In the past few days, many shopping platforms have been suspected of selling infringing and counterfeit goods, which has sparked heated discussion in the society. The counterfeit and fake industry chain is facing more questions from the Chinese.
With the rigorous statement issued by Skyworth Group (00751.HK)'s RGB Electronics Company, after the first shot of the rights defense, Konka Group (000016.SZ) also joined the 'consciousness' camp. This is only one of the home appliance companies in the process of trademark protection. Fragments. For a long time, 'cottage' home appliances have emerged one after another, which is already one of the strange phenomena in the industry, and some well-known trademarks are the hardest hit areas.
Due to the difficulty in demonstrating trademark rights, high cost, and low compensation, it is difficult for home appliance companies to defend their rights. The lawyers interviewed pointed out that because China's market integrity system has yet to be improved, trademark infringers often make repeated infringements, and rights holders often Unbearable.
E-commerce worry of home appliance companies
On July 28th, Skyworth Group issued a solemn statement, saying that there were a large number of counterfeit Skyworth brand TV products sold in the e-commerce platform recently. At the same time, it also posted a number of counterfeit Skyworth brands, including Skyworth Pioneer, Skyworth Cloud View. , Skyworth, Skyworth, Skyworth Cool, Skyworth Cloud, Skyworth e home and so on.
Subsequently, many aspects of the fight publicly expressed that there was cooperation with Skyworth before, but later Skyworth had no reason to remove the goods.
In this regard, Tao Shuanghua, director of the brand marketing department of the Global E-commerce Center of Skyworth Group's color TV business division, said, 'Before Skyworth had a lot of official contact with the fight, and later, in addition to the official authorization, some 'cottage' products appeared. Currently, we have requested Fighting to remove all counterfeit Skyworth TV products and stop all the display and sales activities of counterfeit Skyworth TV products.
In addition to the Skyworth brand, there are many more Konka products on the market. The reporter found that the website of the Trademark Office of the State Administration for Industry and Commerce found that there is a trademark called “Kangjia Vision” on the platform, which is actually by Guangzhou Nobel Electronic Technology. Limited company, the company was registered on April 10, 2017. At present, its 3C certification is in the 'suspended' state, because the manufacturer failed to accept supervision and inspection within the prescribed time limit.
According to a person in charge of Konka Group, there are many online shop sales of Konka New, KONKIA Konka Little Prince, KONGIKA Konka Smart and other counterfeit infringing products. At present, the company is already in the data collection stage, and will be in the back. Proper timing to consider prosecution.
'Consumers buy these products on a multi-platform platform, and they don't pursue brand and quality. If consumers don't value brands, they won't buy these 'imitation brand' products. It's just that consumers lack the ability to distinguish. 'This The person in charge of Konka said.
Tao Wei Group Tao Shuanghua also mentioned that the current 'cottage' products on the market, on the one hand, through the appointment of the legal team to negotiate, on the other hand, through the Skyworth Group dealers and consumers to report the sale of fake. The brand's ability to distinguish between true and false is limited. Consumers often find that they are buying 'cottage' products after purchasing home appliances, which infringes on consumers' rights.
In response, the regulatory authorities responded quickly. On August 1, the General Office of the General Administration of Market Supervision issued a notice stating that it would increase the intensity of crackdowns on the production and sale of counterfeit and shoddy goods. The General Administration of Market Supervision said it would implement a full-chain strike that would include ' The production and sale of counterfeit and shoddy goods, trademark infringement, related false propaganda and illegal advertisements, etc., are listed as key targets. In addition, the role of social supervision should be exerted, the main responsibility of the operation should be implemented, and departmental supervision and cooperation should be strengthened.
Multi-sniper slamming 'cottage'
'Mountain cottage' home appliances not only breed online e-commerce platform, the offline sales service platform is also the same as 'Li Gui' group.
The reporter found that the US group (000333.SZ) had involved many civil cases, administrative cases, and even criminal cases involving trademark disputes. According to incomplete statistics, only in 2017, Midea Group initiated the public information of the referee paper. 13 trademark infringement lawsuits. In these lawsuits, the appliance repair service center used the 'beautiful' trademark without authorization, which is repeated.
A lawyer who has been engaged in intellectual property research for many years told reporters that Article 57 of the revised Trademark Law of the People's Republic of China in 2013 stipulated seven kinds of violations of the exclusive right to use registered trademarks. Among them, without the authorization of the trademark registrant, use The approximation of the word as a trademark for publicity, which leads to confusion and misunderstanding of the relevant public, is a common trademark infringement.
When the exclusive right to use a trademark is violated, the parties may defend their rights by negotiating, industrial and commercial complaints, reports or court proceedings. However, they need to investigate and collect evidence, or they need to apply for a notary office to carry out evidence preservation or even apply to the court for pre-litigation evidence preservation. In the real situation, trademark rights protection often has problems such as difficulty in proof, high cost, and low compensation. 'The lawyer mentioned above said.
However, for some old-fashioned home appliance companies with well-known trademarks, '傍名牌' is always prohibited.
In 2017, Konka Group and the local industrial and commercial departments, the public security department implemented six anti-counterfeiting rights protection actions. However, after many anti-counterfeiting, 'Lei Tong' merchants began to apply for registered trademarks. The reporter found the website of the Trademark Office of the State Administration for Industry and Commerce found that a city called Guangzhou The LCD TV manufacturer of Kang Home Appliance Technology Co., Ltd. (hereinafter referred to as 'Guangzhou Kangjia') applied for the registered trademark 'KQAIKA' in July 2017, and is currently in the registration stage of the 'Waiting for Notice of Acceptance Letter'.
