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Golden Human Computer Co., Ltd. v.HST Scientific and Technological Development Center (Dispute over Unfair Competition) (Dispute over Unfair Competition)
金洪恩电脑有限公司诉惠斯特科技开发中心不正当竞争纠纷案
【法宝引证码】
  • Type of Dispute: IPR-->Others
  • Legal document: Consent Judgment
  • Judgment date: 06-28-2000
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 2,2001

Golden Human Computer Co., Ltd. v.HST Scientific and Technological Development Center (Dispute over Unfair Competition) (Dispute over Unfair Competition)
(Dispute over Unfair Competition)
金洪恩电脑有限公司诉惠斯特科技开发中心不正当竞争纠纷案

Golden Human Computer Co., Ltd. v.HST Scientific and Technological Development Center(Dispute over Unfair Competition)

 

金洪恩电脑有限公司诉惠斯特科技开发中心不正当竞争纠纷案

BASIC FACTS 
Plaintiff: Beijing Golden Human Computer Co., Ltd., domiciled at Pinggu Town, Pinggu County, Beijing Municipality. 原告:北京金洪恩电脑有限公司。住所地:北京市平谷县平谷镇。
Legal representative: Chi Yufeng, general manager of the company. 法定代表人:池宇峰,该公司总经理。
Authorized attorney: Qu Zhaoxu and Hao Jianping, lawyers from Beijing Lutong Law Firm. 委托代理人:瞿朝旭、郝建平,北京市陆通律师事务所律师。
Defendant: Beijing HST Scientific and Technological Development Center, domiciled at Xueyuan South Road, Haidian District, Beijing City. 被告:北京惠斯特科技开发中心。住所地:北京市海淀区学院南路。
Legal representative: Yan Weidong, general manager of the company. 法定代表人:延伟东,该公司总经理。
The plaintiff, Beijing Golden Human Computer Co., Ltd. (hereinafter referred to as “Golden Human”) filed a claim at the People's Court of Haidian District, Beijing Municipality (hereinafter referred to as “Haidian Court”) against Beijing HST Scientific and Technological Development Center (hereinafter referred to as “HST”) concerning dispute over unfair competition. 原告北京金洪恩电脑有限公司(以下简称金洪恩公司)因与被告北京惠斯特科技开发中心(以下简称惠斯特中心)发生不正当竞争纠纷,向北京市海淀区人民法院提起诉讼。
Golden Human claimed: In November 1997, it independently developed and manufactured the “Gushen” software product for operation in the stock market, which had been published by the Publishing House of Tsinghua University. Since this software came into being, it has been in the front rank among the same type of products in respect of sales volume. It occupied a large market share, enjoyed high prestige, and became a kind of famous commodity. On 28th of April 1999, Golden Human obtained the No.1268788 trademark registration certificate, on the basis of which it could enjoy the right to exclusively use the “Gushen” trademark within the scope of the ninth category of commodities. Since 2000, HST had been marking the name of “Gushen2000” on the outer package of its software products but filling software with the name of “Classics on Stock Market”. Meanwhile, HST also used such words as “Gushen2000” and “ ‘Gushen2000' ceremoniously comes into the market”, etc. when publicizing through the homepage of its website the “Classics on Stock Market” which it had developed. The above said acts by HST had misled consumers to consider “Classics on Stock Market” as a new generation of upgraded product of “Gushen”, thus having infringed the legitimate rights and interests of Golden Human. Therefore, Golden Human requested Haidian Court to rule that HST: 1. immediately stop selling the product of infringement as well as the packages and decorations of the said product, and delete the false publicity from the homepage of its website; 2. make public apologies, eliminate the bad effects and publish an apology announcement in the homepage of its website, Computer and Computer Business Information; 3. compensate Golden Human for 200,000 Yuan of economic losses. 