Li Qi is a junior student in a university in Beijing. The table in her dormitory is filled with top-notch cosmetics: SK-II Shenxian Water, Estee Lauder small brown bottle, Laperny Caviar anti-gravity essence, Lancome Jing Pure Series cosmetics... These "baby" are all "deposit" products she bought in a live broadcast room, and the price is lower than the original price.
"Is it true or not? I don't know either." Li Qi said.
In recent years, products containing logos such as "removal of the counter", "cutting the mark", "final order" and "original order" have flooded traditional e-commerce platforms and live broadcast platforms, and some consumers are happy to buy these products.
However, the reporter found that most of these products were high-quality imitations sold by merchants using gimmicks. The trademarks and packaging are almost the same, and the prices are low. In addition, some merchants use foreign packaging to conduct false propaganda, or disrupt the alphabetical order of "hit big brands" in trademarks.
uses the original single-tail single as the slogan
actually sells imitation products
Zhao Huan is currently working in Beijing. After following a high-end women's clothing live broadcast room on a short video live broadcast platform, she bought three clothes from brands such as " Chanel " and "MaxMara" in less than 15 minutes, and spent less than 500 yuan. But after she received the goods, she realized that she had been "caught".
"A coat faded, and a pair of pants took off after two days of wearing them. It's really cheap and not good." Zhao Huan complained, "I can't help but temptation. The anchor has been emphasizing that it is a big brand's standard cut."
reporters found that short video live broadcast platforms use "10% off to sell grandma" and "Direct sales of big brand factories" as promotional slogans. For example, a "Green Water Ghost" female watch with an official website priced at 1,260 yuan is only 20 yuan. In addition, on some traditional e-commerce platforms, there are also many stores selling "cutting labels" and "original orders" products, which are cheap. For example, the coat priced at 1,799 yuan on the official website of HaiLan Home is only sold for 199 yuan in the form of a "cutting label".
Some industry insiders said that "brand cut" and "original order" do exist. Some brands will find OEM factories to produce products and sign relevant agreements that do not allow the product to be sold through other channels, but there will always be some defective products or products with an original demand quantity. In order to clear inventory, factories will sell them in the form of "brand cut".
However, these "cutting labels" and "original order" products are difficult to buy. Behind the words "same model for the counter", "direct sales for the OEM" and "imported original orders" often represent "high imitation", "A goods", and even counterfeit and shoddy products.
In August 2020, the Changshu City Market Management Bureau of Jiangsu Province revealed the issue of selling luxury goods at the live broadcast room at "super low prices". The anchor will point the camera at the counterfeit Lancome, Armani and other trademarks, saying that it is "a big brand authentic product that supports inspection". However, law enforcement officers found in the merchant's purchase records that the purchase price of brands such as Under Armour, adidas, NIKE, and PUMA is only 15 yuan.
"Buy low and sell high", using "stop orders" and "original orders" as gimmicks, using fake trademarks, and lying that direct sales of OEM factories are common practices in some live broadcast rooms to sell fake luxury goods.
Ady, who is engaged in foreign trade business, told reporters: "Most international brands will not let one OEM factory produce complete products, but instead produce parts in various factories. Moreover, my country does not have OEM factories such as Chanel, Gucci, and Louis Vuitton ."
In response, Zhao Kefeng, a partner of Beijing Jiren Law Firm, said that merchants sell products that falsely claim that "original orders" and "removal of the counter" are actually imitations, which violates my country's trademark law and the anti-unfair competition law.
Zhao Kefeng analyzed in detail that on the one hand, merchants use "original order" and "stop order" as promotional slogans, and will inevitably use the trademark logo of "real big brand" in product publicity to achieve the effect of fake and distort the real. This behavior is stipulated in Article 57, Paragraph 1 of the Trademark Law, "using the same trademark as the registered trademark on the same product without the permission of the trademark registrant", which constitutes trademark infringement and shall bear the infringement liability such as stop infringement and compensation for losses; on the other hand, according to Article 8 of the Anti-Unfair Competition Law, operators shall not make false or misleading commercial publicity about the performance, function, quality of their products, etc., to deceive and mislead consumers.