The relevant person in charge of Konka Group said that the trademark registered by Guangzhou Kangjia is very similar to the trademark of Konka Group's 'KONKA'. Although the company complained to the industrial and commercial department, but the other party has a trademark registration certificate, the company can only take action. Way to solve.
It is understood that because the name of the enterprise is limited to the industry, and the exclusive right to use the trademark is to limit the category of the goods or services, which also leads to the conflict between the name of the enterprise and the exclusive right of the trademark, resulting in the 'cross-border brand name' Hitchhiking' behavior.
It is worth noting that in an administrative case decided on September 20, 2017, the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (hereinafter referred to as the 'Trademark Review Board') will conduct a 'trademark free rider' at the trademark registration stage. Cut the Hu.
Huang, who lives in Fuzhou, Fujian Province, applied to the Trademark Review and Adjudication Board for registration of the 'Miediea' trademark in 2011 for power supply materials, electrical switches, plugs, etc. The Trademark Review and Adjudication Board ruled that Huang applied for a trademark invalid. Huang refused to accept The ruling decided to bring the Trademark Review and Adjudication Board to court.
After the investigation, the court found that the trademark "Miediea" and the US group's registered trademark 'Midea' have high similarities in composition, pronunciation, visual effect and overall appearance, and are used on the same or similar products. It is easy for the relevant public to confuse and misunderstand the source of the goods. Therefore, it is judged that the 'Trademark Review Board ruled that the evidence is conclusive, the applicable law, the regulations are correct, and the procedure is legal. Huang’s claim lacks facts or legal basis and does not support it.
According to a brand director of a home appliance company, the industry is now more through some monitoring and prevention measures to avoid trademark infringement disputes. 'The website of the Trademark Office of the State Administration for Industry and Commerce will publish the latest trademark application information, our company will pay attention to this information in time, once found and Our company is similar to the trademark being registered, we will raise an objection to the Trademark Office, in order to intercept the emergence of the 'cottage' trademark from the source.
What is the responsibility of the e-commerce platform?
In fact, when home appliance companies quickly spread sales channels on e-commerce platforms, trademark disputes occurred from time to time.
Vantage Co., Ltd. (hereinafter referred to as 'Hua Di Company', 002035.SZ) and Taobao Company have repeatedly met each other. Vantage has four times infringed trademark rights, and Taobao and Taobao platform owners have appealed to the court.
For example, since the end of 2013, Vantage has discovered that there are a number of products labeled 'Vatti' 'Vatican' 'Vatti Vantage', which are sold on Taobao without authorization. To this end, Vantage will be in 2016. Taobao's operation and management party, Zhejiang Taobao Network Co., Ltd., and Taobao's seller Zhang, also went to court.
At that time, Taobao said in the plea, 'Because the platform has a large number of operators and goods, service information, and user data changes in real time, the platform has no ability and obligation to the business activities of each operator and the quality of the goods on the shelves. The rights are reviewed. Taobao has fulfilled its duty of care beforehand. In the service agreement signed by the user, it is explicitly required that it not publish information on goods and services that infringe on the legitimate rights and interests of others. At the same time, after the lawsuit is filed by Tao, the Taobao company performs its duties as a network service. The obligation of the person to investigate the allegedly infringing information and confirm that the link has been broken.
The Hangzhou Intermediate People's Court of Zhejiang Province issued a second-instance judgment on the case on December 26, 2016. The court held that the company had accused Taobao of claiming that it violated the exclusive right to use its registered trademark. The evidence was insufficient and could not be established. A certain behavior does not constitute an infringement, so the claim of Huadi Company about Taobao's formation of assistance infringement cannot be established.
At the same time, the court also found that, as the registered trademark owner of Vantage, once the goods using the registered trademark were legally placed on the market, their trademark rights were exhausted and they could not intervene in the further circulation of the goods. Reasonable interest.
In the past few days, with the continuous fermentation of the storm of “cottage”, the “infringement of the business on the e-commerce platform, the responsibility of the platform” has caused social doubts. Zhu Jieqiong, a lawyer from Beijing Zhanyi Law Firm, told the reporter that the e-commerce platform needs to bear limited resources. Review obligation.
'Speaking is limited because the e-commerce platform is unlikely to review all the content. But the e-commerce platform can still take some measures, and can't turn a blind eye to the obvious violations. Currently the domestic pass is the 'notification-delete rule', that is, the right holder After discovering the infringing activities on the platform, you can notify the platform (complaint) and ask the platform to delete. If the platform is deleted, it will not be responsible. 'Zhu Jieqiong said.
It is reported that the 2010 Tort Liability Law of the People's Republic of China (hereinafter referred to as the Tort Liability Law) is implemented. Article 36 of the Tort Liability Law stipulates that 'when a network user uses a network service to commit an infringing act, the infringee has the right to notify The network service provider takes necessary measures such as deleting, blocking, and disconnecting the link. If the network service provider fails to take necessary measures in time after receiving the notice, the expanded part of the damage shall be jointly and severally liable to the network user.
At the same time, Zhu Jieqiong further pointed out that since China's market credit system has yet to be perfected, trademark infringers often make repeated infringements, and rights holders are often uncomfortable. 'Whether the e-commerce platform should assume more obligations and responsibilities, it has always been knowledge. Important issues discussed by the property rights industry'.