the notary of Chengdu National Notary Office Qi, Lin Zhengyou and the entrusted agent of China Resources Group Zeng Xiangkun came to Chengdu Jinniu District Jinfu Lighting City AB1-7 - "China Resources Lighting home Hall", Zeng Xiangkun and the notary to the appearance of the store, the operation situation and the information obtained on-site photos. On March 24, 2017, Chengdu National Notary Office issued (2017) Sichuan Notary No. 48386 Notary Certificate. According to the photos attached to the notarial certificate, there are signs of the shops involved hanging on the exterior wall of the building where the shops are located, with the words "China Resources Lighting" highlighted on them, and the words "China Resources Lighting High-end Life Hall" at the door of the shops, in which the font "China Resources Lighting" is larger. At the entrance of its store and the background wall of the front desk, there are words of "China Resources lighting with the same record". The words "HR Huarun Lighting" are in the prominent position of the hangtags of the goods sold and the business cards of the staff. The award plate placed in the store shows "Recommended by the industry, the on-site inspection of the stationed personnel of our newspaper, the online voting public election and selection committee confirmed that Chengdu CR Lighting was rated as the" Bright Spot Award - 2016 China Lighting (lighting) industry Top 500 dealers in the country "honorary title", of which "Chengdu CR Lighting" is red, the font is larger. Envelopes placed in the store are printed with the words "China Resources Lighting Trading Company."

September 9, 2010, Chenghua District China Resources lighting business department and Chengdu Baidu Technology Co., Ltd. signed a Baidu promotion website package agreement, agreed to use Baidu promotion website package services. On March 28, 2017, Zeng Xiangkun, the entrusted agent of China Resources Group, went to Chengdu National Notary Office, opened a browser on the computer of the notary Office, entered the "Baidu" website and entered the word "China Resources Lighting" in the search engine. The official website of "China Resources Lighting" was displayed in the first search result, entered the website, and took screenshots and printed relevant pages with screenshot software. Enter the ICP/IP address/domain name information registration management system of Ministry of Industry and Information Technology, enter "Chengdu China Resources Store" to query the information of the organizer and print the page. On March 31, 2017, Chengdu National Notary Office issued (2017) Sichuan Notary No. 51312 Notary Certificate. According to the attachment of the notarial certificate, the URL of the website involved is ×××.com, and the words "China Resources Lighting" are marked at the bottom of the webpage within the website. The homepage of the website is introduced as "Welcome to China Resources Lighting, Chengdu China Resources Lighting is located in Chengdu, Sichuan Province, the" Land of abundance in China "... Cr lighting products are rich, mainly engaged in ceiling chandelier, guest room lamp, wall lamp, table lamp, crystal chandelier, candle crystal lamp, classical iron lamp, European simple lamp, resin craft lamp, platform lamp, ceiling lamp... China Resources Lighting since its inception in line with the "customer first, quality first" purpose. For the support of friends from all walks of life, China Resources Lighting will, as always, strive to provide our customers with better service." The company's address includes "AB1-7, Lighting Plaza, No. 668, Jinfu Road, Jinniu District, Chengdu City, Sichuan Province, and China Resources Lighting, 3rd floor, Fusenmei Home Building Materials Hall, Rongdu Avenue, Chenghua District, Chengdu City, Sichuan Province". The website shows a number of photos of the physical store, some of which can be seen at the entrance of the store's exhibition hall marked with the words "China Resources Lighting". In the "team display" column on the website, a number of photos of team building activities are displayed, and the banner is marked with "2016 China Resources Lighting internal Training second season - Breakthrough self". The page also shows that the company's address includes "AB1-7, Lamps Plaza, 668 Jinfu Road, Jinniu District, Chengdu, Sichuan Province." According to ICP/IP query, the owner of the ×××.com website is China Resources Store, website record/license number: Shu ICP No. 16004735-1.

China Resources stores and the China Resources Lighting Business Department in Chenghua District have carried out a lot of publicity to "China Resources Lighting" as business activities, such as placing body advertisements, using the words "China Resources Lighting" on the car body, using the words "China Resources Lighting" on the promotional posters, and setting up "China Resources Lighting Business School" to promote corporate culture. "China Resources Lighting" has opened a wechat public account named "China Resources Lighting", wechat signal is ×××ds, in the wechat public account home page, there is an introduction to the main business: "China Resources lighting is the first lighting brand of Chengdu home improvement lights." In many posts pushed by the public number, the lower right corner of the photo is marked with a watermark of "China Resources Lighting". Some of the photos show signs, banners and banners of physical stores marked with the words "China Resources Lighting".

