Shenzhen is a key city in the global digital economy industry. In order to guide the healthy development of the digital economy industry, the Shenzhen Court conducted in-depth research, actively explored the judicial adjudication rules for intellectual property in new fields and new formats, and released typical cases of judicial protection for intellectual property in the digital economy of the Shenzhen Court in 2022, ensuring high-quality development with high-quality judicial services, and promoting in-depth and solid theme education.
Take a look at these examples!
2022 Shenzhen Court digital economy
Typical cases of judicial protection of intellectual property rights
Case 1: Ma Mouhua and other eight people committed the crime of counterfeiting registered trademarks
Case 2: Shenzhen Zomai Technology Co., Ltd. v. Shenzhen Youying Media Co., Ltd. and other network unfair competition dispute
Case 3: Shenzhen Tencent Computer System Co., Ltd. v. Shenzhen Kusto Network Technology Co., LTD. Copyright infringement and unfair competition dispute
Case 4: Shenzhen Zhisuo Information Technology Co., Ltd. v. Speed Snail (Shenzhen) Intelligence Co., Ltd. infringement of trade secrets dispute
Case 5: Shenzhen Jingying Light Technology Co., Ltd. and Chen Mou infringement of trade secrets dispute
Case 6: Beijing Legal Information Technology Co., Ltd. v. Shenzhen Red Stone Decoration Engineering Co., Ltd. infringement of the right to information network communication of works
Case 7: Disputes over data service contracts between Beijing Zhuoyue Chuangda Network Technology Co., Ltd. and Baoneng Automobile Sales Co., LTD
Case 8: New Cornerstone (Shenzhen) Technology Co., Ltd. and Hu Mou, Shanghai Youhui Trading Co., LTD. False propaganda dispute
Case 9: Dispute over trademark infringement between Li Mou and Shenzhen Tencent Computer System Co., LTD
Case 10: Shanghai Hantao Information Consulting Co., Ltd. v. Wu Mou trademark infringement and unfair competition dispute
01
Ma Mouhua and other eight people committed the crime of counterfeiting registered trademarks
Tenor of judgment
The act of "using" a trademark in the crime of counterfeiting a registered trademark is not limited to the act of using the trademark on tangible carriers such as commodities, commodity packaging or containers, transaction documents or advertising. In the Internet of Things environment, the behavior of displaying the trademark on the paired device through wireless communication technology such as pairing link is also a trademark use behavior. Whether the act constitutes a crime of counterfeiting a registered trademark should be judged comprehensively by combining the defendant's subjective intention, the way of using the trademark and whether it causes confusion and misrecognition among the relevant public.
Brief of the case
"AIRPODS" "AIRPODS PRO" trademark belongs to Apple Inc., approved products including headphones. The defendants, Luo Mouzhou and Ma Mouhua, produced counterfeit Apple trademark Bluetooth headphones for external sales for profit. The case involved counterfeit Apple Bluetooth headphones and the packaging part, regardless of whether it is printed with Apple's registered trademark, but after connecting the Apple phone, the pop-up window shows "Airpods" or "Airpods Pro". The court of first instance held that the defendants all constituted the crime of counterfeiting registered trademarks, and sentenced the defendants Luo Mouzhou and Ma Mouhua to fixed-term imprisonment and fines. After the verdict of the first instance, some defendants appealed. The second instance also found that the amount of infringing headphones sold in this case should be adjusted to 22,106,296.08 yuan.
Court management
The Court held that the "use" of the judicial interpretation constituting the crime of counterfeiting a registered trademark refers to the use of the counterfeit registered trademark for commodities, commodity packaging or containers, advertising, exhibitions and other commercial activities. "Use" in the crime of counterfeiting registered trademarks is not limited to the use of trademarks in tangible carriers such as commodities, commodity packaging or containers, as long as it is used to identify the source of goods in commercial activities constitute trademark use. The key to constitute trademark use is that in the way of trademark use, the defendant's subjective intention, the way of use, the industry practice of the product and the relevant public cognition should be integrated to judge whether it causes consumer confusion and misrecognition in commercial activities.
