On April 21, the Shandong Provincial High People's Court held a press conference on intellectual property rights, at which the top ten intellectual property cases of Shandong courts in 2020 were released:
1. "Tencent" trademark infringement and unfair competition case
Plaintiff: Tencent Technology (Shenzhen) Co., Ltd. (hereinafter referred to as Tencent)
Defendants: Shenzhen Xiaofeiyu Mobile Technology Co., Ltd. (hereinafter referred to as Xiaofeiyu Company), etc
【Case Summary】Tencent Department
The trademark owner approves the use of goods such as telephone sets. The Flying Fish Company stands out on the wireless headphone products it sells
Logo, the tencent company name on the product and the use of the word "Tencent" in the promotion. Tencent argued that the above-mentioned acts of Xiaofeiyu Company infringed its trademark rights and constituted unfair competition, and requested the court to order Xiaofeiyu Company to stop the infringement and compensate for losses of 20 million yuan.
After trial, the court held that Xiaofeiyu Company was prominently marked on wireless headphone products and advertisements
The act of identifying or using the words "Tencent Qbuds wireless headphones" is likely to cause misunderstanding among the relevant public and constitute trademark infringement. The act of Labeling the copyright owner as Tencent Company on the packaging of the allegedly infringing goods and using a large number of words containing "Tencent" in the promotion of the goods has obvious subjective intentions of attaching to the goodwill of well-known enterprises, which will cause confusion and misidentification among the relevant public and constitute unfair competition. Regarding the amount of compensation, although there is no definite evidence to prove the specific infringement profits of Xiaofeiyu Company, according to the facts ascertained and the self-admission of Xiaofeiyu Company, it can be confirmed that the infringement of Xiaofeiyu Company is serious, the infringement profits have exceeded the maximum limit of statutory compensation, and Xiaofeiyu Company refuses to submit complete financial books, so it fully supports Tencent's litigation claims.
【Typical Significance】This case is a typical case that implements a strict judicial protection policy and increases the intensity of damage compensation. There is no accurate evidence in this case to prove the actual losses of the right holder or the infringer's infringement profits, but based on the facts ascertained and the infringer's sales, it can be determined that the infringing profits clearly exceed the maximum limit of statutory compensation. Therefore, on the basis that some of the data required for calculating the compensation is indeed supported by evidence, the court fully supported the right holder's compensation claim according to the facts of the case, and effectively protected the legitimate rights of the right holder. The judgment in this case reflects the judicial orientation of giving a higher level of protection to trademarks and enterprise names with high popularity, and is of typical significance for optimizing the business environment under the rule of law and establishing a good image of the court strictly protecting intellectual property rights.
Judges of the court of first instance: Judge Liu Junsheng, Judge Li Xianguang, Judge Li Yu, and Clerk Zhang Yaxue.
Judges of the court of second instance: Judge Yu Junbo, Judge Liu Weimin, Judge Zhang Jinzhu, Judge Assistant Ma Qiang, Clerk Xing Xiaoyu.
2. "GXG" trademark infringement case
Plaintiff: Ningbo Zhongzhe Mulsanne Holdings Co., Ltd. (hereinafter referred to as Zhongzhe Company)
Defendant: Zhang Minxia
【Case Summary】Zhongzhe Company is the owner of the trademark "GXG", which has been recognized as a well-known trademark. Zhongzhe Company argued that Zhang Minxia's use of the "GXG" logo on the belts sold in its Taobao store infringed her trademark rights, and requested the court to order Zhang Minxia to stop the infringement and compensate for losses and reasonable expenses. After investigation, Zhang Minxia's Taobao store showed the promotional price, evaluation times and number of donations of the allegedly infringing goods, and the payment page showed that "the seller will donate 0.02 yuan to the public welfare baby plan after the transaction".
After trial, the court held that Zhang Minxia used the trademark in question on the allegedly infringing goods she sold without the permission of Zhongzhe Company, which constituted trademark infringement. Although Zhang Minxia claimed that the sales volume, evaluation number and donation number were false, but did not put forward contrary evidence, the court determined that the number of donations of the alleged infringing goods was the minimum sales volume, and calculated the profit of the single product of the alleged infringement based on the purchase price and Taobao promotion price claimed by Zhang Minxia. Based on this, the court determined that the profits of the alleged infringing goods were at least 300,000 yuan or more, and taking into account the reasonable expenses incurred by Zhongzhe Company for the rights protection of the case, the court ordered Zhang Minxia to stop the infringement and compensate for economic losses and reasonable expenses of 350,000 yuan.