The court of first instance held that the alleged infringement of the China Resources store did not constitute trademark infringement and unfair competition, so it did not support the claim and request of China Resources Group on civil liability. In accordance with Article 57 of the Trademark Law, Article 2 of the Anti-Unfair Competition Law, and Article 148 of the Civil Procedure Law, paragraph 1, paragraph 2, and paragraph 3, the judgment rejects the claims of China Resources Group. The case acceptance fee of 9,500 yuan shall be borne by China Resources Group.

China Resources Group refused to accept the first instance judgment, appeal request: 1. Revoking the judgment of first instance; 2. Modify the judgment in accordance with the law to support all litigation claims of China Resources Group; 3. China Resources Store shall bear the litigation costs of the first and second instance of this case.

The court of second instance confirmed the facts ascertained in the first instance in accordance with the law, and also ascertained that: The State Administration for Industry and Commerce issued the Notice on Issues concerning the Protection of the "China Resources" brand Name on October 20, 2001 and the Notice on Strengthening the Protection of the "China Resources" Brand Name and Trademark respectively on July 15, 2010, stating that the "China Resources" brand name is original and distinctive, and after more than 50 years of use and extensive publicity, Has a high visibility. At the same time, the local administration for industry and commerce is required to clean up the enterprise names registered before October 20, 2001 with "China Resources" as the brand name. Although there is no investment relationship with China Resources Group and China Resources Corporation, but does not cause public misidentification, and does not cause damage to the legitimate rights and interests of China Resources Group, China Resources Corporation and its subsidiaries using the name "China Resources" shall be reserved. Where it has caused misidentification by the public or caused damage to the legitimate rights and interests of China Resources Group, China Resources Corporation and its subsidiaries using the name "China Resources", it shall be dealt with in accordance with the relevant provisions of the Provisions on the Administration of Registration of Enterprise Names and the Measures for the Implementation of the Administration of Registration of Enterprise Names. For those who apply for "China Resources" as the brand name after October 20, 2001, if they have no investment relationship with China Resources Group or China Resources Corporation, they shall not be approved.

Liu Wenqiong applied for registration of trademark No. 8268351 "HR" in Class 35 on May 5, 2010, and approved the use of goods or services as "business management of franchise; Sell on behalf of others; Import and export agent "etc. On September 16, 2015, Liu Wenqiong applied for the registration of "China Resources" trademark No. 17907384 in Class 11, and the scope of approved use of goods is: car headlights; Electric lights; Germicidal lamp for air purification; Perm lamp, etc. On March 21, 2017, the Trademark Office issued the "Notice of Acceptance of Trademark Opposition Application", which stated: "In accordance with the provisions of the Trademark Law and the implementing Regulations, the Bureau accepts the objection application of China Resources Group for the registration of Liu Wenqiong's trademark No. 17907384 in Class 11". On January 24, 2018, the Trademark Office made the decision of (2018) Trademark No. 0000004309 "No. 17907384" China Resources Trademark not registration ", which denied the registration of the "China Resources" trademark No. 17907384, which was applied for by Liu Wenqiong in Class 11. It states: "The opponent's cited trademark 'China Resources' has been known to the relevant public after a long period of extensive publicity, use and promotion, and has reached a well-known degree before the application for registration of the opposed trademark and has been identified as a well-known trademark." The words of the opposed trademark are the same as those of the trademark, which constitutes a copy or imitation of a well-known trademark, and the relevant public will generally think that there is a specific connection. The registration of the opposed mark may mislead the public and the interests of the opponent may be harmed."

The Court of second instance held that the focus of the dispute in this case is: (1) whether the use of "China Resources Lighting" by China Resources stores infringes the exclusive right to use registered trademarks No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard" enjoyed by China Resources Group. (2) Whether the use of "China Resources Lighting" by the China Resources Store infringes the exclusive right to use the registered trademark No. 773121 of "China Resources" enjoyed by China Resources Group. (3) Whether the act of registering the word "China Resources" as an enterprise name and using it in a China Resources store constitutes unfair competition. (4) If infringement is constituted, whether the China Resources Store shall bear the civil liability claimed by China Resources Group.

