Shanghai Higher People's Court

paper of civil judgment

(2007) Gao Hu Minsan (Quality) Final Word No.36

Appellant (plaintiff in the original trial) Shanghai Zhang Xiaoquan Knife and Scissors Corporation, whose domicile is No.490, Nanjing East Road, Huangpu District, Shanghai.

Legal Representative Zhu Xingyi, chairman of the board.

Authorized Agent: Yang Jun, lawyer of Shanghai Huacheng Law Firm.

Authorized Agent: Liu Yizhou, lawyer of Shanghai Huacheng Law Firm.

Appellee (defendant in the original trial) Hangzhou Zhang Xiaoquan Group Co., Ltd., whose domicile is No.33 Daguan Road, Gongshu District, Hangzhou City, Zhejiang Province.

Legal Representative Ding Chenghong, chairman of the board.

Authorized Agent: Division I, lawyer of Guo Hao Law Firm.

Authorized Agent: Wu, lawyer of Guo Hao Law Firm.

Appellee (defendant in the original trial) Jinjiang Metro Purchase and Transportation Co., Ltd., whose domicile isNo. Zhenbei Road 1425, Putuo District, Shanghai.

Legal Representative Du Zhesi, chairman of the board.

Authorized Agent: Division I, lawyer of Guo Hao Law Firm.

Authorized Agent: Wu, lawyer of Guo Hao Law Firm.

The appellant Shanghai Zhang Xiaoquan Knife and Scissors Corporation Limited (hereinafter referred to as Knife and Scissors Corporation) refused to accept the civil judgment of Shanghai No.2 Intermediate People's Court (2005) 164 and appealed to our court. After the court accepted the case, it formed a collegiate bench according to law and held a public hearing on April 27, 2007. The appellant's entrusted agent, the appellee Hangzhou Group Co., Ltd. (hereinafter referred to as Hangzhou Group) and the appellee Jinjiang Metro Self-Transportation Co., Ltd. (hereinafter referred to as Metro Company) entrusted the agents Si and Wu to attend the proceedings in court. The case has now been closed.

The court of first instance found through trial that the plaintiff was established on June 6th, and the name of1956,65438+was Shanghai Zhang Xiaoquan Knife and Shears Store, and later it was changed to Zhang Xiaoquan Knife and Shears Store, Zhang Xiaoquan Knife and Shears Head Office and Shanghai Zhang Xiaoquan Knife and Shears Head Office on 1982, 1988 and 1993. On March 24th, 2006, the plaintiff changed its name to Shanghai Zhang Xiaoquan Knife & Shear Corporation Co., Ltd. due to enterprise restructuring. 1987 65438+1October 30th, the plaintiff was approved to register the graphic trademark of "Spring Plate". 1993 10 In June, the Ministry of Internal Trade awarded the plaintiff the China Time-honored Brand.

Defendant Hangzhou Zhang Xiaoquan Group was formerly known as Hangzhou Zhang Xiaoquan Scissors Factory. 1964, 1, Hangzhou Zhang Xiaoquan scissors factory registered and obtained the "Zhang Xiaoquan brand" trademark of the combination of Zhang Xiaoquan characters and scissors graphics, and the approved commodity was daily scissors with the registration number of 46474. 1 981may1day, the trademark of "Zhang Xiaoquan Brand" was registered by the State Administration for Industry and Commerce, and it was approved to use the 20th scissors with the registration number of 12950 1. 1993 and 2003 are renewed continuously, valid until February 28th, 20 13. 199 1 February 28th, Hangzhou Zhang Xiaoquan Scissors Factory obtained the trademark of "Zhang Xiaoquan" after registration, and approved the use of the eighth category of commodities (including scissors, daily knives, etc. ), the registration number is 544568. 200 1 renewal registration, valid until 2011February 27th. 1May 7, 1997, the above two trademarks were both classified internationally, and the approved goods were classified as Class 8 (including knives and scissors), and the validity period was1May 7, 1997 to May 6, 2007. 1April 9, 997, the "Zhang Xiaoquan Brand" trademark was recognized as a well-known trademark by the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the State Trademark Office). 65438 Hangzhou Zhang Xiaoquan Scissors Factory was renamed as Hangzhou Zhang Xiaoquan Group Co., Ltd. on February 27th, 2000/KLOC-0 14 May and14 August, and the registered trademarks of "Zhang Xiaoquan Brand" and "Zhang Xiaoquan" were successively transferred to the defendant Hangzhou Zhang Xiaoquan Group.

