On the morning of April 25, the Qingdao Intermediate People's Court held a press conference to inform the judicial protection of intellectual property rights of Qingdao courts in 2018, released the first Chinese and English bilingual intellectual property judicial protection white paper in Shandong Province "The Judicial Protection Status of Intellectual Property Intellectual Property Rights in Qingdao (2016-2018)", and released the top ten intellectual property protection cases in Qingdao in 2018, including "Culuwa", "Natural" photography, "Spark" and other well-known intellectual property-related cases.
pictures are from the Internet
"Culuwa" animation image copyright infringement case
Plaintiff: Shanghai Art Film Studio Co., Ltd.
Defendant: Qingdao Ruihe Automobile Sales Service Co., Ltd.
Case summary: "Culu Brothers" (also known as: Calabash) is an original 13-episode series of paper-cut cartoons produced by the plaintiff Shanghai Art Film Studio Co., Ltd. in 1986. After the launch of "Gourd Brothers", the anime image of Huluwa was deeply loved by the audience for its unique character shape and character characteristics. The plaintiff created and launched the sequel of "Gourd Brothers" in 1991 - " Hulu Xiaowang ". For more than 30 years, the plaintiff Shanghai Art Film Studio Co., Ltd. has fully spread the image of the Huluwa through TV broadcasting, cinema screening, recording VCDs, etc., making the Huluwa a representative of a cute Chinese boy with the spiritual qualities of wit, courage, justice, and collaboration, and enjoys a high reputation among the public. The defendant published on his WeChat official account, "Culhuwa tells you that you can watch, break through, and resist more. That's it! The image of a gourd baby is used in the article 》. The plaintiff believes that the defendant's behavior infringed on the plaintiff's legitimate rights and interests, and requested the court to order the defendant to stop the infringement, compensate for the losses, publicly apologize, and eliminate the impact. During the trial of this case, the plaintiff and the defendant reached a settlement with the court.
Typical significance: Animation industry is known as the "sunrise industry in the 21st century". With the rapid development of my country's animation industry, the infringement of animation images has become a disaster. "The Gourd Brothers" is a domestic cartoon that is widely known to the public. As the protagonist of the cartoon, the characteristics of the Gauruwa embodies the creative labor of the plaintiff Shanghai Art Film Studio Co., Ltd. and is also deeply loved by the public. During the trial, this case explained the infringer the legal status of the animation image as the work and clarified the responsibilities, and finally promoted the settlement and closing of the case, timely protected the legitimate rights and interests of the copyright owner, effectively promoted the creative enthusiasm of the copyright owner and the healthy development of my country's animation industry.
"Sky Fire" trademark infringement case
Plaintiff : Shandong Xinghuo International Media Group Co., Ltd.
Defendant : Qingdao Xinghuo Education Technology Co., Ltd.
Case introduction : The plaintiff is a well-known domestic education and training institution and enjoys the exclusive right of registered trademarks such as
in accordance with the law. The plaintiff found that the defendant used the logos such as "Spark Education + SPARK Education",
, "SPARK Education", "SPARK+ Education + Spark Education" in his education and training activities without permission, infringing on the plaintiff's exclusive trademark rights, and requested the court to order the defendant to stop infringement and compensate for the losses. After trial, the court held that the plaintiff continued to use the
trademark in the education and training industry, making the trademark highly famous. The defendant and the plaintiff belong to the education and training industry. The above-mentioned logo used in their daily education and training activities is similar to the plaintiff's
trademark, which can easily confuse the relevant public. His behavior infringes on the plaintiff's exclusive right to register trademarks, and ordered the defendant to stop infringement and compensate for economic losses.