"The promotion of fake big brands as real big brands is obviously a false propaganda. The supervision and supervision department should order it to stop the illegal act and impose a fine of not less than RMB 200,000 and not more than RMB 1 million; if the circumstances are serious, a fine of not less than RMB 1 million and not more than RMB 2 million can be revoked, and the business license can be revoked. If the sales amount is large, the merchant may also constitute a criminal crime and must bear criminal responsibility." Zhao Kefeng said.
Cabinet Removal Product Confused Audio-visual
Can customization is difficult to distinguish the authenticity
On a live broadcast platform, the reporter entered a live broadcast room called "Pig Pig Love Beauty". The anchor is introducing a "Cabinet Removal" Leperny Caviar Anti-gravity Essence: "This essence is a noble lady-level product, a shopping mall in Shanghai 'Cabinet Removal' I got some goods through the 'Call Sister', first come first served, the original price is more than 4,000 yuan, but now it only costs 400 yuan, guaranteed authenticity and supports inspection. "
After watching for half an hour, the reporter found that the live broadcast room basically sells first-line brand cosmetics, such as Lancome Powder Water, Estee Lauder series products, Sea Blue Mystery Set, etc., but the price is far lower than the official price. A Armani 400 lip glaze is only 55 yuan.
Bai Yu (pseudonym), who also does makeup live broadcasts, told reporters: "Everyone who says that this product is "removing the counter" in the live broadcast room, and there are many, it is basically fake. Their live broadcasts are basically not recorded, because they are afraid that buyers will find fault when watching the replay."
It is understood that many stores claim that the purchase channel is "counter sister", and "counter sister" is the salesperson of the counter as the name suggests. According to industry insiders, "Cheers" can get some goods, but the quantity is not large. There are several types of goods obtained from "Cheers": one is trial packaging, which is basically of poor quality; the second is that the boss "removing the cabinet" products are generally expired or the packaging has certain defects; the third is that the product sample, but the quantity is not large.
reporters found that these products that claim to be "removal of the counter" are actually fakes under the banner of big brands, including canned products, 1:1 customized products, full imitation products and other categories.
Huahua (pseudonym) is now a well-known beauty blogger. She bought "removal of the counter" skin care products on an e-commerce platform during her college years. The other party said that the bottle mouth was worn and it was real, but when she received the goods, she got it at the counter and compared it and found that the bottle was indeed real, but the things inside were fake.
According to Huahua, the so-called "deposit withdrawal" and "duty-free" products are basically goods taken by second-level and third-level agents from Henan, Guangzhou, Yingkou, Liaoning, Hechi, Guangxi and other places. The promotional photos of Guangzhou warehouse goods are generally with blue curtains as the background, the promotional photos of Liaoning Yingkou warehouse goods are generally with cement walls as the background, and the promotional photos of Guangxi Hechi warehouse goods are generally with silver or red background cloth as the background.
reporter learned that some merchants collected empty bottles of first-tier cosmetics and sold these empty bottles to cosmetic manufacturers. The manufacturers classified the authenticity of the products and produced 1:1 customized models, canned models, fully imitated models and other categories.
Some industry insiders introduced that the appearance and product ingredients of the 1:1 customized model are customized according to the real ones. The canned model is basically imitation products in real bottles. These imitations have low content in some ingredients. The full imitation model is to replace the original product with other ingredients. The harm to the skin needs to be tested. The purchase price is the more real it is, the more expensive it is.
In this regard, Zheng Ning, director of the Law Department of the School of Cultural Industry Management, Communication University of China, analyzed that if the sales of goods that are known to be counterfeit registered trademarks and the sales amount is large, he shall be sentenced to fixed-term imprisonment of not more than three years or detention, and shall be fined alone. If the sales amount is huge, he shall be sentenced to fixed-term imprisonment of not more than three years but not more than seven years, and shall be fined.
"If the product produced is a counterfeit product and is convicted of the crime of producing and selling counterfeit products, and the sales amount is more than 50,000 yuan but less than 200,000 yuan, he shall be sentenced to fixed-term imprisonment of not more than 50% or detention, and shall be fined or not only not more than 50% of the sales amount; if the sales amount is more than 200,000 yuan but not more than 500,000 yuan, he shall be sentenced to fixed-term imprisonment of not less than 50% of the sales amount; if the sales amount is more than 500,000 yuan but not more than 500,000 yuan, he shall be sentenced to fixed-term imprisonment of not more than 50% of the sales amount; if the sales amount is more than 500,000 yuan but not more than 2 million yuan, he shall be sentenced to fixed-term imprisonment of not more than 50% of the sales amount; if the sales amount is more than 2 million yuan, he shall be sentenced to fixed-term imprisonment of not more than 50% of the sales amount, or his property shall be confiscated." Zheng Ning said.