Bluetooth technology enables portable mobile devices to access the Internet wirelessly by establishing a wireless connection of the communication environment. When each pair of devices carry out Bluetooth communication, the electronic device terminal will search and initiate pairing, and after the successful establishment of the chain, the two sides will exchange information and communicate to realize intelligent identification and positioning. The consumption of Bluetooth headphones needs to find the device through the Bluetooth pairing chain, the identification of the source of Bluetooth headphones products is not only through the product packaging, but more importantly, through the device to find the correct pairing item to achieve the Bluetooth headset function and identify the source of Bluetooth headphones products. The infringing Bluetooth headphones produced by the defendant displayed the trademarks of "Airpods" and "Airpods Pro" to consumers in the pop-up window of the iPhone during the pairing activation process of the connected mobile phone terminal, causing consumers to mistakenly believe that the products used in the link were made by Apple Inc., resulting in confusion and misidentification of the source of the products, which belonged to the trademark "use" under the criminal law.
The municipal Intermediate Court ruled to reject the appeal and uphold the original verdict.
Typical significance
This case is a typical case of using the Internet of Things technology to implement a new form of trademark crime under the digital economy, reflecting the judicial system of the Internet of Things era between mobile digital devices through information sensing equipment data transmission and intelligent recognition presented by the new trademark use standards.
The defendant uses the same communication protocol of the intended link pairing device in the infringing product chip, and uses data transmission to display the same logo as the registered trademark on the linked device. Consumers distinguish between different products through the logo displayed by the matching product through Bluetooth search, resulting in confusion and misidentification of the origin of the product.
The judgment of this case penetrates the appearance of the crime of counterfeiting registered trademark, accurately grasp the essence of the crime of trademark, provides a standard for the definition of the new type of trademark "use" behavior, and has guiding significance for combating the crime of using new technology.
02
Shenzhen Zomai Technology Co., Ltd. v. Shenzhen Youying Media Co., Ltd. and other network unfair competition dispute
Tenor of judgment
1, corporate data rights and interests are not legal rights, the request for protection of data interests must meet the legal data attributes, collection methods, profit methods and in line with the recognized business ethics, industry practices and other minimum requirements.
2. Using technical means to illegally insert jump links in other apps, and use hints and misleading prompt text to mislead users to trigger target jump by themselves, illegally conduct traffic guidance, interfere with or replace the normal provision of services by the original APP, and also affect users' right to know and choice, which belongs to unfair competition on the network.
Brief of the case
The plaintiff is a technology company whose main business is to provide "film illustration" content on the Internet platform. The defendant's film media company used technical means to illegally insert skip links in the plaintiff's "Graphic film" APP, and used the prompt text of "new diagrams are shadows" to make users mistakenly believe that the relevant links are provided by the plaintiff. Implying that the user triggers the target jump, leads the user to the "graphic movie" APP, downloads the "shadow" APP, and provides similar services, and the defendant has obtained user traffic that does not belong to its own, thereby obtaining improper benefits, constituting an act of unfair competition on the network. According to the plaintiff's self-stated business model, it attracts users to upload its works through the network through the operation of websites, apps, etc., but it has not proved that it has edited or processed the relevant data of the graphic film works accumulated on the platform. As a platform party, Zomai Technology Company does not of course enjoy the monopoly rights and interests of the data uploaded by platform users. It has not demonstrated a legitimate interest in the relevant data resources.
Court hearing
After the judgment of the court of first instance, the two defendants refused to accept and appealed to the Shenzhen Intermediate People's Court, and the court of second instance changed the judgment: the defendant Youying Media company should publish a clarification statement on the "Youying" APP (including Android version and IOS version) for seven consecutive days that it has no connection with the plaintiff Shuju Technology Company's "Illustrated Movie" APP; The defendant has film media company and Wu Mou shall jointly compensate the plaintiff Shu Shu Technology Company for economic losses and reasonable expenses of RMB 150,000 yuan; The plaintiff's other claims are dismissed.
Typical significance
This case belongs to the network unfair competition dispute case involving new technology, new business form and new model. Corporate data rights are not statutory rights, and specific laws and regulations regarding corporate data rights have not yet been introduced. This case makes a certain beneficial exploration of the rights and interests of enterprise data, standardizes the legitimate nature of the data itself, and promotes a good competitive ecological pattern of the digital economy.
03
Case of infringement of copyright and unfair competition between Shenzhen Tencent Computer System Co., Ltd. and Shenzhen Kusto Network Technology Co., LTD
Tenor of judgment
Without the permission of the copyright owner, the operator of the cloud game service platform stores and installs the online game client software in the cloud server, so that the non-specific public can realize the operation of the game without downloading the game client software on the terminal device, which exceeds the scope of the license of "single terminal device" and infringes the copyright owner's right to copy the game client software. The operators of the cloud game service platform use cloud computing and streaming media transmission technology to transmit the real-time game images that run and are rendered in the cloud to users through audio and video streams, so that the game images and sounds are transmitted between the cloud server and different user terminals through the Internet environment, which infringes the right of information network communication enjoyed by the copyright owners for the continuous dynamic game images.
