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First-instance civil judgment on the trademark agency contract dispute between Beijing Oriental Tianjian Intellectual Property Agency Co., Ltd. and Shenzhen Nuclear Gene Technology Co., Ltd.

Beijing Dongcheng District People's Court

Civil Judgment

(2020) Beijing 0101 Republic of China No. 1795

Plaintiff: Beijing Oriental Tianjian Intellectual Property Agency Co., Ltd., domiciled at 06, Floor 3, Building 1, No. 22, Dongsishitiao A, Dongcheng District, Beijing.

Legal representative: Meng Yuan, executive director.

Authorized litigation agent: Qin Jiulong, employee of Beijing Oriental Tianjian Intellectual Property Agency Co., Ltd.

Defendant: Shenzhen Nuclear Gene Technology Co., Ltd., domiciled on the 12th floor, Building A7, Nanshan Zhiyuan, Taoyuan Street, Nanshan District, Shenzhen.

Legal representative: Zhang Hezi, general manager.

Authorized litigation agent: Zhuang Li, lawyer at Beijing Yingke (Shenzhen) Law Firm.

Authorized litigation agent: Wu Lufa, lawyer at Beijing Yingke (Shenzhen) Law Firm.

In the case of trademark agency contract dispute between the plaintiff Beijing Oriental Tianjian Intellectual Property Agency Co., Ltd. (hereinafter referred to as Oriental Tianjian Company) and the defendant Shenzhen Nuclear Gene Technology Co., Ltd. (hereinafter referred to as Nuclear Gene Technology Co., Ltd.), this court will apply ordinary procedures in accordance with the law after the case is filed. , the trial was held in public. The plaintiff's legal representative Meng Yuan, the defendant's authorized litigation agents Qin Jiulong, and the defendant's authorized litigation agents Zhuang Li and Wu Lufa attended the court to participate in the litigation. The case has now been concluded.

The plaintiff Oriental Tianjian Company filed a lawsuit with this court: 1. Order to terminate the "Trademark Agency Agreement" signed by the plaintiff and the defendant; 2. Order the defendant to pay the plaintiff a trademark agency fee of 60,200 yuan and interest losses (60,200 yuan as the The base number is calculated based on the benchmark loan interest rate for the same period announced by the People's Bank of China from January 25, 2019 to August 19, 2019, and calculated based on the loan market quotation rate announced by the National Interbank Funding Center from August 20, 2019 to The date of actual payment); 3. The defendant is ordered to compensate the plaintiff for the lawyer service fees of 30,000 yuan incurred in the litigation; 4. The defendant is ordered to bear the litigation costs of this case.