False propaganda through foreign packaging
Use similar trademarks to hit the porcelain
In addition, some manufacturers use "fake foreign brands" to fool consumers, and some manufacturers directly disrupt the alphabetical order in the original brand trademark as product trademarks, thus "hitting the porcelain big brands".
Wang Tong has been buying goods in the live broadcast room for a long time. She found that many live broadcast rooms are holding fake goods and "big brands", mainly manifested as "garbled trademarks". Some live broadcast rooms claim to sell ck packs, and the small ck trademark is Calvin Klein, but after receiving it, she found that the alphabetical order is misaligned, some are Calvin Klien, and some are Clavin Klein.
Wang Tong once spent 49 yuan to buy a "small ck" bag in a live broadcast room. This bag looks real at first glance, looks good and has a good leather, but when you look closely, the English letters of the trademark are garbled.
Zhao Kefeng analyzed that on the one hand, this behavior of the manufacturer, is an act of unauthorized use of the registered trademark of the trademark owner and infringing on the registered trademark rights of others, and shall bear the infringement liability; on the other hand, the manufacturer, without authorization, uses the same or similar logo as the brand packaging and decoration with a certain influence, causing consumers to mistakenly believe that it has a specific connection with the genuine product of the big brand, which constitutes an unfair competition of , and should bear the legal liability for stopping infringement and compensating for losses.
Some industry insiders introduced that it is a primary way to make "fake foreign cards" by relying on names. The practice of advanced players is to "foreign" everything from trademarks, origin to products, but the quality and service of these products do not match the "sense of advancedness".
Zhao Kefeng pointed out that these "advanced packaging methods" are suspected of false propaganda. As part of product information, the origin is sometimes even an important basis for consumers to judge the product selection. Manufacturers and merchants also like this. In current judicial practice, the court also identified false propaganda of origin as unfair competition. For example, many "Danish Blue Can Cookies" are not from Denmark. In the relevant judgment, the court determined that the propaganda production place was a unfair competition act of false propaganda. In addition, Article 28, Paragraph 2 of the Advertising Law also clearly stipulates that if an advertisement describes the origin of the product that does not match the actual situation and has a substantial impact on the purchase behavior, it is a false advertisement.
Improve laws and regulations
Multiple subjects coordinated governance
So, how should we manage these chaos?
Wang Zhengzhi, director of the Intellectual Property Professional Committee of the All-China Lawyers Association and director of Gao Wen Law Firm, suggested: First, improve and improve relevant laws and regulations, and increase punishment; second, use technical means to monitor each stage of the transaction, add intellectual property review procedures to the online transaction process, and take measures such as reviewing the seller's true identity information, paying deposits, raising the entry threshold, and holding the responsibility for selling counterfeits, establish a feedback mechanism for handling complaints from the right holder, so that online commodity transactions can be checked, controlled, and accountable, and timely discover and stop illegal transactions of infringing goods. Online trading platforms should assume corresponding regulatory responsibilities; finally, improve consumers' awareness of safeguarding the rights and obligations of the law.
"From the perspective of rights, consumers should have the legal awareness of protecting their consumer rights through legal means. When they find that counterfeit and shoddy products have harmed their rights and interests, they should take up legal weapons.From an obligation perspective, the manufacturers that implement the production and sale of counterfeit and shoddy products produced by them are based on consumers' different purchasing motivations and brand consumption preferences. A considerable number of consumers have a strong desire to consume for counterfeit and shoddy products, especially counterfeit and shoddy brand products. Therefore, consumers have the obligation to eliminate the purchase of counterfeit and shoddy products. "Wang Zhengzhi said.
