China News Service, March 15 According to the official WeChat news of the Supreme Court, the "Interpretation of the Supreme People's Court on the Application of Punitive Damages in the Trial of Civil Cases of Infringement of Intellectual Property Rights" (hereinafter referred to as the "Interpretation") was released on March 3.
In order to accurately understand and apply the "Interpretation" and ensure the correct implementation of the punitive damages system, "Typical Cases of the Application of Punitive Damages in Civil Cases of Infringement of Intellectual Property Rights" was released on the 15th.
Data map: The picture shows the Supreme People's Court.
Photo by Li Huisi
details as follows:
1. Guangzhou Tianci Company, etc., and Anhui Newman Company, etc., in a dispute over technical secret infringement
【Basic case】
Guangzhou Tianci Company and Jiujiang Tianci Company claimed that Hua Mou, Liu Mou, Anhui Newman Company, Wu Mou, Hu Mou, Zhu Mou, and Peng had infringed their "Kabo" manufacturing technology secrets and filed a lawsuit with Guangzhou Intellectual Property Court , Requesting an order to stop the infringement, compensation for losses, and an apology.
The Guangzhou Intellectual Property Court determined that the alleged infringement constituted an infringement of the technical secrets involved, considering the intentional infringement and the circumstances of the infringement, and applied 2.5 times the punitive damages.
Guangzhou Tianci Company, Jiujiang Tianci Company, Anhui Newman Company, Hua Mou and Liu Mou all refused to accept the judgment of the first instance and appealed to the Supreme People's Court.
The Supreme People’s Court of the second instance held that the alleged infringement constituted an infringement of the technical secrets involved, but the first-instance judgment did not fully consider the contribution of the technical secrets involved in determining the amount of infringement compensation, and did not fully consider the subjectivity of the infringer when determining punitive damages. Serious circumstances such as the degree of malice and the use of infringement, the scale of infringement, the long duration, and the existence of obstructive acts of proof, so on the basis of maintaining the first-instance judgment on the suspension of infringement, the application of punitive damages was calculated at five times the top grid and the sentence was changed to Anhui Newman The company compensated Guangzhou Tianci Company and Jiujiang Tianci Company for economic losses of 30 million yuan and reasonable expenses of 400,000 yuan. Hua, Liu, Hu and Zhu paid the aforementioned compensations of 5 million yuan, 30 million yuan, and 1 million respectively. Joint and several liability within the range of RMB 1 million.
【Typical Significance】
This case is the first case of punitive damages for infringement of intellectual property rights to be judged by the Supreme People's Court.
The judgment of the case fully considered the subjective malice of the accused infringer, the business of infringement, the hindrance of proof, the duration of the accused infringement, the scale of infringement, etc., applied punitive damages, and finally determined the statutory punitive damages The highest multiple (five times) of the amount of compensation clearly sends a strong signal to strengthen judicial protection of intellectual property rights.
2. Case of trademark infringement dispute between Ordos Company and Mickey Company
【Basic case】
Ordos Company obtained on February 14, 2004
The exclusive right to use the registered trademark, which is approved to be used on the 25th category of scarves, clothing, gloves and other commodities.
In June 2015, Erdos Company discovered that Mickey Company’s "cashmere thread" products sold on its Tmall website "Mickey Apparel Store" highlighted the use of a prominent element in the trademark involved, that is, the Chinese text of "Ordos" .
Erdos Company filed an infringement lawsuit.
The Beijing Intellectual Property Court held that the profit of Miqi Company from the alleged infringement can be determined by the product of the total number of infringing products sold, the unit price of the product, and the reasonable profit rate of the product.
The "Ordos" series of trademarks of Ordos Company are well-known, and the profit margins of products in "Tmall" stores are higher, and the implementation of the alleged infringement has caused more serious damage to the trademark owner.
As an operator of goods closely related to clothing such as "wool, scarf thread, cashmere thread", Mickey Company should be aware of the popularity of the trademark involved, and it prominently used the logo almost identical to the trademark involved in the case in its self-operated online store and the time of infringement Long, subjective maliciousness is obvious, and the infringement is serious. The amount of compensation is determined based on twice the profit of Mickey Company due to the infringement.
【Typical Significance】
This case fully demonstrated the people's court's confidence and determination to correctly implement the punitive compensation system and severely sanction malicious infringement of trademark rights.
