An enterprise in Shanghai was fined 250000 for purchasing fake fasteners.

Release time:

2021-05-17

Did you know that torts in the field of construction are often very hidden. The back bolt used to fix the facade of the building is also fake......

An enterprise in Shanghai was fined 250000 for purchasing fake fasteners.

Did you know that torts in the field of construction are often very hidden. The back bolt used to fix the facade of the building is also fake......

Brief of the case

One day, the Huangpu District Market Supervision Bureau received a report that the "Huiyu" brand back bolt used in construction sites within its jurisdiction was suspected of infringing on the exclusive right to use trademarks.

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It's this little piece.

Building safety is no small matter! On the same day, law enforcement officers went to the construction site for inspection. After the trademark owner identified, the "Huiyu" brand back bolt purchased by the construction site was a product that infringed the exclusive right to use a registered trademark, and the construction site could not provide legal source certificates.

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Picture on-site inspection

After investigation, Shanghai Rong a building decoration engineering co., ltd., as the contractor of the construction site, purchased nearly 1,000 fake "Huiyu" brand back bolts (fasteners) in order to save the project cost. the back bolts are used to fix the marble wall tiles on the facade of the building. if the back bolts have quality problems, the people below may have to "blossom.

The company violated the provisions of Article 57, Item (III) of the the People's Republic of China Trademark Law, "Any of the following acts is an infringement of the exclusive right to use a registered trademark: selling goods that infringe the exclusive right to use a registered trademark;" Considering that the back bolt product is an important part for the dry hanging of stone outside the curtain wall, the illegal act is very harmful to the society. Therefore, the Huangpu District Market Supervision Bureau, in accordance with the second paragraph of Article 60 of the the People's Republic of China Trademark Law:

"If the administrative department for industry and commerce determines that the infringement is established, it shall be ordered to immediately stop the infringement, confiscate and destroy the infringing goods and tools mainly used to manufacture infringing goods and forge registered trademark marks. If the illegal business amount is more than 50000 yuan, a fine of less than five times the illegal business amount may be imposed, If there is no illegal business amount or the illegal business amount is less than 50000 yuan, a fine of less than 250,000 yuan may be imposed. Those who commit more than two trademark infringements within five years or have other serious circumstances shall be given heavier punishment. If the sale of a commodity that does not know to be an infringement of the exclusive right to use a registered trademark can prove that the commodity was legally obtained by itself and indicate the provider, the administrative department for industry and commerce shall order the suspension of the sale."

Make the following treatment:

1. order the parties to stop the infringement;

2. confiscation of the goods infringing the exclusive right to use a registered trademark;

3. fine of 250000 yuan only.

The parties have no objection to the penalty decision and have fulfilled it as scheduled. After the incident, the company has purchased genuine back bolt for construction.

Focus in this case.

Under the contract relationship of construction project, does the contractor purchase infringing goods and use them for the contracted project, which belongs to the act of selling infringing goods under the trademark law?

One view is that:

Although the parties in this case, as the contractor, purchased the infringing goods, they did not sell them again. They were only used for construction projects. They belonged to the end-user's use behavior and did not constitute the sale of goods that infringed the exclusive right to use a registered trademark as referred to in the Trademark Law.

According to another view:

The project contracted by the parties in this case is to integrate the infringing goods purchased by them with marble on the facade of other building materials and combine them with their labor services to form engineering results. The results delivered to the employer include infringing goods, and the total project payment obtained includes the price of this part of building materials. Its behavior is equivalent to selling infringing goods, and trademark infringement shall be determined.

Legal Analysis

First of all, the parties in this case purchased infringing goods for the contracted project, whether the act has the legal characteristics of sales.

The "Trademark Law" and its related supporting laws and regulations do not have special provisions on the meaning of the word "sale", so it should be understood in accordance with the general legal meaning of "sale. The parties in this case contracted the project in the way of contracting labor and materials. After the contractor purchased the infringing building materials, he did not obtain the price difference by selling the building materials directly, but combined with his labor services during the construction to form the project results and deliver them to the employer (owner) together. The project payment paid by the employer (owner) includes the material cost and labor cost required for the project, and there is usually a price difference between the material cost paid by the employer (owner) and the materials purchased materials, the conduct of the parties has the substantive characteristics of the sale and has a de facto legal relationship of sale.

Secondly, whether the purchase and use of infringing goods by the parties in this case is equivalent to the pure consumer use of the end-user of the goods.

In the contract relationship of contract materials, building materials are part of the total project cost, for the contractor, the lower the price of the purchase of building materials, the more profitable it is, the contractor in the business activities to buy and use infringing goods is profitable. The parties (contractors) in this case purchased infringing materials through the construction of materials and labor to form the final results of the project, the project funds received include construction materials and labor costs. Although the parties (contractors) in this case purchased infringing goods in their own name, their ultimate purpose was not to use them themselves, but to settle accounts with the employer (owner) through construction together with the services provided by them, and to transfer the ownership of the purchased infringing goods to the employer (owner) with compensation according to the contract, and the employer (owner) shall pay for the project. Therefore, the purchase and use of infringing goods by the parties in this case does not have the legal characteristics of end-user consumer use.

For this reason, Huangpu District Market Supervision Bureau (Intellectual Property Office) determined that the circumstances of selling fake products were serious and imposed a top penalty of 250000 yuan on the contractor, effectively protecting the legitimate rights and interests of the obligee and the living safety of the general public.

After the case was closed, the State Intellectual Property Office issued the "Trademark Infringement Judgment Standard" (Guo Zhi Fa Bao Zi [2020] No. 23), in which Article 25 "In the processing and contracting business activities of contracting labor and materials, if the contractor uses goods that infringe the exclusive right to use a registered trademark, it belongs to the trademark infringement stipulated in Item 3 of Article 57 of the Trademark Law" clearly stipulates that the above acts are infringement of the exclusive right to use of registered trademark, it is instructive to combat the chaos of the use of infringing goods in the field of construction contracting.

(Source: Shanghai Municipal Market Supervision Bureau)