原告金洪恩公司诉称:1997年11月,原告自主开发研制并由清华大学出版社出版了股市操作类软件产品“股神”。该软件自问世以来,一直位于同类产品销售量前列,占有相当的市场份额,且有较高的知名度,已成为知名商品。1999年4月28日,原告取得第1268788号商标注册证,在第九类商品范围内对“股神”商标享有专用权。自2000年开始,被告惠斯特中心在其软件产品外包装上冠以“股神2000”的名称,而内装软件的名称是“股市经典”。同时,惠斯特中心在该公司的网站主页上宣传其开发的“股市经典”时,还使用了“股神2000”和“‘股神2000'隆重上市”等字样。惠斯特中心的上述行为,使消费者将“股市经典”误认为“股神”的升级换代产品,侵犯了原告的合法权益。故诉请判令惠斯特中心:1、立即停止销售侵权产品,销售所有侵权产品的包装、装潢,并删除其网站主页上的不实宣传;2、公开赔礼道歉、消除影响并在其网站主页以及《电脑报》、《电脑商情报》上登载致歉声明;3、给原告赔偿经济损失20万元。
HST contended that: 1. the scope of goods within which the use of “Gushen” trademark had been approved was the “computer hardware” in the ninth category, not including “software”. Golden Human's using “Gushen” trademark on the software it developed was to extend the scope of the use of the trademark without authorization; with regard to this act, HST had applied to the State Trademark Bureau for revocation of the inappropriately registered trademark;2. “Gushen2000” was the stock analysis software independently developed by HST, and the design and package of this software were completely different from those of Golden Human's “Gushen” software, nor were there any connections between them; furthermore, the former was not the upgraded edition of the latter at all;3. HST's using the words of “Gushen2000” on the outer package of its product was because the said product was the series product of another commodity named “Caishen2000”; these two kinds of software were consistent with each other in respect of package, name and style of characters, and they were completely different from those of Golden Human's “Gushen” software; it was also distinctly marked on the package of “Gushen2000” that this software was developed by HST;4. Golden Human said in its bill of complaint that “Gushen” product was a famous product, however, this was inconsistent with the fact; Golden Human was not in the first place in respect of either sales volume of products or market occupancy, which could also be proved by the sales volume ranking list provided by the software agent in Beijing.On the basis of the above reasons, HST requested Haidian Court to reject all claims by Golden Human. 被告惠斯特中心辩称:一、“股神”商标核定使用的商品范围是第九类的“计算机硬件”,不包括“软件”。原告金洪恩公司将“股神”商标用于其开发的软件上,是擅自扩大商标使用范围。就此,我中心已向国家商标局提出撤销注册不当商标的申请;二、“股神2000”是我中心独立开发的股票分析软件,其设计和包装与金洪恩公司的“股神”软件完全不同,二者之间没有任何联系,更不是该软件的升级版;三、我中心产品的外包装上使用“股神2000”字样,是因为这是我中心另一商品“财神2000”的系列产品。这两种软件在产品包装、名称、字体方面是一致的,与金洪恩公司的“股神”软件完全不同,且在包装显著位置上注明是由北京惠斯特科技开发中心开发;四、金洪恩公司在起诉书中称“股神”产品为知名商品,与事实不符。从产品销量、市场占有率方面看,金洪恩公司均不是第一位,北京软件代理商销量排行榜也证明了这一点。基于以上理由,法院应当驳回金洪恩公司的全部诉讼请求。
It was verified by Haidian Court through the trial that: 北京市海淀区人民法院经审理查明:
In November of 1997, Golden Human developed the “Gushen” software which was published by the Publishing House of Tsinghua University. From August to December of 1998, when Golden Human continuously printed advertisements on its product in Computer, Workers' Daily, China Youth Daily and other news media, it also publicized the “Gushen” software, which was sold in Beijing Federal Software Company (hereinafter referred to as “Federal Co.”) and its chain stores. Within a certain period between December of 1997 and September of 1999, “Gushen” software was in the front rank in respect of sales volume in the classified ranking list on the sale of Federal Co.'s PC software. 1997年11月,原告金洪恩公司开发了“股神”软件并由清华大学出版社出版。自1998年8月至12月,金洪恩公司在《电脑报》、《工人日报》、《中国青年报》等新闻媒体上连续刊登其产品广告时,对“股神”软件也做了宣传。该软件在北京连邦软件公司(以下简称连邦公司)及其连锁专卖店均有销售。自1997年12月至1999年9月,“股神”软件在连邦公司PC软件销售分类排行榜中,在一定时期内销售量位居前列。
