case
A cosmetics company was established in 2015, mainly engaged in manufacturing and selling makeup. It applied for and obtained a registered trademark of "Huaxizi" inspired by the West Lake. After years of use and publicity, the trademark has gained a certain brand awareness. A cosmetics firm is an individual business selling cosmetics. A cosmetics company found that when a cosmetics company sold beauty products on the website, it split the trademark "Huaxizi" and used the words "Huaxizi" and "Xizi" in the product title together with the text of its product description (name, category, specification, use, etc.).The user searches for "flower West" through the search engine, the search results show the website name and product title contains a cosmetics firm's products, click on the product link, the content is displayed with a cosmetics company in competition with beauty products, but there is no cosmetics company trademarkA cosmetics company sued to require a cosmetics firm to bear tort liability.
(Photo from Internet)
divergence
In this case, there are two views as to whether the alleged conduct constitutes trademark infringement or unfair competition:
The first view is that the split use of another person's registered trademark is a disguised use of another person's registered trademark, which infringes on the trademark owner's exclusive right to use the trademark.
The second view is that the accused behavior does not belong to the use of trademarks, but violates the principle of good faith, damages the interests of other operators and consumers, and constitutes unfair competition.
evaluate and analyse
2. The alleged conduct constitutes unfair competition.According to Article 2 of the Anti-Unfair Competition Law, business operators should follow the principle of good faith. Acts of unfair competition refer to acts of business operators that, in their production and business activities, violate the provisions of this Law, disrupt the order of market competition, and impair the legitimate rights and interests of other business operators or consumers. Business operators refer to natural persons, legal persons and unincorporated organizations engaged in commodity production, business operation or the provision of services. In this case,From the subject point of view,A cosmetics business is an individual business, which belongs to the operators regulated by the Anti-unfair Competition Law.From the perspective of business scope,The business scope of a cosmetics company includes cosmetics retail and wholesale, etc., and the business scope of a cosmetics firm includes cosmetics, beauty products, wholesale and retail. The content they promote and the customers they face intersect and overlap, and there is a competitive relationship between them regulated by the anti-unfair competition law.From the popularity of the rights trademark,A cosmetics company's "flower west" brand products have high sales, and through publicity and promotion, the brand has a certain popularity, relevant consumers have "flower west" and a cosmetics company's products and services have a specific connection, with a certain identification, contact function.In terms of behavior,Without any connection with the right trademark, a cosmetics company adds the words "Hua" and "Xizi" to its product title through the website sales platform, and the product link will appear in the search results when the user searches for the keyword "Huaxizi". Subjectively, it has the intention of using the right trademark and goodwill to attract the attention of relevant network users and increase the click-through rate of its products, and objectively distracts users' attention from the products and related services involved in the right trademark.It reduces the user's interest in accessing the products and services of a cosmetics company and harms commercial interests. At the same time, it saves the advertising cost that it should pay, which is a kind of free riding behavior for nothing and violates the principle of honesty and credit.In summary, the alleged conduct constitutes unfair competition. (Source: People's Court Daily Author: Liu Chengna)
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