Using the deep trademark without permission, and being awarded 120000 compensation in the first instance

Recently, the people's Court of Haidian District, Beijing (hereinafter referred to as Haidian court) made a first instance decision on the case of Beijing spatiotemporal ad Co., Ltd. (hereinafter referred to as spatiotemporal ad Co., Ltd.) suing China scientific exploration magazine (hereinafter referred to as Adventure magazine) and de fenglida asset management group Co., Ltd. (hereinafter referred to as de fenglida Co., Ltd.) for infringing its "deep" trademark, and ordered the two defendants not to do it again The company sold the 9th issue of 2016-the 2nd issue of China science exploration magazine in 2018, and stopped using the deep logo alone or prominently on the official website, Weibo and wechat account, and jointly compensated the company for 90000 yuan and 30000 yuan of reasonable expenses.

Trademark causes disputes

It is understood that spatiotemporal company registered and obtained "deep" character trademark on May 14, 2003, and "deep" character trademark on December 28, 2006. On April 28, 2007, it registered and obtained magazine frame map trademark with "deep" character on the top, all of which are registered in category 16 (including miscellaneous records). From December 1, 2003, the company signed a contract with Adventure magazine to become the general advertising agency agreement of Adventure magazine, authorizing the agency to use the "deep" trademark. In 2009, Beijing DuPu International Culture Media Co., Ltd. (hereinafter referred to as DuPu company, the plaintiff's legal representative Zhang Mou holds shares in the company) which is an associated company of spatiotemporal and modern point company signed an agreement with Adventure magazine. It is agreed that the advertising agency of the magazine will be transferred to DuPu company, and the miscellaneous records club still has the right to use the trademark. On January 8, 2016, duper and Adventure magazine terminated the agreement, stipulating that they should not continue to use the deep trademark. In mid-2016, Adventure magazine continued to publish and distribute magazines and use the trademark involved in the case in cooperation with DFL, with the infringement period from September 2016 to February 2018. Time and space modern point company thinks that Adventure magazine and de fenglida company continue to use the trademark involved in the case that the trademark authorization has been terminated, which seriously infringes the right of exclusive use of the trademark involved in the case, so it files a lawsuit to Haidian court, requesting the two defendants to immediately stop using the deep trademark in science Adventure magazine, official website, wechat, microblog and other public media platforms, and recall all the trademarks that have been used Part of the products and destroy the inventory products, and jointly compensate for its economic loss of 4 million yuan and reasonable cost of more than 97000 yuan.

The two defendants jointly argued that the first issue of the magazine involved in the case was published in December 2003, and Zhang Mou, the legal representative of the plaintiff, served as the executive publisher and the actual operator of the magazine from the beginning. From the first issue to the end of 2015, the magazine used the word "deep" at the top of the cover. In December 2015, Zhang left the magazine, the magazine was closed, and the publication resumed in July 2016. In the first issue of the resumed publication, Adventure magazine changed "deep" to "deepworld". There are obvious differences between the two, and the font used has also changed. Therefore, the use of the magazine does not constitute trademark infringement, and it does not agree with all litigation claims of the plaintiff. In addition, on January 28, 2019, Adventure magazine registered and obtained the trademark of "deepworld", which includes magazines. The plaintiff only obtained the magazine frame trademark in 2007. Some of the lower case trademarks and mixed Chinese and English trademarks are quite different from those used by the magazine. Since 2003, Adventure magazine began to use the word deep, which has the prior right. The legal representative of the plaintiff is responsible for the actual operation of the magazine. After his departure, the plaintiff did not use the trademark involved in the case, so even if it constituted infringement, it did not cause loss to the plaintiff. Since 2016, the operation of the magazine has been in a state of loss and no profit has been made from its use, so it requested to reject the plaintiff's claim.

Cognizance of infringement in the first instance

After hearing, Haidian court held that the plaintiff signed a long-term cooperation agreement with Adventure magazine in the year after the registration of the first trademark, acting for its advertising and distribution, and asked the magazine to agree to ensure that its English trademark deep was published in a prominent position above the cover of each magazine. Later, duper company, the affiliated company of the plaintiff, undertook the above cooperation and made the same request. In more than ten years of cooperation, the plaintiffs have made contributions to the development and growth of the magazine involved in the case. The "China" prefix and excellent content of the magazine also make the "deep" logo, which is obviously used on the top of the magazine, gradually form an influential logo. They are inseparable. According to the evidence provided by the plaintiff, its own use of the trademark involved in the case was originally civilization magazine in 2003. After the contract was terminated, it was used in its wechat, not in the magazine. Its own use of the trademark was general, and it was not used in the magazine again. Therefore, the large degree of public awareness of the trademark involved in the case has a great relationship with the long-term significant use of China Journal of scientific exploration. At the same time, Adventure magazine resumed publication after cooperating with DFL. Although deepworld logo was used at the top of the cover, deep was highlighted in bold font, which was similar to the frame chart trademark registered by the plaintiff in the magazine category, and its use behavior violated the exclusive right of the plaintiff's registered trademark. 2. The defendant shall jointly operate the magazine involved in the case and obtain benefits, and shall be jointly and severally liable for the infringement in the use stage after the resumption of the plaintiff's action. In addition, the two defendants' benefits and losses caused to the plaintiff due to the infringement are limited, and the amount of compensation is limited. However, the amount of compensation proposed by the plaintiff is too high, and the claim cannot be fully supported.

To sum up, the second defendant is not allowed to sell the 9th issue of 2016-2nd issue of China science exploration magazine in 2018, and stop using the deep logo alone or prominently on the official website, Weibo and wechat account, and jointly compensate the company for 120000 yuan. This newspaper will continue to pay attention to the progress of the case.