In Zhao Kefeng's view, regulators, operators and consumers need to work together. "Consumers must keep their eyes open. Instead of believing in fake big brands, it is better to believe in real domestic products. Market supervision and management departments and other relevant departments should actively guide market entities to conduct honest operations and fair transactions. Relevant departments should also promptly screen and supervise fake brands in the market and increase the crackdown on false propaganda. ”
(Source: Rule of Law Daily)
"The promotion of fake big brands as real big brands is obviously a false propaganda. The supervision and supervision department should order it to stop the illegal act and impose a fine of not less than RMB 200,000 and not more than RMB 1 million; if the circumstances are serious, a fine of not less than RMB 1 million and not more than RMB 2 million can be revoked, and the business license can be revoked. If the sales amount is large, the merchant may also constitute a criminal crime and must bear criminal responsibility." Zhao Kefeng said.
Cabinet Removal Product Confused Audio-visual
Can customization is difficult to distinguish the authenticity
On a live broadcast platform, the reporter entered a live broadcast room called "Pig Pig Love Beauty". The anchor is introducing a "Cabinet Removal" Leperny Caviar Anti-gravity Essence: "This essence is a noble lady-level product, a shopping mall in Shanghai 'Cabinet Removal' I got some goods through the 'Call Sister', first come first served, the original price is more than 4,000 yuan, but now it only costs 400 yuan, guaranteed authenticity and supports inspection. "
After watching for half an hour, the reporter found that the live broadcast room basically sells first-line brand cosmetics, such as Lancome Powder Water, Estee Lauder series products, Sea Blue Mystery Set, etc., but the price is far lower than the official price. A Armani 400 lip glaze is only 55 yuan.
Bai Yu (pseudonym), who also does makeup live broadcasts, told reporters: "Everyone who says that this product is "removing the counter" in the live broadcast room, and there are many, it is basically fake. Their live broadcasts are basically not recorded, because they are afraid that buyers will find fault when watching the replay."
It is understood that many stores claim that the purchase channel is "counter sister", and "counter sister" is the salesperson of the counter as the name suggests. According to industry insiders, "Cheers" can get some goods, but the quantity is not large. There are several types of goods obtained from "Cheers": one is trial packaging, which is basically of poor quality; the second is that the boss "removing the cabinet" products are generally expired or the packaging has certain defects; the third is that the product sample, but the quantity is not large.
reporters found that these products that claim to be "removal of the counter" are actually fakes under the banner of big brands, including canned products, 1:1 customized products, full imitation products and other categories.
Huahua (pseudonym) is now a well-known beauty blogger. She bought "removal of the counter" skin care products on an e-commerce platform during her college years. The other party said that the bottle mouth was worn and it was real, but when she received the goods, she got it at the counter and compared it and found that the bottle was indeed real, but the things inside were fake.
According to Huahua, the so-called "deposit withdrawal" and "duty-free" products are basically goods taken by second-level and third-level agents from Henan, Guangzhou, Yingkou, Liaoning, Hechi, Guangxi and other places. The promotional photos of Guangzhou warehouse goods are generally with blue curtains as the background, the promotional photos of Liaoning Yingkou warehouse goods are generally with cement walls as the background, and the promotional photos of Guangxi Hechi warehouse goods are generally with silver or red background cloth as the background.
reporter learned that some merchants collected empty bottles of first-tier cosmetics and sold these empty bottles to cosmetic manufacturers. The manufacturers classified the authenticity of the products and produced 1:1 customized models, canned models, fully imitated models and other categories.
Some industry insiders introduced that the appearance and product ingredients of the 1:1 customized model are customized according to the real ones. The canned model is basically imitation products in real bottles. These imitations have low content in some ingredients. The full imitation model is to replace the original product with other ingredients. The harm to the skin needs to be tested. The purchase price is the more real it is, the more expensive it is.
In this regard, Zheng Ning, director of the Law Department of the School of Cultural Industry Management, Communication University of China, analyzed that if the sales of goods that are known to be counterfeit registered trademarks and the sales amount is large, he shall be sentenced to fixed-term imprisonment of not more than three years or detention, and shall be fined alone. If the sales amount is huge, he shall be sentenced to fixed-term imprisonment of not more than three years but not more than seven years, and shall be fined.
