Professional anti-counterfeiting arena
Professional anti-counterfeiting arena
China News Weekly reporter / Li Mingzi
Issued in the 1038th issue of "China News Weekly" on April 4, 2022
In the spring of 2021, Bloomberg, who had been fighting fakes full-time for 6 years, decided to move to Shanghai. The reason he left was that the legal environment in the city where he was originally seemed to be less supportive of anti-counterfeiting. The specific manifestation was that in each case, more and more cases were lost and more and more cases were won. It's getting harder.
Professional anti-counterfeiters use the "Consumer Rights Protection Law" and "Food Safety Law" and other laws as weapons, and through the method of knowing fakes and buying fakes, they file a lawsuit with the court, requiring the sellers or producers of "fake goods" to pay one time, three times or even ten times the compensation.
Since the appearance of "China's No. 1 Anti-Counterfeiter" Wang Hai in 1995, the anti-counterfeiting industry has experienced ups and downs, and the anti-counterfeiters are sometimes regarded as "heroes" and sometimes relegated to "profit-seekers" who disrupt the market order.
At the beginning of 2022, Chen Zhiqiang, a professional anti-counterfeiter from Xuwen County, Zhanjiang City, Guangdong Province, once again brought this group to the forefront.
Chen Zhiqiang is known as "China's youngest professional anti-counterfeiter". It took only one year from "debut" to "famous" at the age of 18, and he fought more than 800 lawsuits and made a profit of more than 100,000 yuan.
At the end of 2021, the Xuwen County Court sent a "Civil Ruling" to Chen Zhiqiang, arguing that his behavior had constituted an abuse of litigation rights.
The "Civil Ruling" also mentioned that the Xuwen County Public Security Bureau had filed a case on December 16, 2021, and decided to investigate Chen Zhiqiang's alleged racketeering case.
"From the case we have seen, the child Chen Zhiqiang is not fighting fakes, he is fighting blindly." Wang Hai appeared in a teahouse near the East Fourth Ring Road in Beijing wearing his iconic sunglasses, and he told the case when he mentioned the case. "China News Weekly".
In January 2022, in the live broadcast of the open class, Wang Hai also talked about the Chen Zhiqiang case. The title of the live broadcast was "Fake beating is a crime, and intentional blind beating is also a fake beating".
Wang Hai further said that Chen Zhiqiang, for a food that does not contain any imported raw materials, requires the merchant to issue an "inbound goods inspection and quarantine certificate" and a "product quality inspection certificate". Isn't this a nonsense?
"The fight against counterfeiting itself is not complicated." Wang Hai, who is 49 years old this year, defines counterfeiting as "a voluntary supervision behavior that should be rewarded." It has been 27 years since he started fighting counterfeiting. How to define the identity of counterfeiters and whether they belong to consumers? , whether it should be protected by law to obtain double compensation, and so on, the discussion is endless.
In Wang Hai's view, there is nothing new, as long as the fakes are still there, the counterfeiters will not disappear.
On the afternoon of March 6, 1996, a man dressed strangely walked into the CCTV studio.
He wore a hood with short hair, a pair of brown sunglasses on the bridge of his nose, an extremely incongruent mustache and a goatee stuck to the top and bottom of his mouth, and a loose blue sweater and black trousers. out of place.
That night, the new program "Tell the Truth" premiered. The first episode was the special program "Who Will Protect Consumers", which was recorded before "3.15".
After the heated discussion for a long time, the host Cui Yongyuan invited this man who "can't see his real body" out. He was the controversial "professional anti-counterfeiter" Wang Hai at that time.
The reason for this dress is also for safety reasons. Wang Hai is afraid that he will be "fat and beaten" after being recognized.
In the early 1990s, there were many fake products on the market, and the drafting of the Consumer Protection Law (hereinafter referred to as the Consumer Law) was imperative.
He Shan, one of the main drafters of the "Consumer Law" and a civil law expert, suggested the introduction of "punitive damages". For the vast number of consumers, mobilizing hundreds of millions of people to fight against counterfeit goods, and making them affordable, can form a situation of "rat crossing the street, everyone shouting and beating" against counterfeit goods, making them nowhere to hide.