Typical significance : The plaintiff in this case and his registered trademark have a high reputation in the education and training industry. The court adheres to the judicial policy of "proportional coordination" during the trial, so that the scope and intensity of the protection of trademark rights are compatible with their popularity and significance. The plaintiff's exclusive right to register trademarks is given strong protection in accordance with the law, which stops the chaos of "climbing famous brands" in the education and training industry, and has positive significance for promoting the standardized and orderly development of the education and training industry, and has effectively maintained a fair and competitive market structure and economic order.
Chinese time-honored brand "naive" unfair competition case
plaintiff : Qingdao Tianzhen Photography Co., Ltd.
defendant : Shinan District Children's Photography Flagship Store
Case introduction : "naive" is a legally registered text trademark of the plaintiff and has been recognized as a "China time-honored brand" and a "famous trademark of Shandong Province". The defendant posted recruitment information on "Gangji.com" and "58.com" network, etc., marked with "Children's Photography Store under Qingdao Century-old Brand Store that records children's growth memories", "Children's Photography Photography after the upgrade and name of the upgraded and renamed childlike children..." The plaintiff believes that the defendant's behavior constitutes unfair competition and requests the court to order the defendant to stop infringement, compensate for losses, apologize, and eliminate the impact. After trial, the court held that the plaintiff and the defendant were also photography service companies, and the defendant's statement in his recruitment information would mislead the relevant public to confuse his photography services with the plaintiff's well-known services, causing the relevant public to mistakenly believe that it is related to the plaintiff, which has a certain adverse impact on the plaintiff's commercial reputation and constitutes unfair competition. It is ruled that the defendant stops the unfair competition against the plaintiff, that is, it shall not use slogans that describe the relationship with the plaintiff in any way in publicity advertisements; compensate for economic losses and publish an impact removal statement in the public newspapers and magazines in this city. The defendant was dissatisfied and appealed, and the original verdict was upheld in the second instance.
Typical meaning : "Natural Photography" is a time-honored Chinese brand that records the memories of several generations of Qingdao. The defendant's expression in advertising in this case made the relevant public mistakenly believe that the photography services he provided have a specific connection with the plaintiff, and then mistakenly believe that it was the service provided by the plaintiff. The judgment in this case promptly stopped the defendant's "free-ride" behavior, safeguarded the brand reputation of "Chinese time-honored brands" and the legitimate rights and interests of consumers in accordance with the law, and purified a fair and reasonable market competition environment.
Customer List Trade Secret Infringement Case
Plaintiff: Beijing Sanyiyi Yiyi Ultra-Clow Technology Co., Ltd.
Defendant: Qingdao Shengyi Ultra-Clow Technology Co., Ltd. (hereinafter referred to as Qingdao Shengyi), Fan
Case summary: Plaintiff was established in 2008 and operates the import and export business of machinery and equipment. The defendant Fan started working in the plaintiff's office in 2008, mainly engaged in business work. During his time, he signed the "Labor Contract" and the "Disclosure Agreement", which stipulated the confidentiality obligations of both in office and after resignation. After Fan resigned, he established the defendant Qingdao Shengyi in December 2015 and served as the legal representative. In 2016, the plaintiff discovered that the defendant Qingdao Shengyi sold the same product to the plaintiff's customers, and the quotations were lower than those of the plaintiff, which led to the customer asking the plaintiff to lower the price. The plaintiff believes that 35 customers including Air Chemical Products Co., Ltd. were obtained by it with huge investments of manpower, material resources and financial resources, which constituted a commercial secret. The defendant used the company's business secrets he had during his tenure to establish his own company, operated the same business as the plaintiff, infringed on the plaintiff's business secrets and constituted unfair competition. He requested the court to order the two defendants to stop infringement and compensate for economic losses of 800,000 yuan. After trial, the court held that the defendants Fan and Qingdao Shengyi infringed on the business secrets of the plaintiff’s two customers, and ruled that the two defendants stopped using the plaintiff’s two customers within two years from the date of the judgment, and compensated the plaintiff for economic losses of 300,000 yuan. The defendant Qingdao Shengyi was dissatisfied and appealed, and the original verdict was upheld in the second instance.
