The basic function of a trademark is to identify goods or services, and the purpose of establishing a trademark right is to protect the distinguishing function of the trademark and prevent confusion and misidentification by the relevant public. After the premise of trademark infringement is satisfied, it is still necessary to further determine whether the act meets the other constitutive elements of trademark infringement, and the core of the judgment lies in whether it affects the performance of the trademark identification function, resulting in market confusion, and the relevant possibility of confusion is the core and fundamental of determining trademark infringement.
First, the case show
Plaintiff: Shenyang Erma Trading *** referred to as Erma Company).
Defendants: Kou, Zhejiang ** Network *** referred to as ** Company).
On November 30, 2015, the plaintiff Elma Company applied to the Trademark Office of the State Intellectual Property Office for the registration of the trademark "Baili Instinct and Cat Figure", and approved the registration on January 7, 2017, with the registration number of 18463413, and the approved use of 31 categories of items are: grain (cereal); animal food; animal feed, etc. In July 2017, Elma began selling pet food such as "Baileys Instinct" cat food, and its products use the logos "Baileys Instinct and Cat Figure" and "Natural Instinct".
On October 23, 2017, the plaintiff notarized and collected evidence and found that the defendant Kou sold "Nature's Variety Instinct" pet food in ** store, and used the words "Baileys Instinct", "American Baileys Instinct Natural Instinct", "American Baileys Instinct", "American Baileys Instinct" and "American Imported Baileys Instinct" in the name of the product link and store promotion, as well as the kitten pattern, and marked "Bailey" at the brand, manufacturer, and manufacturer's address of the product babyWords such as "Baileys Instinct" and "Baileys Natural Instinct". Arma Company sued the court on the grounds that Kou maliciously used the popularity of his trademark to illegally use his trademark for commercial promotion and infringed his trademark rights, and that ** company, as an e-commerce platform, failed to take examination measures, failed to fulfill the duty of reasonable care, and provided convenience for Kou's infringement, and requested that the first and second defendants be ordered to stop the infringement and compensate the plaintiff for losses. 2. The defendant ** company posted a notice in the store to apologize and eliminate the adverse impact.
Defendant Kou argued: the name of the goods sold by the store is American Bailey, which is provided by Baipei*** and given sales authorization, Baipei*** is authorized by Tianjin Baili China***, and provides the source of tourists in the mainland, the goods and trademarks sold in the store are provided by Baipei***, "instinct" is only a series of American Baileys cat food, and some of the ** in the store are also provided by the supplier, and the kitten pattern used in the store is the watermark used for the store to upload**, and part of **is its own cat**. Therefore, Kou asserted that it did not constitute infringement and requested that the plaintiff's claim be dismissed.
The defendant ** company argued that ** company did not carry out any act of infringing the plaintiff's trademark right and should not be liable for infringement.
2. Trial by the court
The Tianjin No. 2 Intermediate People's Court held that the plaintiff Erma Company was the exclusive right holder of the No. 18463413 registered trademark "Baili Instinct and Maotu", which was still within the protection period, and should provide legal protection for the plaintiff's legitimate rights and interests in accordance with the law. Defendant Kou sold "Nature's Variety Instinct" pet food produced in the United States, and marked the words "American Baileys Instinct" and "American Baileys Instinct" at the address of the brand, manufacturer, and manufacturer in the connection of the four products and the details of the product baby, and its use is a trademark right used to identify the goods.
Although the above-mentioned expression adopted by the defendant Kou for the "Nature's Variety Instinct" product when selling pet cat food in ** is the same commodity as the goods approved for use by the plaintiff Elma Company's registered trademark "Baili Instinct and Cat Figure", and there is a certain similarity in the identification text, it is intended to express the origin, manufacturer and brand of the goods it sells, that is, the products made in the United States, Baili Company's products, and the instinct series of pet cat food. Considering that the goods sold by the defendant Kou were sold under the authorization of Natural Baili China, and the anti-counterfeiting label specified in the sales letter was "Natural Baili Instinct", the defendant Kou used the above method to express that there was a certain basis for his goods, and he did not maliciously use the plaintiff's registered trademark "Baili Instinct and Maotu" and the popularity of the plaintiff's trademark, so as to confuse consumers about the subjective psychological state of the two goods.
Based on the above circumstances, in view of the fact that the defendant Kou had deleted the expressions "Bailey" and "instinct" in his ** store, and the existing evidence could not determine that this use method had caused damage to the plaintiff's trademark, the court ruled that the plaintiff Erma Company's litigation request for the two defendants to stop the infringement, apologize and compensate for the losses was rejected.
3. Specific analysis
As a commercial mark, the most basic function of a trademark is to indicate the goods or services to distinguish the goods and services of different producers. In short, "to show oneself and distinguish oneself from others". The life of a trademark lies in its use, and the basic function of the trademark to identify goods or services can only be realized through use, so use is a core position in trademark law. After this condition is satisfied, trademark infringement cannot be determined on this basis, and it is still necessary to examine whether the accused act meets other conditions, among which the possibility of confusion is the basis for determining trademark infringement.
In this case, the defendant, as the operator of the Internet ** shop, only used similar logos in the product link and baby detail description, but the purpose of this use was to publicize and display the goods sold, which was used to identify the goods ** in commercial activities, and constituted the use of trademarks. In the process of judging the possibility of confusion, the court not only considered whether the categories of goods are the same, the similarity of the trademarks, the popularity of the plaintiff's trademark, the defendant's way of use, and the defendant's subjective intention, but also held that its use of similar trademarks was based on the registered trademark of the pet food trademark owner sold in China and the behavior and use of the distributor, the dealer's enterprise name and other facts, so as to determine that the defendant's use behavior has a certain degree of reasonableness, and does not maliciously adhere to the subjective purpose of the plaintiff's trademark. In addition, the court also took into account the fact that the plaintiff had repeatedly maliciously imitated the trademarks of others for registration, as well as the subjective purpose. Based on the above multi-dimensional and multi-factor considerations, the court finally found that the defendant's use did not cause confusion in the market, there was no possibility of confusion, and it did not constitute infringement.