On October 31, 1993, the "Consumer Law" passed the deliberation of the National People's Congress and came into force on January 1 of the following year.
Among them, Article 49 stipulates that if the operator commits fraudulent acts in providing commodities or services, the amount of compensation shall be double the price of the consumer's purchase of the commodity or the fee for receiving the service.
More than a year after the implementation of the new law, Wang Hai, who came to Beijing from Qingdao, Shandong to run a sales business, came across a booklet introducing the "Consumer Law" and was attracted by the "double compensation" clause.
Subsequently, Wang Hai swept away fake goods in major shopping malls in Beijing, including fake "Golden Lai" gift boxes, fake "Pierre Cardin" wallets, fake "Zuo Dannu" belts, and then obtained compensation through negotiation or complaints to the Industry and Commerce Bureau. .
In December 1995, Wang Hai was awarded China's first "Consumer Anti-Counterfeiting Award" by the China Consumers Association, with a bonus of 5,000 yuan.
Liu Junhai, a professor at the Law School of Renmin University of China and director of the Institute of Commercial Law of Renmin University of China, believes that the punitive damages system has mobilized the enthusiasm of consumers to conduct legal battles with businesses, cultivated a large number of smart consumers who have the courage to defend their rights, and thus optimized the consumption environment. .
In order to encourage consumers to take up the legal weapon of punitive damages, Heshan also personally ended up "knowing fakes, buying fakes and fighting fakes".
On April 24 and May 10, 1996, he successively purchased two counterfeit Chinese paintings of Xu Beihong's works in a commercial firm, totaling 2,900 yuan, and later submitted the complaint on the grounds of "suspected to be fake and special petition for protection". Beijing Xicheng District Court.
Three months later, the court ruled that the defendant should refund Heshan's purchase price of 2,900 yuan, compensate 2,900 yuan, and pay Heshan's lawyer's fee of 224 yuan and transportation fee of 10 yuan, as well as the case acceptance fee of 242 yuan.
"This is the first case in the country in which a court has ruled that a consumer suspected of buying counterfeit goods won a lawsuit, which is of epoch-making significance in the history of consumer rights protection in China." Liu Junhai was the attorney for the Heshan anti-counterfeiting case. Fake buyers and suspected fake buyers are also consumers.
Driven by Wang Hai and Heshan, a group of "professional counterfeiters" emerged across the country.
In 1997, Ye Guang, a law enforcement officer in a Chongqing bureau, resigned from public office and went to sea to crack down on counterfeiting. He has handled famous cases such as parallel imported mobile phones, inferior liquor, venereal diseases, and counterfeit infusion sets. A well-known manufacturer or advertiser sued the court; Liu Dianlin, who has been in business for many years, began to follow Wang Hai to crack down on counterfeiting in 1998. Later, when the counterfeiters were questioned, he established a consulting company in Guangzhou and began to cooperate with enterprises and law enforcement agencies to crack down on counterfeiting.
Zhao Jianlei, who was 23 years old at the time, happened to be working in the "3.15" hotline column of a media in Beijing. He told China News Weekly that the 1990s was the awakening period of Chinese consumers, when counterfeiters were called "heroes". There are ten or twenty people he can name.
In 2000, when Zhao Jianlei was shopping, he found that a large shopping mall was selling pirated VCDs.
Zhao Jianlei made a fake, and finally the mall compensated 2,000 yuan.
Two years later, Zhao Jianlei resigned from his job, started a cultural company to take over the project, and worked part-time to crack down on fakes.
There are also cases where counterfeiters fail.
In December 2003, Zang Jiaping, a Shandong anti-counterfeiter known as the "fake drug nemesis", was sentenced to three years in prison by the Beijing No. 1 Intermediate People's Court for the crime of extortion.
In the years when professional anti-counterfeiting was on the rise, another topic that could not be avoided was "food safety", and the social concern it caused reached its peak during the melamine milk powder incident in 2008.
On February 28, 2009, the Food Safety Law was passed with overwhelming votes.
Article 96 stipulates: In the production of food that does not meet the food safety standards or the sale of food that does not meet the food safety standards, the consumer may request the producer or seller to pay ten times the price in addition to claiming compensation for losses. compensation.
"What is the concept of 10 times? One buy and one sale, 10 times the profit, and it is not illegal. After the introduction of the new law, the number of anti-counterfeiting practitioners has shown a geometric explosion." Zhao Jianlei recalled that he himself began to put more energy after that. In the field of food counterfeiting.
Looking for fakes, buying, investigating, and defending rights, these activities constitute Zhao Jianlei's anti-counterfeiting routine.
He pointed to the Chang'an shopping mall on Fuxingmenwai Street and recalled that in the most popular years of cracking down on counterfeiting, in some large shopping malls, everyone from security guards to shopping guides knew him, and he could only entrust team members or hire someone to buy fakes.
In Zhao Jianlei's view, the seven or eight years after 2009 are the golden period for professional anti-counterfeiting.
In order to reduce unnecessary trouble in the follow-up negotiation process, Zhao Jianlei tends to pick the fault of big brands. For example, Coca-Cola can basically get compensation as long as it finds problematic products.
In those years, there were not a few cases in the anti-counterfeiting circle where a single counterfeit product was compensated for one million yuan, and the debate over whether "knowing a fake and buying a fake" should be compensated has always existed.
On December 9, 2013, the 1599th meeting of the Judicial Committee of the Supreme People's Court passed the "Regulations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Food and Drug Dispute Cases", which clarified that in the event of a dispute over food and drug quality issues, the purchaser should notify the manufacturer. The people's court shall not support the defense of the seller's claim, and the manufacturer or seller's defense on the grounds that the buyer still purchases the food or medicine knowing that there is a quality problem.
That is to say, the behavior of "knowing the fake and buying the fake" has been supported again.
Bloomberg, who was selling coffee in Taobao at the time, experienced the first crackdown in his life.
After the other party stated that the online store had a problem of false publicity, Bloomberg calmly paid three to five hundred yuan in compensation.
"That experience actually gave me legal education for myself." Bloomberg seems to have opened the door to a new world.
Originally majoring in economic management, he began to teach himself law, understand relevant regulations, and pay attention to new judicial interpretations in real time.
Bloomberg himself often buys online. In 2015, after he bought peony oil that falsely advertised medical effects on another e-commerce platform, he backhandedly cracked down on counterfeiting.
In Zhao Jianlei's view, there seems to be no threshold for cracking down on counterfeiting, but there are many ways to study it.
For example, he said, the easiest way to crack down on food counterfeiting is to see whether the product label is qualified and whether it indicates that it is not suitable for people, such as the elderly, pregnant women, infants and young children are not suitable for consumption.
A more technical way to crack down on counterfeiting is to look at the added ingredients, which requires familiarity with the "Medicine and Food Homologous Catalog" published by the State Drug Administration.
Yan Bin, a post-80s anti-counterfeiter, has been concerned about functional foods for a long time. He told China News Weekly that some medicinal wines that claim to have miraculous effects are often artificially added with prescription drugs such as sildenafil. Not allowed to be added to food.
"There were only a dozen illegal additives similar to sildenafil at first. With the exploration of illegal substances by unscrupulous operators and the advancement of detection methods, the list is constantly being updated. Anti-counterfeiters must also constantly update their knowledge. Reserve." Yan Bin said.
"There are very few counterfeiters who are truly proficient in laws and regulations, and who handle matters rationally and legally. The huge profits of this industry's 10-fold compensation doom the quality of practitioners to be mixed." Zhao Jianlei said frankly that in 2013, relevant judicial interpretations supported "knowing fakes and buying fakes" , and the new Consumer Law in 2014, which increased the amount of compensation for consumer fraud from 1 to 3 times, once again pushed the anti-counterfeiting industry to a small peak, and some "low-end anti-counterfeiters" who had been eliminated will return.
For example, Zhao Jianlei said that when some people saw that they were making money by buying expired food, they brought three relatives and six relatives to Beijing to organize a group to crack down on counterfeiting, and bought all supermarkets in Beijing with a gust of wind.