Typical significance: The determination of the customer list is a difficult point in the trial of commercial secret cases. The customer list does not refer to a simple customer name, but specific content such as trading habits and intentions formed through long-term and stable trading models, that is, in-depth information.In this case, the court combined the evidence of both parties and based on factors such as transaction time, transaction scale, and acquisition method, to determine 2 of the 35 customer list claimed by the plaintiff constitutes business secrets protected by law. It explored how to determine the scope of legal protection in the broader customer list claimed by the plaintiff in accordance with legal provisions, while protecting the legal rights of the right holder to operate secrets, and reasonably define the boundaries of rights to achieve a balance of interests between the company and the resigned employees.
Fake "Archaew Bird" registered trademark case
Public prosecution agency: Shandong Province Jiaozhou City People's Procuratorate.
Defendant : Zhao
Case summary: Defendant Zhao organized the production and production of more than 4,000 pieces of clothes with the registered trademark "Archaew Bird" brand in a factory in Licha Town, Jiaozhou City without permission, and was later seized by the public security organs. After identification, the seized clothes with a registered trademark of the "Archaew Bird" brand were worth RMB 598,960. After trial, the court held that Zhao had used someone else's registered trademark on the same product without obtaining the permission of the registered trademark owner, and the circumstances were particularly serious, which constituted the crime of counterfeiting a registered trademark. He was sentenced to three years in prison and a fine of RMB 200,000. Zhao was dissatisfied and appealed, and the original verdict was upheld in the second instance.
Typical significance: This case is a typical case where defendants of intellectual property crimes are sentenced to actual punishment. Not only does it impose heavy punishment on defendants who counterfeit registered trademarks from the economic level, but it also severely punishes them at the criminal level, giving full play to the punishment and deterrent role of criminal trials of intellectual property, effectively promoting the unification of the standards for judgment of criminal crimes and civil infringement, and fully highlighting the advantageous role of the "three-in-one" trial of intellectual property rights.
"Brewing Soy Sauce" trademark infringement case
plaintiff : Mongolia Food Co., Ltd.
defendant : Qingdao Zhengdao Food Co., Ltd. (hereinafter referred to as Qingdao Zhengdao)
Qingdao Sun Grass Food Co., Ltd. (hereinafter referred to as Qingdao Sun Grass)
Qingdao Geely Food Factory (hereinafter referred to as Qingdao Geely)
Qingdao Julonghui E-commerce Co., Ltd. (hereinafter referred to as Qingdao Julonghui)
case summary: plaintiff is the trademark owner of
trademark, and the Korean part of the trademark can be translated as "two dynasties soy sauce" or "brewing soy sauce". The "Mongolian Soy Sauce" products produced by the defendant Qingdao Zhengdao, Qingdao Suncao, Qingdao Geely, and sold by the defendant Qingdao Julonghui used the Korean part of the trademark
in the trademark. The plaintiff believed that the four defendants had infringed on their trademark rights and requested the defendant to stop the infringement and compensate for economic losses of 300,000 yuan. After trial, the court held that although the plaintiff's trademark can be translated as "brewed soy sauce", whether the defendant's use constitutes a reasonable use stipulated by law depends on its specific use. Since the defendant did not prove that the necessity of his product must be described in Korean, and the defendant's product name and outer packaging are basically the same as the plaintiff's goods, the court believes that whether the plaintiff's trademark should be translated as "two-dynasty soy sauce" or "brewed soy sauce", the defendant's use of this logo is not just to indicate that the ingredient of the accused infringement of the product is brewed soy sauce. This use is not a reasonable use act, and constitutes an infringement of the plaintiff's exclusive right to register a trademark. The four defendants were ordered to stop infringement, and the defendants Qingdao Zhengdao, Qingdao Suncao and Qingdao Geely jointly compensate the plaintiff for economic losses of 150,000 yuan.