On April 2, 2005, the Plaintiff's Knife and Scissors Corporation purchased KSX- 195g stainless steel civil kitchen knife, ZG- 175 stainless steel bone breaker, HBSJ- 174 refined stainless steel household scissors and HSSJ- 184 from the Defendant Metro Company. Shanghai Huangpu No.1 Notary Office notarized the above-mentioned purchase process, and issued a notarial certificate (2005) Huang Hu Yi Zheng Amethyst No.4539 on 26th of the same month.

The stainless steel civil kitchen knife box purchased by Plaintiff Knife and Scissors Corporation is marked with the words "Zhang Xiaoquan Brand" and "China Well-known Trademark" from left to right, and the words "Founded in 1663" and "Zhang Xiaoquan" and the product name are marked from left to right at the bottom left, in which the background pattern of the trademark "Zhang Xiaoquan" is formed by overlapping striking red diamonds and black squares. The left side of the box is marked with the words "300-year history and 300-year reputation", and the right side is marked with the name of the production unit and the article number. From left to right, the packing box of stainless steel osteotome is marked with the words "Zhang Xiaoquan Brand" and "Pursuing Excellent Quality" at the top, and the trademark "Zhang Xiaoquan", "Zi 1663" and product name at the bottom. The five scissors products purchased by the plaintiff's Knife and Scissors Corporation are marked with the words "Founded in 1663", "Zhang Xiaoquan" and "China Famous Trademark" on the upper left. The background pattern of the trademark "Zhang Xiaoquan" is made up of striking red diamonds and black squares, and the words "Established in 1663" are right above the trademark "Zhang Xiaoquan". The right side of the outer package is marked with the article number and product name, and the "Zhang Xiaoquan Brand" trademark and the name of the production unit are marked below.

The effective judgment of Shanghai No.2 Intermediate People's Court (1999) No.1 13 states: "According to the records of Hangzhou Archives and Zhejiang literature and history,' Zhang Xiaoquan' has a history of more than 300 years. At first, Zhang Siquan and his son Koizumi opened a "Zhang Dalong" scissors shop together. 1628, Zhang Xiaoquan came to Hangzhou with his son. After Koizumi's death, his son, AG, inherited his father's business, and added the recent records behind Zhang Xiaoquan to prove it. 19 10, Zhang Zuying took over the business. 1949, Zhang Zuying announced that he would stop production due to losses and hand over all the store bases and brands in Zhang Xiaoquan to Xu Zigeng. After the liberation of Hangzhou, Zhang Xiaoquan recently brought scissors back to life. 1953, the people's government merged all the scissors workshops at that time into five scissors production cooperatives in Zhang Xiaoquan.

The court of first instance held that the plaintiff's Knife and Scissors Corporation was an enterprise dealing in knives and scissors and other commodities, which met the requirements of China's Anti-Unfair Competition Law, and that the plaintiff's Knife and Scissors Corporation and the defendant Hangzhou Group had a competitive relationship in dealing with knives and scissors and other commodities, so the plaintiff's Knife and Scissors Corporation had the right to file a lawsuit in this case according to the Anti-Unfair Competition Law. The defendant, Hangzhou Zhang Xiaoquan Group, argued that the plaintiff, Knife and Scissors Corporation, was not qualified as the subject of litigation, and the court of first instance refused to support it.

The plaintiff, Knife and Scissors Corporation, claimed that the defendant, Hangzhou Zhang Xiaoquan Group, marked "Founded in 1663" and "Since 1663" on the outer packaging of its knife and scissors products, which constituted false propaganda. The court of first instance held that although the defendant Hangzhou Zhang Xiaoquan Group was not directly related to the founder of Zhang Xiaoquan, the predecessor of the defendant Hangzhou Zhang Xiaoquan Group, Hangzhou Zhang Xiaoquan Scissors Factory, was registered on June 5438+August 1, June 65438+February 28,0991,and the defendant Hangzhou Zhang Xiaoquan Group was the above trademark. It marks "Zhang Xiaoquan" trademark on the outer packaging of knife and scissors products, and subjectively marks "Founded in 1663" or "Since 1663" to show the historical fact that "Zhang Xiaoquan" brand was founded in 1663. Therefore, the court of first instance did not support the plaintiff's claim that the above-mentioned labeling method of Hangzhou Zhang Xiaoquan Group constituted false propaganda.