There are also many "fake beating" gangs who stuff expiring food into the shelves, wait for the food to expire, and then go to the supermarket to buy a claim.
In Zhao Jianlei's view, although these anti-counterfeiters who do not understand the law and have no ability to learn the law will eventually be eliminated from the market again, their behavior has essentially overdrawn the credibility of the anti-counterfeiting group.
At about 20 o'clock in the evening on October 9, 2020, Xiang Jianhua, a Chongqing tea merchant who was bringing his baby at home after get off work, suddenly received a call from the clerk: "Those guests are here again."
Xiang Jianhua's tea house has been opened for nearly ten years on Yinshan Road, Yubei District, Chongqing. The store covers an area of more than 200 square meters. When you enter the door, you can see a tea cake screen with a diameter of nearly 1 meter. Continue to go inside and see a row of tea cakes. On the top of the product display cabinet is a box of special Jin Junmei.
Xiang Jianhua said that the box of tea was a 10th anniversary commemorative gift box launched by Jin Junmei R&D Company.
The "those customers" mentioned by the clerk's younger sister have visited the store many times, and each time they chose when Xiang Jianhua was not there.
According to the clerk's description to Xiang Jianhua, the three or four people looked east and west, and finally fell in love with the "Treasure of the Town Store". It means that buying tea is a gift, and the recipient also likes to collect tea.
Xiang Jianhua asked the clerk to relay on the phone that there was no price for the privately collected tea, and the market auction price was 100,000 yuan.
He thought that the other party would retreat after hearing the price, but after less than two minutes, the "guest" had already swiped his card to pay.
According to the clerk's later recall, the "guest" entered the wrong password twice before, and his hands were shaking when he entered the password for the last time.
At the beginning of 2020, the new crown epidemic broke out suddenly, and the teahouse was closed off and on for more than half a year. The income in 2020 was more than half less than the previous year.
This business is strange, and what surprised Xiang Jianhua is that after half a year, he received a court summons, asking him to respond to the lawsuit in the 6th court of the Liangjiang Trial District on April 29, the reason was actually "that box of collections." The version of Jin Junmei has expired."
The plaintiff submitted that the outer packaging of the "Zhengshantang Jinjunmei Black Tea" purchased by him was marked with a production date of July 6, 2015 and a shelf life of 36 months. relevant provisions of the Safety Law.
The plaintiff filed a lawsuit and ordered the defendant to return the payment of 100,000 yuan and compensate the plaintiff 1,000,000 yuan.
"Just because I sold a box of tea, I will go bankrupt, leaving my wife and children without a house?" Xiang Jianhua was angry and aggrieved, and he lost the case in the first trial without any preparations.
Xiang Jianhua immediately filed an appeal and contacted the Wuyishan Tea Industry Association, and issued a written explanatory letter with an official seal, indicating that black tea is fully fermented tea with stable tea properties, and the product is marked as "best to drink within 36 months", which does not mean exceeding It can't be drunk after 36 months, and can be stored for a long time under proper storage and normal storage conditions (protection from light, moisture, and peculiar smell).
The second instance overturned the original judgment and prevailed against Jianhua.
Looking back over the past year or so, Xiang Jianhua felt that the so-called "anti-counterfeiters" were full of tricks and calculations. They induced the merchants to make mistakes, such as asking the merchants to change the outer packaging, or refusing to stamp the date after purchasing souvenirs. In March, after the in-store monitoring was covered, the store owner was brought to court on the grounds that the food was expired and that it was a "three-no product".
When I looked for it according to the plaintiff's address on the indictment, the building was already empty.
Xiang Jianhua recalled that during the first court case, the plaintiff's agent also showed a high-definition video of the entire purchase process, which clearly captured the store number, tea model, business license, and payment process.
"The hidden harm of routine cracking down on counterfeiting is more permanent, and it destroys the order and environment of a region's integrity management." Xiang Jianhua told "China News Weekly" that now there are customers who ask to buy samples, and he does not dare to sell them. , Whenever there is a list of thousands of dollars in the store, he has to personally inquire, and repeatedly confirm that there is no abnormality.
