August 31, 2018, Knews “吉买盛” is labeled on the signboard of the supermall, the price tags and the shopping bags, and even the WeChat official account is also named “吉买盛”, but it turns out to be fake according to the court’s judgment. Today (August 31), Shanghai Intellectual Property Court rejects the appeal for the unfair competition dispute case between the Appellant Shanghai Dingding Trade Co., Ltd. and the Appellee Hualian Group GMS Shopping Center Co., Ltd., and upholds the original judgment made in the second instance. The judgment is as follows: Dingding Company shall immediately stop the act of unfair competition which infringes upon the copyright of the name “吉买盛GMS” owned by GMS Company, make a public statement, eliminate ill effects, and compensate GMS Company RMB 1.326 million in total , including economic losses ( RMB 1.3 million), and the reasonable costs for stopping the infringement act ( RMB 26,000). GMS Company discovered a “GMS Supermarket” with no relation to it In July 2017, a customer fell and got hurt when shopping in the “GMS Supermarket” in a plaza at Pudong Avenue, and sued GMS Company in a rage after the negotiation with the supermarket failed. However, upon the receipt of the court summon, GMS Company found that the supermarket involved was neither a direct-sale store nor a franchised store of GMS Company. After investigation, GMS Company found that Dingding Company operated that supermarket with GMS Company’s service name, “吉买盛GMS”, without permission, created a WeChat official account named “吉买盛卖场”, and used logos including “百联吉买盛BLGMS” and “吉买盛GMS” on their shop signboards, store decorations, leaflets and shopping bags. GMS Company held that, the above-mentioned acts of Dingding Company constituted unfair competition and thus caused great losses to it, so it filed a lawsuit to the court, requesting the court to order Dingding Company to stop the acts of unfair competition, make a public statement, eliminate ill effects, and compensate for its economic losses of RMB 1.3 million and reasonable costs of RMB 26,000. Unauthorized use of a service name with certain influence similar to that of others shall constitute unfair competition After the trial, the court of first instance concluded that GMS Company began to operate the chain supermarkets of “吉买盛GMS” from 1999, developing into a vast conglomerate with ten direct-sale stores and five franchised stores in various districts of Shanghai, and due to its long history of operation and wide market coverage, it has become strongly competitive and gained a solid reputation in the chain enterprises and supermarket industry of Shanghai. There is no specific meaning in “吉买盛GMS” itself but it is quite eye-catching when used as a service name. It can be used to distinguish from other service providers because it has been associated with the supermarkets operated by GMS Company within Shanghai after years of operation and promotion of GMS Company. In Shanghai, “吉买盛GMS” has become a service name with certain influence, and shall be under the protection of the Anti-Unfair Competition Law. In this case, Dingding Company uses “BLGMS百联吉买盛” as the name for its supermarket, and uses “BLGMS百联吉买盛”, “GMS吉买盛”, “吉买盛”, “百联吉买盛” and “吉买盛超市” in a mixed way on various occasions including WeChat official account, store decoration, leaflets, price tags and shopping bags. Although the names used by Dingding Company, “BLGMS百联吉买盛” and “百联吉买盛”, are not identical with "吉买盛GMS" used by GMS Company, GMS Company is affiliated to Bailian Group, therefore, common consumers are very likely to mistake “BLGMS百联吉买盛” and “百联吉买盛” for “吉买盛GMS” of Bailian Group, causing confusion or misunderstanding. Subjectively, Dingding Company deliberately copycats a famous brand, and objectively, it causes confusion and misunderstanding of the consumers, therefore, it shall constitute unfair competition against GMS Company. After taking full consideration of all the evidences, the court of first instance concluded that, the compensation amount claimed by GMS Company in this case was reasonable and should be fully supported. Dingding Company refused to accept the judgment made in the first instance and made an appeal to After the trial, Shanghai Intellectual Property Court concluded that, there were factual and legal bases for the court of first instance to determine that “吉买盛GMS” was a service name having certain influence in Shanghai based on the service time and market coverage of GMS Company as well as other factors including the time, degree and geographic scope of the publicity for the service name. Without permission, Dingding Company used separately or in a mixed way the logos similar to or same with GMS Company’s service name namely “吉买盛GMS”, on the signboard, WeChat official account, store decorations, leaflets, price tags and shopping bags of the supermarket involved, leading to the misunderstanding among the relevant public that the supermarket involved is operated by or has certain relation to GMS Company, therefore, the above acts shall constitute unfair competition and Dingding Company shall bear corresponding civil liabilities. In this case, GMS Company claims for stopping the act of unfair competition in accordance with Article 6 of the Anti-Unfair Competition Law, and the right to protect the service name of GMS Company shall remain unaffected whether or not Dingding Company has the exclusive right to use the trademark. In addition, the Trademark Office made the decision that the registration in relevant service categories for trademarks like “百联吉买盛购物中心” obtained by Dingding Company under the authorization of Weizhongxiang Company shall not be approved, therefore, Dingding Company’s claim that its act is legitimate has no legal basis. With respect to the compensation amount, as the parties involved failed to provide evidences for losses of GMS Company from infringement and for profits gained by Dingding Company through infringement, after full consideration of the franchise fees and royalties paid by franchised stores of GMS Company, the influence of the service name, subjective intention of infringement of Dingding Company, degree of infringement, duration of infringement, etc., it was appropriate for the court of first instance to affirm the compensation amount claimed by GMS Company. Accordingly, the appeal is rejected and the original judgment is upheld.
