Several court rulings support the anti-counterfeiting of e-commerce platforms to confirm the effectiveness of platform rules
Penalties for liquidated damages should be protected
● E-commerce platforms participating in anti-counterfeiting can effectively purify the online trading environment, protect consumers’ legitimate rights and interests, and maintain their own commercial reputation. The big data and technical advantages they possess can provide useful help for government regulatory authorities in law enforcement
● The platform is based on management responsibilities, in order to maintain the business reputation of the platform, online shopping environment and security, protect the interests of lawful business operators and the legitimate rights and interests of consumers, and establish penalties for liquidated damages on an equal basis with the business operators stationed on the platform Should be reasonably protected
● E-commerce companies must not only adapt to the general trend of personalized and diversified consumption, increase the types and quantities of goods and services, but also work hard on product quality, details and intellectual property to form high-quality goods and services. supply
□ Reporter Zhang Wei
Recently, several effective legal documents released show that the operators on the e-commerce platform have been deducted, demoted, and closed stores due to the suspected sale of counterfeit goods. Gold or genuine guarantee, etc., the operator will appeal the platform to the court for this.
At present, e-commerce platforms are increasingly becoming an important force in counterfeiting. However, whether the e-commerce platform has the right to fight counterfeiting and whether related measures are suspected of abusing its dominant position and other disputes have also become a topic of concern with the release of relevant judgments.
In an interview with a reporter from Legal Daily, many experts affirmed the proactive anti-counterfeiting behavior of e-commerce platforms in recent years, and believed that the participation of e-commerce platforms in anti-counterfeiting can effectively purify the online trading environment, protect the legitimate rights and interests of consumers, and maintain their commercial reputation. The big data and technical advantages possessed can provide useful help for government regulatory authorities in law enforcement.
Sampling to find problematic products
The platform is severely punished according to the rules
Recently, the Shanghai No. 1 Intermediate People's Court made a final judgment in the case of a network service contract dispute between a company in Jingdezhen v. Shanghai Xunmeng Information Technology Co., Ltd. (Pin Duoduo operating entity, hereinafter referred to as Xunmeng Company), and held that a company in Jingdezhen had sold fakes. It constitutes a breach of contract, and Xunmeng has taken contractual measures to limit the stores it opens, deduct payments and pay consumers.
Among the series of iron-fighting anti-counterfeiting systems of Dream Hunting Company, there is a spot-checking system that frightens counterfeit merchants: the company has established a platform management team of more than 1,000 people to conduct 24-hour non-stop inspections of merchants and products on the platform. At the same time, establish a cooperative relationship with nearly a thousand brand parties, and the suspicious products discovered by the monitoring will be submitted to the brand party for identification through the platform for random inspection and submission.
A store in a company in Jingdezhen was confirmed to be selling fakes during the platform's active sampling process. The fake involved was the AHC whitening skin care set sold in the store under its name (hereinafter referred to as the product in question).
It is understood that in order to strengthen the governance of platform merchants and commodities, Pinduoduo strengthens “in-the-middle” management on the basis of “ex-ante” review: Relying on big data analysis, establishing infringement behavior patterns, identifying illegal stores and tracking related stores; R&D false The goods identification algorithm screens the goods in the platform; once suspicious goods are found, the platform will start key monitoring and spot checks on the goods.
In the above-mentioned case, Xunmeng Company sent the goods involved to the appraisal company for identification. Subsequently, the company issued an identification certificate to Xunmeng Company. The result of the identification was that the above-mentioned goods were not products produced by the right owner or an enterprise authorized by the right owner.
According to the management process of Xunmeng Company and its contract with a company in Jingdezhen, Xunmeng Company will notify a company in Jingdezhen that it has discovered the behavior of selling fakes in the random inspection, and inform it that it can appeal if there is any objection, and the time and way of appeal If there is no appeal within the time limit or no effective appeal materials are submitted, Xunmeng will take corresponding measures according to the platform rules.
Subsequently, Xunmeng Company took relevant restrictive measures against the 6 stores involved in a certain company in Jingdezhen, deducting a total of 112416.51 yuan for the goods, and reimbursing the aforementioned deductions in the form of cash coupons to the consumers corresponding to the order. To this end, a company in Jingdezhen sued the dream-seeking company to court, demanding the return of 112,416.51 yuan of its goods and paying interest losses, while lifting its restrictions.
The court confirmed the validity of the rule
Encourage platforms to participate in anti-counterfeiting
It is worth noting that Pinduoduo is not the only e-commerce platform that has been sued to court for punitive measures against counterfeiters. Recently, similar judgments on e-commerce platforms such as JD.com have appeared on the court trial information network.