"As long as it's a little suspicious, I'd rather not make this money. After a long time, how can I open the door to do business?" Xiang Jianhua said.
During the half-year interval between the two trials, I introduced to a friend of Jianhua Jing and joined the Chongqing Tea Industry Rights Protection Committee.
Participants must have a lawsuit against counterfeiting, and only one person from a store can join the group.
According to incomplete statistics, more than 200 people in the local area have already encountered “routine crackdowns” in Jiangbei, Yubei, Banan, Wanzhou and other places in Chongqing.
"It is necessary to distinguish whether the anti-counterfeiting behavior is real cracking down, or blind and fake beating. We are also cracking down on fake beating." Wang Hai told "China News Weekly" that at the end of 2019, his team exposed the "big pig group" on social platforms. Fake hits.
A QQ user with the online name "Big Pig Yunding Zongchuang" posted a news about recruiting apprentices in the space, and taught the students who paid into the group "how to put bugs in bread" and "how to threaten merchants with compensation".
"Fake fights are suspected of fraud or extortion, and the criminal method of network transmission involves underworld." At the beginning of 2021, Wang Hai wrote on his personal Weibo that the "big pig group" was arrested at the end of 2020.
Will professional counterfeiters still exist?
Will professional counterfeiters still exist?
Wang Hai has never left the anti-counterfeiting industry.
After experiencing the Jinmen incident and Nanning turmoil, he gradually moved from a personal heroic crackdown to behind the scenes.
At the end of 2003, the news that anti-counterfeiting lawyer Huang Lirong was beaten to death while collecting evidence also made Wang Hai pay attention to risk control. Since then, he has almost divested the team's investigation business. Entrusted to engage in anti-counterfeiting in intellectual property protection, or accept entrustment to sue.”
Three months after Weibo was launched, Wang Hai opened an account. The first Weibo was a reminder that "owners must not buy civil air defense parking spaces". He has been paying attention to property rights protection since 1998.
After that, Wang Hai released anti-counterfeiting reports and judgments of local courts on anti-counterfeiting cases from time to time.
Unlike the constant attention he elicited on TV and newspapers in his early years, his Weibo has often faced the embarrassment of zero comments.
Since November 14, 2020, Wang Hai has continued to update Weibo, continuously exposing that the team of Kuaishou head anchor Simba sold "fake bird's nest" in the live broadcast room, and released the product inspection report, saying that the so-called "bird's nest" sold by the Simba family "It's sugar water.
"China's No. 1 Anti-Counterfeiter" Wang Hai once again returned to the public eye.
This massive anti-counterfeiting campaign ended temporarily with the result that Simba was fined 900,000 yuan and banned from live broadcasts for 60 days.
Wang Hai is no longer the guy in disguise, but he still wears his iconic sunglasses when he appears in front of the media.
Now he is the owner of 4 companies, covering legal consulting, e-commerce, property services and product inspection and testing.
He repeatedly emphasized to "China News Weekly" that "fighting against counterfeiting is a voluntary act, not a profession, and I don't expect this to make money."
Zhao Jianlei is not as busy as in previous years. He picks up his children to and from school in the morning and evening, and occasionally takes a vacation.
Zhao Jianlei said that his company is still there, but the team is gone.
In May 2017, the Supreme People's Court's reply to the recommendation No. 5990 of the Fifth Session of the 12th National People's Congress was released, which "brought a devastating blow to the industry," Zhao Jianlei said.
At the National People's Congress in 2017, Yang Guoxiu, deputy to the National People's Congress and chairman of Hunan Guoxiu Foods (Group) Co., Ltd., put forward suggestions on guiding and regulating occupational anti-counterfeiting.
He suggested that the Supreme People's Court issue a judicial interpretation on consumer civil lawsuits brought by professional anti-counterfeiters, and not support lawsuits with definite evidence to prove that "knowing fakes and buying fakes".
Previously, a consumer had claimed 10 times compensation to Guoxiu Company for buying expired canned fruit pulp.
