In daily operation, enterprises should strictly abide by the right boundary of trademarks, otherwise it is easy to constitute infringement.
Recently, the Fujian Higher People's Court (hereinafter referred to as the Fujian High Court) made a second judgment on the trademark infringement case brought by Qide Global (Beijing) Education Technology Co., Ltd. (hereinafter referred to as Qide Global) against Fuzhou Yifei Chongtian Education Consulting Co., Ltd The use of the staff's business cards and student's study agreement and other prominent positions with the logo identical to the "Kai Tak Education Graphic" trademark (hereinafter referred to as the trademark involved in the case) owned by Kai Tak Global is beyond the scope of business cooperation agreed by both parties, infringes the exclusive right to register the trademark involved in the case, and must eliminate the impact and compensate Kai Tak Global for economic losses totaling 500000 yuan, Rejected all appeals of First Flight Company.
In an interview with the reporter of China Intellectual Property News, the judge of the collegial panel of the second instance of the case said that the case clarified the boundary between commercial cooperation and the legitimate use of trademarks, which has reference significance for the trial of such cases.
Suing peers for trademark infringement
Qide Global is an educational institution, and its brands such as Qide Education, Qide Studying Abroad, Qide Learning Tour, and Qide University have certain popularity in the market. On July 13, 2018, Qide Global was transferred as the trademark owner involved.
First Flying Company was founded on December 12, 2019, and also engaged in education and training. In 2020, Xu, an employee of the company, and Guangdong Qide Education Service Co., Ltd. (hereinafter referred to as Guangdong Qide Company), the shareholder of Qide Global, reached an enrollment representative cooperation, and agreed that Xu would select students with the intention of going abroad from among many students in training and recommend them to Guangdong Qide Company. Guangdong Qide Company would provide enrollment publicity materials for overseas study projects. Since then, the Fuzhou Branch of Guangdong Qide Company has paid commissions to Mr. Xu many times.
In 2021, Kai Tak Global found that the company used the same logo as the trademark involved in the case on the "Agreement on the Study of Students in Small Language", external publicity materials, interior decoration and staff cards signed with its students. Kai Tak Global believes that although it has cooperation with Xu, it is a cooperation with a natural person, which does not mean that Kai Tak Global has cooperation with First Flight. In addition, even if there is cooperation with Xu, Kai Tak Global has not authorized Xu to use the trademark involved in the case for commercial activities. Therefore, the behavior of FAC involved in the case infringed the exclusive right to use the registered trademark of the trademark involved.
Accordingly, Qide Global sued Yifei Company to Fuzhou Intermediate People's Court of Fujian Province (hereinafter referred to as Fuzhou Intermediate People's Court) for trademark infringement, and claimed economic losses totaling more than 1.18 million yuan.
As for the prosecution of Qide Universal, FAI argued that it had cooperative relations with Qide Universal, Guangdong Qide and Fuzhou Branch of Guangdong Qide, and that the use of trademarks in the study agreement of the students involved was a legal and normal use of trademarks allowed by Qide Universal. In the process of cooperation, in order to facilitate publicity, Fuzhou Branch of Guangdong Qide Company sent the trademark involved to First Flying Company and asked First Flying Company to use the trademark, forming an impression of harmonious cooperation between the two parties. Therefore, FAC does not constitute trademark infringement.
The defendant was found guilty of infringement
After accepting the case, Fuzhou Intermediate People's Court held a public hearing around the focus issues such as whether the sued behavior of FAC constituted trademark infringement.
On the issue of whether the sued act infringed, the Fuzhou Intermediate People's Court held that, according to the evidence submitted by the parties, First Flying Company used the trademark involved in the case in a variety of scenarios, but failed to provide evidence that Kai Tak Global authorized the use of the trademark involved. According to the chat records of cooperation and communication between its employees and employees of Fuzhou Branch of Guangdong Qide Company on offline activities submitted by First Flying Company, relevant materials on the activity site were marked with the logo of "First Flying Small Language" and the trademark involved in the case. However, this only means that at this stage, the employees of the two companies have a certain cooperative relationship in specific business exchanges. After negotiation, the employees use each other's business logo in specific activities. It cannot be concluded that Kai Tak Global generally authorizes First Flight to use the trademark involved in the case, Or it is difficult to determine that the employee behavior of Kai Tak Global is the implementation of the true intention of the branch company to authorize FAC to use the trademark involved.
In the trial, Yifei also proposed that Xu, an employee of Yifei, had reached an enrollment representative cooperation with Guangdong Qide Company. Guangdong Qide Company provided Xu with the enrollment publicity materials of Qide Education, which was an act of performing the contract. In this regard, the Fuzhou Intermediate People's Court held that even though Xu can be identified as an employee of FAI based on the social security evidence, FAI does not have the right to use the trademark of Kai Tak Global involved in the case according to its own will. Therefore, without the permission of Qide Global, First Flight Company used the trademark involved in the case in its small language training sites and business activities without authorization. It belongs to the same category as the arrangement and organization of training courses in the 41st category of goods/services approved for the use of the trademark, which infringes the exclusive right of Qide Huanqiu Company to use its registered trademark, and should bear corresponding legal liabilities according to law.
Fuzhou Intermediate People's Court, taking into account the popularity of the trademark involved, the circumstances and subjective state of the infringement of FAI, determined that FAI would compensate Qide Universal for economic losses totaling 500000 yuan, and published a statement to eliminate the impact.
After the judgment of the first instance, FAC refused and appealed to Fujian High Court. After hearing, Fujian High Court rejected all the appeals of FAC and upheld the verdict of first instance.
The reporter repeatedly contacted the agent of Yifei Company on this case, who refused to interview.
Legal and compliant use of trademarks
In the daily operation of enterprises, it is not uncommon to see trademark disputes similar to those between Qide Global and Yifei. Most of the accused infringers exempt themselves from liability on the ground of reaching cooperation with the obligee, and the judgment of this case provides a reference for the trial of such cases.
Zhang Heng, the agent of Kai Tak Global, said in an interview with our reporter that one of the special features of the case was that the former general manager of Fuzhou Branch of Guangdong Kai Tak had a kinship relationship with the actual controller of the defendant. Under the joint operation of the two, the defendant not only attached to the original market promotion activities, but also carried out business publicity in the name of the plaintiff without authorization, And used the trademark involved without authorization. During the trial of the case, the defendant tried to claim that his act did not constitute an infringement on the ground that the two parties had a cooperative relationship. However, from the actual situation, the defendant's behavior involved in the case has obviously exceeded the scope of cooperation. The final judgment of the case established the defendant's infringement, accurately identified the act of trademark infringement in the name of "cooperation", and played an important exemplary role in the protection of trademark rights.
In an interview with our reporter, the judge of the collegial panel of the second instance of the case said that according to the provisions of Article 57 of the Trademark Law of China, it is an infringement of the exclusive right to use a trademark that is the same as its registered trademark on the same kind of goods without the permission of the trademark registrant. The case reminds the business entity that in its daily business activities, it should not only strictly abide by the right boundary of the trademark, but also abide by the integrity principle of market operation. For the use of the licensed trademark, the licensee shall make reasonable use within the scope of the licensing contract, and shall not exceed the threshold of legal use. If you try to use the other party's trademark unreasonably through the appearance of commercial cooperation between the two parties, so as to achieve the purpose of "free riding", make consumers confused about the service source or mistakenly think that there is an association between the two parties, it will constitute trademark infringement. （ Our reporter Jiang Xu ）
(Editor: Liu Shan)