Typical significance: "reasonable use" stipulated in the Trademark Law is a restriction on the rights of trademark owners. Whether it constitutes "reasonable use" is not only based on whether the trademark itself describes the goods, but also on whether the alleged infringer is used properly. In this case, the court comprehensively uses the defendant's use method to determine the defendant's behavior is not just a matter of infringement, and then determines that the defendant constitutes infringement, clarifying the boundaries of the legitimate use of the trademark, which is a typical case that clarifies the standards for the reasonable use of the trademark.
"Nanometer Imprinting Equipment" invention patent application case
Plaintiff: Qingdao Tianren Micronano Technology Co., Ltd.
Defendant: Wang Mou, Zhang Mou, Qingdao Deweiguang Na Technology Co., Ltd.
Case summary: Plaintiff is a private enterprise that produces micro-nano processing equipment. His legal representative is a visiting researcher at the State Key Laboratory of Infrared Physics and Shandong Provincial People's Government "Taishan Industry Leading Talent". The defendant Wang once worked as a technician in the plaintiff's office. After resigning, he established Qingdao Deweiguangna Technology Co., Ltd. with his wife Zhang, and applied for three invention patents to the National Intellectual Property Office, namely "a precision alignment nanoimprinting equipment", "nanoimprinting equipment", and "a negative pressure nanoimprinting equipment" to National Intellectual Property Office. The plaintiff believes that the defendant applied for an invention patent without his consent to the plaintiff's R&D technology without authorization, infringing his patent application rights, and requested to confirm that the above patent application rights belong to the plaintiff. After trial, the court held that the plaintiff submitted preliminary evidence of his research and development of the technical plan involved, but the defendant failed to submit valid evidence to prove that he had R&D capabilities and had researched and developed the patent application involved. When the defendant Wang was able to contact and participate in the research and development of the plaintiff's related products, the right to apply for the invention patent in question should be owned by the plaintiff, and the three rights to apply for the invention patent are ruled to belong to the plaintiff.
Typical significance: Private enterprises are the new force in intellectual property innovation, but they still face some difficulties in the protection and application of innovative achievements, requiring the "protective umbrella" of the system and the "guardian saint" of the law. In this case, the court ruled to return the scientific and technological achievements to the real owners, transform the innovative achievements of private enterprises into real market value, and create a law-based market environment that protects innovation, inspires innovation, and fair competition. At the same time, this case also reminds entrepreneurs to fully understand the importance of intellectual property rights to enterprises. In the process of entrepreneurship, we should also pay attention to the research and development, protection, application and management of intellectual property rights, establish scientific and standardized rules and regulations to prevent the leakage and loss of intellectual achievements, so as to establish a market advantage and enhance competitiveness.
"Mist Water Treatment Device" invention patent case
Plaintiff : Ma Zhongwei, Hangzhou Tianteng Wusen Equipment Manufacturing Co., Ltd.
Defendant : Shanghai Tengbang Environmental Technology Co., Ltd.
Case summary: Plaintiff Ma Zhongwei is the patent owner of the invention patent name "Mist Water Treatment Device" and the plaintiff Hangzhou Tianteng Wusen Equipment Manufacturing Co., Ltd. is the exclusive licensee of the patent. The plaintiff believes that the "Colorful Ribbon Spray Cooling System" produced by the defendant, installed at the Qingdao World Horticultural Expo, infringed on his patent rights, and requested the court to order the defendant to stop infringement and compensate for losses of 4.99 million yuan. After comparing the patent technical characteristics, the court held that the alleged infringing equipment fell into the scope of the plaintiff's patent protection. Based on the preliminary evidence of the profits obtained by the infringer submitted by the plaintiff and combined with the defendant's self-conception, it was determined that the defendant's profit range was 1 million yuan to 4.18 million yuan, and the defendant was ordered to stop the infringement and compensate for economic losses of 2 million yuan. The defendant was dissatisfied and filed an appeal, and the original verdict was upheld in the second instance.