On April 20th of 1999, Golden Human registered the copyright of “Gushen” software in State Copyright Bureau, with the shortened form as “Gushen”. On April 28th, Golden Human registered “Gushen” trademark in the Trademark Bureau of the State Administration for Industry and Commerce (hereinafter referred to as “the Trademark Bureau”), but the goods on which the use of trademark had been approved were “computer hardware” in the ninth category. On December 28th, Golden Human obtained the Software Product Certificate in Beijing Municipality issued by Beijing Municipal Quality Certification Team for Software and Software Products, with the product name as “Gushen” product. On April 10th of 2000, the Trademark Bureau accepted Golden Human's No.2000045415 application for registration, with the application contents of which, as Golden Human said, to be extending the scope on the use of the approved “Gushen” trademark up to “computer software”. 1999年4月20日,原告金洪恩公司在国家版权局进行了“股神”软件著作权登记,软件简称为“股神”。4月28日,金洪恩公司在国家工商行政管理局商标局(以下简称商标局)注册了“股神”商标,核定使用商品为第九类“计算机硬件”。12月28日,金洪恩公司取得由北京市软件和软件产品质量认证小组颁发的《北京市软件产品证书》,产品名称为“股神”。2000年4月10日,商标局受理了金洪恩公司的第2000045415号注册申请,金洪恩公司称该申请内容为将“股神”商标的核定使用范围扩大至“计算机软件”。
On March 27th of 2000, HST applied to the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (hereinafter referred to as “TRAB”) for revocation of Golden Human's “Gushen” trademark by reason of inappropriate registration. On May 12th, the TRAB formally accepted this application, but the result upon examination had not come out yet. 2000年3月27日,被告惠斯特中心以原告金洪恩公司的“股神”商标注册不当为由,向国家工商行政管理局商标评审委员会(以下简称商标评委会)提出撤销该注册商标的申请。5月12日,商标评委会正式受理了该申请,现尚无审查结果。
On April 6th of 1999, HST entrusted the Publishing House of Electronics Industry, with whom it concluded a publishing contract, to publish the analysis system software named “Classics on Stock Market” developed by itself, with the number of copies to be 20,000. Since early 2000, HST began to mark such words as “‘Gushen2000' and ‘Classics on Stock Market', Millennium Edition”, “this software is the second generation of mainstream software for speculation on stocks”, etc. on the outer package of the “Classics on Stock Market” software products, and to print its words and deeds on Computer and Computer Business Information to publicize “Gushen2000”. When HST publicized and sold “Classics on Stock Market” through the homepage of its Internet website, it also displayed “Gushen2000” as a linking representation. It was a prerequisite to click the “Gushen2000, upgraded edition” column on the homepage in order to download the upgraded edition of “Classics on Stock Market” software from this website. 1999年4月6日,被告惠斯特中心将其开发的“股市经典”分析系统软件,通过签订出版合同委托电子工业出版社出版,复制数量为2万盘。自2000年年初起,惠斯特中心开始在“股市经典”软件产品的外包装上标明“‘股神2000'暨‘股市经典'千禧版”、“该软件是第二代主流炒股软件”等字样,并在《电脑报》、《电脑商情报》上刊登言行宣传“股神2000”。惠斯特中心还在该公司开设的国际互联网网站主页上宣传销售“股市经典”时,以“股神2000”作为链接标识。从该网站上下载“股市经典”升级版软件,需在主页上点击“股神2000升级版”栏目。
The contents of Golden Human's “Gushen” software were different from those of HST's “Classics on Stock Market” software, nor was the style of the characters of “Gushen” used by HST consistent with that used by Golden Human except that there was no difference in respect of pronunciation. HST submitted Federal Co.'s software ranking list during the trial to prove the market influence of its “Caishen2000” software. 原告金洪恩公司的“股神”软件与被告惠斯特中心的“股市经典”软件的内容不相同,双方所用“股神”二字字体也不一致,但读音上没有差别。惠斯特中心在庭审期间提交了连邦公司的软件排行榜,用于证明其“财神2000”软件的市场影响。
Golden Human submitted the following evidence to Haidian Court: 1. a set of “Gushen” software;2. a set of “Gushen2000” software;3. two notarial deeds;4. No. 1268788 of trademark registration certificate;5. a testimonial issued by Federal Co.;6. the Trademark Bureau's acceptance notification;7. a table of achievements on “Gushen” software;8. a classified ranking list on the sales of Federal P C software;9. 24 advertisements made by Golden Human;10. a product certificate for “Gushen” software;11. a copyright registration certificate for “Gushen” software;12. invoices on the purchase of “Gushen2000” products;13. a power of attorney on duplicating electronic publications.While HST submitted the following evidence:1. a list of documents transferred by Beijing Municipal Trademark Firm to the State Administration for Industry and Commerce;2. Beijing Municipal Trademark Firm's application for revocation of the inappropriately registered trademark;3. the TRAB's notice;4. a ranking list of Zhengpu software;5. a ranking list of Federal software;6. the outer package of “Gushen2000” software;7. the outer package of “Caishen2000” software;8. three HST's advertisements.The above evidence had been questioned in the trial and could be regarded as the basis to ascertain the above said facts. 原告金洪恩公司向法院提交了如下证明:1、“股神”软件一套;2、“股神2000”软件一套;3、公证书两份;4、第1268788号商标注册证;5、连邦软件有限公司出具的证明书;6、商标局的受理通知书;7、“股神”软件业绩表;8、连邦PC软件销售分类排行榜;9、金洪恩公司所作广告24份;10、“股神”软件产品证书;11、“股神”软件著作权登记证书;12、购买“股神2000”产品的发票;13、电子出版物复制委托书等。被告惠斯特中心提交了如下证明:1、北京市商标事务所致国家工商行政管理局的送文单;2、北京市商标事务所的撤销注册不当商标申请书;3、商标评委会的通知;4、正普软件排行榜;5、连邦软件排行榜;6、“股神2000”软件外包装;7、“财神2000”软件外包装;8、惠斯特中心广告三份。以上证明经当庭质证,可以作为认定上述事实的根据。
JUDGMENT'S REASONING三年不开张,开张吃三年 
Haidian Court was of the following opinion: 北京市海淀区人民法院认为:
In accordance with the law, Golden Human should enjoy the right to exclusive use of the “Gushen” trademark, which was registered within the ninth category of goods, that is, “computer hardware”. Before this trademark was revoked in accordance with statutory procedures, the right to exclusive use of it should be protected by law. 原告金洪恩公司对其在第九类商品“计算机硬件”上所注册的“股神”商标,依法享有商标专用权。在该商标专用权未依法定程序撤销以前,应当受法律保护。
With regard to the scope of the right to exclusive use of a trademark, Article 37 of Trademark Law of the People's Republic of China provides that it “shall be limited to trademarks which have been approved for registration and to goods on which the use of a trademark has been approved”. Whereas the main function of a trademark is to distinguish the same kind of goods or similar goods which are produced by different producers or managed by different operators, prevent different goods from being confused, and avoid consumers' mistaking the sources or characters of goods, Item (1) of Article 38 of the Trademark Law provides that “using a trademark which is identical with or similar to the registered trademark on the same kind of goods or similar goods without a license from the owner of that registered trademark” shall be an infringement upon the right to exclusive use of a registered trademark. This provision prohibits the use of a trademark the same as or similar to that of another on similar goods, so that the protection on the right to exclusive use of a trademark could be extended to a range of preventing the sources and characters of goods from being confused or mistaken. Therefore, the said “similar goods” must be judged on the basis of the legislation purpose and in combination with such factors of the goods as functions, materials, uses and producers, etc.. 对于商标专用权的权利范围,《中华人民共和国商标法》第三十七条规定:“以核定使用的商品和核准注册的商标为限”。鉴于商标的主要作用在于区别不同商品生产者、经营者生产或者经营的同一种或类似商品,防止商品混淆,避免消费者对商品的来源或其品质产生误认,商标法夫妻本是同林鸟三十八条第(1)项又规定:“未经注册商标所有人的许可,在同一种商品或者类似商品上使用与其注册商标相同或者近似的商标的”,是侵犯注册商标专用权的行为。这一规定禁止在类似商品上使用与他人注册相同或者近似的商标,从而将对商标专用权的保护延伸到防止发生混淆、误认商品的来源与品质的范围。因此,对什么是法律所指的“类似商品”,必须根据这一立法目的,综合商品的功能、材质、用途、生产部门等因素综合作出判断。
Both computer hardware and computer software are closely related to computer operation, and they belong to a big category in the commodity classification table. The use of identical or similar trademark signs respectively on computer hardware and software would easily make consumers consider that such hardware and software come from the same sources. Therefore, from the point of view of a common consumer who is easy to have an interrelated recognition, both computer hardware and computer software belong to the “similar goods” provided in Item (1) of Article 38 of the Trademark Law. Since Golden Human had registered “Gushen” as the trademark of its “computer hardware”, no one else should use without authorization the trademark or sign which was identical with or similar to the registered trademark of “Gushen” on its computer software before it was permitted by Golden Human, no matter whether Golden Human had used the “Gushen” trademark on the computer software products. However, without Golden Human's permission, HST used the signs of “Gushen” on the computer software. Although style of characters of “Gushen” it used was different from that by Golden Human, there were no differences between the pronunciations of the two trademarks of “Gushen”, thus consumers would be easy to mistake the former with the latter if identifying them only by common attention. Therefore, HST's use of this trademark constituted infringement upon trademark right. As the trademark representation approved for registration is regarded to be an objective for the protection of a trademark, and such protection is irrelevant to whether the registrant uses the trademark by exceeding the scope, the reason that Golden Human extended without authorization the scope of using a registered trademark by using the trademark of “Gushen” on its software products, by which HST denied its act of tort, was not tenable. 计算机硬件与计算机软件都是与计算机运行密切相关的产品,在商品分类表中是同一大类。在计算机硬件和软件上分别使用相同或者近似的商标标记,容易使消费者产生该硬件与软件有相同来源的认识。因此,从普通消费者易于产生联系认识的角度看,计算机硬件与计算机软件属于商标法三十八条第(1)项所指的类似商品。原告金洪恩公司已经将“股神”注册为“计算机硬件”商标,无论该公司是否在计算机软件产品上使用“股神”商标,其他人未经该公司许可,都不得擅自将与“股神”注册商标相同或者近似的商标、标记用于计算机软件。被告惠斯特中心未经金洪恩公司许可,在计算机软件上使用带有“股神”二字的标记,虽然所用“股神”二字的字体不一致,但读音上没有差别,消费者凭普通注意力来辨认商标,易于产生误认。因此,惠斯特中心的这种使用构成侵犯商标权。商标权的保护以核准注册的商标标识为客体对象,与注册人是否超范围使用商标无关,故惠斯特中心以金洪恩公司在软件产品上使用“股神”注册商标,是擅自扩大注册商标使用范围为由否认自己侵权,理由不能成立。
Item (2), Article 5 of the Law of the People's Republic of China Against Unfair Competition provides that “using for a commodity without authorization a unique name, package or decoration similar to that of another's famous commodity, thereby confusing the commodity with that famous commodity and leading the purchasers to mistake the former for the latter” belongs to unfair competition acts. 中华人民共和国反不正当竞争法下跌你应该笑还是哭》第五条第(二)项规定:“擅自使用知名商品特有的名称、包装、装潢,或者使用与知名商品近似的名称、包装、装潢,造成和他人的知名商品相混淆,使购买者误认为是该知名商品”的,是不正当竞争行为。