Facts and Reasons: In December 2018, the plaintiff and the defendant communicated about cooperation. The plaintiff provided the defendant with a PPT that included a macro analysis of trademark registration, an analysis of the trademark layout of peers, and a review and analysis of the defendant’s trademark registration and protection status. According to the report, the defendant affirmed the plaintiff’s professional work, designated the plaintiff to make plans to apply for the registration of the "Nuclear Gene" and "Nuclear Huaxi" trademarks in all 45 categories of the "Classification Table of Similar Goods and Services", and entrusted the plaintiff to carry out the trademark registration application. agency matters. On December 24, 2018, the plaintiff sent the “Intellectual Property Protection Suggestion Letter” to the defendant. On January 4, 2019, the plaintiff completed the inquiry and analysis of the above two trademarks on goods and services in categories 1-45, and submitted the entrusted results to the defendant, the "Letter of Proposal for the Registration of the "Nuclear Gene" and "Nuclear Huaxi" Trademarks" and Trademark agency entrustment procedures. The two parties finally signed the "Trademark Agency Agreement" (hereinafter referred to as the contract involved in the case) on January 17, 2019. After that, the defendant issued the agency procedures to the plaintiff, and the plaintiff prepared the documents that needed to be submitted and submitted them to the Trademark Office after the defendant paid. According to the contract involved, the defendant should pay the fees within five working days after the contract came into effect, that is, before January 24, 2019. However, to date, the defendant has not paid any fees. During this period, the defendant made it clear through WeChat on March 21, 2019 that it refused to perform the contract. Later, the plaintiff sent a lawyer's letter urging the defendant to perform the contract involved, but the defendant still failed to perform. The defendant's behavior seriously violated the purpose of the contract and constituted a fundamental breach of contract. At present, several months have passed since the analysis and retrieval of the above two trademarks. The registration environment has changed greatly, and the contract involved has lost the conditions for performance. Therefore, the court is requested to order the contract involved to be completed on February 27, 2020, the date when the complaint in this case was served to the defendant. Lift. The core services provided by the plaintiff are to analyze the client's trademark system, propose solutions to the discovered problems, and implement them. Based on the industry practice of determining the plan and signing a contract before filing, the plaintiff has completed all research, search, design, screening, and finalization work before signing a formal contract with the defendant, and submitted it to the defendant in the form of a "Trademark Registration Confirmation Letter" The work results were confirmed. That is to say, the plaintiff has substantially fully performed the service of providing professional legal advice. The remaining trademark application and submission is only procedural work, and its workload and value in the contract involved are so small as to be negligible. Therefore, the plaintiff has fully performed its contractual obligations, and the defendant should pay the plaintiff the trademark agency fee of 60,200 yuan stipulated in the contract. The contract involved in the case is terminated. As the plaintiff's economic losses, the defendant should still pay compensation to the plaintiff and compensate for the loss of interest on the occupied funds. Due to the defendant's breach of contract, the plaintiff hired a lawyer to carry out a rights protection lawsuit and filed a civil lawsuit in the (2019) Jing 0101 Minchu Case No. 15196, spending 30,000 yuan in lawyer service fees. Although the lawyer's fees were spent in the previous case, it still The defendant shall compensate for the losses caused by the defendant. The defendant violated the contract and the principle of good faith, causing serious losses to the plaintiff. In order to protect the plaintiff's legitimate rights and interests, the defendant filed a lawsuit in court and hoped that the verdict would be as requested.

The defendant Nuclear Gene argued that it agreed that the contract involved in the case was terminated on February 27, 2020, but did not agree with the reasons for termination proposed by the plaintiff, nor did it agree with the plaintiff's other claims. The reasons are as follows: 1. The defendant has always stated that it will suspend performance rather than terminate performance or terminate the contract. The losses incurred since the defendant notified the plaintiff should be borne by the plaintiff. 2. The plaintiff’s obligation based on the contract involved in the case is to submit an application to the Trademark Office and provide corresponding professional advice to the defendant based on the application for registration. Now the plaintiff has not submitted an application for the trademark registration of “Nuclear Gene” and “Nuclear Huaxi” to the Trademark Office. Failure to provide follow-up professional consulting opinions based on the actual registration situation; the search and investigation conducted by the plaintiff before signing the contract were its marketing activities and were not contractual obligations of the contract involved, and the plaintiff did not actually perform its contractual obligations. Paragraph 2 of Article 1 of the contract stated that the plaintiff formally started the agency matter after receiving the defendant’s fee. However, the plaintiff did not receive the defendant’s agency fee and could not start the agency matter. Therefore, the plaintiff failed to perform its contractual obligations and the agency fee was not its economic benefit. The defendant did not agree to compensate for the loss. 3. The plaintiff’s claim for attorney’s fees has no contractual or factual basis. The attorney’s fees are attorney’s fees for other cases and have nothing to do with this case. They are not foreseeable losses when the contract was signed. The plaintiff’s request has no basis in law. At the same time, the plaintiff’s claim Attorney fees are too high.

The parties submitted evidence and expressed their opinions in accordance with the law regarding the litigation claims. This court organized the parties to exchange evidence and cross-examine. This court found the facts after trial:

From October 7, 2017 to August 21, 2018, the defendant was approved to register the trademark "Nuclear Gene" on some services in categories 35, 41, 42, and 44; in category 5 , Class 35, Class 41, Class 42, and Class 44 certain goods and services, the "Nuclear Huaxi" trademark has been registered. Among them, the services approved by "Nuclear Gene" include "school (education), education, and training" in Category 41.

