The Beijing Supreme people's Court recently sealed a trademark dispute between German car maker BMW, individual surname Li and Beijing Fangtuo Company. After the judgment of first instance, BMW got some compensation of 530,000 yuan. As the company held that it is so difficult to ascertain the profit gained by the defendant, it still claimed a compensation of 2 million yuan, which was accepted by Beijing Supreme People's Court.
Century Baochi company, founded in November 2009, was authorized to use the mark No. 4719183 "丰宝马丰FENGBAOMAFENG and design" from November 25, 2009 to May 29, 2017 for business expansion by Century BMW in April 2010.
On January 1, 2010, the Century Baoma Group and Baochi Company authorized Li, one of the defendant in the case, to operator 丰宝马丰 brand clothes at a shopping center in Chaoyang District, Beijing. In December, 2009, Li signed a franchise agreement with Baochi Company to distribute 丰宝马丰 products.
In the first-instance trial, BMW held that it has obtained the trademark of BMW, 宝马，and blue and white design trademark in China, covering automobile, clothes and shoes, and Century Baochi constituted trademark infringement on the ground of using the blue and white design of trademark similar to BMW trademark in clothes, clothing label. Baochi Company argues that it has no evidence to prove that the infringement products sold by Li were from the company.
Moreover, the court found that Century Baochi company exploited the name of "世纪宝马集团"(Century Baoma Group) in its products and ads, which was indeed confusing and misleading. The act was propelled by mercenary motives to tie itself to BMW's goodwill and constituted unfair competition.
After the judgment of first-instance, both the plaintiff and defendant appealed to Beijing Supreme People's court. BMW held that the defendant gained immensely from distribution of infringement goods, and should pay 2 million yuan for compensation. Baochi Company argues that it has no evidence to prove its infringement action, and it also has a right to mark the name of trademark owner Century Baoma Group.
"In a bid to prove that the defendant has gained financially from infringement, and the amount of compensation is too low, BMW has provided abundant new evidences to the court. These evidences include infringement products labeled with trademark in question distributed by Baochi Company in Shanxi province, and some infringement products worthy of 10 million yuan seized by Shanxi industry and commerce administration in a special campaign on protecting the trademark of BMW,"said Ma Qiang, the lawyer of Beijing Junhe Law Firm.
As Baochi Company brought economic losses to BMW, the court also fined the company 100,000 for its infringement.
(China IP News)2013-07-17