[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

[background]

Carrefour, S. A. It is a registered trademark of the European Union "CARREFOUR" and "CARREFOUR EXPRESS" The right holder of, Found a house in Madrid called CARREFOOD supermarket. simultaneously, They learned that someone had applied to register "CARREFOOD AMANA" firm, Later the application was rejected after objection.

Carrefour Opposite operation CARREFOOD Two of the supermarket's defendants sued for infringement. In the indictment, The plaintiff asked for damages, The specific calculation method is as follows:

(1) loss: Legal costs 560. 50 euro, accusatory 3%Indemnify the plaintiff for trademark dilution and reputational damage.

(2) Illegal profit: Gross profit of defendant.

(3) or, At least for the defendant 1%.

Eu Trademark Court No. 1 in Alicante, The judgment upheld the plaintiff's claim, The defendant is required to bear the costs of the proceedings. But does not support the turnover of the defendant 3%A claim for damages, The reason is that, Because the defendant did not cooperate in providing its operating accounts, It is impossible to calculate the exact amount of damages.

[conclusion]

The defendant appealed against the decision of the court of first instance, The court of appeal upheld the original decision. First of all, With reference to the assessment criteria set by the European Court of Justice, Given the wrongful use of another's trademark in this case, And cause damage to the reputation of others' trademarks, Therefore, The Court of Appeal accepted the finding of tort in the first instance.

About the compensation calculation, The defendant failed to provide any documentation to directly and accurately determine its turnover or profits, Therefore judgment, In this case, The court appointed experts to use the indirect system——The amount of compensation is calculated using the income estimated by the tax standard as the basis——Be reasonable.

similarly, The judgment upheld a claim for damages, Despite the plaintiff's initial demand for the defendant's turnover 3%Calculate the compensation, And the court finally decided that the infringer (defendant) On the basis of illegal profits. The court went on to explain the reason for changing the basis for calculating damages: The defendant refused to cooperate, The experts did not have access to actual revenue figures from the defendants' operations. In this case, It is reasonable to change the standard of compensation proposed by the plaintiff, And it essentially supports the plaintiff's whole story (Not part) claim. Finally, The court also stated that, Because the defendant did not provide any documentation, Therefore, It is not possible to compare whether the amounts obtained under the two compensation scales are roughly the same.

In addition, The judge also relied on "Spanish trademark law" The first 43. 1 article, Include the cost of the private investigation report in the award, It is considered as one of the damages caused by the tort. In fact, The Act has been preordained, The cost of an investigation to obtain reasonable evidence of an illegal act, Be liable for compensation. Therefore, The judge held that, Evidence from the private investigator's report provided by the plaintiff, The investigation is to discover the facts of the infringement, doer, True picture of participants, scope, etc, It is not part of the program cost, It's a material cost, Therefore, it falls within the scope of compensation.

[comment]

Notwithstanding the basis "Spanish trademark law" The first 43. 4 Bar sum "Spanish code of civil procedure" The first 328 Provision of article, As requested by the plaintiff, The defendant has an obligation to provide any documentation that can be used to determine the amount of damages, But in practice, defendants often refuse to cooperate in fulfilling this obligation. Considering all the accounts involved, Financial and trade-related documents were in the possession of the defendant, The court upheld its previous position in the case, That is to prevent the infringer from not cooperating to provide the above materials or to carry out other infringement acts (For example, non-performance "Spanish commercial law" The first 25 Article requires an obligation to retain accounts) Etc, Withholding relevant data that would determine the amount of damages. Therefore, Permitted to be actually obtained, Based on inadequate data, Make a reasonable calculation to get an estimate, To determine the amount of compensation.

compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights