■ Recently, the civil first-instance judgment of Huang Bo and Shandong Dingweikang Organic Food Co., Ltd. (hereinafter referred to as "Dingweikang Company") over the right of name was announced.
■ According to the judgment of the first instance, Dingweikang Company was sentenced to compensate the plaintiff Huang Bo for economic losses of 1 million yuan and rights protection costs of 2,820 yuan.
■ According to public information, Shandong Dingweikang Organic Food Co., Ltd. was established in December 2019 with a registered capital of 8 million yuan, and the legal representative is Chen Fulai. Its business scope includes sales and online sales: prepackaged food, bulk food industry.
The court found that Huang Bo's portrait rights and name rights were infringed
The court determined that Huang Bo was a film and television actor; the defendant was another limited liability company whose business scope was enterprise management consulting, business information consulting, sales and online sales of prepackaged food and bulk food.
The owner of the Dingweikang trademark is Shandong Compaq Food Co., Ltd. (hereinafter referred to as Compaq), and Compaq authorizes Dingweikang to use the Dingweikang trademark in product production and sales.
Huang Bo claimed that Dingweikang Company, without the authorization of Huang Bo, used it in a prominent position on the outer packaging of the "Dingweikang" brand Japanese-style round cakes, millet pancakes, Japanese-style black cakes and other products that it operated and sold. Huang Bo's portrait and name, and unauthorized use of Huang Bo's portrait name to make materials to distribute to more than 40 entities such as group buyers and distributors, with "Brand Spokesperson: Huang Bo" and "Small snacks that famous movie star Huang Bo also loves" "Huang Bo endorses millet pancakes" and other words for publicity, which violated Huang Bo's right to portrait and name.
Dingweikang Company claims that the source of its rights to use Huang Bo's portrait and name on the products involved is as follows: Guangzhou Shengshi Huanyu Film and Television Culture Media Co., Ltd. (hereinafter referred to as Shengshi Company) authorizes Shanghai Hengyan Food Co., Ltd. (hereinafter referred to as Hengyan Company) Using the finished audio and video products, promotional pictures and posters of the movie "101 Marriage Proposals", Hengyan Company can use the "Lucky Bear" brand as a random gift disc for publicity; Hengyan Company authorizes Dingweikang Company to use "Lucky Bear" for sales promotion. "trademark products.
Huang Bo said that Hengyan Company and Dingweikang Company have never been authorized to use Huang Bo's portrait and name. The portrait picture used by Dingweikang Company is not Huang Bo's image in the movie "101 Marriage Proposals", but Huang Bo's image for New Oriental. Photos taken by the brand ambassador.
In addition, Huang Bo sent a lawyer's letter to Dingweikang Company on April 1, 2020 regarding the infringement of Dingweikang Company, but Dingweikang Company did not stop the infringement after receiving the lawyer's letter, and there are still a large number of The sales information of the products involved in the lawsuit published by Dingweikang Company or the sellers authorized by Dingweikang Company further expands the consequences of infringement.
The court held that a natural person's right to portrait and name is protected by law, and a citizen's portrait may not be used for profit without the consent of the individual.
In this case, according to the ascertained facts, Dingweikang Company used Huang Bo's portrait and name on the outer packaging of various food products it produced and sold without the permission of Huang Bo, and authorized a number of distributors through various The channel promotes and sells its products. Dingweikang's behavior has the obvious characteristics of using portraits and names for profit, which constitutes an infringement of Huang Bo's portrait rights and name rights.
Dingweikang: more than 1 million yuan compensation Court: no inappropriate
It is worth noting that for the economic loss of 1 million yuan claimed by Huang Bo, Dingweikang Company stated that the scope of the company's infringement of the portrait right is limited, and it is impossible to cause an economic loss of 1 million yuan to Huang Bo.
Dingweikang has been established for less than a year, and its business foundation is very weak. After being entrusted by Hengyan Company, Dingweikang began to produce and sell products that use film copyrights. The sales time was less than two months, and nothing was created. Profits, and the recalled and destroyed packaging materials also amounted to more than 100,000 yuan, so Dingweikang is indeed unable to pay such a high compensation.
But in order to express apology, Dingweikang Company is willing to pay 30,000 yuan to Huang Bo as compensation.
In order to prove Huang Bo's commercial endorsement value, Huang Bo submitted the "Advertising Endorsement Contract" and "Consulting Service Contract", invoices signed by Shanghai Zhengxin Food Co., Ltd. (Party A) and Shanghai Hanner Film and Television Culture Media Co., Ltd. (Party B) .
The "Advertising Endorsement Contract" shows: Party A hires Party B's artist Huang Bo as the image spokesperson for Party A's "Zhengxin Chicken Chop" product. The endorsement period is from April 1, 2018 to March 31, 2020, and the endorsement fee is ×× × million.
Dingweikang Company stated that the company was established for a short time, and the time for selling the products involved in the lawsuit was short, and it did not create a lot of profits, and Dingweikang Company only used the portrait of Huang Bo, which is different from the rights and obligations of endorsements and cannot be determined by the standard of endorsement fees. amount of compensation.
The court held that with regard to economic losses, Huang Bo has a high social reputation as an entertainer, and his portrait and name have a certain commercial value. and the financial interests contained in the name are impaired.
Regarding the specific amount of compensation, the way Dingweikang used Huang Bo's portrait and name could easily make the general public misunderstand that there was a brand endorsement relationship between Huang Bo and Dingweikang. Considering factors such as the specific infringement circumstances and the degree of fault of Weikang Company, the court held that the amount of economic loss claimed by Huang Bo was not inappropriate, and therefore supported the request.
Chengdu Business Daily-Red Star News reporter Yu Yao intern reporter Tang Jian Comprehensive daily economic news