Online Shop And Entity Enterprise " Duplicate Name " How To Deal With

One is the "double eleven" promotion flagship store which can sell tens of thousands of dollars in two days. One is the old entity enterprise registered by the business administration department of Weihai City, Shandong province. Two businesses use the same words in their names, and all the fishing gear products are sold under the Internet, and they all have no registered trademarks.

Then, do they constitute infringement?

Recently, the intermediate people's Court of Weihai heard the case of infringement of the right to name of the entity, which is the entity's business.

The court held that the protection of enterprise name rights needs to have a certain degree of corporate reputation. The entity can not prove its popularity at present. Instead, it has invested a lot of publicity funds in the online marketing business. Sales and similar products rank the top in the Internet.

Therefore, the first instance dismissed the plaintiff's claim and safeguarded the legitimate rights and interests of the Internet business provider in accordance with the law.

In the second instance, the appellant (plaintiff of first instance) submitted the relevant export documents to prove the reputation of the enterprise. However, the Shandong Provincial Higher People's court held that the popularity of foreign markets was not protected by Chinese law, and that the appellant (first instance defendant) had obtained a registered trademark during the second instance, so the second instance upheld the original judgment according to law.

Plaintiff, Weihai Dong Ao Fishing Tackle Co., Ltd. was founded in July 2007, formerly known as "Weihai Qi Kai Fishing Tackle Co., Ltd.". In September 13, 2010, the enterprise name was changed to "Weihai East Australia Fishing Tackle Co., Ltd.". Its business scope is the production, processing and sales of fishing gear and accessories.

Liu Chao, the legal representative of the Weihai Han Ding Fishing Tackle Co., Ltd. opened a shop on Taobao net in November 2, 2008. Its main business scope is to engage in OEM processing, production and marketing of fishing tackle products.

In 2012, Liu Chao registered the "East Australia outdoor flagship store" on Tmall.

In order to publicize products, the defendant has invested a lot of money in advertising since 2008. As of October 2014, the advertising investment has reached 860 thousand yuan.

In 2014, the volume of product market ranked 422015th in the industry, and the turnover amount was more than ten million yuan during the "double eleven" promotion.

In September 9, 2014, Weihai Dong Ao Fishing Tackle Co., Ltd. complained to Weihai intermediate people's Court on the grounds of infringement of the right of enterprise name by Weihai Han Ding Fishing Tackle Co., Ltd.

In order to prove his claim, the company submitted a notarial certificate to the court to prove that its company has been included in the "Encyclopedia" entry entry of Sogou net, which can indicate that the plaintiff has a certain reputation.

The defendant provided evidence to prove that his online store invested a lot of publicity funds, and sales and similar products rank the top on the Internet.

The court held that the anti unfair competition law stipulates that an operator should not use the unfair means of "unauthorized use of another person's enterprise name or name, which is mistaken for the goods of others" to engage in market pactions and damage competitors.

With regard to the "enterprise name", the Supreme People's court's judicial interpretation is defined as "yes".

The name of the enterprise name that is known to the relevant public.

The protection of the name and size of an enterprise by the anti unfair competition law emphasizes the prevention of market confusion due to malicious use of the same or similar enterprise name and font and free riding and improper use of others' goodwill.

The notarial certificate provided by the plaintiff is only a set of information that can be found in "Baidu net" and "Sogou net". It can not directly prove that the "East Australia" brand in the name of the plaintiff has a high reputation and is known to the public in Weihai.

The plaintiff claims that his company has been included in the "Encyclopedia" entry entry of "Sogou". However, the "Encyclopedia" column launched by the Internet can be edited by Internet users, which is not enough to confirm that the "East Australia" brand contained in the plaintiff's enterprise name has a high reputation and is known to the relevant public.

On the contrary, the defendant has invested a large amount of publicity fund every year, and sales and popularity are among the forefront of the industry.

The plaintiff and defendant are different in the field of sales and consumer groups, and the defendant has created a high reputation on the Internet for his "Dong Ao" logo, and the defendant has no subjective motive and objective need to cling to the plaintiff.

The name "Dong Ao" in the name of the plaintiff does not belong to the category of enterprise name stipulated in the unfair competition law.

For this reason, the first instance of the Weihai intermediate people's court dismissed the plaintiff's requests for litigation.

The company refused to accept the appeal.

In the second instance, Dong Ao also submitted evidence such as the export declaration form and the tax return summary form, so as to prove its reputation again.

But the main products are

And the reputation of enterprises in foreign markets is not protected by Chinese law. During the second instance, the Han Ding company has acquired the trademark of "East Australia", and Han Ding company has the right to use "Dong Ao" as its trademark in its products and shop names.

Therefore, the Shandong Provincial Higher People's court made a public judgment in the second instance, dismissed the appeal and upheld the original judgment.

According to Xu Ping, judge of first instance, "with the vigorous development of e-commerce,"

"New economic form has gradually become another important force in economic and social development.

To this end, how to regulate the economic order of the Internet, protect the legitimate rights and interests of electronic business providers, and promote the faster and better development of this economic form, has become a new focus of judicial protection of intellectual property rights.

Xu Ping said that in this case, the Weihai intermediate people's court, through combing the case, identified the areas where the network electric providers and their entities were good at it, and affirmed the online popularity and online goodwill formed by the network marketing and publicity, thus effectively protecting the legitimate rights and interests of the electric business enterprises, playing a convoy role for the healthy and orderly development of the electricity supplier in the Internet era, and receiving good social effects.