A reporter from the Legal Daily found that these disputes have occurred more frequently in the past two years. Some have been exposed to the public due to litigation and other public forms, some have been resolved through arbitration that emphasizes confidentiality, and more have resorted to regulatory authorities. Appeared as a complaint against the platform.
Most of these merchants’ doubts about the platform’s punishment measures are concentrated on several aspects: whether the format contract signed between the platform and the operator is valid, whether it is suspected of abusing its dominant position, and whether the consumer compensation or liquidated damages are agreed up to 10 times Lack of legal basis. The deep-seated question behind it is whether the e-commerce platform has the right to fight counterfeit against its operators, what is the authority?
Taking the case of Xunmeng Company as an example, the basis for making the above behavior is the agreement signed by both parties when the merchant entered the Pinduoduo platform.
A reporter from the Legal Daily found that when the merchant first applied to settle on Pinduoduo platform, he had to sign an agreement. Merchants must not only fulfill the obligations of uploading relevant qualifications and paying security deposits, but also have to make genuine promises in accordance with the requirements of the agreement. The sale of counterfeit and shoddy goods is classified as "seriously problematic products" in the above agreement, and the handling of "seriously problematic products" is extremely severe. For example, the platform can immediately remove the relevant goods, and notify the merchant to provide relevant evidence, including but not limited to the merchandise sales license, purchase certificate, authorized sales certificate, merchandise import certificate, etc., the merchant should submit immediately.
If the merchant fails to provide valid proof documents in time, the platform has the right to take one or more of the following measures: immediately cancel this agreement; limit the withdrawal of merchant store funds (including but not limited to store deposit, activity deposit and payment); require the merchant to pay through Ten times the historical total sales of "seriously problematic products" sold by Pinduoduo (subject to the product ID) are used as consumer compensation to pay consumers, and Party A has the right to use consumer store funds to deduct consumer compensation to pay consumers ; Deduct the deposit paid by the merchant; other violation handling measures prescribed by the platform rules.
The validity of this contract was recognized in the first and second instance of the Shanghai courts. The court of first instance held that "the agreement is the true meaning of both parties, and it does not violate the mandatory provisions of the law and administrative regulations, it should be legal and effective, and both parties should perform their obligations according to the contract."
Regarding the various measures taken by the platform, the court of first instance held that compliance with the contract between the two parties was also conducive to safeguarding the legitimate rights and interests of consumers, and rejected all litigation requests from a company in Jingdezhen as the plaintiff.
The court of second instance confirmed again that both parties should be bound by the platform agreement and rules. "The judgment of the original trial was not inappropriate, and this court upheld it."
In another recently issued similar judgment, a Beijing court clearly stated that it should encourage and support anti-counterfeiting of e-commerce platforms. Its anti-counterfeiting behavior is within the scope of platform autonomy and protects the reasonable high penalty for breach of contract claims. The platform is based on management responsibilities, in order to maintain the platform’s business reputation, online shopping environment and security, and protect the interests of legally operating businesses and the legitimate rights and interests of consumers, and the merchants stationed on the platform to determine penalty liquidated damages on an equal basis. It should be reasonably protected.
Improve quality and maintain goodwill
Anti-counterfeiting trend
Why are e-commerce platforms sparing no effort to fight counterfeiting?
According to Qiu Baochang, chairman of the Beijing Law Society's E-Commerce Rule of Law Research Association, there are both internal factors and external pressures on the counterfeiting of e-commerce platforms. From the perspective of internal factors, the e-commerce platform at the beginning of development hopes that "the more quantity, the better", but when the platform is developed, there will be a elimination mechanism. Although fakes are easy to win at low prices, they will inevitably infringe on the rights and interests of consumers and intellectual property rights holders, which is not conducive to the long-term development of the platform itself.
From the perspective of external pressure, Article 38 of the E-Commerce Law clarifies the qualification review and security assurance obligations of e-commerce platforms. The article stipulates that if the operator of the e-commerce platform knows or should know that the goods or services provided by the operators on the platform do not meet the requirements for the protection of personal and property safety, or other acts that infringe on the legitimate rights and interests of consumers, without taking necessary measures, Jointly bear the joint responsibility with the operators of the platform according to law. For goods or services related to consumers’ health, if the e-commerce platform operator fails to fulfill the review obligations of the qualifications of the operators in the platform, or fails to fulfill the safety guarantee obligations to consumers, causing consumer damage, it shall bear the corresponding Responsibility.
