The car film shop with the same name as "Ideal" was claimed 1.2 million yuan, and the owner said that it had started using it 10 years ago
According to Qilu One Point report, "Linyi New Ideal Automobile Service Co., Ltd.", which is engaged in automobile film business in Linyi, Shandong Province, was recently sued by Liyi Auto for a total of 1.2 million yuan for "trademark infringement and unfair competition disputes".
On July 21, the owner of the store, Zhu Yuhao, told Red Star News that his nickname is "ideal", and the car film shop has been called "ideal car decoration" since its establishment in 2012, and now it is called "ideal car film factory", which has always been used "ideal", "Our family is making film, I really can't understand how it caused him a loss of more than 1 million?" ”
▲Zhu Yuhao's "ideal car film factory"
On the same day, Li Auto said that the case is currently being submitted to the court for trial, "I believe that the court will make a fair judgment according to law on the basis of verifying the facts." ”
The lawyer believes that if the trademark is used first, it is necessary to provide proof that it has a certain influence in the local area. In practice, if the court determines that Mr. Zhu has the right to continue to use, it may require Mr. Zhu to attach an appropriate distinguishing mark to protect the legitimate interests of the registered party.
Trademark disputes:
A car film shop was claimed for 1.2 million
Ideal Car: The court is hearing
According to Zhu Yuhao, in June this year, he received a text message on his mobile phone for litigation documents. Later, he received another civil complaint showing that the plaintiff was Beijing Chehejia Information Technology Co., Ltd., and the legal representative was Li Xiang.
According to the civil complaint, the word "ideal" in the name of Zhu Yuhao's company was the registered trademark of the plaintiff No. 30727125 "ideal", so the plaintiff requested the court to order him to stop using the same or similar corporate logo as the registered trademark on the front of the store, the decoration of the store and the short video platform, change the enterprise name, and the changed enterprise name must not contain the word "ideal". In addition, the defendant was required to publish an apology in the local media for 30 days, and compensate RMB1 million for economic losses and RMB200,000 for expenses incurred to stop the infringement (provisional).
▲Relevant civil complaint provided by Zhu Yuhao (some screenshots)
Zhu Yuhao was puzzled by the compensation claim of 1.2 million yuan for "ideal car". "We are not on the same track, he sells his car, I put my film on me, what can I do to him?" According to him, his nickname is "ideal", and he has been called for more than 30 years, "Since I opened the store in 2012, the name of the store is 'ideal car decoration', when the ideal car was not yet out." ”
Zhu Yuhao said that in 2022, his store will be officially registered as "Linyi Ideal Automobile Service Co., Ltd." after it is scaled, and it will be renamed "Linyi New Ideal Automobile Service Co., Ltd." a month later; In March 2023, when the store was renovated, it was renamed "Ideal Auto Film Factory", "It can be said that my store has always used 'ideal'. ”
Zhu Yuhao told Red Star News that at present, he has transferred the relevant evidence and claims to the lawyer for handling, and is waiting for the court to give a judgment after the trial. As of press time, it had not presented relevant evidence to reporters.
Tianyan investigation shows that the plaintiff Beijing Chehejia Information Technology Co., Ltd. is the main company of "Li Auto" and was founded in July 2015. According to the trademark announcement of the State Intellectual Property Office, Beijing Chehejia Information Technology Co., Ltd. applied for the No. 30727125 "ideal" registered trademark in May 2018, classified as 12-means of transport, and the exclusive right period is from May 28, 2020 to May 27, 2030.
▲Trademark announcement of the State Intellectual Property Office
According to surging news reports, on July 21, in response to online rumors that "Li Auto sued Xiao Shop for trademark infringement, and the shop owner claimed that his nickname was Li Li", Li Auto responded that the case is currently being submitted to the court for trial, "I believe that the court will make a fair judgment according to law on the basis of verifying the facts." ”
Lawyer's interpretation:
Prior use and influence do not constitute infringement
It may be required to be appended with an appropriate distinguishing mark
In fact, if it is true that Zhu Yuhao claimed that he had used the word "ideal" in stores for many years before the trademark registration of Li Auto, would it constitute infringement? In this regard, Fu Jian, director of Henan Zejian Law Firm, said that if the infringed party's trademark is a well-known trademark and a trademark well known to the public, according to the Trademark Law, the holder has the right to request the protection of the well-known trademark when it believes that its rights have been infringed.