Brief of the case
Tencent is the copyright owner of four games, "King of Glory", "QQ Speed", "Ace Soldier" and "Cross Fire • Shootout King". The "Light Play App" cloud game service platform is operated by Costos Corporation. The company downloaded the game client software from Tencent's official website and installed it on the cloud server. Through the "Light Play App" cloud game platform, game users can operate the game on the cloud game platform by issuing requests through the input device without downloading and installing the game client, and the real-time picture generated by the game is transmitted to the user by means of audio and video streaming. Tencent alleges that Qostos' actions constitute infringement of its copyright in the game client software and the game's continuous motion screen, and that Qostos' actions constitute unfair competition against Tencent.
Court hearing
The court held that technological innovation in cloud gaming platforms should be based on respect for the legitimate rights and interests of others. The "Light Play App" operated by Costos is a cloud game service platform, integrating game promotion platform and cloud storage technology platform. It stores game client software on the cloud game server, and uses cloud computing and streaming media transmission technology to enable non-specific members of the public to realize game operation without downloading game client software on terminal devices. Exceeding the scope of the license of "single terminal device" constitutes an illegal copy of the game client software work. At the same time, the installation package of the cloud game is located on the cloud server, and the game calculation and rendering are completed on the cloud server. The players send requests through the input device and operate the game on the cloud game platform. The real-time images generated by the game are transmitted to the users through audio and video streaming, and the game images and sounds are transmitted between the cloud server and different user terminals through the Internet environment. The behavior of the company constituted the information network dissemination of the continuous dynamic picture of the game involved. The court ordered the company to stop the copyright infringement and compensate Tencent for economic losses and reasonable expenses of 2 million yuan.
Typical significance
This case involves the operation logic and legal rules of cloud platform using cloud technology and streaming media transmission technology to provide online game services to user terminals. Different from the basic mode of downloading and installing the client from the game server through the user's local terminal device in traditional online games, the installation package of cloud games is located on the cloud server, and the game calculation and rendering are completed on the cloud server. Players send requests through the input device and operate the game on the cloud game platform. The image generated by the game in real time is transmitted to the user by means of audio and video streaming. In this case, on the basis of clarifying the operation logic and technical realization path of the "cloud game" platform, the relevant behavior of the business subject is legally qualitative and evaluated, pointing out that the use of technology to innovate the business model should be based on the premise of respecting the legitimate rights and interests of others, and has a clear judicial guidance and demonstration effect.
04
Shenzhen Zhisou Information Technology Co., Ltd. v. Speed snail (Shenzhen) Intelligence Co., Ltd. infringement of trade secrets dispute
Abbreviature of adjudication
1. The core of the algorithm is the selection and optimization of the specific order of the model. Even though the technologies used in the search algorithm or recommendation algorithm are all public models, the specific model selection and weight ranking constitute the optimal choice after the right holder has collected, processed and tested big data. It can bring commercial benefits to the right holder and maintain a competitive advantage, and should be protected as a trade secret.
2. The third party in a trade secret infringement dispute refers to a natural person or business entity other than the right holder of the trade secret and the natural person who directly and illegally obtains the trade secret. If a third party subjectively knows or should know that the trade secret is illegally obtained, objectively obtains, discloses, uses or allows others to use the trade secret, it constitutes joint infringement.
Brief of the case
The plaintiff, Zhisuo, is an Internet high-tech company whose main products include a "sky machine" APP and an AI writing robot. It mainly uses its self-developed big data tracking system to carry out intelligent tracking, personalized recommendation, intelligent summary and other functions. The nature of the technical information involved in the plaintiff's request for protection is a recommendation algorithm. The defendant, Speed Snail, used essentially the same recommendation algorithm as the plaintiff to raise money and launch applications. The two companies have overlapping members of their research and development teams, and the defendant has not presented a reasonable reason for adopting an algorithm for its APP that is substantially the same as the algorithm Plaintiff seeks to protect. The defendant companies argued that in terms of individual technical methods, the algorithm uses a technology that is already public, and the algorithm in this case does not constitute a trade secret.
Court management
The specific content of the technical information involved in the case requested by the plaintiff is the search algorithm of "Tianji - big data tracking engine". In order to achieve accurate recommendation, each platform operator will use different combinations of multiple search algorithms. The plaintiff can prove that it has taken reasonable confidentiality measures for the technical information involved by signing a confidentiality agreement or providing confidentiality obligations in the labor contract. Moreover, it can bring business benefits to the plaintiff and maintain competitive advantages. The plaintiff company has completed the burden of proof to prove that the technical information involved meets the legal conditions of trade secrets.