(1) The use of "China Resources Lighting" in commercial activities by China Resources stores is not a trademark use; The "wholesale and retail" services operated by China Resources stores are quite different from the "promotion (for others)" registered trademark No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard" enjoyed by China Resources Group in terms of service purpose, service content, method and object, and the two do not constitute similar services; The general attention of the relevant public can realize that "China Resources Lighting" is not related to China Resources Group, so there is no possibility of confusion or actual confusion. At the same time, China Resources store uses its own "HR" trademark before the name abbreviation, which is clearly different from the trademark claimed by China Resources Group. China Resources Group also has no evidence to prove that there are subjective intentions and mistakes of "free riding" and other use of the trademarks involved in the operation process of China Resources stores, and there is no evidence to prove that the situation caused confusion and misidentification of the relevant public. The court of first instance found that the alleged infringement did not infringe on the right to exclusive use of the said registered trademark, and the court of second instance upheld it.

(2) The registered trademark No. 773121 of China Resources Group is widely known by the relevant public in related services such as "capital investment" and has a certain popularity, but it is also limited to "capital investment", so the "cross-class protection" of well-known trademarks should have certain boundaries and restrictions. The use of "China Resources Lighting" in China Resources stores is limited to the wholesale and retail of lamps and lanterns, and is obviously different from "capital investment" in terms of service purpose, content, method and object, so there is no misleading the public and the interests of China Resources Group as the trademark registrant may be harmed. "China Resources Lighting" as an enterprise name approved by law, the word "China Resources" in the name comes from the name of its operator Liu Wenqiong's son Zhu Huarun, and China Resources Group "China Resources" has different meanings. At the same time, the use of the company name abbreviated by the China Resources Store as the name plus the industry or the product refers to the reasonable use of the name and the legitimate use in good faith for normal business. Since the use of the "China Resources Lighting" logo in the Huarun store is not similar to the registered trademark claimed by China Resources Group, there is no possibility of confusion, there is no basic fact of trademark infringement, and there is no problem of diluting the identification function of well-known trademarks, reducing the significance of trademarks, etc., the relevant determination of the court of first instance is correct, and the court of second instance maintains it.

(3) Because China Resources Group has no wholesale, retail and other business activities in the lighting industry, there is no competitive relationship with China Resources stores in the field of wholesale and retail lighting, and there is no possibility of confusion. The bona fide name registration and use of China Resources stores have legal and legitimate reasons, and do not violate the principles of voluntness, equality, fairness, honesty and credit, and are not prohibited by universally recognized business ethics, so it does not constitute unfair competition, nor does it constitute infringement of the prior rights of China Resources Group.

(4) As mentioned above, since the actions of China Resources stores do not constitute trademark infringement or unfair competition, the above related claims of China Resources Group have no factual and legal basis, and the court of second instance will not support them.

In summary, the court of second instance held that the appeal request of China Resources Group could not be established and should be rejected; The judgment of first instance clearly identifies the facts, correctly applies the law, and should be upheld. In accordance with the provisions of the first paragraph of Article 170 of the Civil Procedure Law, the appeal was rejected and the original judgment was upheld. The second instance case acceptance fee of 9,500 yuan shall be borne by China Resources Group.

During the review stage of the retrial, China Resources Group and China Resources Intellectual Property Company submitted the following evidence to the Court:

Exhibit 1, "China Resources" Trademark Information and transfer Announcement No. 776090, Exhibit 2, "China Resources Wanjia" trademark information and transfer Announcement No. 3843561, Exhibit 3, "China Resources" trademark information and transfer Announcement No. 773121, Exhibit 4: Special Instructions of China Resources (Group) Company Limited and China Resources Intellectual Property Management Company Limited on Matters related to the Transfer of Registered Trademarks No. 773121, 776090, 3843561 and 3955797 (hereinafter referred to as the "Special Instructions"). Intends to prove that China Resources Intellectual Property Company owns the trademark rights of the above registered trademarks, and the above registered trademarks shall be protected according to law within the validity period; China Resources Intellectual Property Company has the right to apply for a retrial in its own name against the judgment of the first or second instance; Compensation in this case will be collected by China Resources Intellectual Property Company.

Evidence 5: Photos of China Resources stores and certificates of trusted time stamps; Evidence 6: audio recording, text arrangement and certificate of trusted time stamps of communication with sales staff of China Resources stores about purchasing lamps; Evidence 7: video of China Resources stores and certificates of trusted time stamps; Evidence 8: Promotional posters of China Resources stores during the May Day holiday. It is intended to prove that the China Resources Store has made trademark use of "China Resources Lighting", providing services similar to Class 35 "marketing (for others)", and that its conduct infringes the registered trademark and trade name rights of China Resources Intellectual Property Company and China Resources Group.