"Sellers' counterfeiting will also affect the reputation of the platform. It is not easy to establish a reputation. Once it is down, it is not easy to regain consumer recognition and it is more expensive, so the platform is motivated to fight counterfeiting." Beijing Zhilin Law Firm Lawyer Zhao Zouzhan believes that anti-counterfeiting is directly related to the development foundation of the platform.
Chen Yinjiang, deputy secretary-general of the China Consumer Rights Protection Law Research Association, believes that the e-commerce platform has shown an active anti-counterfeiting attitude, on the one hand, it shows that the e-commerce platform's legal awareness and responsibility awareness are gradually improving, and the awareness of product quality and intellectual property protection is obvious Enhancement, on the other hand, also shows that China's e-commerce has taken active steps in high-quality development, which is a comprehensive improvement process. "E-commerce companies must not only follow the general trend of personalized and diversified consumption, increase the types and quantities of goods and services, but also work hard on product quality, details and intellectual property to form a high-quality supply of goods and services. ."
Urgent need to strengthen platform autonomy
Purify the online trading environment
Chen Yinjiang believes that anti-counterfeiting of platforms belongs to autonomous management. The main purpose is to formulate platform service agreements and transaction rules in accordance with the relevant provisions of the Contract Law. As long as the principles of fairness, honesty and credit are followed, both parties should abide by them. If a party violates the provisions of the contract, it should bear the responsibility for breach of contract. "Objectively speaking, if a merchant sells counterfeit goods on the platform, the platform must not only bear the statutory liability, but also bear the reputational loss caused by it. According to the contract law, one party breaching the contract causes losses to the other party and should be liable for damages according to law."
Chen Yinjiang said that the format contract is also a commonly used form of contract, and not all format contracts are invalid. As long as the platform follows the principle of fairness when providing the format contract, reasonably determine the rights and obligations of both parties, and take an effective method to draw the merchant's attention to the terms and conditions of the exemption or limitation of its liability before signing the contract, the format signed by both parties with full knowledge Contracts should be observed together. Of course, the platform can't use its strong position to impose unfair and unreasonable regulations on merchants, especially it can't require merchants to enter into contracts through fraudulent and coercive means.
Qiu Baochang also believes that the e-commerce platform has the right to standardize the operator's behavior through platform agreements and transaction rules to prevent and stop the sale of fakes. Of course, litigation can also be used to resolve related disputes.
Zhao Zhanzhu pointed out that the relationship between e-commerce platforms and platform operators is a contractual relationship. "At the beginning of the merchant's entry into the platform, a contract relationship was established with the platform by signing an agreement online or offline. Since the contract stipulates that the merchant is prohibited from selling fakes, the merchant shall bear the corresponding liability for breach of contract." According to the provisions of the contract law, the penalty for breach of contract cannot exceed 130%, the breaching party can request an adjustment, but in fact the losses caused by the sale of fakes to the platform, especially the loss of goodwill, are difficult to quantify.
"The anti-counterfeiting of e-commerce platforms is duty-bound. In the process of anti-counterfeiting, it mainly plays the role of coordination, verification, and management. It cannot exceed the legal provisions and can not damage the interests of merchants at will. Therefore, we must increase the technical content and refine the anti-counterfeiting operations." Chen Yin Jiang said that those involved in administrative investigations or administrative punishments, especially those involving violations of laws and crimes, must report to the supervisory department or public security department in time and request the relevant departments to investigate and deal with them.
In the future anti-counterfeiting, platform autonomy will play a more important role.
Qiu Baochang suggested that the best effect of platform autonomy is a win-win situation for the platform, operators and consumers. To achieve this, we need to formulate open, transparent and fair platform rules and mobilize the power of consumers. For example, support consumer complaints, reduce barriers to consumer complaints, and resolve them in a timely and fair manner; even if the rules are aimed at operators, consumers can also be considered to participate in the formulation.
Zhao Ouzu believes that to strengthen platform autonomy, on the one hand, it is necessary to do a good review of the merchants beforehand, and it can fully raise higher requirements and increase the margin appropriately; on the other hand, it strengthens supervision measures such as random inspections in the event.
"Platform autonomy plays a big role. The government's punishment of merchants is an afterthought. Generally, there are consumer reports and complaints, because the government does not have transaction data. The platform has all the data, and based on big data, you can use technical means to see which Operators may sell fakes. By strengthening supervision and inspection, the platform can assist the government to detect and stop illegal acts in a relatively short period of time." Zhao Zhan said.
Cartography / Gao Yue