Sino-Singapore Jingwei Client, August 6th (Gao Platinum) According to the annual report of the World Intellectual Property Index released by the World Intellectual Property Organization, the number of patent applications accepted by the State Intellectual Property Office of China has ranked first in the world for 9 consecutive years.
With the development of patent layout in various industries, China has become a "patent power" on the order of one million.
However, some businesses take advantage of consumers' pursuit of patents, and use patents as a "side ball" in advertising.
E-commerce advertising should be appropriate in accordance with the law
According to the "Advertising Law", "Anyone who has not obtained a patent right shall not falsely claim that he has obtained a patent right in an advertisement. It is prohibited to use patent applications for which patent rights have not been granted and patents that have been terminated, revoked, or invalidated for advertising." However, on Taobao, etc. For e-commerce platforms, some companies include patents in the "under review-substantial review" state and patents that have expired and invalidated into the scope of advertising.
In this regard, Zhao Zhanzhu, a lawyer at Beijing Yunjia Law Firm and a special researcher at the Intellectual Property Research Center of China University of Political Science and Law, said that the use of unreviewed and expired patents for advertising by businesses is a false propaganda.
Attorney Zhao Zhanzhu also reminded that if the patent number and other information on the product page is ambiguous, it also violates the provisions of the "Advertising Law."
According to the Patent Law, there are three types of Chinese patents: invention patents, utility model patents, and design patents. The application conditions of the three are quite different.
According to Article 12 of the "Advertising Law", if an advertisement involves a patented product or patented method, the patent number and patent category shall be indicated.
Some merchants wrote out the patent numbers, but they were unclear about the types of patents and did not indicate them in accordance with legal requirements.
Take the Tmall flagship store of a beauty and skin care brand as an example. The introduction page of its hot-selling products uses words such as "deep moisturizing" and "nano sterile patent technology" for promotion, and the patent number is given below the picture. .
The verification on the well-known patent query service platform SooPAT shows that the patent number corresponds to a design patent, which has nothing to do with the medical beauty functions such as water replenishment and the "nano-sterile" technology promoted in the merchant's drawings.
Huang Jibao, the director of Beijing Zhihuan Law Firm, said that the advertising language is suspected of misleading consumers.
"The slogan gives people the impression that the product uses a novel and creative'nano aseptic' patented technology, which can achieve the effect of skin care technology, and this patent should be an invention or utility model patent. As for design patents, It can only be called a beautiful new design."
Attorney Ma Dongxiao, a partner of Zhong Lun Law Firm, said that honesty and credibility should be upheld in civil activities, and similar propaganda techniques are all businesses misleading consumers.
Lawyer Huang Jibao also proposed that if the online trading platform provider knows or should know that the seller or service provider uses its platform to infringe the legitimate rights and interests of consumers, and fails to take necessary measures, he shall bear joint and several liability with the seller or service provider in accordance with the law.
Invisible ads in "Vegetarian Planting Grass"
On user original content platforms and social platforms such as Xiaohongshu, it is also common for users to recommend certain types of products under the name of "national patents."
This type of post is spontaneously created and shared by some users. Under the name "Pro-test effective", terms such as "unlimited repurchase" and "big-name replacement" frequently appear in the relevant recommended "grass" content copy.
Prior to this, Xiaohongshu's "false grass planting industry chain" was exposed by CCTV and other media, and user-created content was also questioned as "paid advertising by merchants."
Regarding the normalization of advertising in lifestyle communities, the regulatory authorities have already issued regulations.
According to Article 7 of the "Interim Measures for the Administration of Internet Advertising", "Internet advertisements should be identifiable and clearly marked with'advertisements' so that consumers can identify them."
Major platforms also pay more attention to platform ecological governance.
In April 2021, Xiaohongshu launched the "Community Convention", requiring community creators to declare their interests when sharing content.
At present, Xiaohongshu has launched a new function. For business notes submitted to Xiaohongshu, users can see the brand name of the blogger on the page.
However, there are still advertising adverts in the name of "Vegetarian Planting Grass".
Attorney Zhao Zhanzhu said that to confirm that the posts on Xiaohongshu are not reviews written by users themselves but advertisements, relevant evidence is usually needed to confirm that users have accepted the advertiser’s entrustment to publish soft articles; if there is no relevant evidence, it is difficult to identify them. It is an advertising activity, so it is difficult to apply the "Advertising Law".
Consumers can request refunds if they find violations
Sino-Singapore Jingwei consulted the market supervision administrative penalty document website and found that according to relevant documents, most of the businesses that received administrative penalties for illegally using patents in advertisements were subject to regulatory measures after the regulatory authorities received relevant reports.
Lawyer Zhao Occupation believes that the reason is that the number of product pages and advertisements on the e-commerce platform is too large, and it is difficult for the market supervision department to detect violations from the massive amount of information.
“Therefore, it is basically through user complaints and reports to carry out specific investigations and evidence collection of violating businesses. If the supervisory authority wants to carry out special rectification actions within a certain period of time, it usually requires the cooperation of e-commerce platforms.”
As patented products become popular, individual businesses resort to fraud.
In order to protect their own rights and interests, consumers can check the authenticity of patents on the official website of the China Intellectual Property Office.
If consumers find that the name of the product is not true after purchasing the product, the patent is a fictitious or imposter, the consumer can use the "Consumer Rights Protection Law" to proactively pursue responsibility and defend their rights.
Zhao Occupation stated that merchants misled consumers through fictitious information, causing consumers to make a wrong expression of intent. Therefore, they can claim that this behavior constitutes fraud and then demand a refund of one compensation for three.
(Zhongxin Jingwei APP)
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