In this case, if Mr. Zhu had continuously used a trademark identical or similar to the registered trademark on the same or similar goods or services before the application date of the registered trademark of the "Li Auto" brand, he could continue to use the right to use the trademark on the original goods or services after the registered trademark was authorized, so the prior use did not constitute infringement. If the user interrupts the prior use and continues to use it after another person applies for a registered trademark, it is an infringement of the trademark rights of another person.
Zhao Liangshan, a senior partner at Shaanxi Hengda Law Firm and a well-known public interest lawyer, believes that Article 59 of the Trademark Law clearly stipulates that if before the trademark registrant applies for trademark registration, another person has used a trademark that is identical or similar to the registered trademark and has a certain impact on the same type of goods or similar goods before the trademark registrant, the owner of the exclusive right to use the registered trademark has no right to prohibit the user from continuing to use the trademark within the original scope of use.
"As the name implies, the prior user does not constitute infringement, and the prerequisite for the continued use of the trademark is that the unregistered trademark used has a certain influence in the local area." Therefore, Mr. Zhu needs to provide evidence to prove that the unregistered trademarks he uses have a certain influence in the local area, such as some publicity, data, witness testimony, sales, mass praise, etc. If the evidence listed by Mr. Zhu is insufficient to prove that the unregistered trademark he uses has a certain influence in the local area, he shall not continue to use the trademark. In practice, if the court determines that Mr. Zhu has the right to continue to use, it may require Mr. Zhu to attach an appropriate distinguishing mark to protect the legitimate interests of the registered party.
Red Star News reporters noted that in December 2022, the State Intellectual Property Office issued the "Guidelines on How to Avoid Conflicts with Prior Rights in Trademark Application Registration and Use". Article 32 of the Trademark Law stipulates that an application for trademark registration shall not infringe the existing prior rights of others, where "prior rights" refer to rights or interests that have been enjoyed and legally existing before the date of trademark application for registration, including trade name rights, copyrights, design patent rights, name rights, portrait rights, geographical indications, names of goods or services with certain influence, packaging, decoration and other legitimate prior rights and interests that should be protected.
How to avoid conflicts between the two? The article by the State Intellectual Property Office points out that when applying for registration and use of trademarks, market entities should avoid improper registration and use of trademarks, such as "hoarding trademarks", "praising famous brands", "free-riding" and "rubbing hot spots". In addition, when applying for registration and use of trademarks, market entities should actively avoid signs that are identical or similar to the prior rights of others, so as to avoid damage to the prior rights of others. Before applying for registration or using a trademark, due diligence shall be exercised, and the prior rights enjoyed by others may be fully searched and inquired through the Internet, the national enterprise credit information publicity system, the patent search and analysis system of the State Intellectual Property Office, etc., so as to confirm that the relevant signs do not conflict with the prior rights enjoyed by others.
In addition, some netizens questioned whether Li Auto's claim of 1.2 million yuan due to a trademark dispute is reasonable? Lawyer Fu Jian introduced that, generally speaking, whether the infringed's claim is legitimate should be determined comprehensively from the actual losses of the infringed party and the profits obtained by the infringer. According to the provisions of the Mainland Trademark Law, the amount of compensation for trademark infringement shall be determined according to the actual losses suffered by the right holder as a result of the infringement, and if the actual losses are difficult to determine, it may be determined according to the benefits obtained by the infringer as a result of the infringement, and the multiple of the trademark royalty may be referred to.
Lawyer Zhao Liangshan reminded that trademarks are a way to protect rights, especially in the process of business, trademarks are very important, "It is recommended that all right holders enhance their legal awareness and register trademarks as soon as possible to avoid being sued for infringement and bringing unnecessary trouble." ”
Red Star News reporter Cai Xiaoyi Wang Han
Edited by Peng Jiang Editor: Li Binbin