Typical significance: This case is a typical case that increases protection efforts. The court reasonably used the evidence rules to comprehensively determine the defendant's profit range. Combined with factors such as the type of patent, nature of the infringement, circumstances, and subjective fault of the defendant, the amount of compensation was determined by 2 million yuan when the profit range exceeded the statutory compensation limit of 1 million yuan, reflecting the market value orientation of infringement compensation, effectively ensuring that the right holder obtains full compensation and enhancing the right holder's sense of gain.
"Steel cord with corrugated elements" invention patent infringement case
plaintiff : Jiangyin Bekaerte Alloy Materials Co., Ltd.
defendant : Xiaoxing Steel Cord (Qingdao) Co., Ltd.
case summary : Belgium Bekaerte is the right holder of the invention patent "Steel cord with corrugated elements". He licenses the plaintiff to use the patent and authorizes the plaintiff to claim rights in his own name for the infringement of the patent.The plaintiff believes that the two cutting wires produced by the defendant infringed the patent and requested the court to order the infringement to stop the infringement and compensate for economic losses of 10 million yuan. After trial, the court held that "suitable as an elastomeric reinforcement" as a use feature in the patent claims, it has a limited effect on the scope of protection of the patent rights. Its limiting scope should be based on whether the product being sued can be used for a limited purpose as a judgment standard. In this case, the plaintiff did not provide evidence on which elastomeric reinforcement steel wire was suitable for, and the infringing product was only in diameter and did not meet the requirements of the national standards for common elastomeric reinforcement. Therefore, the plaintiff failed to prove that the product being sued can be used as an elastomeric reinforcement, and the product being sued did not fall into the scope of protection of the patent rights involved. The court ruled to dismiss the plaintiff's claim.
Typical significance : The clear scope of patent protection is the first step in judging patent infringement. If the scope of protection is too small, it will affect the protection of the rights of the right holder. If it is too large, it will affect the public's use and recreation of technology. This case clarifies the limiting effect of the use characteristics in the patent claims on the scope of patent protection, and at the same time clarifys that the degree of limitation of the use characteristics should be based on whether the product being questioned can be used for the purpose as a judgment standard, which has strong reference significance for the interpretation and protection of similar patents written into the claims.
"Brush"'s appearance design patent right is dissatisfied with the administrative handling decision
Plaintiff: Laizhou Xinquan Brush Co., Ltd.
Defendant: Yantai Intellectual Property Office
Third party: Lu Guocheng
Case summary : The third party Lu Guocheng is the patent owner of the appearance design patent of "Brush". He filed a request for the handling of patent infringement disputes with the defendant, believing that the plaintiff Laizhou Xinquan Brush Co., Ltd. infringed on his patent rights and requested the plaintiff to order the plaintiff to immediately stop the infringement. The defendant made an administrative decision, believing that the alleged infringing product fell into the scope of third-party patent protection and asked the plaintiff to stop the infringement. The plaintiff was dissatisfied and filed an administrative lawsuit with the court. The court held that the defendant's administrative handling decision was conclusive, the law was applied correctly, and the statutory procedures were in line with the law, and the plaintiff's claim was rejected.
Typical significance: This case is the first cross-regional intellectual property administrative case heard after the establishment of the Qingdao Intellectual Property Court. By actively performing the judicial review function of administrative law enforcement behavior, the review of the legitimacy of administrative behavior procedures and the legality of substantive standards will be strengthened, and the standardization and legalization of intellectual property administrative behavior will be promoted. While reviewing the legality of administrative behavior, this case made an accurate judgment on whether the product involved was infringed, effectively promoting the unity of the administrative law enforcement standards of intellectual property rights and judicial judgment standards, and fully reflecting the leading role of judicial protection of intellectual property rights.
Press conference site
City News reporter Xiang Hao