The accused Speed Snail company used the recommended algorithm of the alleged infringement in the "Learn Something" APP developed by the defendant and the recommended algorithm requested protection by the plaintiff are essentially the same, unable to explain the research and development process and provide research and development records, and clearly stated in the trial that Zhao, Hao and He were members of the plaintiff's research and development team. Therefore, the defendant speed snail company constitutes a third party joint infringement. Shenzhen Intermediate People's Court of first instance judgment: First, the defendant speed snail company immediately stop the infringement of trade secrets, remove the infringing APP products; 2. The defendant Speed Snail Company compensates the plaintiff Zhisuo Company for economic losses and reasonable rights protection costs totaling RMB 200,000 yuan; (3) Reject other claims of the plaintiff. Neither party appealed the decision after the first instance.
Ttypical significance
This case is the first case in the country to protect algorithms as trade secrets. The first instance judgment clarifies the relevant judicial rules for the protection of algorithms as trade secrets from the aspects of protection object, constitutive elements, infringement judgment and so on. At the same time, in the trial of cases, auxiliary expert opinions are introduced to the core judgment of the algorithm to supplement and improve the blank of the court in the professional field, so as to achieve "simultaneous hearing", so as to achieve both victory and defeat, and organic unity of legal effect and social effect.
05
Shenzhen Jingying light Technology Co., Ltd. and Chen Mou infringement of trade secrets dispute
Abbreviature of adjudication
In the case that the company clearly defines the relevant data as trade secrets and requires employees to use the company's email address to handle the company's affairs, the employee forwards the data recording the company's trade secrets to his personal external email address in large quantities within a short period of time without the authorization of the company and without valid reasons, It constitutes an act of unfair competition that obtains the trade secrets of others by stealing as stipulated in Article 9 (1) (1) of the Anti-Unfair Competition Law of the People's Republic of China.
Brief of the case
Chen joined Shenzhen Jingying Light Technology Co., Ltd. in 2017, the position of human resources supervisor, the two sides signed the "labor contract" and "confidentiality Agreement", agreed on the scope of trade secrets, confidentiality obligations, and agreed that if Chen violated the terms of the confidentiality agreement, the penalty is three times the total annual salary... If the breach of contract causes losses to the company and the losses are difficult to determine, Chen agrees to compensate Shenzhen Jingying Light Technology Co., Ltd. for not less than RMB 1 million. In 2018, the company required all employees to use company email. On August 2, 2019, Chen logged in to his personal work email and forwarded 75 work emails from April 2018 to July 2019 to his personal QQ email in more than half an hour, then logged in to the public mailbox of the sales department at 14:18, and forwarded 25 emails from the public mailbox of the sales department to his personal QQ email in 15 minutes. Until the date of the second trial, Chen has refused to delete the emails involved, and could not provide a legitimate reason for forwarding the emails involved. The 100 emails involved include the company's undisclosed personnel information, financial information, customer information, billing information, procurement details, technical documents, experimental data, marketing strategies and plans, and internal management regulations since April 2018 to July 2019. Shenzhen Jingying Light Technology Co., Ltd. sued the court on the grounds of infringement of trade secrets, requiring Chen to compensate for economic losses, including a total of 200,000 yuan.
Court hearing
The effective judgment held that Chen, while knowing that the company required all the use of the company's mailbox to handle affairs, still forwarded 100 emails storing a large number of business information and technical information and other trade secrets to his personal mailbox in a short time and in bulk, and could not provide legitimate reasons, which did not conform to the company's management regulations and reasonable expectations. It violates the relevant provisions of the Confidentiality Agreement, does not have good faith, violates the principle of good faith and the core values of socialism, and belongs to the act of obtaining others' trade secrets by stealing as stipulated in the first paragraph of Article 9 of the Law against Unfair Competition of the People's Republic of China. Combined with the contents of the 100 emails involved and the confidentiality obligation and liability for breach of contract agreed by the two parties, as well as the subjective fault of the infringer, the nature, circumstances, consequences and other factors of the infringement, it is decided that Chen shall compensate Shenzhen Jingying Light Technology Co., Ltd. for economic losses and reasonable rights protection costs of 100,000 yuan.
