Chinese enterprise A has applied for registration of a trademark in China, and enterprise B of country B has applied for the same trademark in country B. , and then authorizes domestic enterprise C to produce products bearing the trademark, and then sells them directly to country B. This involves the territorial issue of intellectual property rights, that is, a trademark applied for in a country can only be protected within that country. Specific to this case, of course, the Industrial and Commercial Bureau will investigate and deal with it as soon as it discovers the production, and the customs will definitely ban the export or even seize and confiscate it. How the People's Court hears it, the courts in different places have different opinions. The Fujian court held that it did not constitute infringement, and the Beijing court also held that it did not constitute infringement. However, the Zhejiang court determined that it did. We say that the main function of a trademark is to distinguish the source of goods. Only when it causes confusion among consumers can it constitute infringement. Since domestic companies are only processing and not selling domestically, it will certainly not cause confusion among domestic consumers and certainly does not constitute infringement. Therefore, this case does not constitute infringement in theory, but in practice, industry and commerce, customs, public security, and courts may determine infringement.
2. The amount of compensation is difficult to determine
The amount of compensation for intellectual property rights is generally based on the plaintiff’s loss or the defendant’s If the above-mentioned losses or gains are difficult to ascertain, the plaintiff can request compensation of up to 500,000 yuan stipulated by law, and then the judge will determine a figure within 500,000 yuan at his discretion based on the actual situation. In our country, compensation is generally less than 500,000 US dollars, and the United States has similar regulations, with the standard compensation being 100,000 US dollars. Of course, some countries have sentenced tens of millions or even hundreds of millions. For example, the Intermediate People's Court of Hangzhou City, Zhejiang Province made a decision in the case of Zhao suing Zongheng Erqian Co., Ltd. and its franchisees ** Heyuan Clothing Co., Ltd., ** Qianying Clothing Co., Ltd., and Zhejiang ** Department Store Co., Ltd. for trademark infringement disputes. The first instance verdict ordered Zongheng Erqian Co., Ltd. to immediately stop using the "G2000" trademark logo that infringes the "2000" registered trademark rights on the socks, scarves, ties, and belts it produces and sells, and destroy the corresponding labels containing "G2000" , packaging materials; Heyuan* Division, ** Company, and ** Department Store immediately stopped selling the infringing products; ** Company compensated Zhao for economic losses of RMB 20 million.
In addition, there are:
1. **Taihe Company, **Honghe Operations Department and **Trademark infringement case of Honghe Guangming Co., Ltd., the Guangdong Provincial Higher People’s Court made the final judgment** Honghe Guangming Co., Ltd. compensated the right holder RMB 10 million.
2. In the trademark infringement case between China Cereals, Oils and Food (Group) Co., Ltd. and ** Jiayu Oriental Wine Co., Ltd., the Supreme People's Court finally ruled that ** Jiayu Oriental Wine Co., Ltd. should compensate the right holder RMB 10.61 million.
3.** Lanye Liquor Co., Ltd. vs. ** Pepsi-Cola Beverage Co., Ltd. and ** Lianhua Huashang Group Co., Ltd.’s trademark infringement case, the Zhejiang Provincial Higher People’s Court made the final judgment** Pepsi-Cola Beverage Co., Ltd. compensated the right holder RMB 3 million.However, in practice, it is difficult for the plaintiff to prove losses. To prove that sales in the infringing area have decreased, it is generally necessary to submit accounting Statements or audit reports, or value-added tax payment balances, etc., and it is very difficult to prove the defendant's profit, because some companies have two sets of financial ledgers. After the financial ledgers are retrieved and audited, the defendant will lose a penny and cannot compensate for that penny. The amount of compensation for infringement has always been a headache for the legal profession, including judges and jurists, and there is no perfect solution to it. In the United States, expert witnesses are generally hired to consider the plaintiff’s investment, research and development expenses, and the popularity of the plaintiff’s products. , the bad faith of the defendant’s infringing supervisor, and the defendant’s profit from the infringement, the amount of compensation is comprehensively assessed. Of course, some courts also pay compensation based on the amounts stipulated in other trademark and patent licensing agreements, but one problem is that the amount in this agreement is easy to falsify.
3. What to do if the infringement continues after the court decides to stop the infringement
After the court decides that the other party has stopped infringement, the other party If the infringement continues, how should it be handled? Can it be treated as a crime of refusal to implement the court's judgment or as a repeated infringement? In practice, it is generally prosecuted separately according to the judicial interpretation of the Supreme Court.
4. Specific ways to stop infringement are rarely covered in the judgment
The Zhejiang High Court made a judgment that because a car lamp infringed the appearance patent of another person, Therefore, it was decided to stop the sale of all vehicles. This decision is worthy of discussion. We believe that if the decision to stop the infringement will cause a huge imbalance of interests between the two parties, or damage the interests of the announcement, there is no need to make a decision to stop the infringement, but the compensation method for the infringement can be clarified, and the patent can be considered Licensing, trademark licensing and other methods have contributed to the reconciliation between the two parties. It is easy to understand. For example, our **TV station has been built, but suddenly someone said that the appearance infringed its copyright. The reason is that there was a painting in the 1980s, and now CCTV The appearance of the building is exactly the same. If it is judged to stop infringement, the entire building will have to be demolished and rebuilt. This will cause huge economic waste and damage public interests, but it can be judged to make appropriate changes without violating the construction law, or to give economic incentives. No change after compensationChange the existing appearance.
