The plaintiff Hoechst Shuling Agrevo Company Limited (hereinafter referred to as Agrevo company) with the Jiangsu province first Nanjing pesticide factory (hereinafter referred to as the Nanjing farm) dispute of trademark infringement, litigation to the Jiangsu Province, Nanjing City Intermediate People's court.
The plaintiff claimed: "the plaintiff is now the cotton boll" registered trademark exclusive right of people in Chinese. Permit the defendant without the plaintiff, unauthorized L deltamathrin EC in 98% deltamathrin raw powder and its production and sales of 2.5%200 ("making insecticide decis" TC) on the outer package using the plaintiff's "cotton" registered trademark. The defendant's conduct constituted a violation of the plaintiff's trademark right, causing serious damage to the plaintiff sales market, the plaintiff suffered huge economic losses. Request the court to order the defendant to immediately stop the infringement, through the news media published an apology to the plaintiff's announcement in order to eliminate the influence, to the plaintiff compensation for economic loss of 3000000 yuan, and bear the costs of litigation.
The plaintiff Ai Gefu company for their claims to support, in addition to submit was found in 98% deltamathrin raw powder on the "cotton boll" pattern, signed "the Red Sun Group first Nanjing pesticide factory" on the label, also submitted the audit report Tianjin Xietong accounting firm in August 20 of the 1998 sunrise. The report says, Agrevo Tianjin Co. Ltd. in 1998 17 month sales income is 21.3% lower than the same period last year, reduce 16442084.93 yuan. In the lawsuit, the request for additional Red Sun Group Limited Agrevo company as a defendant in this case.
The defendant argued that: from 1990 to 1997, the plaintiff and the defendant has been the business units, the defendant will be the plaintiff's production of "decis" technical processing into 2.5% "decis" ec. In the meantime, the defendant had never heard of "square" is a registered trademark of the plaintiff's trademark, so that from 1998 January onwards, the external standard praise permethrin raw powder products in their production of Australian paste used "boll number" graphics, and the use of only 425 kilograms, valued at RMB 95.63 yuan. The plaintiff accused the defendant willfully infringe the exclusive right to use a registered trademark, the reason can not be established; seeking compensation for economic loss of 3000000 yuan, the lack of legal basis. The court rejected the plaintiff's claim shall be.
Nanjing City Intermediate People's court found:
"Cotton" brand pattern, by the French Russell Uklav in 1985 on the 30 August of the people's Republic of China State Administration of industry and Trademark Office (hereinafter referred to as the national trademark office to apply for registration). February 28, 1997, approved by the State Trademark Bureau, "square" pattern to transfer of registered trademark of the plaintiff in the case of Ai Gefu company, used in the production company deltamathrin series products. The trademark renewal after the valid until August 29, 2005 only.
The defendant Nanjing farm was incorporated in August 15, 1990. In December 5, 1995, a Nanjing farm and Nanjing Honghua plastic factory jointly initiated the establishment of the "Nanjing Red Sun Group Limited". The company is approved and registered in 1996 March 8 by the Nanjing City Administration of industry and commerce, valid until December 12, 2005 only, in March 12, 1998 changed its name to Red Sun Group Limited. Red Sun Group Limited and the Nanjing agricultural factory is an enterprise legal person independent of each other.
In 1998 March, the plaintiff Ai Gefu company found the defendant Nanjing farm without their permission, authorization in the packaging of the products of this factory label on the use of "registered trademark of bolls" pattern, brought a lawsuit.
The defendant Nanjing farm admitted in 1998 January to the March 11th of the same year, in their own production of 98% Australian cypermethrin products raw powder packing label use "cotton boll" logo trademark, but denied the outer packing L deltamathrin dairy products in the 2.5%200 standard used the trademark affixed.
Should the plaintiff Ai Gefu request, the court in Sichuan Province, Neijiang agricultural means of production company for investigation. In the warehouse, seized by the defendant Nanjing agricultural plant in April 3, 1998, April 6th production of four barrels of 2.5% Australian cypermethrin emulsifiable concentrate (each net capacity of 200 liters), outer packing of the product labels are used "cotton" registered trademark logo. In fact, a Nanjing farm no objection. Subsequently, Ai Gefu company not found in Nanjing agricultural plants with the use of "cotton" trademark act.