Typical significance
In the new form of the digital economy, the Internet, cloud storage, big data and other technologies are widely used, and the behavior of stealing trade secrets is more diverse and hidden. This case makes a detailed discussion on whether the employee's forwarding of company emails constitutes an infringement of trade secrets, proposes the idea of identifying the act of "theft of trade secrets", applies the provisions of the Civil Code of the People's Republic of China on the principle of trade secrets and good faith, and introduces socialist core values to judge the legitimacy of the employee's behavior involved, reflecting the spirit of socialist rule of law. The judgment in this case has a guiding role in how enterprises and employees protect data and avoid infringement, and has a good demonstration significance.
06
Beijing Legal Information Technology Co., Ltd. v. Shenzhen Red Stone Decoration Engineering Co., Ltd. infringement of the right to information network communication of works
Abbreviature of adjudication
When there are infringing works on the website, the website operator may be preliminarily identified as the infringing works provider if there is no evidence to prove that the direct provider of the infringing works is the network user; The ICP record subject information of the domain name can be used as preliminary evidence to identify the operator of the website. If the ICP record subject is inconsistent with the domain name user and the website operator, the infringing subject shall be identified according to the actual situation of the domain name use and website operation at the time of the alleged infringement.
Brief of the case
The lawsuit alleges that without permission, the website of Star Cinema (www.redstonevilla.com) provides the online broadcasting of "Black Lawyer" and other movies to the public without permission. The ICP of this domain name is registered by Shenzhen Redstone Company, which constitutes infringement and shall bear the liability for infringement according to law. Shenzhen Redstone Company argued that the case had nothing to do with it and that the domain name involved was not used by Shenzhen Redstone Company.
On September 17, 2019, Shenzhen Redstone Company carried out ICP filing on the involved website. On March 4, 2021, the website of "Star Cinema" provided online playback of the film involved. The domain name manager Zhejiang Two-Two Network Co., Ltd. issued a "Reply Letter to assist in investigation and evidence collection" stating: On December 12, 2020, the domain name involved in the case expired and was released without payment, and the bid was won by ID1108969 through 110 yuan. On January 12, 2021, 0 yuan is pushed to ID76818. On February 28, 2021, ID424011 acquired the domain name. ID information is as follows: Account email: ×××@qq.com, name: Dong, ID number: 13×××939. On April 6, 2021, this ID successfully applied to transfer out the domain name.
Beijing law company will Shenzhen Redstone company to the court.
Court hearing
The court of first instance held that Shenzhen Redstone Company was the organizer of the registration of the domain name involved, and the evidence submitted by it was not enough to prove that the website involved was operated by others, so the non-infringement defense of Shenzhen Redstone Company was not adopted. The court of first instance made a judgment: 1. Shenzhen Redstone Company shall compensate Beijing Legal Company for economic losses and pay reasonable expenses of 20,000 yuan for rights protection within 10 days from the effective date of the judgment; 2. Reject other litigation claims of Beijing Legal Company. After the verdict, Shenzhen Redstone company refused to appeal. The second instance holds that for the evidence provided by the party who has the burden of proof, the people's court, after examining and combining the relevant facts, is convinced that the existence of the facts to be proved is highly probable, should determine the existence of the facts. According to the reply letter of Zhejiang Two Two Network Co., Ltd. and other evidence, it can be proved that the existence of the facts to be proved that the domain name redstonevilla.com was not controlled and managed by Shenzhen Redstone Company and was not the actual operator of the website involved at the time of the alleged infringement is highly probable. Accordingly, the court of second instance revoked the judgment of first instance and rejected all the claims of Beijing Legal Company.
Typical significance
In today's rapid development of the digital economy, how to promote the healthy development of new forms of business such as domain name trading, and prevent infringers from using the administrative supervision loopholes of domain name trading and ICP filing to carry out infringement for profit? The trial of this case has reference significance for how to identify the infringing subject through the rules of evidence, reasonably determine the legal responsibility of the new business entities, strengthen the judicial protection of intellectual property rights in new fields such as the Internet, and actively respond to the new demand for intellectual property protection caused by new business forms such as domain name trading.
07
Disputes over data service contracts between Beijing Zhuoyue Chuangda Network Technology Co., Ltd. and Baoneng Automobile Sales Co., LTD
Abbreviature of adjudication
1. Unless it can be directly or indirectly presumed that the object of the transaction is illegal data from the data content, way of providing and way of obtaining agreed in the contract, and the "illegal" is in violation of the mandatory provisions of validity, the data transaction contract is generally not deemed invalid due to the final delivery of illegal data.