The plaintiff, Knife and Scissors Corporation, claimed that the defendant Hangzhou Zhang Xiaoquan Group's "Zhang Xiaoquan Brand" trademark was recognized as a well-known trademark by the State Trademark Office on 1997, but the defendant Hangzhou Zhang Xiaoquan Group did not reapply for recognition more than three years after the well-known trademark was recognized, so the defendant Hangzhou Zhang Xiaoquan Group marked "China Well-known Trademark" on the outer packaging of its knife and scissors products, which also constituted false propaganda. The court of first instance held that the Interim Provisions on the Recognition and Administration of Well-known Trademarks promulgated by the State Administration for Industry and Commerce1August 4, 1996 clearly stipulated that if the recognition time was less than three years, there was no need to reapply for the recognition of well-known trademarks. On April 6, 2003, the State Administration for Industry and Commerce promulgated the Provisions on the Recognition and Protection of Well-known Trademarks. This regulation came into force on June 1 of the same year, and the original Interim Provisions on the Recognition and Administration of Well-known Trademarks was abolished at the same time. The current Provisions on the Recognition and Protection of Well-known Trademarks does not stipulate that well-known trademarks recognized by the State Trademark Office need to be re-applied for recognition after a certain period of time. In view of the fact that the "Zhang Xiaoquan Brand" trademark of the defendant Hangzhou Zhang Xiaoquan Group was recognized as a well-known trademark by the State Trademark Office on 1997, the defendant Hangzhou Zhang Xiaoquan Group marked "China Well-known Trademark" on the outer packaging of its knife and scissors products, which did not constitute false propaganda. The plaintiff's claim of Knife and Scissors Corporation lacked factual and legal basis, and the court of first instance refused to support it.

In view of the fact that the defendant Hangzhou Zhang Xiaoquan Group marked "Founded in 1663", "Since 1663" and "China Well-known Trademark" on the outer packaging of its knife and scissors products, which did not constitute unfair competition, the court of first instance refused to support the plaintiff's claim that the defendant Metro Company should stop selling the above products produced by the defendant Hangzhou Zhang Xiaoquan Group.

However, it should be pointed out that the plaintiff Knife and Scissors Corporation and the defendant Hangzhou Zhang Xiaoquan Group are both enterprises engaged in knives and scissors and other similar commodities, and have no direct relationship with the founder of Zhang Xiaoquan. There have been many lawsuits between the two parties over the intellectual property rights of the "Zhang Xiaoquan" brand. Therefore, both parties should regulate their use of intellectual property rights related to the "Zhang Xiaoquan" brand in their business activities according to law. In this case, the defendant Hangzhou Zhang Xiaoquan Group used and publicized its "Zhang Xiaoquan" trademark on the outer packaging of knife and scissors products, with the words "founded in 1663" or "since 1663", which was obviously inappropriate. In order to correctly distinguish the history of the trademark "Zhang Xiaoquan" and the brand "Zhang Xiaoquan" of the defendant Hangzhou Zhang Xiaoquan Group and avoid misunderstanding and confusion among the relevant public, the defendant Hangzhou Zhang Xiaoquan Group should standardize the use of the trademark "Zhang Xiaoquan" and the brand "Zhang Xiaoquan" in its future business activities.

To sum up, the court of first instance did not support the plaintiff's claim that the Knife and Scissors Corporation asked the defendant Hangzhou Zhang Xiaoquan Group to stop the unfair competition of false propaganda and compensate the losses, and asked the defendant Metro Company to stop selling the disputed products. Accordingly, according to the provisions of Article 4 of the General Principles of Civil Law of People's Republic of China (PRC), Article 2 and Article 9, paragraph 1 of People's Republic of China (PRC) Anti-Unfair Competition Law, the plaintiff's claim of Knife and Scissors Corporation was rejected. The acceptance fee for the first instance of this case is RMB 3,000,930, which shall be borne by the plaintiff's Knife and Shears Corporation.