On December 24, 2018, the plaintiff’s staff sent the “Recommendation Letter on Intellectual Property Protection of Nuclear Gene Company” to the defendant’s staff via email. The content of the recommendation letter was divided into two parts: trademark registration protection suggestions and artistic works copyright protection. Among them, trademark registration The protection suggestions are divided into two parts: Mainland China registration protection and overseas registration protection. The trademark registration protection suggestions part begins with the classification of core categories, key categories and related categories, listing 18 categories of goods and services related to the defendant's business; Mainland China The registration and protection section lists the three word trademarks "Nuclear Gene", "Nuclear Huaxi" and "Huaxi" and the English trademark "genehouse" as well as a graphic trademark, and puts forward some suggestions and budgets for registration. The overseas registration and protection section focuses on the above The trademark puts forward some registration suggestions and explains the registration fees; for the copyright protection of fine arts works, the protection fees and scope of protection are listed and explained; the attachment is a list of Madrid member states for the defendant to check the countries and regions for international registration.

On January 4, 2019, the plaintiff’s staff sent the “Nuclear Gene” and “Nuclear Huaxi” (Class 1-45) Trademark Registration Confirmation Letter and the Trademark Agency Power of Attorney to the defendant’s staff via email. The confirmation letter stated: A table, arranged from top to bottom according to the International Classification of Goods and Services from Category 1 to Category 45. Each category lists the specific approved goods and services to be registered. Category 5 has a note that says "Your company has been in Applications for registration of trademarks such as 'Nuclear Gene' and 'Nuclear Gene House' in Category 5 have been rejected by the Trademark Office on the basis of absolute clauses that may easily lead to misunderstanding. Please consider whether to submit a new application in Category 5." Among them, Category 41 includes “education (4104) and training (4101)”. Afterwards, in an online communication on January 7, 2019, the defendant employee said: “Have our registered trademarks been deleted from this form?” The plaintiff employee said: “The previously registered trademarks were not fully covered. This time we The one chosen covers all similar groups, including some previous small similar groups." The legal representative of the plaintiff said, "It is an inclusive relationship. It cannot be deleted, otherwise you will not have a single certificate with complete products." Later, the defendant issued the "Trademark Agency Letter of Attorney" for "Nuclear Gene" and "Nuclear Huaxi" to the plaintiff. During the trial, the defendant believed that the investigation and analysis conducted by the plaintiff before the signing of the contract involved was a marketing act, not a performance act; the plaintiff's selection of registered goods in all categories was a mechanical task, and the plaintiff had not sufficiently avoided the defendant. Trademarks that have been registered previously are not professional.

On January 14, 2019, the plaintiff issued a special VAT invoice to the defendant, and the item was trademark agency fees, with an amount of 60,200 yuan; it also issued a general VAT invoice, with the item being the collection of trademark office fees, and the amount was RMB 60,200. 49,800 yuan. The plaintiff later handed over the two invoices to the defendant.

