Squatting the Crown Store trademark "retaliation" complaint has encountered court injunction more than 150 times
"Reverse Behavior Protection" helps merchants fight malicious complaints
□ Reporter Zhang Wei
Malicious complaints in the name of the protection of intellectual property rights and the seizure of illegitimate interests are common tactics used by many malicious complainants.
Recently, the People's Court of Yuhang District, Hangzhou City, Zhejiang Province made an injunction of “prohibiting complaints and taking effect immediately” on the day it received the relevant application. This special ban is known as "reverse conduct preservation" in the industry, and it has received widespread attention because it is different from the usual conduct preservation.
The judge who handled the case in the Yuhang District Court told the "Legal System Daily" reporter that malicious complaints have seriously damaged the competitive ecosystem of the e-commerce market. In addition to active complaints, merchants can also use reverse behavior preservation to seek judicial relief and turn passive waiting into initiative. Strike out and safeguard your legitimate rights and interests.
My logo was squatted
Frequent losses caused by complaints
"I have been selling clothes with this logo for more than two years. I didn't expect people to be squatting for trademarks. I have also been complained so many times." In the interview, Xiao He said angrily, "My own logo was actually The trademarks of others are really incredible!"
Xiao He is a Taobao shop owner. After 4 years of painstaking management, she has won a crown-level credit. The store's praise rate is as high as 99.59%. In order to make his products more recognizable, starting from September 2017, Xiao He began to use a large number of "KELIFAN" logos on clothes in his store, and the store name was also linked to the "KELIFAN" logo.
In the marketing activities held by Taobao officials in recent years, Xiao He’s online stores all participated in product promotion under the name “KELIFAN”, with sales exceeding tens of millions of yuan. The influence of the “KELIFAN” logo can be seen.
Shortly after resuming work this year, Xiao He's shop encountered frequent complaints from Qiu (up to 10 times) in early April. In the communication process, Qiu proposed that Xiao He buy the "KELIFAN" trademark at a price of 200,000 yuan, and "it will naturally withdraw all litigation after negotiation". At first, Xiao He didn't want to spend a lot of time, energy, and financial resources to deal with Qiu's complaint, he decided to spend money to buy "one hundred", but hope that the price will be loosened. In the end, the two did not negotiate.
Since then, Xiao He Store has received Qiu's "retaliation" complaint, this time the complaint has been linked to more than 140.
"My shop has just returned to work and has invested a lot of manpower and material resources to create new clothing products. Now because of the malicious complaints of the other party, not only are they facing huge risks such as the deletion of hot-selling merchandise links, reduced store traffic, and falling sales, but they are also unable to participate in Taobao. The platform's upcoming Tmall 618 and other promotional activities." For this, Xiao He was in a hurry.
On April 21, she applied to Yuhang District Court for pre-litigation behavior preservation, and requested that Qiu immediately stop malicious complaints against her shop.
After accepting the case in Yuhang District Court, after checking the official website of the State Intellectual Property Office, it was found that from July 2019 to September 2019, Qiu had applied for 38 trademarks, most of which were sold on Taobao online for clothing products. The store names are the same or similar, and these stores are all crown-level.
The court held that Qiu had pre-registered trademarks of others with certain influence, infringed on others’ legitimate rights and interests through malicious complaints, and attempted to obtain illegitimate benefits by means of “trademark transfer”.
"It is now a period of full-scale resumption of production. For many e-commerce merchants and enterprises, if they cannot stop the loss in time, it will undoubtedly worsen the situation." After review, the Yuhang District Court found that failure to take action preservation measures will make the applicant The legitimate rights and interests of the company have been irreparably damaged, and this kind of damage far exceeds the damage caused to the respondent Qiu by taking action preservation measures.
So, on the day when the application was received, the Yuhang District Court quickly made a ruling: Qiu immediately stopped complaints against Xiaohe's shops and commodities, and the ruling took effect immediately. The period of preservation shall be up to the date when the dispute judgment of both parties becomes effective.
On June 10, the reporter learned from the Yuhang District Court that Xiao He had appealed to the court on the grounds of Qiu’s unfair competition, and asked Qiu to stop the malicious complaint immediately, and published a public apology apology statement, compensation for economic losses, etc. 500,000 yuan. The case will be heard in court soon.
Strictly regulate malicious complaints
Create a benign business environment
In recent years, with the development of e-commerce, malicious complaints around intellectual property rights have occurred frequently. Malicious rights holders have continually refurbished means of making false statements, forging vouchers, and maliciously registering trademarks for illegal gains. These people are also known as " Intellectual hooligan."
"Malicious complaints are worrying, and if they are not regulated, they will intensify." In early April, the head of the Intellectual Property Court of the Zhejiang High Court stated publicly that malicious complaints involving e-commerce not only seriously disrupted the operations of others, but also disrupted the normality of the platform. The business order is also a great waste of judicial resources, and the punishment should be increased to continuously improve the judicial credibility of intellectual property trials.