Exhibit 9: Legal Opinion on the Dispute over Infringement of the trademark rights of "China Resources". It is intended to certify the legal opinions of well-known experts in the industry on the disputes involved in this case.

China Resources Group and China Resources Intellectual Property Company submitted two additional sets of evidence:

The first set of evidence (Evidence 11-160) is intended to prove that the "China Resources" trademark No. 773121 of China Resources Intellectual Property Company has reached a well-known level in the field of capital investment and real estate before 2002, and the well-known status has continued to this day. Among them, Evidence 11-31 is the performance announcement and annual report of China Resources Land Limited, intended to prove that China Resources Land Limited, a subsidiary of China Resources Group, is a listed company. From 1998 to 2019, the turnover of "China Resources" trademark in the approval service is huge; Evidence 32-84 is the documentary evidence of the honors won by China Resources Land Co., LTD. It intends to prove that since 2003, "China Resources" trademark has won many honors in the real estate industry, ranking in the forefront of the industry and enjoying high popularity; Evidence 85-154 refers to the media's reports on the approval service of the "China Resources" trademark, and intends to prove that the "China Resources" trademark has a high popularity in the approval service; Evidence 155-160 is the protected record of trademark No. 773121 in the approved service and is intended to prove that Trademark No. 773121 was well-known before July 5, 2005.

The second set of evidence (Evidence 161-227) refers to the media publicity and advertising of the trademark No. 3843561 of "China Resources Vanguard" on the approved service. It intends to prove that the trademark No. 3843561 of "China Resources Vanguard" of China Resources Intellectual Property Company was extensively publicized and used in supermarkets before 2002, and after it was registered in 2006, Its popularity and influence were further strengthened.

China Resources store cross-examined the above evidence: the authenticity, legality, relevance and probative power of the above evidence 1-4 is recognized; The authenticity of evidence 5-8 is recognized, but the purpose of the proof is not recognized. The sales personnel provide transaction consultation to consumers during sales, which belongs to the scope of sales services, and in fact, they still earn the profit difference through sales. Evidence 8, on the contrary, can prove that the wholesale and retail services engaged in by CR stores are not similar to the Category 35 marketing (on behalf of others) approved for use in the trademarks involved; Exhibit 9 is only a legal opinion, not evidence, the opinion did not fully consider the facts of the case, and the expert did not appear in court, so it cannot be accepted. Supplementary evidence 11-160 is evidence formed in the original trial stage, China Resources Group and China Resources Intellectual Property Company cannot provide reasonable reasons for overdue evidence, this part of evidence should not be accepted, and the subject of this part of evidence is not China Resources Group and China Resources Intellectual Property Company, and has nothing to do with the case. China Resources Group and China Resources Intellectual Property Company did not claim to be well-known in real estate management at the original trial stage, so they should not be considered; Evidence 161-227, this part of the evidence does not have a time stamp, the authenticity is not recognized, and this part of the evidence occurred before the second trial, if no reasonable reason for the delay is provided, shall not be accepted.

China Resources Store submitted the following evidence to the Court:

Evidence 1, "Information on China Resources Lighting", intended to prove that China Resources stores have been honest operation, the majority of consumers praise.

Evidence 2, "Hua" generation identity certificate, intended to prove that the name of the son of China Resources store operator Liu Wenqiong is "Zhu Huarun".

Exhibit 3. Profile of the relevant lighting manufacturers and the honors they have won are intended to prove that CR stores have been distributing quality and well-known lighting products.

Evidence 4. The award of "China Resources Lighting" is intended to prove that "China Resources Lighting" has been operating for nearly 20 years and has a certain reputation and influence in the industry.

Evidence 5: Photos of China Resources stores, intended to prove that the use of "China Resources Lighting" in the signs and interior and exterior decoration of China Resources stores is the abbreviation of the enterprise name, and does not belong to trademark use; China Resources stores highlight the use of the trademark of the lighting products sold in the shop signs and interior and exterior decoration, which will not cause confusion and misidentification by the relevant public.

Exhibit 6: Notice on Matters relating to the Application for Registration of New retail or wholesale Service Marks; Evidence 7, 8, related Internet reports. It is intended to prove that the "marketing for others" service approved by the registered trademark of China Resources Intellectual Property Company and the "wholesale and retail" engaged in by China Resources stores do not constitute similar services.

Evidence 9. The photo of the office location of China Resources Group in Shenzhen is intended to prove that there is a huge gap between the business premises and interior decoration of China Resources Group and China Resources stores, and relevant members of the public will not be confused or misidentified.