On January 17, 2019, the plaintiff (Party B) and the defendant (Party A) signed the "Trademark Agency Agreement" involved in the case. The contract contains the following contents: 1. The trademark matters and fees stated in the form of the trademark matters and fees that Party A entrusts Party B to represent are: "Nuclear Gene" and "Nuclear Huaxi", the categories are 1-45, the number of cases is 45, the projects are all registration applications, the official fee is 24,990 yuan, the agency fee is 40,500 yuan, the total official fee is 49,800 yuan, the agency The total fee is 81,000 yuan, which is 60,200 yuan after discount. Note: 1. The official fee for trademark registration application is 300 yuan/piece, the total official fee is 49,800 yuan, the agency fee is 900 yuan/piece, the total agency fee is 81,000 yuan. This application is a batch application. Both parties A and B reach an agreement and the agency fee is preferential. It is 60,200 yuan. 2. Party B will issue invoices to Party A, issue ordinary VAT invoices for official fees collected, and special VAT invoices for agency fees. Party B will officially start the trademark agency matter after receiving Party A's fees. 2. Party A’s rights and obligations Party A’s rights: 1. Require Party B to report the case progress on time; 2. Require Party B to handle entrusted matters in a timely and effective manner. Party A’s obligations: 1. Promptly provide materials required for the case and sign relevant documents as required by Party B; 2. Promptly confirm relevant case information as required by Party B; 3. Pay the fees for entrusted matters in full and on time as stipulated in this agreement. 3. Party B’s rights and obligations: Party B’s rights: 1. Handle entrusted matters independently; 2. Require Party A to provide corresponding documents and other cooperation required for the case; 3. Require Party A to pay relevant fees on time. Party B's obligations: 1. Handle entrusted matters promptly and effectively; 2. Obey the obligation to keep confidential the materials and information provided by Party A. 4. Fees and payment methods (1) Fees: The fee for this and the same application is 110,000 yuan. (2) Payment method: Party A must pay the above fees in full within five working days from the effective date of this agreement, Party B's account (omitted). 5. This agreement shall take effect from the date of signature and seal by both parties. Any unfinished matters shall be negotiated and determined by both parties separately. During the trial, the plaintiff believed that the contract involved in the case stipulated that its obligations were consultation before trademark registration, confirmation of the trademark registration plan, trademark inquiry, product confirmation after inquiry, submission of two trademark registration applications to the Trademark Office, and conveying the registration results to the defendant. The defendant believed that the plaintiff’s obligation in the contract involved was to submit an application to the Trademark Office and provide the defendant with corresponding professional advice based on the application for registration. The investigation and analysis conducted by the plaintiff before signing the contract were commercial promotion behaviors in order to obtain contract signing opportunities. It is not a contractual obligation involved. Upon inquiry by the court, the plaintiff claimed that according to industry practice, it is necessary to conduct a trademark search to the entrusting party before signing a contract. If the early search results are submitted, the entrusting party will inform the other party of the search results even though the contract has not been signed, but it will not Later work will be carried out, but in this case the contract has indeed been signed, and the defendant clearly wants to perform it; in addition, the plaintiff claims that the main application materials required for trademark application are an electronic application form and the authorization procedures given by the defendant to the plaintiff. The application form The content of the trademark is the pattern and product service category of the trademark that needs to be declared. The content should be filled in the system of the Trademark Office one by one when applying. This content has been reflected in the "Nuclear Gene" and "Nuclear Huaxi" sent by the plaintiff to the defendant. Class 1-45) Trademark Registration Confirmation Letter".

On March 21, 2019, during the online communication process, the defendant employee said: "Well, yes. Director Zhang instructed not to do it yet. Shall I send you the invoice? I'm not sure about the time." Later, in 2019 In the online communication on March 26, the defendant employee said: "Dear, I told Director Zhang about the trademark when I came back yesterday, and he still insisted on suspending the full-type trademark plan. This plan will happen sooner or later, and I will definitely come to you. It’s just that the company is temporarily suspending it.” In the online communication on April 2, 2019, the defendant’s employee now sent the “Notice on Suspension of the Performance of the Trademark Agency Agreement” to the plaintiff’s legal representative, stating: Based on The content entrusted by the agency agreement currently does not require preparation and implementation of performance. Please suspend the performance of the agency agreement. The time for continued performance will be notified separately by our company. During the trial, after questioning by the court, the defendant admitted that the reason why he did not pay the agency fee was that the defendant's company's business decision-making had changed. In the subsequent trial, he also claimed that the plaintiff's preliminary work could not reflect professional value.

On April 1, 2019, Beijing Zhenghai Law Firm sent a "Lawyer's Letter" to the defendant on behalf of the plaintiff, arguing that the defendant still refused to perform its contractual obligations despite repeated reminders from the plaintiff, which violated the principle of good faith and relevant provisions of the Contract Law. The defendant was also required to perform its contractual obligations within five working days from the date of receipt of this letter and pay the plaintiff a one-time payment of RMB 110,000.

On February 27, 2020, this court served the defendant a copy of the complaint in this case.

In order to prove that it submitted a PPT report to the defendant before signing the contract involved, the plaintiff submitted a printout of the PPT, which contained parts such as "Analysis and Reference of Trademark Layout in the Same Industry", "Summary and Analysis of Trademark Layout", etc. Statistics on the number of trademark applications and distribution among various categories of several gene technology companies within the company, as well as the classification and registration status of the defendant’s existing trademarks, etc. The defendant did not accept the authenticity and believed that it had not been received.