The reasoning part of the judgment document fully and clearly explained the factors that should be considered when determining the "subjective malice" and determining the "base" and "multiples" of punitive damages, making the process of judgment formation more transparent and the results of the judgment more persuasive.
After the verdict of the case was pronounced, both parties did not appeal and achieved good social effects.
3. Case of trademark infringement and unfair competition disputes between Xiaomi Technology Company, etc. and Zhongshan Bestune Company, etc.
【Basic case】
In April 2011, Xiaomi Technology Co., Ltd. registered the "Xiaomi" trademark, and the approved products include mobile phones and video phones.
Since then, they have successively applied for registration "
A series of trademarks such as "ZhiMi". Since 2010, Xiaomi Technology Company and Xiaomi Communication Company have successively won a number of national honors in the industry. The major media have continued to carry out reports on Xiaomi Technology Company, Xiaomi Communication Company and their Xiaomi mobile phones. , Widely publicize and report.
In November 2011, Zhongshan Bestune applied for the registration of the "Xiaomi Life" trademark, which was approved for registration in 2015. The approved products include electric cookers, water heaters, electric pressure cookers, etc.
In 2018, the registered trademark of "Xiaomi Life" was declared invalid because it was "registered through improper means".
In addition, among the more than 90 trademarks registered by Zhongshan Bestune, not only many are similar to the “Xiaomi” and “ZhiMi” logos of Xiaomi Technology Company, but also many are similar to “Pepsi-Cola PAPSIPAPNE”, “Galactic World”, and “Mr. "Same or similar to other well-known brands.
The Higher People's Court of Jiangsu Province held that the number of comments on online store products can be used as a reference for determining the volume of commodity transactions.
The sales of the 23 stores involved can be included in the calculation of the infringement profits in this case.
At the same time, it is believed that: 1. Until the second instance, Zhongshan Bestune Co., Ltd. continued to promote and sell the alleged infringing goods, which had obvious malicious infringement.
2. Zhongshan Bestune Company, etc. sells online through multiple e-commerce platforms and many shops. The infringing goods displayed on the web pages are diverse, large in quantity, and large in infringement. This scenario should also be used as a factor in determining the penalty amount.
3. The "Xiaomi" trademark is a well-known trademark with high visibility, reputation and market influence.
4. The alleged infringing goods were identified as substandard products by the Shanghai Municipal Market Supervision and Administration Bureau, and some users also reported that the alleged infringing goods had certain quality problems.
The alleged infringements carried out by Zhongshan Bestune Company and others have caused damage to the good reputation of Xiaomi Technology Company and Xiaomi Communication Company. Punishment should be increased. The infringement profit shall be used as the base of compensation, and the compensation amount shall be determined by three times. The 50 million yuan compensation claimed by Xiaomi Communication Company shall be fully supported.
【Typical Significance】
The judgment comprehensively analyzed and elaborated the "malicious" and "serious circumstances" elements of punitive damages and the method of determining the base and multiples. It not only took into account the characteristics of the sales of the alleged infringing goods, but also comprehensively analyzed the relevant factors affecting the penalty multiples. The multiples that are compatible with the subjective degree of malicious infringement, the severity of the circumstances, and the severity of the consequences of the infringement provide a practical sample for the application of the punitive compensation system and reflect the orientation of severely cracking down on serious infringements of intellectual property rights.
4. Case of trademark infringement dispute between Wuliangye Company and Xu Zhonghua
【Basic case】
With the permission of the trademark registrant, Wuliangye Company exclusively uses "
"Registered trademark." The store actually controlled by Xu Zhonghua has been administratively punished for selling counterfeit Wuliangye liquor and shop recruitment using the word "Wuliangye" without authorization. Xu Zhonghua and others have sold counterfeit "Wuliangye" and other liquors, which constituted the sale of counterfeit registered trademarks. Commodity crimes were sentenced to fixed-term imprisonment and other penalties. In the case that Xu Zhonghua and others were administratively and criminally punished for selling counterfeit "Wuliangye" products, the courts of first instance and second instance considered factors such as the pattern and duration of the alleged infringement behavior and determined that It basically takes infringement as its business, and it is ordered to bear twice the punitive damages liability.
【Typical Significance】
After Xu Zhonghua was administratively punished for infringement, he performed the same or similar infringement again, and was later judged by the People's Court to bear criminal responsibility.