Subsequently, the General Office of the Supreme People's Court gave a reply: considering the particularity of food and drug safety issues and the specific circumstances of existing judicial interpretations and judicial practices, it is believed that at present, it is possible to gradually restrict occupations in situations other than purchasing food and medicine. Anti-counterfeiting acts of profit-making.
"Since then, at least 30 to 40% of the cases of anti-counterfeiters have been commuted and lost. Up to now, 90% of the cases against counterfeiters have not been supported." Zhao Jianlei told "China News Weekly" that the anti-counterfeiters were sentenced to lose the case. There are two main reasons. One is that professional anti-counterfeiters are not considered ordinary consumers, and the other is the theory of purchase intention, which believes that professional anti-counterfeiters are for profit.
"If it is illegal to get compensation for cracking down on counterfeiting according to the law, is the illegal profit obtained from making and selling counterfeit products legal?" The “selling counterfeit” approach can curb the production and sale of counterfeit goods, and should tolerate the behavior of anti-counterfeiters to protect their rights and protect their legitimate rights and interests in obtaining reward compensation.
In August 2018, Shenzhen issued a briefing on the special struggle against gangsters and evil in Shenzhen (No. 53), which revealed that the city had destroyed a gang of "professional claimants" who used extortion as a means to seek improper benefits. , the report titled "Professional anti-counterfeiting is listed on the list of anti-criminal and evil" continued to ferment.
At that time, Yan Bin, who settled in Shenzhen full-time to fight fakes, also felt it was difficult.
Under normal circumstances, he bought fake goods online, and the source of the goods came from all over the world. Yan Bin went to the Shenzhen court to sue according to the principle of jurisdiction of the place of receipt.
In recent years, he was unable to file a case smoothly due to "deliberately receiving goods in Shenzhen and maliciously creating jurisdictional connection points", or because he "was considered to have worked in Shenzhen for less than one year" because he did not pay five insurances and one housing fund.
In the spring of 2021, Yan Bin moved to Guangxi, where he said the crackdown on counterfeiting seemed to be more supportive.
On the morning of April 12, 2018, the first trial of the Internet Court of the Financial Street Court in Xicheng District, Beijing began.
The plaintiff, Mr. Wu, bought 5 durians from an online store in Shenzhen. After receiving the goods, he found that the fruit had not obtained inspection and quarantine access and could not be imported into China.
The case was pronounced 11 days later, and the plaintiff, Mr. Wu, successfully obtained 10 times the compensation.
Bloomberg will set aside irregular time every week to retrieve the information of the judgment documents, look for clues to crack down on counterfeiting, and also observe the trend of court judgments.
Bloomberg was encouraged by the above-mentioned precedent, but he soon discovered that from the second half of 2019, the Beijing Internet Court seemed to be less supportive of anti-counterfeiting.
"I don't recommend young people to rashly engage in anti-counterfeiting. After all, it seems that the future of this industry is not so bright." Zhao Jianlei's views on the anti-counterfeiting industry are obviously not as optimistic as ten years ago.
"For those who really crack down on counterfeiting, now is the best time." Wang Hai said that it is not all bad that professional anti-counterfeiting has entered a trough period, at least some of the "blind people" will be eliminated from this group.
"The profession of counterfeiting does not need to be artificially elevated, but it should not be stigmatized. It is a normal profession. They are like woodpeckers to make profits by fighting counterfeiting. Woodpeckers catch bugs, first of all to eat, not to be forest guards, but this Actions will indirectly benefit the society and purify the consumer market.” Du Peng, a lawyer at Beijing Zhongkai (Shanghai) Law Firm, said that when all consumers are awakened and become potential counterfeiters, then counterfeiting will be produced and sold. The behavior of the people will lose the market, and without the counterfeiting and selling behaviors, the counterfeiting phenomenon will naturally disappear.
(At the request of the interviewee, Bloomberg and Yan Bin are pseudonyms in the article)
"China News Weekly" Issue 12, 2022
Statement: The publication of "China News Weekly" manuscripts is authorized in writing
Statement: The publication of "China News Weekly" manuscripts is authorized in writing