Not only is the decoration style of the store similar to Jue Wei, but the trademark used is also highly similar - both are duck and text combinations holding red chili peppers. Its official website also prominently promotes store photos and trademarks. Juewei Company believes that this action of Chunwei Company has constituted an infringement and unfair competition, and takes it to the court.

Comparison between two stores

Pure Flavor Company argues that the key comparison between the two trademarks lies in the characters "Pure Flavor" and "Jue Flavor", while the characters "Pure" and "Jue" have significantly different shapes and pronunciations. Therefore, the two do not form a similarity, and with the public's recognition ability, it is easy to distinguish the two without causing confusion; The duck figure in the trademark is significantly different from the plaintiff's duck figure, and chili pepper, as a common color in red, does not constitute infringement. As for the decoration and design of stores, it is the independent behavior of each store owner and has nothing to do with Pure Flavor Company. Moreover, the word "Pure Flavor" is not a unique trademark of Pure Flavor Company and is used throughout the country without any association with Pure Flavor Company.

Court Judgment

After hearing the case, the Hunan High Court held that the focus of the dispute was whether Chunwei Company constituted an infringement of Juewei Company's trademark exclusive right and unfair competition.

Firstly, both trademarks are used in the food industry such as salted duck and duck neck, and their scope of use is the same; Secondly, both trademarks are in the form of a manga duck pattern with a "pure (absolute) flavor" and a vertical "duck neck". Although the duck pattern is different, when combined, there is only one difference between "pure" and "absolute". They also use similar font shapes, which has a high possibility of confusion for general consumers and constitutes an infringement of the exclusive rights of Jue Wei Company's five trademarks involved in the case.

In addition, as for whether Chunwei Company constitutes unfair competition, the decoration design of "Juewei" Company adopts yellow characters on red background, with white ducks holding red peppers and thumbs up signs beside the words. The door frame is mostly decorated with yellow frames to achieve the overall visual effect. Chunwei Company not only adopts the same design, but also claims on the home page of its official website that it can provide franchise stores with shop decoration, famous trademarks, model stores and other services free of charge, The implementation of unified image, unified delivery, and unified management shows that Pure Flavor has "image" requirements for franchise stores. Therefore, the reason why Pure Flavor Company argues that it is not related to the offline "Pure Flavor Duck Neck" store cannot be established.

Considering the above facts, the Hunan High Court finally decided that Pure Flavor Company immediately stopped infringing on the exclusive right of trademark of Juewe Company, immediately stopped using the same or similar decoration advertising as Juewe Company, and immediately stopped using the franchise license to promote unfair competition, and compensated Juewe Company with a total economic loss of 900000 yuan.

Luo Lang, Assistant Second Class Judge of the Third Civil Court of the Hunan High Court

Trademark infringement disputes are a common cause of intellectual property disputes, but compared to copyright and patent rights in intellectual property, the boundaries of trademark rights are more uncertain. When determining whether the two are similar in appearance, it is not only necessary to compare text, graphic composition, and color to determine whether they are similar in appearance, but also to comprehensively consider the significance and popularity of the trademark to determine whether there is a possibility of confusion among ordinary consumers.

In this case, the trademark of Juewei Company in question has strong significance due to its popularity, and it has a strong repulsive force towards similar labels in the duck braised flavor market. Therefore, it should be given strong legal protection. As a competitor in the same industry, Pure Flavor Company has not emphasized the difference between "pure" and "absolute" in its image and text combination logo, but instead used the same font and layout to blur the difference between the two, further increasing the overall possibility of confusion between the two, which can easily lead to public misunderstanding of the source of goods and services, Constituting infringement on the exclusive right to use multiple trademarks of Jue Wei Company.

In addition, as for the determination of the amount of compensation, because there is a cross between the infringement of trademark exclusive rights and unfair competition of Pure Flavor Company, it is difficult to accurately distinguish the losses caused to Juewe Company or its own infringement profits against the two types of infringement, so the court considers and determines the two compensation amounts together. The Trademark Law of the People's Republic of China stipulates that the determination shall be based on the actual losses suffered by the right holder due to infringement; If the actual loss is difficult to determine, it can be determined based on the benefits obtained by the infringer due to the infringement; If the benefits obtained are difficult to determine, they shall be reasonably determined by referring to the multiple of the trademark licensing fee. If it is difficult to determine the above, the people's court shall award compensation of less than 5 million yuan based on the circumstances of the infringement. Article 17 of the Law of the People's Republic of China on Anti unfair competition stipulates that: "If an operator violates the provisions of this Law and causes damage to others, it shall bear civil liability according to law. If the legitimate rights and interests of an operator are damaged by acts of unfair competition, it may bring a lawsuit to the people's court. The amount of compensation for an operator who is damaged by acts of unfair competition shall be determined according to the actual losses it has suffered as a result of infringement; if the actual losses are difficult to calculate