The China Resources Store also submitted the following evidence:

Evidence 1. Photo of the China Resources store, intended to prove that the China Resources store has ceased business and is now "Daihatsu Lighting".

Evidence 2. Beijing Intellectual Property Court (2017) Beijing 73 Civil Judgment No. 1797 of the Early Republic of China; Evidence 3. Civil Judgment No. 583 of Beijing Higher People's Court (2020). It is intended to prove that there is no need to protect the well-known trademark of "China Resources" in this case, and the use of "China Resources" in the store does not constitute unfair competition.

Exhibit 4-9. Administrative Judgments of Beijing Higher People's Court (2017) No. 1436, (2017) No. 398, (2016) No. 2667, (2016) No. 3172, (2016) No. 1915, (2016) No. 117. It is intended to prove that the services of Hypermarket and Class 35 "promotion (for others)" are not similar services.

China Resources Group and China Resources Intellectual Property Company said on the cross-examination of the above evidence: there are no objections to the authenticity and legality of the above evidence, but there are objections to the purpose of proving the above evidence. Evidence 1 and 2 are not relevant to the case; Evidence 3-5 precisely shows that the services provided by CR stores are similar to the categories of services approved for use by the trademarks involved; Evidence 6 is only in the field of trademark authorization and confirmation. For trademark infringement, the courts all hold that wholesale, retail and Category 35 marketing (on behalf of others) constitute similar services; Evidence 7, 8 The content of the network report has no connection with the focus of the dispute in this case, and can not prove the claims of China Resources store; Evidence 9 is not relevant to the case, and it is precisely because of the high reputation of China Resources Group that the alleged infringement is easy to cause confusion. Supplementary evidence 1 can not prove the justification of the previous acts, nor can it prove that the accused infringement has stopped all; Supplementary evidence 2 and 3 are different from the facts of the judgment of Hangzhou Intermediate Court submitted by China Resources Group and China Resources Intellectual Property Company, and the facts in the evidence materials are different from the case; Most of the supplementary evidences 4-9 are judicial precedents involving administrative authorization confirmation cases, but the judgment standards of administrative cases are different from civil cases, and the standards of administrative cases cannot be used as the basis for the determination of this case.

The court shall confirm the authenticity of the evidence for which the parties have no objection; As for the probative power of the above evidence, the court will comprehensively comment on the case facts and other evidence in the judgment part.

The Court confirms the facts identified by the courts of first and second instance concerning the establishment and registration of trademarks by the parties to the case, and the use of the accused infringing marks by the stores of China Resources.

The Court also ascertained that on December 6, 2019, the State Intellectual Property Office published the Notice of trademark transfer/transfer in the 1674 Trademark Announcement, and the trademarks No. 776090 "China Resources", No. 3843561 "China Resources Vanguard" and No. 773121 "China Resources" were transferred by China Resources Group to the name of China Resources Intellectual Property Company. According to the "Special Note" signed by China Resources Group and China Resources Intellectual Property Company, China Resources Group transfers all rights of registered trademarks No. 773121, 776090 and 3843561 to China Resources Intellectual Property Company. China Resources Intellectual Property Company becomes the legal holder of registered trademarks No. 773121, 776090 and 3843561 from the date of transfer; In this case, the legal results, related liabilities and extended procedures (such as retrial procedures) related to the infringement of the above registered trademarks shall be handled by China Resources Intellectual Property Company, and the legal results, related liabilities and extended procedures (such as retrial procedures) related to the unfair competition filed based on the name of China Resources Group shall continue to be handled by China Resources Group; The right to claim damages arising from the case of China Resources Group is transferred to China Resources Intellectual Property Company, and China Resources Group agrees that China Resources Intellectual Property Company shall uniformly collect damages that may occur in the extended procedure of the case (such as the retrial procedure).

The above facts are proved by the corresponding evidence provided by the parties in the first, second and retrial proceedings.

The court held that according to the facts identified by the court, the three trademarks involved had been transferred from China Resources Group to China Resources Intellectual Property Company, and the State Intellectual Property Office had made an announcement. In view of this, China Resources Intellectual Property Company, as the owner of the above registered trademarks, has the right to claim rights in relation to the relevant rights and interests of the above registered trademarks. Article 249 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China provides that, in a lawsuit, where the civil rights and obligations in dispute have been transferred, and the assignee applies to bear the lawsuit on behalf of the party, the people's court may decide whether to allow it according to the specific circumstances of the case. As the trademark owner involved in this case, China Resources Intellectual Property Company's application for a retrial of the second instance judgment has legal basis and should be granted.