2. For a valid data transaction contract, where a party delivers illegal data to request the other party to pay consideration, it shall not be supported; The other party shall know that the other party still accepts the delivery of illegal data, and it will not support the other party's other contractual rights on the grounds of illegal data at the litigation stage.
Brief of the case
The agreement between Zhuoyue Chuangda Company and Baoneng Automobile Marketing Company: Zhuoyue Chuangda Company helps Baoneng Automobile Marketing Company to obtain sales lead data in September 2020 through its own resources and attached auto show resources, and attached offline auto show services, with a total cost of 1.53 million yuan. Zhuoyuechuangda guarantees that the trail data provided by it and its sources shall comply with the provisions of laws and regulations and the agreement between ZhuoyueChuangda and the collector. Baoneng Automobile Marketing Company has the right to review ZhuoyueChuangda's data acquisition methods. If either party breaches the contract, it shall pay the non-breaching party a liquidated damages capped at 5% of the total contract amount. After the auto show service and data delivery obligations, the data content includes the natural person user's name, telephone number, intended model (basically other models provided by Baoneng Auto Marketing Company), etc. Baoneng Auto Marketing Company accepted and used the data, but did not pay any money. The "Group Car Privacy Policy" when the group car network collects network user information does not inform the network user will provide their personal information to others for payment. Zhuoyue Chuangda Company sued the court, requesting Baoneng Automobile Marketing Company to pay its contract payment of 1530,000 yuan and overdue payment of liquidated damages of 76,500 yuan.
Court hearing
The court of second instance held that the contract involved is the true intention of both parties, and the agreed data and its source should comply with the provisions of laws and regulations and the agreement with the collected party, do not violate the mandatory provisions of laws and administrative regulations, and are legal and effective. The data provided by Zhuoyue Chuangda recorded personal information. Without the consent of network users, Zhuoyue Chuangda provided unidentified personal information to others for payment, which violated the relevant provisions of the law on the processing of personal information, and violated the mandatory provisions of Article 111 of the Civil Code of the People's Republic of China on the illegal collection and trading of personal information. It is not a valid performance of contractual obligations, it is not entitled to claim payment of that part of the contractual consideration, and the court should not support it in profiting from illegal data processing. Baoneng Automobile Marketing Company should have known that the data delivered by Zhuoyue Chuangda Company was illegal but still recognized and accepted it, nor should it benefit from such misconduct, and its defense of the payment obligation of the legitimate auto show part on the basis of data illegality is insufficient. Therefore, Baoneng Automobile Marketing Company shall pay Zhuoyue Chuangda Company 732,300 yuan of contract payment for the auto show and 36,600 yuan of liquidated damages for overdue payment, and reject Zhuoyue Chuangda Company's other litigation claims.
Typical significance
Legal data transaction is of great significance to the release of data element value and the development of digital economy. The judgment in this case took into account the development and security of the digital economy, elaborated on the factors to consider the validity of data transaction contracts and the identification of contractual liability for illegal data delivery, gave useful guidance to the data industry on how to prevent the risk of illegal data transaction, and demonstrated the clear attitude of the people's Court to actively support legal data transaction and strictly crack down on illegal personal information processing.
08
New cornerstone (Shenzhen) Technology Co., Ltd. and Hu Mou, Shanghai Youhui Trading Co., Ltd. false propaganda dispute
Abbreviature of adjudication
Without permission, the perpetrator used misleading propaganda words such as "official authorization" and "in-depth cooperation with brand parties" in the online store of purchasing brand cosmetics operated by it. Even if the products sold were genuine brand products, its false propaganda behavior also violated the market fair competition order and the principle of honesty and credit advocated and maintained by the Anti-unfair Competition Law, and constituted unfair competition.
Brief of the case
The plaintiff is a distributor of "Tripollar" products sub-authorized by the exclusive distributor designated by POLLOGEN LTD. in China, and has the right to bring the case in its own name. The defendant Hu bought brand cosmetics in its Taobao store, using "official authorization" and "deep cooperation" and other propaganda words, causing brand agents to file unfair competition disputes on the grounds of false publicity. In this case, the defendant's online store submitted the authorization agreement previously concluded with the former agent of the brand, the notice of the brand inviting it to participate in the new product launch event, on-site photos, and the invoice and agreement of the product purchased from formal channels to make a disclaimer of defense. After verification in the trial of the case, the defendant did not enter into a written licensing agreement with the plaintiff or overseas rights parties, and the agreement with the former agent presented by it lacked foreign notarization certification procedures, but the defendant's sales products purchased by the plaintiff's notarization were genuine, and the activity notice and on-site photos submitted by the defendant were not false.
