Dry rice man

Dry rice soul

The dry food is the best

It's a surprise to the people who do the food

One day I saw "hungry" knight equipment

Sell on the sales platform

So soul torture came

Is your "hungry" Knight true or false?

Don't worry, I'd like to introduce a case to you today, so as to ensure the spirit of dry rice.

The trial judge held that riders need to be registered before they can get the "hungry" order, so even if others wear "hungry" equipment, they can't deliver it in the name of "hungry". It can be seen that even if the equipment is false, the knight is true, and can rest assured. But how to identify the sale of fake equipment.

case

feeling

The plaintiff's "hungry" platform provides online ordering, delivery and other services. Riders wear or use uniform style helmets, overalls, delivery boxes and other equipment with blue background and "hungry" and "picture" trademarks (registered in 35 categories of marketing and 39 categories of express delivery services). According to the regulations, "hungry" riders must be equipped with equipment provided by "hungry" company during the working period. Riders can purchase the above equipment through the plaintiff's official website.

The plaintiff found that the blue equipment with the trademark of "hungry" and "picture" was sold in the "hungry store (exclusive of" hungry "materials)" of the micro store. The plaintiff held that the defendant's online shop name and selling fake equipment constituted trademark infringement and unfair competition.

The defendant held that the plaintiff's trademark was a service trademark, which was not in the same field as the accused infringement mark, so it did not constitute trademark infringement. In addition, only the "hungry" riders or agents can buy the goods involved, which is not competitive with the plaintiff and does not cause losses to the plaintiff, so it does not constitute unfair competition.

Review

sentence

The court held that

▶ As for the name of the online store, the defendant named its online store as "hungry store (" hungry store ") which included the plaintiff's trademark of" hungry store ". The service category was similar, which might make the relevant public think that the online store was opened by or related to the plaintiff, which constituted trademark infringement.

▶ With regard to the sale of counterfeit business materials, rider equipment can be used in the provision of express service and other service fields, or simply used as clothes and helmets based on the nature of the goods. It can be seen that there is no natural connection between the goods sold by the defendant and the express service, and the category of the goods involved in the case is not similar to that of the plaintiff's trademark registration. Therefore, the defendant's counterfeiting of business materials does not constitute trademark infringement.

▶ As for unfair competition, the plaintiff has been selling the rider's equipment for a long time, and the blue background used by the equipment and the combined image of the corresponding trademark constitute a certain influential commodity decoration. The rider's equipment sold by the defendant belongs to the infringing goods of unauthorized use of the goods decorated by the plaintiff with certain influence. The defendant knows that the infringing goods are still bought and sold in large quantities, which makes the damage consequences of unfair competition of the infringing goods producers actually occur and expand, and constitutes the act of helping the corresponding producers to implement unfair competition, so he should bear joint and several liability with the corresponding producers.

review

Analysis

01

Whether there is a "specific connection" is the key to identify the similarity between goods and services

According to the relevant judicial interpretation of the trademark law and the service trademark opinions, the goods with "specific connection" with the service are generally the goods used in providing the service. However, the goods used in providing the service may not all be the goods with "specific connection" with the service, and the closeness of the relationship between the two should also be considered. If there is no natural connection and the service articles are related only by the use of the service trademark holder, they can not be regarded as constituting similar goods and services.

02

Judging whether it constitutes trademark infringement from whether it destroys the source function of trademark identification

As far as the infringement of sales service trademark is concerned, only when the trademark is used by the subject without the permission of the trademark owner in the process of providing the same or similar services can the function of identifying the source of the trademark be destroyed. The defendant's sale of counterfeit business materials did not damage the function of identifying the source of the plaintiff's trademark, so it did not constitute trademark infringement.

03

How to regulate the defendant's selling of counterfeit materials?

The plaintiff sold the rider's equipment on its official website, and the uniform appearance of the equipment belonged to commodity decoration; As the overall image of the plaintiff when providing services, the above appearance also constitutes service decoration. Although the defendant's sales behavior is not directly regulated by the anti unfair competition law, he knows that the infringing goods are still purchased and sold in large quantities, which makes the damage consequences of the infringing goods producers' unfair competition behavior actually occur and expand, and constitutes the behavior of helping the corresponding producers to implement unfair competition, so he should bear joint and several liability with the corresponding producers. This kind of joint and several liability is also reflected in the civil code, that is, article 1169 of the Civil Code stipulates that those who abet or help others to commit tort shall bear joint and several liability with the perpetrator.

[tips] source: Shanghai Pudong court. The copyright belongs to the original author. If there is something wrong, please contact to inform us of modification or deletion. Thank you.