The focus of the dispute in this case is: (1) whether the alleged infringement of the China Resources Store infringes the exclusive right of the trademark held by China Resources Intellectual Property Company; (2) whether the alleged infringement of the China Resources Store constitutes unfair competition to China Resources Group and China Resources Intellectual Property Company; (3) If the alleged infringement constitutes trademark infringement and unfair competition, how shall China Resources Store bear the responsibility?

(1) Whether the alleged infringement infringes the exclusive right of the trademark involved in the case of China Resources Intellectual Property Company

Article 57 (2) of the Trademark Law stipulates that, without the permission of the trademark registrant, the use of a trademark similar to its registered trademark on the same kind of goods, or the use of a trademark identical with or similar to its registered trademark on similar goods, which is likely to cause confusion, shall be an infringement of the exclusive right to use a registered trademark.

In this case, first of all, the documented evidence shows that the China Resources store used the words "China Resources Lighting" on its store signs, store decoration, product tags and related publicity materials. In the above signs, the word "lighting" is consistent with the category of goods operated by the China Resources store, so the prominent identification part of the logo is "China Resources", the font is large and the position is prominent. It can indicate the origin of goods and services and constitute trademark use. Although the China Resources store argues that "China Resources Lighting" is the use of the abbreviation of its enterprise name, and it also marks the "HR" logo, the above use method has gone beyond the scope of the abbreviation of the enterprise name, and the marking of other logos is not an obstacle to the use of the accused infringing logo, and the use method does not affect the identification role played by "China Resources Lighting". Therefore, the court does not accept this excuse. Secondly, China Resources stores sell various brands of lamps and lighting products, and its business scope is lamps wholesale and retail. The service is closely related to the Category 35 "marketing (for others)" service approved by the registered trademarks of China Resources Intellectual Property Company No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard" in terms of service purpose, content, method and service object, and the two constitute similar services. Although Category 35 "selling (for others)" services in the "Similar Goods and Services Division Table" does not explicitly include "wholesale and retail" services, the determination of whether the services constitute similar should be based on the general attention of the relevant public, combined with the business scope, business model, service objects and other factors. From the point of view of this case, the China Resources store classifies and sells all kinds of brand lighting that it agents or buys, so as to facilitate consumers' purchase. The logos and related information displayed on the lighting products it sells still come from the lighting brands it agents or buys, and "China Resources Lighting" is the service logo provided for the sale of the above lighting products. The above sales model intersects and overlaps with the services approved and used by the trademarks involved, and the two constitute similar services. The second instance judgment found that the business category engaged in by the China Resources store and the above-mentioned trademark approved and used services do not constitute the same or similar improper services, and the court shall correct it. Third, the distinctive identification part of the "China Resources" text of the accused infringing mark is the same or similar to the distinctive identification part of the "China Resources" trademark No. 776090 and the "China Resources Vanguard" trademark No. 3843561 in terms of text composition and call, which constitutes a similar trademark. "China Resources" is a made-up word with strong significance; The evidence submitted by China Resources Group and China Resources Intellectual Property Company to the Court of first instance and this Court can prove that before the registration and establishment of China Resources stores, the "China Resources" brand of China Resources Group was widely known to the relevant public, and the "China Resources" series of trademarks also had a high reputation in the supermarket industry. The documented evidence shows that since China Resources Group opened supermarkets in China in 1992, it has operated more than 3,000 supermarkets, covering many provinces and cities across the country, including Sichuan and Chongqing, with high annual revenue and huge advertising. Trademarks No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard" have been continuously used in supermarket operations since they were approved for registration. After long-term use and publicity, they have gained a high reputation in related industries. Under the above circumstances, as the main body engaged in commodity sales, China Resources stores still prominently use the same or similar logo with the trademark involved in the case, and engage in services similar to the trademark approval service involved in the case, which is easy to cause confusion and misidentification of the relevant public. The evidence submitted by the stores is not enough to prove that the accused infringing logo has a high reputation in the industry. Enough to avoid the relevant public to confuse it with the trademark involved. China Resources store claims that its use of "China Resources lighting" logo is derived from the name of its operator's son, which is reasonable and legitimate. The Court holds that although citizens enjoy their legal right to name and have the right to use their names reasonably, they should follow the principle of good faith and abide by the provisions of relevant laws and regulations, and shall not infringe upon the prior rights of others when using their names commercially. The conduct of the China Resources store has exceeded the boundaries of fair use of name, so its relevant defense reasons and relevant evidence, the court will not accept. Fourth, the recognition of well-known trademarks in China must follow the principles of passive recognition, case recognition and on-demand recognition. In this case, the court has found that the alleged infringement of China Resources Store constitutes an infringement of the exclusive right to use the trademarks of China Resources Intellectual Property Company No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard", and its alleged infringement has been regulated through the above-mentioned determination, and there is no need to recognize the well-known trademark of registered trademark No. 773121. Therefore, the court does not support the claim put forward by China Resources Intellectual Property Company that the use of "China Resources Lighting" in the store infringes its well-known trademark rights, and the corresponding evidence submitted by the court will not be accepted.

