The Kaixin lawsuit of last instance was resolved in Beijing Higher People's Court the other day. A total of 400,000 yuan in damages was rendered to the prevailing party. It was reported that the winning party Kaixin001.com had appealed to the Supreme People's Court, seeking a compensation of 10 million yuan and insisting on its request that Kaixin.com (the respondent) should cease use of its domain. The appealing was taken on the ground that the effective judgment didn't clarify the infringement fact and the compensation claimed by the plaintiff.

During the trials of first instance and the second instance, the courts found for Kaixin001.com, ruling that the use of the name of “Kaixin” on the website kaixin.com operated by Beijing Oak Netscape and Oak Pacific Interactive constituted unfair competition. Oak Pacific Interactive was ordered to cease use of the name of “Kaixin,” and was also ordered to pay kaixin001.com 400,000 yuan in damages. However, the courts held that the evidences provided by the kaixin001.com were not enough to prove that all registered users of kaixin.com came from kaixin001.com and thus the requirement for a compensation of 10 million yuan could not be rendered. Because of concerns that kaixin.com got registered earlier than kaixin001.com, the courts ruled that the Oak Pacific Interactive could keep using the domain name of Kaixin.com.

The agent of kaixin001.com Li Yunde thought that though the courts at the first trial and the second trial rendered that the defendants should be penalized accordingly for their infringement, the facts were wrongly ascertained and the law and regulations were incorrectly applied in the trial judgement upon the problem of whether the defendant infringed the trademark of kaixin001.com and whether the use of similar domain constituted unfair competition. The trial court held that because the plaintiff's could not prove the registered users of kaixin.com were the users kaixin001.com lost, the compensation claimed could not be supported. However, according to Trademark Law and the related judicial interpretations, the registered users obtained by the infringer could be directly regarded as the losses suffered by the injured operator.

It was reported that the Supreme People's Court had accepted the appealing application submitted by kaixin001.com.

Source:IPR in China