The characters of “Gushen” were not a general name for software of the stock type, and Golden Human named its software as “Gushen” and put them in the market earlier than HST, whose software was named “Classics on Stock Market”. In order to sell “Gushen” software, Golden Human made a lot of advertisements, thus making the sales volume of this software keep ahead for a period on the Federal specialized software ranking list which was ratified by both parties. Therefore, this software had certain prestige in the stock software market, and should be ascertained to be a kind of famous commodity. “股神”二字并非股票类软件的通用名称,原告金洪恩公司将该公司的软件命名为“股神”并先于被告惠斯特中心的“股市经典”推向市场。金洪恩公司为销售“股神”软件,进行了大量的广告宣传,使该软件在双方均认可的连邦专业软件排行榜上保持了一段时间的销售量领先地位,故该软件在股票类软件市场中具有了一定知名度,应当认定为知名商品。
The industrial practice for naming software was for the copyright owner of software to distinguish the upgraded or improved edition or such series products developed on the basis of its original software by generally adding different serial numbers or annual numbers. Since 2000, HST had been printing such words as “Gushen2000” and “the second generation of mainstream software for speculation on stocks” on the outer package of this kind of products while issuing the Millennium edition of “Classics on Stock Market”, and had been using “Gushen2000” as a linking representation on its website to publicize and sell the Millennium edition of “Classics on Stock Market”. This act which was in violation of the industrial practice for naming software had connected HST's Millennium edition of “Classics on Stock Market” with Golden Human's “Gushen”, and was enough to make the purchasers to mistake the former for the upgraded edition of the latter. HST's this act had infringed upon Golden Human's legitimate rights and interests to use the name of its own products and had violated Item (2), Article 5 of the Law Against Unfair Competition, thus constituting unfair competition. Therefore, HST should bear the legal liability for tort. HST was lack of legal basis to contend that its act did not constitute unfair competition by the reason that “Gushen2000” was its independently developed stock analysis software which was the series product of “Caishen2000” and was irrelevant with Golden Human's “Gushen” software. The reason that Golden Human's “Gushen” was not a famous commodity, by which HST contended that Golden Human did not have the rights to be enjoyed by the owner of a kind of famous commodity, was lack of factual basis and was not tenable. 软件行业的命名惯例是,软件著作权人在自己的开发的软件基础上,对继续开发出来的升级版、改进版等系列产品,一般是在原名称之后以加不同序号或者年号的方式区别。自2000年起,被告惠斯特中心在发生“股市经典”千禧版时,在该产品的外包装上印刷“股神2000”以及“第二代主流炒股软件”等字样,并在网站上以“股神2000”作为链接标识宣传、销售“股市经典”千禧版。这种违背行业命名惯例的做法,已经把惠斯特中心的“股市经典”千禧版与原告金洪恩公司的“股神”联系起来,足以使购买将“股市经典”千禧版误认为“股神”的升级版。惠斯特中心这种作法已侵害了金洪恩公司使用自己产品名称应享有的合法权益,触犯了反不正当竞争法五条第(二)项的规定,构成不正当竞争行为,应当承担侵权的法律责任。惠斯特中心以“股神2000”是该中心独立开发的股票分析软件,与金洪恩公司的“股神”软件之间没有任何联系,“股神2000”是该中心“财神2000”的系旬产品为由,辩称该公司的行为不构成不正当竞争,缺乏法律依据;其以金洪恩公司的“股神”不是知名商品为由,辩称金洪恩公司不具有知名商品应享有的权利,缺乏事实根据,理由均不能成立。