In summary, the use of the "China Resources Lighting" logo by China Resources stores is likely to cause confusion or misidentification of the source of its services by the relevant public, which constitutes an infringement of the exclusive right to use the trademarks of China Resources Intellectual Property Company No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard", in accordance with the provisions of Article 57, paragraph 2 of the Trademark Law. The relevant retrial request of China Resources Intellectual Property Company was established, and the Court supports it. The court shall correct the improper finding of facts and application of law in the judgment of the second instance; However, the conclusion of the second instance judgment that No. 773121 "China Resources" registered trademark did not give well-known protection is not improper, and the court maintains it.

(2) Whether the alleged infringement of China Resources stores constitutes unfair competition to China Resources Group and China Resources Intellectual Property Company

Article 2 of the Anti-Unfair Competition Law stipulates that business operators, in their production and business activities, shall abide by the principle of good faith and abide by laws and business ethics. Article 6 (2) of the Law stipulates that a business operator shall not carry out the following acts of confusion to cause people to be mistaken for the goods of others or have a specific connection with others: (2) Unauthorized use of the name of an enterprise (including abbreviation, name, etc.) that has a certain influence on others. Article 58 of the Trademark Law stipulates that where the use of another person's registered trademark as a shop name in an enterprise name misleads the public and constitutes an act of unfair competition, it shall be dealt with in accordance with the Anti-Unfair Competition Law.

Documented evidence shows that since its establishment in 1983, China Resources Group has been engaged in capital investment, real estate, commodity retail and other industries for a long time. After years of operation, its "China Resources" brand name has been widely known to the public in a number of related industries.  The State Administration for Industry and Commerce issued notices on October 20, 2001 and July 15, 2010 respectively, stating that the "China Resources" brand name is original and prominent, and has gained a high reputation after more than 50 years of use and extensive publicity. At the same time, the local administration for industry and Commerce is required to clean up the registered enterprise names with "China Resources" as the brand name, and requires that the application for "China Resources" as the brand name after October 20, 2001, if there is no investment relationship with China Resources Group and China Resources Corporation, will not be approved. Under the above circumstances, the stores of China Resources still register the same corporate name as the business name of China Resources Group, which is objectively easy to cause confusion and misidentification among the relevant public and constitute unfair competition to China Resources Group.

In addition, according to the facts ascertained in this case, the use of the word "China Resources" in the name of the enterprise by the China Resources store, which is the same or similar to the trademark involved, is also easy to mislead the public, conforms to the circumstances stipulated in Article 58 of the Trademark Law, and also constitutes unfair competition to China Resources Intellectual Property Company.

China Resources store claims that its use of "China Resources" brand is derived from the name of its operator's son "Zhu Huarun", which is reasonable and legitimate. In the opinion of the Court, the above grounds cannot be established. As mentioned above, the rational use of a citizen's name shall be based on the principle of good faith, and the prior rights of others shall not be infringed when the name is used commercially as an enterprise name. In this case, China Resources Store used the name of China Resources Group as the name of its own enterprise name, and used the word "China Resources" as the name of the enterprise name and engaged in similar services, which has exceeded the boundary of fair use of name, its relevant defense reasons cannot be established, and the court does not accept its lawsuit claims and corresponding evidence. In addition, whether there is a competitive relationship between the parties is not a necessary condition for the determination of unfair competition, so the excuse of China Resources Store that it does not have a competitive relationship with China Resources Group and China Resources Intellectual Property Company, and therefore does not constitute unfair competition lacks legal basis.

In summary, the alleged infringement of the China Resources Store constitutes unfair competition to China Resources Group and China Resources Intellectual Property Company, and the corresponding retrial request of China Resources Group and China Resources Intellectual Property Company is established, and the Court supports it; The court shall correct the improper finding of facts and application of law in the judgment of the second instance.

(3) How should China Resources Stores take responsibility

Whereas, the use of "China Resources Lighting" by the China Resources Store infringes the exclusive right to use the registered trademark of China Resources Intellectual Property Company No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard"; The use of the business name containing the "China Resources" brand constitutes unfair competition to China Resources Group and China Resources Intellectual Property Company, and China Resources stores shall bear the corresponding liability for infringement.

First of all, the China Resources store shall immediately stop the infringement of the exclusive right of the trademark No. 776090 "China Resources" and No. 3843561 "China Resources Vanguard", that is, stop the use of the logo with "China Resources" in the store signboard and other business and publicity activities; Second, China Resources stores should immediately stop using corporate names that contain the word "China Resources"; Third, China Resources stores should bear the corresponding liability for compensation. Whereas the evidence submitted by China Resources Group and China Resources Intellectual Property Company cannot prove the losses suffered by them as a result of the alleged infringement and the benefits gained by the China Resources Store as a result of the infringement, and there is no reference standard for trademark licensing fees in this case, Taking into account the popularity of the trademark involved, the specific circumstances of the alleged infringement, the extent of the subjective fault of the China Resources Store and the reasonable expenses paid by China Resources Group and China Resources Intellectual Property Company to stop the infringement, the Court determined, as appropriate, that the China Resources Store should compensate China Resources Group and China Resources Intellectual Property Company for economic losses and pay reasonable expenses totaling 80,000 yuan. According to the "Special Note" signed by China Resources Group and China Resources Intellectual Property Company, China Resources Group has transferred the right to claim damages arising from the case to China Resources Intellectual Property Company, and agreed that China Resources Intellectual Property Company will uniformly collect damages that may arise in the extended procedure of the case (such as the retrial procedure). The Court believes that the above agreement is the free disposition of the parties' civil rights, is the true intention of both parties, and does not violate the provisions of the law, should be respected, so the above compensation payment by China Resources store to China Resources Intellectual Property Company. In addition, China Resources Group and China Resources Intellectual Property Company have not submitted evidence to prove that the alleged infringement has caused damage to their goodwill, so the court does not support their claim of publishing a statement in the newspaper and eliminating the impact.

To sum up, part of the retrial request of China Resources Group and China Resources Intellectual Property Company is established, and the court supports this part of the request and rejects the rest. The court shall correct some errors in the determination of facts and improper application of law in the judgment of the second instance. In accordance with the provisions of Article 57 (2) and Article 58 of the Trademark Law of the People's Republic of China, Article 2 and Article 6 (2) of the Law against Unfair Competition of the People's Republic of China, and Article 170 (1) (2) and Article 207 (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

1. Revoke the Sichuan Higher People's Court (2020) Chuanzhimin End No. 174 civil judgment;

2. Cancel the civil judgment No. 1643 of Sichuan 01 Minchu of Chengdu Intermediate People's Court (2017);

3. The China Resources Lighting Store in Jinniu District of Chengdu shall immediately stop infringing upon the exclusive right of the "China Resources" trademark No. 776090 and the "China Resources Vanguard" trademark No. 3843561 of China Resources Intellectual Property Management Co., LTD., that is, stop using the same or similar commercial logo with "China Resources" in its store operation, advertising, promotion and other activities;

4. China Resources Lighting Store in Jinniu District of Chengdu shall immediately stop using the enterprise name with the word "China Resources" and change its enterprise name, and the changed enterprise name shall not contain the same or similar words with "China Resources";

V. China Resources Lighting Store in Jinniu District of Chengdu shall compensate China Resources Intellectual Property Management Co., Ltd. for economic losses and reasonable expenses totaling 80,000 yuan within 15 days after the judgment takes effect;

6. reject other claims of China Resources (Group) Co., Ltd. and China Resources Intellectual Property Management Co., LTD.

The first and second instance case handling fees of 9,500 yuan, a total of 19,000 yuan, by Chengdu Jinniu District Huarun lighting shop bear 7,500 yuan, a total of 15,000 yuan; China Resources (Group) Co., Ltd. and China Resources Intellectual Property Management Co., Ltd. jointly bear 2,000 yuan each, a total of 4,000 yuan.

This judgment is final.

Chief Judge Yan Jing

Judge Li Li

Judge Xu Changhai

December 20, 2011

Judge assistant Cao Jiayin

Clerk Han Yang