【Typical Significance】This case is a typical case in which the data of a third-party platform is correctly used to determine the amount of compensation. In ip infringement cases involving the sale of online platforms, business operators cannot, on the one hand, gain a good reputation and attract traffic through the sales, evaluations and donations displayed on the platform, and attract traffic to attract attention, and sell more goods, on the other hand, claim that the above amounts are false in the judicial process and evade responsibility. If the seller does not have contrary evidence to prove that its data on the third-party commercial platform is untrue, the court may use the data as the basis for determining the amount of compensation. The judgment in this case effectively stopped and punished the infringement of violating the principle of good faith, attaching to a well-known brand, and maliciously committing the infringement to obtain illegal benefits, ensuring that the rights of the right holder were fully remedied.
Judges of the court of first instance: Judge Zhai Xueli, Judge Guo Peng, People's Assessor Zou Yufeng, and Clerk Wang Jing.
Judges of the court of second instance: Judge Zhang Jinzhu, Judge Yu Junbo, Judge Liu Weimin, Judge Assistant Zhang Qiong, Clerk Xing Xiaoyu.
3. "Gubeichun" trademark infringement case
Plaintiff: Gubeichun Group Co., Ltd. (hereinafter referred to as Gubeichun Company)
Defendant: Huang Changchun
【Case Summary】The "Gubeichun" trademark of Gubeichun Company has a high market reputation and has been recognized as a well-known trademark. Huang Changchun and others used the same trademark as the registered trademark on the same kind of goods without permission, and were found to constitute the crime of counterfeiting a registered trademark by the effective criminal judgment. Gubeichun Company believed that Huang Changchun's filling of liquor with the "Gubeichun" logo infringed its trademark right and requested compensation for economic losses.
After trial, the court held that Huang Changchun infringed the trademark rights of Gubeichun Company. Huang Changchun and three others knew that the "Gubeichun" trademark was a well-known trademark, but still committed the infringing act, there was bad faith in infringing the exclusive right to use the trademark, and the number was huge, the circumstances were serious, and the amount of compensation should be determined according to three times the illegal profit of 119,500 yuan of 358,500 yuan. Considering that Huang Changchun and the other three people jointly infringed, the other two have already made compensation, and Gubeichun Company only sued Huang Changchun, so it ordered Huang Changchun to compensate for economic losses of 119,500 yuan.
【Typical Significance】This case is a typical case in which the punitive damages system is applied. The court analyzed and elaborated on the considerations and calculation methods of the punitive damages system, and promoted the implementation of the punitive damages system of intellectual property rights in judicial practice. The infringer in this case clearly knew that the trademark involved in the case had a relatively high reputation and still committed counterfeiting, and the subjective malice of the infringement was obvious; the counterfeit liquor products posed a potential threat to the health of consumers, and the number was huge, the nature of the infringement was bad, and the circumstances were serious, so the court applied punitive damages to determine the amount of compensation for three times the illegal profits. The judgment in this case not only refines the constituent elements of punitive damages, but also highlights the clear attitude towards the effective protection of well-known brands of private enterprises.
Judges of the court of first instance: Judge Liu Yufu, Judge Gao Xiaomin, Judge Zhang Zhongxing, Judge Assistant Shang Min, Clerk Miao Liping.
4. "Gas Transmittance Tester" technical secret infringement case
Plaintiff: Jinan Sike Testing Technology Co., Ltd. (hereinafter referred to as SIKE Company)
Defendant: Jinan Languang Electromechanical Technology Co., Ltd. (hereinafter referred to as Languang Company)
【Case Summary】Languang Company is the utility model patentee of "a clamping structure of the experimental cavity of a gas barrier detection equipment", and has applied to the court to take evidence preservation measures against Sike Company's suspected infringement of its practical new patent right. Based on his application, the court took evidentiary preservation measures for the GTR-7001 gas transmittance tester purchased by outsiders from Sike Company. Sike believes that Languang Company used the evidence preservation procedure to obtain the technical secret and applied it to the same intelligent mode detection instrument, which constitutes infringement.