On April 21st, the Supreme People's Court issued the "Opinions on Comprehensively Strengthening the Judicial Protection of Intellectual Property Rights", emphasizing the need to waive the responsibility of notifying the bona fide submitter in error, and supervising and guiding the e-commerce platform to actively fulfill its legal obligations and promote e-commerce For the healthy development of the company, the legal responsibility of those who abuse their rights and malicious complaints must be investigated.
"Without effective regulation, malicious complaints will likely have a serious impact on the business ecology of the e-commerce platform, and the People's Court is very concerned about it." Hu Shihao, President of the Third People's Court of the Supreme People's Court, said.
The judge of the Yuhang District Court told the "Legal Daily" reporter that in the face of the increasing malicious complaints in the e-commerce environment, in addition to actively complaining to the platform, merchants can also use the method of reverse behavior preservation to seek judicial remedies and turn passive waiting into proactive attack in a timely manner. Stop loss and protect your legal rights.
In the interview, Liu Xiaochun, the executive director of the Internet Law Research Center of the University of Chinese Academy of Social Sciences, believed that the reason for the large number of malicious complaints in e-commerce complaints is that the cost and benefit of the complaint are very different: if the complaint is successful, there will be a lot of There is no loss if the complaint is unsuccessful. For merchants, lack of effective countermeasures, the channels for defending rights after being complained are very limited.
"Reverse behavior preservation actually adds a tool and mechanism for businesses to fight against malicious complaints. In addition to being able to submit counter-notifications on the e-commerce platform to prove non-infringement, merchants can also apply for behavior preservation through the courts. It is a relatively quick mechanism for the party to prohibit conduct." Liu Xiaochun said that on the one hand, reverse behavior preservation can solve specific problems, and on the other hand, it will also cause a certain deterrent to malicious complainants.
Liu Xiaochun believes that in the long run, reverse behavior preservation can effectively curb malicious complaints. It is also very important for forming a virtuous business environment and a healthier intellectual property protection atmosphere and order in the e-commerce field.
Institutional innovation responds to demand
Effectively block malicious complaints
The preservation of the reverse actions taken by the court is considered by the industry experts as a valuable institutional innovation.
Liu Xiaochun believes: "Give the operator a defense against malicious complaints through the Anti-Unfair Competition Law or the E-commerce Law, and give the operator a basis for the right to claim, which is itself the institutional innovation of the court." The basis of this institutional innovation Above, a quick relief method is given, "in fact, the court is responding to the demand for institutional innovation in the Internet era."
Yao Zhiwei, Executive Director of the Research Center for Smart Rule of Law at Guangdong University of Finance and Economics, pointed out that reverse behavior preservation is an institutional innovation in the field of handling e-commerce intellectual property disputes. The court uses the reverse behavior preservation mechanism to urgently respond to malicious or wrongly complained platform merchants. Restoring links or blocking malicious complaints will effectively protect the interests of operators and platform operators within the platform, and maintain the basic order of intellectual property rights on the platform. Under the existing system framework, in the case that the counter notification mechanism cannot provide relief in time, the preservation of reverse behavior becomes a key and important judicial relief mechanism.
Since it is an innovation, it means that there is still room for improvement. Liu Xiaochun analyzed that some problems still need to be resolved in detail, such as how to prove that the other party is a malicious complaint in the proof. "For applicants, there may not be such a strong ability to provide evidence, and the platform needs to provide some support. Under what circumstances is the platform obligated to provide support? To what extent should the applicant prove? How does the court measure whether there is an emergency? These need to be further refined and refined."
Regarding how to curb "intellectual gangsters", Liu Xiaochun believes that although the e-commerce law and anti-unfair competition laws already have relevant provisions, the overall governance and crackdown on "intellectual gangsters" are still insufficient. For those who abuse their rights or commit unfair competition, they should establish a more detailed and operational accountability mechanism and increase their punishment. For example, the provisions on multiple compensation in the E-commerce Law can consider the business losses of operators on the e-commerce platform as the scope of damage compensation, so as to effectively deter extortionists and "intellectual rogues".
Liu Xiaochun suggested that further definition of abuse of rights requires accountability. "For example, in the revision of the copyright law that just closed for comments, we submitted an opinion, hoping to include the extortion of intellectual property rights involving e-commerce platforms as a specific situation in the copyright abuse clause."
At the same time, it is also possible to combine judicial practice and platform governance to form a pluralistic co-governance. For example, in the setting of platform rules, set up a blacklist system for malicious complainants, and implement cross-platform sharing; establish relevant models for identifying malicious complainants, and for those with bad complaint records, require a certain deposit.