[Shanghai Law Journal on WeChat] Real GMS Won the Suit Against Its Copycat & Got Compensation of some 1m yuan Sept. 1, 2018Shanghai Law Journal on WeChat The sign of the supermarket, the price tags in the shopping mall and the shopping bags all show "GMS", and its official account name on WeChat is also "GMS", it can’t be a fake, can it? Unfortunately, the court decision tells you the truth: it is a "fake". On August 31, the Shanghai Intellectual Property Court (hereinafter referred to as the SIPC) dismissed the appeal over unfair competition between Shanghai Dingding Trading Co., Ltd. (hereinafter referred to as Dingding Company) and Hualian GMS Shopping Center Co., Ltd. (hereinafter referred to as GMS Company) and made the second-instance decision of maintaining the original judgment. According to the judgment, Dingding Company shall immediately stop the unfair competition of infringing upon the name “GMS” of GMS Company, publish a statement to eliminate the impact, and compensate GMS Company for 1.326 m yuan, 1.3 m for its economic losses and 0.26 m for the reasonable expenses incurred for stopping the infringement. Discover the "fake" with a fall In July 2017, a customer fell and hurt himself while shopping at GMS Supermarket in a square on Pudong Avenue. As the negotiation with the supermarket failed, the customer sued GMS Companyin anger. However,upon receipt of the summons, GMS found that the supermarket concerned was neither a store of its own nor an authorized franchise store. What's the matter? According to the investigation, Dingding Company, without the permission of GMS Company, had operated the market by using the name "GMS". It had also used the signs of "BLGMS" and "GMS" in its store recruitment, decoration, bills, shopping bags and other places, andrun the WeChat official account under the name of "GMS". Knowing the existence of the "fake", GMS filed a lawsuit against Dingding Company, requesting the court to order Dingding Company to stop its unfair competition, publish a statement, eliminate the impact, and compensate for its economic losses of 1.3 m yuan and reasonable expenses of 0.26 m yuan. Court of first-instance: fully support the claim of 1.326 m yuan Since 1999, GMS Company has been running the "GMS" chain shopping markets. The company has ten stores and five franchise stores in various districts of Shanghai, gaining strong competitiveness and reputation among the chain businesses and the large supermarkets of Shanghai. After the trial, the court of first instance held that "GMS" had grown into an influential service name within the city of Shanghai and should be protected by the anti-unfair competition law. Dingding Company had used "BLGMS" as its store name, specialized in the business as a large market, and used thenames similar to GMS Company in many places, thus causing consumers to mistakenly interpret the names of "BLGMSBailianGMS" and "BailianGMS" as the "GMS" of Bailian Group. After considering the evidence of the whole case, the court of first-instance held that the amount of compensation claimed by GMS Company in this case was reasonable and should be supported in full. Court of second-instance: dismiss the appeal and uphold the original judgment After the first trial, Dingding Company refused to accept the judgment and appealed to the SIPC. It claimed that it had acquired the trademark of BLGMS Shopping Center from Weizhongxiang Company and it enjoyed the exclusive right to use the trademark. After hearing the case, the SIPC held that court of first-instance had ruled on the factual and legal basis. In addition, the State Trademark Office had decided not to approve the application of trademark registrationbyDingding Company, so the company’s claim was in lack of basis. Therefore, the court dismissed the appeal of DingdingCompany and upheld the original judgment.