After trial, the court held that the confidentiality measures taken by SK Company for the purpose of confidentiality needed to be able to resist the reverse engineering of unspecified third parties to obtain their technical secrets. The "internal secrecy measures" advocated by Sike Company are not corresponding to the technical secrets claimed by Sco because they are separated from the carrier of the technical secrets involved in the case, and the "external secrecy measures" advocated by Sco Company, either only have the effect of binding the contractual counterparts, or do not reflect SCO's will to keep secrets, are not "corresponding confidentiality measures" stipulated in the Anti-Unfair Competition Law. The court ruled to dismiss Sko's claims.
【Typical Significance】This case is a typical case involving the determination of the elements of technical secret confidentiality measures. The confidentiality measures adopted by the holder of technical secret rights shall not be abstract and broad, and may exist apart from the technical secret and its carrier, but shall be specific and specific, and shall be a confidentiality measure corresponding to the technical secret and its carrier. Where a technical secret is carried by a product in circulation in the market, the right holder affixes a label to the product, makes a unilateral declaration of the technical secret, and prohibits a third party who does not have an agreed obligation to keep secrets from dismantling the product, which does not constitute a confidentiality measure provided for in the Anti-Unfair Competition Law. The judgment in this case has made a useful exploration of the determination of technical secret confidentiality measures, which has certain reference significance.
Judges of the court of first instance: Judge Liu Junsheng, Judge Li Xianguang, Judge Wu Feng, and Clerk Liu Lingling.
Judges of the court of second instance: Judge Cen Hongyu, Judge He Peng, Judge Chen Ruizi, Judge Assistant Li Yichen, Clerk Zheng Shuai.
5. "IT House" commercial defamation case
Plaintiff: Tencent Technology (Shenzhen) Co., Ltd. (hereinafter referred to as Tencent Company), etc
Defendant: Qingdao Soft Media Network Technology Co., Ltd. (hereinafter referred to as "Soft Media Company")
【Case Summary】The soft media company published an article entitled "Doing Social, Tencent Forced" in its registered and operated "IT Home", making relevant comments on WeChat. The article uses words such as "monopoly", "differential treatment", "underground organization", "Tencent forced", "blocking", "evading competition" and so on. Tencent argued that the article constituted commercial defamation and requested the court to order the soft media company to stop the infringement, eliminate the impact and compensate for economic losses.
After trial, the court held that business operators must not refuse comments from others, which is the proper meaning of freedom of expression. Critics must also not fabricate or disseminate false or misleading information that harms the commercial reputation and product reputation of competitors, which is also the proper boundary of free speech. The comments published by the soft media company did not fabricate false information, nor did they fabricate misleading information, but only made legitimate comments on Tencent's business behavior, although the language was too sharp, but still belonged to the scope of the comments, would not mislead the public, did not damage Tencent's commercial reputation and product reputation, and did not constitute commercial denigration. The court ruled to dismiss Tencent's claims.
【Typical Significance】This case is a typical case that accurately grasps the constituent elements of commercial defamation and correctly determines whether it constitutes commercial defamation. The comments published by the perpetrators are sharp, but as long as they do not fabricate or disseminate false information and misleading information, they will not mislead the public, and they still fall within the scope of the comments and should not be considered to constitute commercial defamation. The judgment in this case micro-clarifies the boundaries between commercial defamation and legitimate comments, which is conducive to guiding Internet practitioners to regulate their own behavior; at the macro level, it is conducive to promoting the standardized and legal development of the Internet industry by giving play to the social value guidance function of the case.
Judges of the court of first instance: Judge Ji Xiaoxin, Judge Xu Youren, People's Assessor Yu Suyan, Judge Assistant Peng Yunqi, And Clerk Yin Shengfang.
Judges of the court of second instance: Judge Zhang Jinzhu, Judge Yu Junbo, Judge Liu Weimin, Judge Assistant Zhang Qiong, Clerk Yan Xuran.
