Cross-border purchasing agents have become a new mode of consumption due to their high quality and low price.

Purchasing agents should have brand awareness of the products when selling cross-border purchasing products.

On January 5, the reporter learned of a case from the city court. The agent was sentenced to compensate the trademark owner for economic losses (including reasonable expenses) 150,000 yuan for infringing on the legitimate rights and interests of the trademark owner while selling cross-border purchasing clothing.

The judge in this case reasonably defined the behavior of cross-border purchasing agent, and provided clear guidance for the legality of cross-border trade behavior.

Trademark owner

  Found infringing goods

  EVISU is a high-end denim brand originating from Japan and has the reputation of "Japanese Bull King".

This trademark was registered by an international limited company and authorized a Shanghai company to exclusively operate and use the above-mentioned trademark in China.

On March 12, 2019, a company in Shanghai discovered that a company in Shenyang used an online sales platform to sell the alleged infringing goods by way of purchasing agents.

  A company in Shanghai believes that the "EVISU" trademark has been widely used in mainland China for a long time and has a high reputation.

A company in Shenyang sells clothing under the "EVISU" brand that claims to be imported from South Korea in an online store, which may be confusing, and it is easy for the relevant public to misunderstand the source of the goods or believe that the source of the service has a specific connection.

Moreover, a company in Shenyang has not obtained legal authorization, and its actions have constituted trademark infringement.

  A company in Shanghai filed a lawsuit requesting the court to order a company in Shenyang to compensate its economic losses and reasonable expenses totaling 500,000 yuan.

 Purchasing agent claimed to have a legitimate source

  A company in Shenyang argued that the products it purchased on its behalf were not produced by the company itself. They were genuine products purchased from South Korea. The trademarks involved were marked on the products at the time of purchase, and the trademarks used on the products were all made in Korea. Legally registered.

A certain company in Shenyang only charged a fee and then shipped it to domestic consumers in accordance with the designation of domestic consumers. This is an act of purchasing authentic Korean products on behalf of the domestic consumer and is not an infringement.

  A company in Shenyang believed that it had no intention of infringement and provided the legal source of the goods, and should not be liable for compensation.

 The court convicted the agent of trademark infringement

  The court held that in the process of commodity transactions, trademarks play an important role of identification, and that goods purchased overseas are resold within the country so that the goods enter the market in my country, and the marks attached to them play an identifying function, such as The confusion with the trademarks that have obtained the exclusive right to use registered trademarks in my country has caused the public to misunderstand the origin of the goods and directly infringes upon the exclusive right to use registered trademarks of the trademark owners in my country.

In this case, a company in Shenyang sold goods purchased overseas in the country, which was confused with the trademark involved, undermined the trademark identification function, and infringed the legitimate rights and interests of the trademark owner of a company in Shanghai.

  The court comprehensively considered the high reputation of the trademark in question, the sale of infringing goods by a company in Shenyang and the duration of the infringement, combined with the sales records and the costs paid to stop the infringement, and sentenced a certain trading company in Shenyang to compensate a trading company in Shanghai The company's economic loss (including reasonable expenses) is 150,000 yuan.

Shopper's trademark

  High duty of care

  Judge Wu Song of the Fourth Civil Division of the Municipal Court commented on the case and held that the case involved the determination of responsibility for trademark conflicts caused by cross-border purchasing agents.

First of all, the nature of the cross-border purchasing agent behavior should be recognized as a sales behavior of buying and then selling, rather than an act of entrustment to complete the entrusted matter.

Secondly, due to the territorial characteristics of the trademark right, the agent resells the goods in the country, and the mark attached to it has an identifying effect, which conflicts with the trademark of the domestic trademark owner.

Finally, the use of trademarks on Daigou products has not been approved by the domestic trademark owner.

Therefore, the agent should bear civil liability for infringement of trademark rights.

  Purchasing agents can use legal sources to defend themselves. However, since the trademarks of daigou products are mostly well-known brands in China, they should have a higher duty of care and should carefully examine whether overseas products infringe Chinese registered trademarks. Exclusive right.

In this case, the agent was still engaged in sales activities after receiving a complaint from the trademark owner, and his subjective fault was obvious. Therefore, the court did not accept the reason for his defense that he would not be liable for compensation.

  Shenyang Daily and Shenyang Daily News reporter Zhou Xianzhong correspondent Wu Song, Wang Dongyang, Cao Jia