In order to prove that it paid lawyer service fees in the (2019) Beijing 0101 Minchu No. 15196 case, the plaintiff submitted the "Litigation Agency Contract" and the VAT invoice.The contract was signed on March 29, 2019. It states that due to a dispute over the legal service contract of Shenzhen Nuclear Gene Technology Co., Ltd., the plaintiff now entrusts the lawyers of Beijing Zhenghai Law Firm to represent the plaintiff in the litigation; the litigation procedure is a first-instance litigation, and the agency fee is 30,000 yuan. The value-added tax invoice was issued to the plaintiff by Beijing Zhenghai Law Firm on August 20, 2019. The item was lawyer fees, and the amount was 30,000 yuan. The defendant did not recognize the relevance of the above evidence and considered it irrelevant to this case. In this case, the plaintiff did not have a lawyer to appear in court to respond.

The above facts include the "Trademark Agency Entrustment Agreement", PPT printouts, web page printouts, "Nuclear Gene Company Intellectual Property Protection Suggestion Letter" and "Nuclear Gene" and "Nuclear Huaxi" (Class 1-45) Trademark Registration Confirmation Letter" The "Trademark Agency Power of Attorney", invoices, lawyer's letters, courier orders, "Litigation Agency Contract" and other evidence and the statements of the parties are documented as supporting evidence.

This court believes: The "Trademark Agency Agreement" involved in the case signed by the plaintiff and the defendant represents the true intention of both parties and does not violate the mandatory provisions of relevant laws and regulations. It is a legal and valid contract and the parties shall fully perform their obligations in accordance with the agreement.

The Contract Law stipulates that if one party breaches the contract and the purpose of the contract cannot be achieved, the non-breaching party may terminate the contract. The parties may also terminate the contract by consensus. In this case, the contract involved was signed and came into effect on January 17, 2019. According to the second paragraph of Article 4 of the contract involved, the defendant should pay the contract fees in full within the next five working days, totaling 110,000 yuan, but the defendant did not pay overdue , which constituted a breach of contract; and later notified the plaintiff online on March 21, 2019 to suspend the performance of the contract involved. On April 2, 2019, a notice letter was sent to the plaintiff via WeChat to suspend the performance of the contract involved, and as of this lawsuit, the agent has not been paid. The fees and performance of the contract involved have caused the plaintiff to be unable to achieve the purpose of the contract, which constitutes a fundamental breach of contract. The plaintiff has the right to terminate the contract involved according to law. At the same time, during the lawsuit, the defendant also agreed to terminate the contract involved. This court has no objection to this. The contract involved was terminated on February 27, 2020, when a copy of the complaint in this case was served to the defendant.

When the contract involved in the case was legally in effect, the defendant arbitrarily requested to stop performing the contract involved and failed to pay the contract price without reaching an agreement with the plaintiff simply because of changes in its business decisions. This has seriously violated the contract and clearly violated the principle of good faith. Although the contract involved in the case has been terminated, the plaintiff can claim that the defendant was liable for breach of contract during the performance of the contract. In this case, the plaintiff believed that before signing the contract involved, it submitted documents such as the "Nuclear Gene Company Intellectual Property Protection Suggestion Letter" and the "Nuclear Gene" and "Nuclear Huaxi" (Class 1-45) Trademark Registration Confirmation Letter to the defendant. The defendant made suggestions on intellectual property protection and trademark registration, conducted trademark searches and determined product categories, and has substantially completed all contractual obligations involved in the case. Although the contract involved in the case is terminated, the defendant should still pay the entire trademark agency fee of 60,200 yuan as compensation for economic losses. To the plaintiff, this court held that, first of all, the item stated in Article 1 of the contract involved was the registration application, but the preliminary search and analysis work was not listed separately. Its literal meaning should be to apply for trademark registration to the competent authority. Application, and the first description states that "Party B officially starts the trademark agency matter after receiving Party A's fee." According to the general semantic understanding, the so-called trademark agency matter here refers to the work that is carried out after the contract is signed and payment is made, rather than Refers to the work before the contract is signed. Secondly, during the trial, the plaintiff also admitted that according to industry practice, a trademark agent needs to conduct a trademark search for the client before signing a contract. Even if the client does not sign a contract, the trademark agent will inform the other party of the search results, but it will not Moving on to the later work, it can be seen that the early trademark search and analysis and other matters are of great significance to win the opportunity to sign a contract and prepare for the performance of the contract. Thirdly, the plaintiff claimed that according to industry practice, trademark search and other work before signing a trademark agency contract are also the main obligations of the contract, but no evidence was submitted to prove the existence of this practice that generally binds the trademark agency industry; according to common sense, the early trademark search analysis and The subsequent submission of applications is indeed closely related, but since the application process of each trademark is very different, in different trademark agency contract relationships, the specific difficulty and proportion of each part of the work are bound to be different and not uniform. In this case, the contract involved There was no specific agreement on the preliminary search and analysis work and the corresponding price, which shows that the plaintiff and the defendant at least did not regard the preliminary search and analysis work as the main contractual obligation of the contract involved when signing the contract. Therefore, this court does not support the plaintiff’s claim that it has substantially fully fulfilled its contractual obligations involved in the case, and accordingly requires the defendant to pay full compensation for trademark agency fees.