Court hearing
The court held that: first, in the case that the plaintiff has no evidence to prove that the defendant is selling fake goods, the publicity of the online shop "guaranteed genuine goods" does not constitute false publicity; Second, the source of genuine goods can not be reversed to draw the conclusion of "official designated authorization", the defendant has not reached a written agreement with overseas rights holders and agents in China (plaintiff), obtain the official authorization of the designated distributor qualification of relevant products, the use of "official designated authorization" online shop publicity, easy to cause consumers to misidentify the authorization relationship, constitute unfair competition; Third, the defendant's online store released the brand's commercial activities and photos, although not false, but combined with the "deep cooperation with xx brand over the years" text description, the relevant graphic content is misleading publicity behavior. To sum up, the defendant's practice of using misleading publicity in order to enhance the attention flow and product sales of his online shop to form a relative competitive advantage violates the fair competition order and the principle of honesty and credit advocated and maintained by the Anti-Unfair Competition Law, and constitutes unfair competition. The defendant was ordered to stop using misleading advertisements such as "official authorization" and "in-depth cooperation with brand parties"; Make a statement on the homepage of the Taobao store and its Tripollar product chain to eliminate the impact; Compensation for economic losses and reasonable rights protection costs 300,000 yuan. After the judgment of the case, the original defendant did not appeal, and the judgment of the case has taken effect and voluntarily fulfilled.
Typical significance
In this case, the products sold by the defendant's online store are genuine products, the brand's commercial activities and photos referred to in the publicity photos are not false, and the defendant has also entered into an agreement with the actual distribution channels of the brand's market. Whether this situation constitutes false publicity is the focus of the dispute between the two sides. The judgment of this case rests on the "misleading commercial publicity" stipulated in Article 8, paragraph 1, of the Anti-Unfair Competition Law. The common but ambiguous expressions in commercial publicity such as "official authorization", "in-depth cooperation" and graphic combination are interpreted as the signing of a written authorization agreement with the brand owner or its special licensor, the existence of real business cooperation projects or agreements. This case reaffirms the principle of good faith emphasized in the Anti-unfair Competition Law, maintains the order of market competition, and provides a reference for the determination of facts and the application of law in such cases in judicial practice.
09
A dispute between Li Mou and Shenzhen Tencent Computer System Co., Ltd. over trademark infringement
Abbreviature of adjudication
1. Whether the name of the public account is the same as that of the registered trademark constitutes trademark infringement shall be judged by whether the use of the name of the public account by the subject of the public account is likely to cause public confusion.
2. The public account naming uniqueness rule does not violate the mandatory provisions of laws and regulations, nor does it infringe on the legitimate rights and interests of third parties, and has a certain necessity and rationality, and is binding on relevant network users.
3. In the case that the plaintiff's evidence is insufficient to prove that the other person's registration of the wechat public account has constituted trademark infringement, the defendant fails to pass the examination of the plaintiff's infringement complaint according to the naming uniqueness rules of the public platform, which does not constitute trademark aid infringement.
Brief of the case
Plaintiff Li is No. 7848743“
(color specified) ", No. 6170749"
(color specified) ", 5798432"(designated color) "registered trademark owner, the approved use of the above trademark services are Class 35, Class 38 and Class 42. The plaintiff claims that it has made actual use of the above trademark through the establishment of the website "www.rztxw.net" and the opening of the Douyin account "People in a Foreign land". The plaintiff filed a lawsuit with the court on the grounds that the defendant's wechat public platform refused to apply for its "People in a foreign country" wechat public account, and refused to approve the plaintiff's infringement complaints against 31 public accounts with the words "people in a foreign country" on the platform, and provided platform services for the infringing public accounts, which constituted aiding the infringement and infringing its exclusive right to use registered trademarks. Request the court to order the defendant to stop the infringement, apologize, and compensate for the economic loss of 4.99 million yuan.
Court hearing
The court held that: first, the exclusive right to use a registered trademark shall be limited to the approved registered trademark and the approved use of goods, beyond the specific scope of protection of the registered trademark, the trademark right holder has no right to prohibit others from reasonable use. In particular, the term "people in a foreign land" itself belongs to the common vocabulary in the public domain, unless others malicious attachment, otherwise the trademark owner has no right to prohibit others from using the word properly; Second, to determine whether it constitutes trademark infringement, it should be based on whether the use of "people in a foreign land" or similar words by the public number involved is a trademark use, which is easy to lead to public confusion. After a comprehensive judgment, the court held that the plaintiff's evidence was not enough to prove that the 31 wechat public accounts involved in the case had constituted trademark infringement, and the defendant did not pass the examination of the plaintiff's infringement complaint according to the naming uniqueness rule of the public platform, subjectively there was no fault, and the plaintiff claimed that the defendant constituted trademark infringement assistance, which had no factual and legal basis.
