Basic Ground 

On January 9, 2018, the law enforcement officers of Fengtai Branch of Beijing Administration for Industry and Commerce found during the inspection that the sports shoes sold by Beijing Hongyuanlide Trading Co., Ltd. at the store owned by Beijing Muxiyuan Special Trading Co., Ltd. were suspected of infringing the exclusive right of ASICS CORPORATION Co., Ltd. to use "Tiger" series trademarks. 

After investigation, the parties signed a franchise contract with Quanzhou Aishikeshi Sporting Goods Co., Ltd. to sell Asics Tiger series sports shoes as an agent. The tongue of the above sports shoes has cursive T logo, which is similar to the trademark No.6936142 of ASICS CORPORATION; some shoes have "井" marks on the outside, which are similar to the graphic trademarks registered by ASICS CORPORATION. 

In the case investigation, Hongyuanlide claimed that it did not know that the brand involved constituted infringement, and should be exempted from liability according to the Article 60.2 of the Trademark Law. 

After comparing of registration information of the enterprises, the law enforcement officers found that there was obvious relationship between Hongyuanlide and Quanzhou Aishikeshi Sporting Goods Co., Ltd., both enterprises have shareholders cross-served at relevant posts, and Quanzhou Aishikeshi Sporting Goods Co., Ltd. had applied for registration of trademarks similar to the trademarks of the obligee, which was rejected by the trademark authorities. 

After investigation, Hongyuanlide was also found to provide Asics Tiger sports shoes to 15 business entities for sales, and collected a total payment of 6,144,646.64 yuan. The above 15 business entities and parties have 16,277 pairs of shoes in stock. Considering the average price (307.80 yuan) of each pair of shoes sold by the parties, the total value of the above-mentioned shoes in stock was 5,010,060.60 yuan, and the illegal business revenue reached 11,154,707.24 yuan. 

Key Points of the Case 

The relationship between the seller and the supplier was further approved by shareholders' cross-employment, and the supplier has applied to the trademark authority for registration of trademarks similar to the registered trademarks of the trademark owners, which was rejected according to law. Therefore, it can be presumed that the seller subjectively knows and should know the infringing nature of its act, which constitutes trademark infringement and cannot be exempted from tort liability. 

Penalty Decision 

According to the law, the law enforcement agencies determined that the behavior of the Hongyuanlide was an infringement as stipulated in Article 57.3 of the Trademark Law, and ordered it to immediately stop the infringement according to the provisions of Article 60.2 of the Trademark Law. The agencies confiscated 6,687 pairs of infringing shoes and imposed a fine of 55,773,536.20 yuan. 

Guiding Significance 

The present case relates to the application of sellers' trademark infringement exemption clause. According to the provisions of the Trademark Law, preconditions shall be met to exempt the seller from tort liability, including: (I) the seller does not know that the goods sold infringe the exclusive right to use trademarks; (II), the seller can prove that the goods were legally obtained by himself; (III) the seller can identify the provider of goods. 

In this case, the supplier involved had applied to the trademark authority for a trademark similar to the trademark of the obligee and was rejected. Still it used the logo similar to the trademark of the obligee on the same goods, and was known and should be known for its subjective intention of infringement. There is an obvious relationship between the seller and the shareholders of the supplier, and it was known and should be known that the above-mentioned use behavior is suspected of trademark infringement, which does not meet the statutory exemption requirements (where sellers are not aware of its infringement of the exclusive right to use registered trademarks).