6. "Kangzhuang" Unfair Competition Case
Plaintiff: Heze Kangzhuang Garment Market Co., Ltd. (hereinafter referred to as Kangzhuang Company)
Defendant: Heze Kangcheng World Trade Commercial Management Co., Ltd. (hereinafter referred to as Kangcheng Company)
Defendant: Heze Yilian Real Estate Co., Ltd. (hereinafter referred to as Yilian Company)
【Case Summary】Kangzhuang Company is the operation and management company of Kangzhuang Garment Market in Heze City. After years of operation, Heze Kangzhuang Garment Market has won a number of honorary titles. Kangcheng Company and Yilian Company developed and built the "New Kangzhuang Garment City" project near the Kangzhuang Garment Market in Heze City, and used the words "Xinkangzhuang Garment City" and "Xinkangzhuang" in publicity. Kangzhuang Company held that the above-mentioned acts of Kangcheng Company and Yilian Company infringed on their right to enterprise names and constituted unfair competition, and requested the court to order Kangcheng Company and Yilian Company to stop the acts of unfair competition and compensate for economic losses.
After trial, the court held that although Kangzhuang is a village place name in Heze City, after the Kangzhuang Company has continuously publicized the operation of the "Kangzhuang Garment Market" for many years, the popularity of the "Kangzhuang Garment Market" in Heze City has been much higher than its popularity as a place name, and there has been a stable connection with the Kangzhuang Company, and "Kangzhuang" has produced a commercial identification significance in the local garment market field to identify the business entity, and should be protected as the enterprise name of Kangzhuang Company with certain popularity. As operators in the same industry, Kangcheng Company and Yilian Company use the words "Xinkangzhuang" and "Xinkangzhuang Garment City" in the garment city projects developed in the same area, which obviously has the subjective malice of attaching the popularity and goodwill of Kangzhuang Company, which can easily lead to confusion and misidentification of the relevant public and constitute unfair competition. The court ordered Kangcheng Company and Yilian Company to stop the acts of unfair competition and compensate Kangzhuang Company for economic losses and reasonable expenses totaling 2.6 million yuan.
【Typical Significance】This case is a typical case of the protection of enterprise names derived from geographical names. In this case, the name of the village that was originally an administrative region has a certain degree of popularity in the corresponding region and field after continuous publicity and use by the right holder as an enterprise name, and other business operators should exercise due diligence when using the geographical name in the same region or field, and use the geographical name properly in accordance with the law to prevent conflicts of rights and cause confusion and misidentification by consumers. The judgment in this case clarified the boundaries of rights such as geographical names and enterprise names, and effectively protected the right to enterprise names with certain influence.
Judges of the court of first instance: Judge Wang Huadong, Judge Pan Yiying, People's Assessor Lu Guiyun, and Clerk Liu Fuying.
Judges of the court of second instance: Judge Liu Weimin, Judge Yu Junbo, Judge Zhang Jinzhu, Judge Assistant Zhao Youqin, clerk Zhang Tian.
7. "Haining Leather City" unfair competition case
Plaintiff: Haining China Leather City Co., Ltd. (hereinafter referred to as Haining Company)
Defendants: Rizhao Lingyun Industry and Trade Co., Ltd. (hereinafter referred to as Lingyun Company), Huang Zuole
【Case Summary】Haining Company has been using the name of "Haining China Leather City" in the market since 2009 and has won a number of honorary titles. Huang Zuole leased the venue of Lingyun Company, sold fur clothing, and publicized it with the names of "Haining Fur City on the Third Floor" and "Rizhao Haining Fur City". Haining Company requested the court to order Lingyun Company and Huang Zuole to stop the unfair competition that infringed on their well-known service names and compensate for economic losses.
After trial, the court held that lingyun company and Huang Zuole's use of "Haining Fur City" was likely to cause confusion and misidentification among relevant consumers, constituting unfair competition, and the infringing acts should be stopped. Regarding the amount of compensation, taking into account the actual situation of the operation affected by the epidemic during the operation of the market involved in the case, and taking into account the actual operation of the market involved in the case and the reasonable expenses incurred by the right holder to stop the infringement, Lingyun Company and Huang Zuole were ordered to compensate Haining Company for economic losses and reasonable expenses of 100,000 yuan.
【Typical Significance】This case is a typical case in which the correct application of proportions is coordinated to determine the amount of compensation. Proportional coordination requires that under the policy orientation of strict protection, differentiate treatment according to the complex reality of the situation of intellectual property rights in China and according to the specific circumstances of the infringement. In this case, the infringer encountered an epidemic during its operation, and Haining Company also changed the amount of compensation from 1.61 million yuan to 610,000 yuan in the lawsuit, and the court also reasonably determined the amount of compensation due to the long period of inability to operate normally due to the new crown epidemic. The judgment in this case not only protected the legitimate rights and interests of the right holder, but also made the infringer's tortious costs commensurate with its subjective malignancy and harmful behavior, and achieved good legal and social effects.
Judges of the court of first instance: Judge Wang Rong, people's assessor Lu Xiangmin, people's assessor Bu Wei, judge assistant Zhang Yanting, and clerk Kui Jie.
8. "Promoter" invention patent infringement case
Plaintiff: CJ Dai-ichi Sugar Co., Ltd. (CJ Co., Ltd.)
Defendant: Zhucheng Dongxiao Biotechnology Co., Ltd. (hereinafter referred to as Dongxiao Company)
【Case Summary】CJ Co., Ltd. is the patentee of the invention of "promoter nucleic acid, expression box and vector, host cell and method of expressing genes using this cell", which believes that the products "L-lysine hydrochloride 98 lysine" and "L-lysine sulfate 70 lysine" produced by Dongxiao Company infringe on its patent rights, and requests the court to order Dongxiao Company to stop the infringement and compensate for economic losses. The court of first instance applied for the appraisal agency to conduct the appraisal of the alleged infringing product based on CJ Co., Ltd., and provided the appraisal institution with the appraisal method submitted by the parties as a reference, but did not identify all the "promoter" sequences required in claim 1. In the second instance, the appraisal body issued a supplementary explanation, arguing that a new method was used to identify the first and second technical features of the patent claims involved in the case.
After trial, the court held that the appraisal report issued by the appraisal institution entrusted by the court of first instance was legal and valid, and the supplementary explanation issued by the appraisal institution in the second instance was not based on the entrustment of the court of first instance, nor did it see the signature of the original judicial appraiser, and the original appraisal result was changed, which was not a supplementary appraisal or supplementary appraisal prescribed by law, and did not have legality. According to the appraisal report issued by the appraisal institution at the first instance, it cannot be proved that Dongxiao Company used the "promoter" limited by claim 1 of the patent involved in the case in the process of producing the allegedly infringing product. The court ruled to dismiss CJ Corporation's claims.
【Typical Significance】This case is a typical case in which an appraisal institution correctly handles the issuance of opposite appraisal opinions at different stages of litigation. In the patent case appraisal procedure, the appraisal institution can only conduct a supplementary appraisal according to the requirements of the client, and the original judicial appraiser cannot conduct the supplementary appraisal by the appraisal institution itself. The explanation made by the appraisal institution of the first instance in the second instance without receiving the entrustment of the court, which is completely contrary to the conclusion of the appraisal of the first instance, is neither a supplementary appraisal in the appraisal procedure nor a supplementary appraisal, nor a correction of the appraisal, and has no legal effect. The judgment in this case reflects the fairness of the judicial procedure and is conducive to standardizing the development of the appraisal body's appraisal business.
Judges of the court of first instance: Judge Ji Xiaoxin, Judge Xu Youren, People's Assessor Wang Huiling, Judge Assistant Peng Yunqi, Clerk Yin Shengfang.
Judges of the court of second instance: Judge Cen Hongyu, Judge He Peng, Judge Chen Ruizi, Judge Assistant Li Yichen, Clerk Zheng Shuai.
9. Boyuan Company computer software development contract dispute case
Plaintiff: Inspur Shike (Shandong) Information Technology Co., Ltd. (hereinafter referred to as Shike Company)
Defendant: Shandong Boyuan Heavy Industry Co., Ltd. (hereinafter referred to as Boyuan Company)
【Case Summary】In December 2018, Boyuan Company entrusted Shike Company to develop the "Boyuan Group Infrastructure Online Internet Platform Project". The contract stipulates that Shike Company will complete the installation and commissioning of the overall system on February 18, 2019 and submit it to Boyuan Company for testing and acceptance, and deliver it within 10 working days after the system acceptance is qualified, with a total contract amount of 500,000 yuan, and the specific payment methods are: the down payment is 150,000 yuan, the payment is 200,000 yuan after the initial inspection is passed, and the payment is 150,000 yuan after the final inspection. After the contract was signed, Boyuan Company only paid the down payment of 150,000 yuan. Seco requested the court to order Boyuan to pay the remaining amount. Boyuan believes that there is a delay in the delivery of the software by Seco and that the software has not yet met the standards agreed in the contract.
After trial, the court held that, first of all, because the software involved in the case contained the iteration phase I, PHASE II and Phase III projects, and the requirements for the iteration phase III project were only confirmed by both parties on January 17, 2019, the performance period of the contract involved in the case had actually changed, and the delivery period of Seco Company was extended accordingly. On March 15, 2019, Seco submitted the developed software code to Boyuan for acceptance, which should be regarded as delivery on schedule. Second, the parties did not agree on the preliminary inspection requirements, and should consider factors such as whether the software involved in the case can achieve the purpose of the contract, whether the existing problems are basic defects of the software, and relevant commercial practices. According to the feedback of Boyuan Company, only the PC-side WeChat Pay function cannot be realized as a software defect, and it has been fixed, and other problems are software functions or interface optimization functions, which do not affect the use of software, so the software delivered by Shike Company meets the preliminary inspection standards. The court ordered Boyuan Company to pay 200,000 yuan for the initial inspection to Seco Company.
【Typical Significance】This case is a typical case involving the correct determination of the functional requirements of the software in the computer software development contract. According to the characteristics of computer software development work, the functional requirements of software may be clarified through the contract text or attachments when signing the contract, or they may gradually become clear in the performance of the contract with the phased completion of the communication between the two parties and the entrusted work, and the content and functions of software development will be adjusted. If the two parties agree on the name of the software and the purpose of the software in the contract text, and the functional requirements are consulted and communicated during the performance of the contract, the functional requirements confirmed by the two parties are supplementary to the content of the contract and constitute the content of the software development contract. The judgment in this case made correct guidance on the determination of software functional requirements in computer software development contracts, and promoted the orderly development of software industry norms.
Judges of the court of first instance: Judge Li Hongjun, Judge Zhuang Xinxiao, Judge Li Xinyan, and Clerk Zheng Yuanyuan.
Judges of the court of second instance: Judge Cen Hongyu, Judge She Chaoyang, Judge Chen Ruizi, Judge Assistant Zhu Fanghui, and Clerk Zheng Shuai.
10. Wang X is guilty of copyright infringement
Public prosecution organ: Gaoqing County People's Procuratorate, Shandong Province
Defendant: Wang Moujiang
【Case Summary】In 2007, Wang Moujiang registered and established a personal website "Standard Literature Network" (domain name www.bzwxw.com) on the Internet, and uploaded various national standards collected to the website for people to download. Between 2014 and 2019, defendant Wang Moujiang illegally sold 10,558 domestic standards and 704 foreign standards through his "Standard Literature Network" and other platforms, infringing the publication copyright of more than 20 standard publishing houses or standard organizations at home and abroad.
After trial, the court held that Wang Moujiang copied and distributed a total of 11,262 copies of his written works for the purpose of making profits without the permission of the copyright owner, and there were other particularly serious circumstances, and his behavior had constituted the crime of copyright infringement. Defendant Wang Moujiang was able to truthfully confess his crime, confessed, voluntarily admitted guilt and accepted punishment, and had paid a fine in advance, which could be given a lighter punishment. The court convicted defendant Wang Moujiang of copyright infringement and sentenced him to three years' imprisonment, suspended for three years, and fined him RMB400,000.
【Typical Significance】This case is a criminal case of infringing the copyright of domestic and foreign publishing institutions through information networks. Disseminating other people's works to the public through the Internet without the permission of the copyright owner has caused serious damage to the legitimate rights and interests of the copyright owner, a healthy network ecology, and the normal market economic order, and has also produced a bad social impact. The judgment in this case comprehensively used a variety of criminal punishment methods, gave full play to the punitive and deterrent role of criminal adjudication of intellectual property rights, effectively cracked down on the criminal act of online copyright, and provided a strong judicial guarantee for protecting intellectual property rights in accordance with the law and maintaining the normal market economic order.
Judges of the court of first instance: Judge Yu Weidong, Judge Zhang Guilin, People's Assessor Fan Lili, Judge Assistant Zhao Xinxin, and Clerk Jing Xia.
Lightning News reporter Feng Shangshang reported