In summary, the court of first instance ruled that all the claims of plaintiff Li Mou were rejected. After the judgment was made, the parties served the judgment and the judgment became effective.
Typical significance
With the development of "Internet +" economy, the commercial value of platform account names has become increasingly evident. In order to maintain the good order of Internet platforms, major platforms have adopted the unique rules of account naming. The conflict between the uniqueness of the public account subject and the diversification of the trademark subject naturally exists and becomes increasingly prominent. How to solve the contradiction between the two is one of the new problems facing the judiciary. The judgment of this case analyzes the scope of protection of registered trademarks, the identification of trademark infringement, and the identification of infringement liability of network service providers at various levels, and reasonably determines the scope of rights of trademark right holders, taking into account the interests of right holders, network service providers and the public.
10
Shanghai Hantao Information Consulting Co., Ltd. v. Wu Mou trademark infringement and unfair competition dispute
Abbreviature of adjudication
The use of "brush praise and speculation" and other data falsification methods to help merchants on online platforms quickly improve their rankings and stars leads to a large number of false data on the platform, which affects the platform credit system, damages the trust relationship between consumers and the platform, damages the platform's goodwill and the legitimate rights and interests of consumers and other merchants operating in good faith, and violates the principles of fairness, honesty and credit and business ethics. Acts of unfair competition constituting false propaganda.
Brief of the case
The plaintiff Hantao Company enjoys No. 5135459 "Dianping" and No. 11716586 according to law“
”The exclusive right to use registered trademarks. Dianping is a local life information and trading platform that provides users with information services such as merchant information, consumer reviews and consumer promotions. The review rules of the platform require users to ensure the authenticity, objectivity and legitimacy of the information when publishing information, and resolutely crack down on behaviors such as speculation and evaluation that undermine the credit evaluation system. Shiweixian is a new media agent operating company, which provides services for merchants to improve store star rating, collection volume, reservation volume and other services on the Dianping website operated by the plaintiff. It helps customers, that is, operators of the Dianping platform, to quickly improve their ratings and star ratings by means of fake transactions and fake praise, so as to obtain platform traffic. The nature of the company is a natural person sole proprietorship company, the shareholder is Wu, cancelled on May 7, 2022. Hantao company sued the court, requesting Wu to compensate its economic losses of 2 million yuan, reasonable expenses of 27,880 yuan, and published a statement to eliminate the impact.
Court hearing
After hearing, the court held that the one-person company operated by the defendant, Shiweixian Company (which has been cancelled), used "praise and speculation" and other methods to help merchants carry out commercial publicity on the network service platform, rapidly improve the ranking and star rating of operators on the network service platform, violated the evaluation rules of the platform, affected the platform credit system, and had an adverse impact on the normal development of the platform business model. Acts of unfair competition constituting false propaganda. Such false commercial publicity not only causes consumers to have bad consumption experience, but also raises doubts about the authenticity of the platform data of Hantao Company, thus damaging consumers' trust in the platform of "Dianping" and Hantao Company's business reputation. Therefore, taking into account the high popularity of the "public store" platform and the trademarks involved, the subjective malice of the company's behavior of annexing the company's trademarks and false praise, and the large scale of its infringement, the defendant Wu Mou was judged to compensate the plaintiff Hantao Company for economic losses of 200,000 yuan and reasonable rights protection costs of 27,880 yuan. After the case was pronounced, neither side appealed, and the judgment has now taken effect.
Typical significance
With the development of the digital economy, "traffic" has increasingly the ability to "monetize", which can help businesses create wealth. The review data on the network service platform can bring "traffic", and the "cash" ability of "traffic" has also spawned a systematic brush, brush praise and other cheating ways to help merchants quickly grab traffic generation operation industry chain. This case actively responds to practical needs, resolutely stops the data fraud of "brushing praise and speculation", cracks down on bad merchants who seek profits through data fraud, so as to maintain the fair and free business order of the network service platform, urges network operators to operate in a fair, honest and law-abiding manner, guarantees the authenticity of consumers' access to information, and promotes the fair competition and orderly development of the network economy. Source: Shenzhen People's Court Contributed by: Shenzhen Intellectual Property Court Photo: Web Editor: Huang Chencheng, Ma Limin
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