After the judgment, the plaintiff, Knife and Scissors Corporation, refused to accept the judgment and appealed to our court to cancel the original judgment, and ordered Hangzhou Zhang Xiaoquan Group to stop the unfair competition behavior of improperly marking the words "founded in 1663" and "China famous trademark" on the outer packaging of its knife and scissors products. Ordering the subway company to stop selling the above-mentioned improperly marked products produced by Hangzhou Zhang Xiaoquan Group; Hangzhou Zhang Xiaoquan Group was ordered to compensate the appellant for a loss of 654.38 million yuan; Hangzhou Zhang Xiaoquan Group was ordered to compensate the appellant for reasonable expenses of 265,438 yuan+0,000 yuan, including notary fees of 65,438 yuan+0,000 yuan and attorney fees of 20,000 yuan. The main grounds for appeal are as follows: 1. The original judgment that Hangzhou Zhang Xiaoquan Group marked "founded in 1663" on the outer packaging of its knife and scissors products did not constitute false propaganda, but was a mistake in fact finding. The appellant Hangzhou Zhang Xiaoquan Group has no direct relationship with the founder of the "Zhang Xiaoquan" brand. Hangzhou Zhang Xiaoquan Group has no history of more than 300 years, whether it is an enterprise, a registered trademark or a production history. Second, the original judgment that Hangzhou Zhang Xiaoquan Group marked "China well-known trademark" on the outer packaging of its knife and scissors products did not constitute false propaganda, which was an error in fact finding and was subject to legal error. Before the implementation of the Provisions on the Recognition and Protection of Well-known Trademarks on June 1 2003, the management of well-known trademarks should be based on the Interim Provisions on the Recognition and Management of Well-known Trademarks. In 2000, three years after the "Zhang Xiaoquan Brand" trademark was recognized as a well-known trademark, according to the third paragraph of Article 4 of the Interim Provisions on the Recognition and Administration of Well-known Trademarks, Hangzhou Zhang Xiaoquan Group should re-apply for the recognition of well-known trademarks. As Hangzhou Zhang Xiaoquan Group did not apply, the trademark is no longer a well-known trademark, and the provisions on the identification and protection of well-known trademarks can no longer be applied. Three, the original judgment requires Hangzhou Zhang Xiaoquan Group to regulate the use of "Zhang Xiaoquan" trademark and brand in its business activities according to law. The meaning of this judgment is not clear and it is difficult to implement.

The appellee Hangzhou Zhang Xiaoquan Group argued that the appellant's appeal lacked legal and factual basis and should be rejected. The main reasons for its defense are as follows: 1. The label "Founded in 1663" of Hangzhou Zhang Xiaoquan Group does not constitute false propaganda. The brand of "Zhang Xiaoquan" knives and scissors of Hangzhou Zhang Xiaoquan Group is closely related to the Zhang Xiaoquan knives and scissors founded in 1663. Therefore, Hangzhou Zhang Xiaoquan Group marked the packaging of knives and scissors to show the origin of its brand knives and scissors, and there was no false fabrication. After the founding of the People's Republic of China, the history of all enterprises began with registration, and 1663 could not be established. Therefore, consumers' labeling on the product packaging of Hangzhou Zhang Xiaoquan Group will only be understood as the origin and history of the brand, and will not be misunderstood as "Hangzhou Zhang Xiaoquan Group was founded in 1663". Two, marking "China famous trademark" does not constitute false propaganda. The Interim Provisions on the Recognition and Management of Well-known Trademarks have been replaced by the Provisions on the Recognition and Protection of Well-known Trademarks, which does not stipulate that well-known trademarks must be recognized again after more than three years. The Interim Provisions on the Recognition and Administration of Well-known Trademarks is only for the protection of the Industrial and Commercial Bureau, which may request re-recognition. In practice, the State Administration for Industry and Commerce has never re-recognized well-known trademarks. The trademark of Hangzhou Zhang Xiaoquan Group is widely known. In the judgment of Shanghai court in 2004, all the trademarks of "Zhang Xiaoquan Brand" were recognized as well-known trademarks, so it is true to publicize well-known trademarks. Three, the original judgment pointed out that Hangzhou Zhang Xiaoquan Group's behavior was improper, reminding it to exercise its rights more strictly and standardly in the future.

The appellee Hangzhou Metro Company replied that it agreed with the appellee Hangzhou Zhang Xiaoquan Group; At the same time, as a seller, he has fulfilled his reasonable review obligation and does not need to bear responsibility.

In the second trial, neither party provided new evidence to our court.

Our court found through trial that the facts identified by the court of first instance were true.

We believe that operators violate the principle of good faith and conduct related behaviors that mislead consumers and damage the legitimate rights and interests of competitors in the same industry, which constitutes unfair competition. In this case, Hang Zhang Xiaoquan Group marked "Founded in 1663", "Since 1663" and "China Well-known Trademark" on the outer packaging of its knife and scissors products, in order to show the objective history of "Zhang Xiaoquan" brand and the identity of "Zhang Xiaoquan" trademark as a well-known trademark recognized by the State Trademark Office, which is not a false propaganda act that violates the principle of good faith and misleads the relevant public.

