First-instance case number: (2018) Lu 07 Min Chu No.203

Second instance case number: (2019) Lu Min Zhong No.957

In the process of litigation, the parties arbitrarily change the statements related to the case, and there is no evidence to support them, which is contradictory before and after and belongs to dishonest litigation. This kind of behavior not only causes a serious burden to judicial resources but also causes a massive burden to rights holders, which should not be supported and condoned. The court found that the evidence provided by the defendant was insufficient to prove that the alleged infringing goods had a legal origin, which constituted trademark infringement and unfair competition.

Case introduction

Appellant (plaintiff in the first instance): Baoding Tianwei Yingli New Energy Co., Ltd. and Yingli Energy (China) Co., Ltd. (collectively referred to as Yingli Company) Appellant (defendant in the first instance): Qingzhou Bohua New Energy Technology Co., Ltd. (referred to as Qingzhou Bohua Company)

Appellee (defendant in the first instance): Wang

Person not involved in the case: Shenzhen Yingli New Energy Co., Ltd. (referred to as Shenzhen Yingli Company)

Yingli Company claims that Qingzhou Bohua Company produces and sells solar photovoltaic modules (hereinafter referred to as the alleged infringing goods) that fake Yingli and Yingli trademarks in China without permission, which constitutes trademark infringement. Qingzhou Bohua Company marked YINGLI ENERGY (CHINA) CO., LTD, Yingli Company's address information No.3399 NO.3399 CHAOYANG NORTH ROAD BAODING, HEBEI 071051 CHINA and domain name information yinglisolar. com on the alleged infringing goods, and applied Yingli Company's product form and linear warranty to mislead the public into thinking that the products it purchased came from Yingli Company, which constituted unfair competition. Qingzhou Bohua Company sold the alleged infringing goods with a total value of $16,597,803.59. Wang, a former employee of Yingli Company, used the commercial resources obtained from Yingli Company to help Qingzhou Bohua Company implement the sued behavior, and should constitute joint infringement with Qingzhou Bohua Company and bear joint and several liabilities for compensation.

Yingli Company sued the court of the first instance: ordered Qingzhou Bohua Company and Wang to immediately stop trademark infringement and unfair competition, compensated Yingli Company for economic losses and reasonable expenses of about 18 million yuan, and published a statement in Legal Daily to eliminate the impact.

In the first instance, Qingzhou Bohua Company claimed that the alleged infringing goods were genuine products of Yingli Company. Wang claimed that the behavior involved in the case was a duty behavior and should not bear joint tort liability. The Intermediate People's Court of Weifang City, Shandong Province held that Qingzhou Bohua Company did not provide valid evidence to prove that the source of the alleged infringing goods was legal, so it constituted trademark infringement and unfair competition. However, Wang's implementation of communication and negotiation involved in the case is a duty behavior, not a personal behavior, and should not bear joint tort liability.

Yingli Company and Qingzhou Bohua Company refused to accept the judgment of the court of the first instance and appealed to Shandong Higher People's Court.

In the second instance, Qingzhou Bohua Company submitted the authorization documents, financial books and export tax rebate certificates of Shenzhen Yingli Company, proving that Shenzhen Yingli Company authorized the use of Yingli trademark and the infringement profit was extremely low. Yingli Company provides the official seal of Shenzhen Yingli Company for the record, which proves that the authorization document of Shenzhen Yingli Company submitted by Qingzhou Bohua Company is not from Shenzhen Yingli Company.

The second instance of Shandong Higher People's Court ruled: Firstly, the facts and reasons that Qingzhou Bohua Company and Wang claimed that the alleged infringing goods had legal origin basis in the first and second instance were constantly changed at will, which contradicted each other, and there were contradictions between the claims and the evidence. Therefore, the court found that the evidence provided by Qingzhou Bohua Company and Wang was insufficient to prove that the alleged infringing goods had a legal origin and that the production and sale of the alleged infringing goods by Qingzhou Bohua Company and Wang constituted trademark infringement and unfair competition.

Secondly, Qingzhou Bohua Company and Wang confessed that Qingzhou Bohua Company had neither paid salary, social security and personal income tax to Wang. The court of the second instance found that the above-mentioned acts did not conform to common sense and legal provisions for establishing labor relations. It is not enough to prove that there is a real labor relationship between Wang and Qingzhou Bohua Company only by signing the labor contract between Wang and Qingzhou Bohua Company before. Without Wang's intervention and help, Qingzhou Bohua Company can't realize the alleged infringement in such a convenient and large scale. Therefore, considering various factors, the court found that the alleged infringement was jointly implemented by Wang and Qingzhou Bohua Company, not the duty behavior exercised by Wang, and Wang should bear joint and several liabilities for joint infringement with Qingzhou Bohua Company.

Thirdly, the financial books provided by Qingzhou Bohua Company to the court are incomplete and contradictory to its claims, which makes the court unable to confirm its actual profit situation. The court found out the infringement profit of Qingzhou Bohua Company by combining the evidence provided by Yingli Company, and ordered Qingzhou Bohua Company and Wang to pay economic losses and reasonable and necessary expenses totaling RMB 16,914,391.02, and published a statement in Legal Daily to eliminate the adverse effects.

As the agent of the appellant (Yingli Company), the lawyer of Beijing Unitalen Law Firm participated in the proceedings of this case.

Typical significance

This case is the first typical case of written admonition in intellectual property cases in Shandong courts. In the course of litigation, the parties should uphold the principle of good faith in their statements. The judgment, in this case, is of great significance to stop the parties from abusing the right of defense, strengthen the awareness of litigation good faith and promote the construction of litigation good faith.

At the same time, this case is a typical case applying the exclusion rule of obstruction. Suppose the infringer refuses to provide complete and valid financial information without justifiable reasons. In that case, the court can calculate the infringement profit according to the evidence provided by the obligee and determine the compensation amount according to law.

Finally, according to the specific circumstances of the case and the relevant laws and regulations of the Labor Law, the court judges whether there is a real labor relationship between the individual and the company, accurately distinguishes the difference between the duty behavior and the individual behavior, and determines that the individual and the company constitute joint infringement according to law and should bear joint and several liabilities. This determination has effectively prevented individuals from abusing the independent status of the company to commit infringement.