Should the plaintiff Ai Gefu request, the court in accordance with the provisions of the "PRC Civil Procedure Law" article seventy-fourth, ruled that the defendant Nanjing seized the factory's account books and accounting statements, commissioned by the Jiangsu provincial audit firm to conduct an audit of the actual profit of the plant in 1998 January to end 4 years sales 98% deltamathrin raw powder and 2.5%200 l Macao cypermethrin emulsifiable concentrate. Conclusion: a Nanjing farm in 1998 1 - April, the actual profit total sales of 2.5%200 liters of Cypermethrin EC audit o. Conclusion: a Nanjing farm in 1998 1 - April, the total sales of 169470 liters 2.5%200 liters deltamathrin, income 10678610 yuan; the total sales of 98% deltamathrin raw powder 890 kg, income 1980550 yuan. After deducting the cost of two of the total, the actual profit is a RMB 678371.99 yuan. On the audit results, both parties have no objection.
These facts are on both sides of the statements of the parties, the plaintiff Ai Gefu company to provide physical evidence, documentary evidence, the audit report and the court investigation evidence evidence.
Nanjing City Intermediate People's court think:
"Trademark law of the people's Republic of China" third stipulation: "trademark approved and registered by the Trademark Office shall do business is a registered trademark, the trademark registrant shall enjoy the exclusive right to use a trademark, protected by law." "Cotton" logo trademark is registered at the National Trademark Office trademark, the plaintiff Ai Gefu company transferee in accordance with the law to obtain the exclusive right to use the trademark, the right should be protected by law in china. Permit the defendant Nanjing farm without Ai Gefu company, without the approval of the use of registered trademark "square" pattern in product packaging, similar with the Ai Gefu company, sufficient to cause misidentification of users, the infringement of the exclusive right to use a registered trademark of Ai Gefu company, in violation of the provisions of the trademark law article thirty-eighth. Nanjing farm should immediately stop the infringement, apologize to Ai Gefu company should, in order to eliminate the influence of infringement, and shall be liable for compensation for economic loss according to law responsibility.
The Supreme People's Court (the) first provision complex (1985) No. 53 "on the violation of trademark infringement damages during the calculation and the problem of how to reply:" "in trademark infringement cases, the infringee may according to the actual amount of loss compensation request, can also request the infringer in the period of the infringement tort profits (refers to all the profits in addition to costs and taxes and abroad) as the amount of compensation. The calculation method for the above two, the infringee shall have the right to choose." The defendant Nanjing farm tort to the plaintiff Ai Gefu company caused economic losses, Ai Gefu company in Tianjin Xietong accounting firm audit report as evidence, request the court to order a Nanjing farm of compensation for their economic losses 3000000 yuan. Check Agrevo company is a legal person registered in France, and kill Gefu Tianjin Co. Ltd is a subsidiary of Agrevo company, and Agrevo company are two independent legal person. Tianjin Xietong accounting firm audit report, is the conclusion of the sales situation of Agrevo Tianjin Co. Ltd, this does not represent the infringee Agrevo company suffered losses due to the infringement. Ai Gefu company to the audit report as evidence to claim compensation, in addition to not submit other evidence to prove his caused by the infringement and suffer economic losses, is the lack of evidence. The case not to be infringing the proposed solution to the issue of compensation for losses.
The plaintiff Ai Gefu company proof, the defendant Nanjing a farm in a lawsuit to admit his tort from 1998 January to March. The existing evidence and confirmed, a Nanjing farm in 1998 April the implementation of infringement. In 1998 April after the existence of tort case, a Nanjing farm deny by oath, no evidence of Agrevo company. Therefore, that the Nanjing agricultural plant in 1998 January to April invasion of Agrevo company the exclusive right to use a registered trademark. In the meantime a Nanjing farm for the production and sale of 2.5%200 liters deltamathrin and 98% deltamathrin raw powder of two kinds of products to obtain profits, should be regarded as infringement to Ai Gefu company compensation according to law.
The defendant Nanjing farm and the Red Sun Group Limited is a corporation independent of each other. Nanjing farm use "cotton boll" trademark to sell their products, and the Red Sun Group Limited has nothing to do, the plaintiff Ai Gefu company to recover the Red Sun Group Limited as the defendant in this case, the reason can not be established.
To sum up, the Nanjing City Intermediate People's court:
One, the defendant Nanjing farm to immediately stop violating the plaintiff Ai Gefu company "cotton boll" pattern of registered trademark rights behavior;
Two, the defendant Nanjing farm compensation the plaintiff Ai Gefu company economic loss of 678371.99 yuan, from the entry into force of this decision within 10 days after the one-time payment;
Three, the defendant Nanjing farm to a decision within 30 days of the date of entry into force of the "Nanjing daily" on the newspaper apology to the plaintiff Ai Gefu company.
The case acceptance fee of RMB 25010 yuan, the audit fee of RMB 40000 yuan, two of the total RMB 65010, by the defendant Nanjing agricultural factory burden.
The first instance verdict, the parties did not appeal the verdict legally effective.