HST's act was only involved with selling the Millennium edition of “Classics on Stock Market” by marking “Gushen2000” on the outer package of the software and in its web page, since it still marked “Classics on Stock Market” on its software, with the contents of which different from those of Golden Human's “Gushen” software. Therefore, HST did not infringed upon Golden Human's legitimate rights or interests by marking the name on the software or by containing the said software contents. Golden Human's requests for ruling HST to immediately stop selling its products and compensate 200,000 Yuan of losses were inappropriate. Such liabilities as the method for HST to stop its act of tort and the amount of its compensation should only be determined according to the extent of its act of tort. As a result, Golden Human's claims were not fully supported. 被告惠斯特中心的行为只涉及在软件的外包装上以及网页上,以“股神2000”的字样来推销“股市经典”千禧版,而在软件上仍然标识着原名称“股市经典”,该软件的内容与与原告金洪恩公司的“股神”软件内容不同。因此,惠斯特中心在软件上标识的名称以及软件的内容没有侵犯金洪恩公司的合法权益。金洪恩公司请求判令惠斯特中心立即停止销售其产品及赔偿损失20万元,请求不当,只能根据惠斯特中心的侵权程度依法确定其停止侵权的方式和赔偿数额等责任,对金洪恩公司的诉讼请求不予全部支持。
JUDGMENT打遮阳伞就显得很娘 
As a whole, Haidian Court rendered the following judgment on June 28th of 2000: 综上,北京市海淀区人民法院于2000年6月28日判决:
1. as of the date when the judgment came into force, HST stop using the characters of “Gushen” on the package of its “Classics on Stock Market” software as well as on relevant publicities, words and deeds; 一、自判决生效之日起,被告惠斯特中心停止在其“股市经典”软件的包装及相关的广告宣传中使用“股神”二字;
2. HST should, within 30 days as of the date when the judgment came into force, print an announcement in Computer and the homepage of its website, making a public apology to Golden Human; 二、自判决生效之日起30日内,被告惠斯特中心在《电脑报》和其网站主页上刊登声明,向原告金洪恩公司公开致歉;
3. HST should compensate 20,000 Yuan of economic losses to Golden Human within 10 days as of the date when the judgment came into force. 三、自判决生效之日起10日内,被告惠斯特中心赔偿原告金洪恩公司经济损失2万元。
The acceptance fee was 5,510 Yuan, among which 1,510 Yuan should be borne by Golden Human, and 4,000 Yuan by HST. 案件受理费5510元,由原告金洪恩公司负担1510元,由被告惠斯特中心负担4000元。
HST refused to accept the judgment of the first instance and filed a claim at Beijing Municipal No. 1 Intermediate People's Court (hereinafter referred to as “the Intermediate Court”. 惠斯特中心不服一审判决,向北京市第一中级人民法院提起上诉。
During the trial in the second instance, both parties clearly expressed that they had no objections to the facts ascertained by Haidian Court, and they also confirmed that HST's act belonged to the act of tort. After a conciliation presided by the Intermediate Court, both parties reached an agreement on September 27th of 2000 as follows: 在二审审理期间,双方当事人明确表示对一审法院认定的事实均无异议,并且也确认了惠斯特中心的行为属于侵权。经北京市第一中级人民法院主持调整,双方当事人于2000年9月27日自愿达成如下协议:
1. HST should stop using the characters of “Gushen” on the package of its “Classics on Stock Market” software as well as relevant advertisements and publicities as of the date of its execution of the conciliation agreement; 一、自本调解书签收之日起,惠斯特中心停止在其“股市经典”软件的包装及相关的广告宣传中使用“股神”二字;
2. HST should apologize to Golden Human in writing (which has been executed); 二、惠斯特中心以书面形式向金洪恩公司致歉(已执行);
3. HST should pay 10,000 Yuan to Golden Human as of the date of execution of the conciliation agreement; 三、本调解书签收之日,惠斯特中心向金洪恩公司支付1万元。
4. the acceptance fee was 5,510 Yuan either in the first instance or in the second, however, the former shall be borne by Golden Human, while the latter by HST. 四、一审案件受理费5510元,由金洪恩公司负担;二审案件受理费5510元,由惠斯特中心负担。
COMMENTARY 
As a result, the conciliation agreement has been executed by both parties and has come into force. 该调解书经双方当事人签收,已发生法律效力。

 

     
     
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