However, when the plaintiff has been actively preparing for the performance of the contract, the defendant unilaterally stops performing the contract involved, which will inevitably lead to the failure of the plaintiff to recover its initial investment and the loss of the possibility of obtaining income through the contract, for which the defendant should compensate. Although the defendant argued that the plaintiff's early search and other work was defective, lacked professionalism, and was of no value, it did not submit evidence to prove that the plaintiff's work had obvious flaws that would lead to the inability to perform the contract. According to the available evidence, the defendant was not asking the plaintiff The defendant did not clearly point out the relevant issues when giving the notice to stop performance and actively proposed solutions or opinions. Therefore, the defendant used this reason to defend its unauthorized suspension of performance during the trial. It lacked rationality and violated good faith. This court The defendant's defense was not accepted. Since the defendant no longer paid 60,200 yuan to the plaintiff, the plaintiff’s request to use the agency fee as the basis for compensation for loss of interest on the occupation of funds lacks basis and is not supported by this court. This court will determine the amount of compensation at its discretion and in accordance with the principle of fairness based on factors such as the rights and obligations, price, performance status of both parties, and the degree of fault of the defendant in the contract involved. Regarding the attorney's fees claimed by the plaintiff, since no lawyer appeared in court to respond to the lawsuit in this case, and the plaintiff also admitted that the attorney's fees were spent in previous cases, the attorney's fees were not directly incurred in this case, and the contract involved was not This was not agreed upon, and attorney's fees are not an inevitable economic loss caused by the defendant's breach of contract. Therefore, this court will not support the plaintiff's request for compensation for attorney's fees from the defendant.

Accordingly, in accordance with Articles 8, 60, 93, 94, 96, 107 and 110 of the Contract Law of the People's Republic of China, According to the provisions of the three articles, the judgment is as follows:

1. The Trademark Agency Agreement signed between the plaintiff Beijing Oriental Tianjian Intellectual Property Agency Co., Ltd. and the defendant Shenzhen Nuclear Gene Technology Co., Ltd. on January 17, 2019 was terminated on February 27, 2020;

2. Within ten days from the effective date of this judgment, the defendant Shenzhen Nuclear Gene Technology Co., Ltd. shall compensate the plaintiff Beijing Oriental Tianjian Intellectual Property Agency Co., Ltd. 8,000 yuan;

3. Reject the other claims of the plaintiff Beijing Oriental Tianjian Intellectual Property Agency Co., Ltd.

If the monetary payment obligation is not performed within the period specified in this judgment, the debt interest for the period of delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China.

The case acceptance fee is 2,055 yuan, with 1,500 yuan borne by the plaintiff Beijing Oriental Tianjian Intellectual Property Agency Co., Ltd. and 555 yuan borne by the defendant Shenzhen Nuclear Gene Technology Co., Ltd.

If you are not satisfied with this judgment, you can submit an appeal to this court within fifteen days from the date of delivery of the judgment, and submit copies according to the number of opposing parties, and appeal to the Beijing Intellectual Property Court.

Chief Judge Yan Yonglian

Judge Liu Shihong

Judge Liu Hongyun

August 26, 2020

Judge Assistant Li Xiangyang

Secretary Pan Dai

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