Under this circumstance, the courts of first instance and second instance fully considered factors such as the duration of the alleged infringement, reasonably determined the base and multiple of punitive damages, accurately defined “serious circumstances” such as “infringement of intellectual property rights”, and severely punished them in accordance with the law. The infringement of intellectual property rights effectively protects the legitimate rights and interests of intellectual property rights holders and is of exemplary significance.
5. Adidas and Ruan Guoqiang and others in the trademark infringement dispute case
【Basic case】
Adidas owns the "adidas" series of trademark rights and is well-known.
Zhengbang, a company funded and registered by Ruan Guoqiang and others, was seized by the administrative department three times from 2015 to 2017 that infringed on Adidas's "adidas" series trademark rights, and was punished with administrative penalties. The cumulative number of infringing products reached more than 17,000 pairs.
Adidas filed a civil lawsuit, requesting the application of punitive damages order Ruan Guoqiang and others to compensate Adidas for economic losses of 2,641,695.89 yuan.
The Intermediate People's Court of Wenzhou City, Zhejiang Province held that Zhengbang Company’s subjective malice was very obvious, and the alleged infringement lasted a long time and the consequences were severe, which belonged to a serious situation.
The court selected 189 yuan per pair of genuine shoes as the basis for calculation, and adopted the 50.4% gross profit rate shown in the 2017 financial statements provided by Adidas, and calculated the 6050 pairs of shoe uppers seized by Zhengbang as the sales volume. In addition, considering that the alleged infringing products are all shoe upper products, not finished shoes, and cannot be directly used in the consumer field, a 40% deduction is made as appropriate. Finally, the amount of compensation of 1037337.84 yuan is determined by three times the economic loss of Adidas, which is 345,779.28 yuan.
【Typical Significance】
Accurately calculating the base of punitive damages is an important prerequisite for applying the punitive damages system.
The court of second instance did its best to the evidence presented by the right holder and did not easily deny it. Instead, it adhered to the superior evidence standard and reasonably determined the base of punitive damages. At the same time, it also applied the “on request principle” and determined that the “circumstances are serious”. It is of demonstrative significance.
6. Case of Trademark Infringement Dispute between Op Company and Huasheng Company
【Basic case】
Op company is "
"The right holder of the "Oup" registered trademark has approved the use of lamps, fluorescent tubes, etc., among which "
"The registered trademark has been recognized as a well-known trademark in Guangdong Province for many times, and was recognized as a well-known trademark in China in 2007. Huasheng Company uses it on its desk lamps, night lights and other lamp products and related publicity webpages"
""
""
"and"
”And other signs, and are sold and promised to be sold on major physical supermarkets and Tmall websites. The lighting products produced by Huasheng Company have been punished by administrative agencies for substandard quality.
Oppo Company sued the court, requesting that Huasheng Company be found to have constituted an infringement, and punitive compensation should be applied to compensate its economic losses and reasonable expenses of 3 million yuan.
Both the court of first instance and the court of second instance held that Huasheng Company did not constitute trademark infringement and did not support its claims.
The Guangdong Provincial High People’s Court held that the trademark requested by Opus was highly distinctive and had reached a well-known level. The accused logo used by Huasheng in its lamp products constituted a similar mark to Opus’s trademark involved. If confusion is formed, it should be determined to constitute trademark infringement.
As an operator in the same industry, Huasheng Company, knowing that Optech and its trademarks enjoy a relatively high reputation and reputation, and knowing that the "OPTE" trademark has been rejected for the registration of lamp products, it still deliberately assigned The "special" trademark is registered in other categories and used on lamp products, mass production and sales of infringing products, and the product quality is substandard, the subjective malicious infringement of OP's trademark rights is obvious, the circumstances are serious, and punitive damages should be applied.
Therefore, the compensation base was determined at 1,277,500 yuan based on the license fee of the trademark involved and the duration of the infringement, and the subjective maliciousness of Huasheng Company and the nature, circumstances and consequences of the infringement were considered comprehensively, and the compensation base was determined based on three times the compensation base. The amount of compensation.
【Typical Significance】
The retrial judgment of this case clarified the rule boundaries and certification standards of the "on request principle", "subjective malice" and "serious circumstances" in the application of punitive damages for intellectual property rights, and proposed refined calculations to determine the "base" and "multiples" of the amount of compensation The method and path of "" have important guiding value for the application of law.
The case won the first prize of the "National Court System 2020 Excellent Case Analysis Selection" and the second prize of the "Fourth National Intellectual Property Outstanding Judgment Document".