The Appellant believes that the original judgment that Hangzhou Zhang Xiaoquan Group marked "Founded in 1663" on the outer packaging of its knife and scissors products does not constitute false propaganda, but is a mistake in fact finding. The appellant Hangzhou Zhang Xiaoquan Group has no direct relationship with the founder of the "Zhang Xiaoquan" brand. Hangzhou Zhang Xiaoquan Group has no history of more than 300 years, whether it is an enterprise, a registered trademark or a production history. We believe that whether the words "founded in 1663" on the outer packaging of Hangzhou Zhang Xiaoquan Group's knife and scissors products constitute false propaganda depends on whether it will cause misunderstanding among relevant consumers. First of all, in view of the fact that China's current enterprise and trademark system was established after the founding of the People's Republic of China, it is objectively impossible to have 1663 enterprises and trademarks. Secondly, the brand and history of "Zhang Xiaoquan" are widely known to the relevant public in China. Therefore, even if Hangzhou Zhang Xiaoquan Group is not directly related to the founder of Zhang Xiaoquan brand, the words "founded in 1663" on the product packaging will not lead relevant consumers to mistakenly think that its enterprise was founded in 1663 or its trademark right was obtained from 1663, so Hangzhou Zhang Xiaoquan Group marked "founded in/"on the outer packaging of its knife and scissors products. The Appellant thinks that Hangzhou Zhang Xiaoquan Group's behavior of marking the words "founded in 1663" on the outer packaging of its knife and scissors products constitutes the appeal reason of false propaganda, which is not supported by our court.

The Appellant believes that the original judgment found that the words "China Famous Trademark" marked by Hangzhou Zhang Xiaoquan Group on the outer packaging of its knife and scissors products did not constitute false propaganda, which was an error in fact finding and the applicable law was wrong. Before the implementation of the Provisions on the Recognition and Protection of Well-known Trademarks on June 1 2003, the management of well-known trademarks should be based on the Interim Provisions on the Recognition and Management of Well-known Trademarks. In 2000, three years after the "Zhang Xiaoquan Brand" trademark was recognized as a well-known trademark, according to the third paragraph of Article 4 of the Interim Provisions on the Recognition and Administration of Well-known Trademarks, Hangzhou Zhang Xiaoquan Group should re-apply for the recognition of well-known trademarks. Hangzhou Zhang Xiaoquan Group did not apply, so the trademark is no longer a well-known trademark, and the provisions on the identification and protection of well-known trademarks can no longer be applied. We believe that, first of all, the third paragraph of Article 4 of the Interim Provisions on the Recognition and Administration of Well-known Trademarks stipulates that if a well-known trademark recognized by the State Trademark Office has not been recognized for more than three years, there is no need to re-apply for recognition. This clause only stipulates that well-known trademarks that have been recognized need not be re-recognized within three years. As for whether it is necessary to re-apply for recognition after more than three years, this clause is not clearly stated. At the same time, due to the provisions on the identification and protection of well-known trademarks that came into effect later, this clause was abolished. Secondly, the appellant did not provide other relevant evidence to prove that the State Trademark Office had asked other well-known trademark owners to re-apply for recognition or that other well-known trademark owners had applied to the State Trademark Office for re-recognition. Therefore, the appellant's claim that well-known trademarks should be re-applied for recognition after three years lacks sufficient factual and legal basis. In addition, whether a trademark is well-known is an objective fact. Based on the fact that the State Trademark Office once recognized the "Zhang Xiaoquan Brand" trademark of Hangzhou Zhang Xiaoquan Group as a well-known trademark, and the effective judgment of our hospital (2004) Gao Hu Minsan (Zhi) Zi No.27 also confirmed the trademark as a well-known trademark, the court of first instance confirmed that Hangzhou Zhang Xiaoquan Group marked its "Zhang Xiaoquan Brand" trademark according to law without providing evidence to the contrary to deny the above recognition. The Appellant believes that the original judgment that Hangzhou Zhang Xiaoquan Group marked the words "China Famous Trademark" on the outer packaging of its knife and scissors products does not constitute false propaganda, which is an error in fact finding and law application, and our court will not support it.

The Appellant believes that the original judgment requires Hangzhou Zhang Xiaoquan Group to regulate the use of "Zhang Xiaoquan" trademark and brand in its business activities, which is ambiguous and difficult to implement. Our court believes that although the original judgment found that the relevant packaging words of Hangzhou Zhang Xiaoquan Group did not constitute false propaganda, in order to make the relevant behaviors of Hangzhou Zhang Xiaoquan Group more standardized, the court of first instance specially reminded Hangzhou Zhang Xiaoquan Group to pay attention to standardizing the use of its own intellectual property rights in the future, and there was nothing improper. The appellant's grounds for appeal are not supported by this court.

To sum up, the appellant's appeal request and reasons have no factual and legal basis and should be rejected. Accordingly, in accordance with the provisions of Article 153, paragraph 1 (1) and Article 158 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:

Reject the appeal and uphold the original judgment.

The acceptance fee for the second instance of this case is RMB 3,930.00 Yuan, which shall be borne by the appellant Shanghai Zhang Xiaoquan Knife and Scissors Corporation.

This is the final judgment.