"If the product produced is a counterfeit product and is convicted of the crime of producing and selling counterfeit products, and the sales amount is more than 50,000 yuan but less than 200,000 yuan, he shall be sentenced to fixed-term imprisonment of not more than 50% or detention, and shall be fined or not only not more than 50% of the sales amount; if the sales amount is more than 200,000 yuan but not more than 500,000 yuan, he shall be sentenced to fixed-term imprisonment of not less than 50% of the sales amount; if the sales amount is more than 500,000 yuan but not more than 500,000 yuan, he shall be sentenced to fixed-term imprisonment of not more than 50% of the sales amount; if the sales amount is more than 500,000 yuan but not more than 2 million yuan, he shall be sentenced to fixed-term imprisonment of not more than 50% of the sales amount; if the sales amount is more than 2 million yuan, he shall be sentenced to fixed-term imprisonment of not more than 50% of the sales amount, or his property shall be confiscated." Zheng Ning said.
False propaganda through foreign packaging
Use similar trademarks to hit the porcelain
In addition, some manufacturers use "fake foreign brands" to fool consumers, and some manufacturers directly disrupt the alphabetical order in the original brand trademark as product trademarks, thus "hitting the porcelain big brands".
Wang Tong has been buying goods in the live broadcast room for a long time. She found that many live broadcast rooms are holding fake goods and "big brands", mainly manifested as "garbled trademarks". Some live broadcast rooms claim to sell ck packs, and the small ck trademark is Calvin Klein, but after receiving it, she found that the alphabetical order is misaligned, some are Calvin Klien, and some are Clavin Klein.
Wang Tong once spent 49 yuan to buy a "small ck" bag in a live broadcast room. This bag looks real at first glance, looks good and has a good leather, but when you look closely, the English letters of the trademark are garbled.
Zhao Kefeng analyzed that on the one hand, this behavior of the manufacturer, is an act of unauthorized use of the registered trademark of the trademark owner and infringing on the registered trademark rights of others, and shall bear the infringement liability; on the other hand, the manufacturer, without authorization, uses the same or similar logo as the brand packaging and decoration with a certain influence, causing consumers to mistakenly believe that it has a specific connection with the genuine product of the big brand, which constitutes an unfair competition of , and should bear the legal liability for stopping infringement and compensating for losses.
Some industry insiders introduced that it is a primary way to make "fake foreign cards" by relying on names. The practice of advanced players is to "foreign" everything from trademarks, origin to products, but the quality and service of these products do not match the "sense of advancedness".
Zhao Kefeng pointed out that these "advanced packaging methods" are suspected of false propaganda. As part of product information, the origin is sometimes even an important basis for consumers to judge the product selection. Manufacturers and merchants also like this. In current judicial practice, the court also identified false propaganda of origin as unfair competition. For example, many "Danish Blue Can Cookies" are not from Denmark. In the relevant judgment, the court determined that the propaganda production place was a unfair competition act of false propaganda. In addition, Article 28, Paragraph 2 of the Advertising Law also clearly stipulates that if an advertisement describes the origin of the product that does not match the actual situation and has a substantial impact on the purchase behavior, it is a false advertisement.
Improve laws and regulations
Multiple subjects coordinated governance
So, how should we manage these chaos?
Wang Zhengzhi, director of the Intellectual Property Professional Committee of the All-China Lawyers Association and director of Gao Wen Law Firm, suggested: First, improve and improve relevant laws and regulations, and increase punishment; second, use technical means to monitor each stage of the transaction, add intellectual property review procedures to the online transaction process, and take measures such as reviewing the seller's true identity information, paying deposits, raising the entry threshold, and holding the responsibility for selling counterfeits, establish a feedback mechanism for handling complaints from the right holder, so that online commodity transactions can be checked, controlled, and accountable, and timely discover and stop illegal transactions of infringing goods. Online trading platforms should assume corresponding regulatory responsibilities; finally, improve consumers' awareness of safeguarding the rights and obligations of the law.
"From the perspective of rights, consumers should have the legal awareness of protecting their consumer rights through legal means. When they find that counterfeit and shoddy products have harmed their rights and interests, they should take up legal weapons.From an obligation perspective, the manufacturers that implement the production and sale of counterfeit and shoddy products produced by them are based on consumers' different purchasing motivations and brand consumption preferences. A considerable number of consumers have a strong desire to consume for counterfeit and shoddy products, especially counterfeit and shoddy brand products. Therefore, consumers have the obligation to eliminate the purchase of counterfeit and shoddy products. "Wang Zhengzhi said.
In Zhao Kefeng's view, regulators, operators and consumers need to work together. "Consumers must keep their eyes open. Instead of believing in fake big brands, it is better to believe in real domestic products. Market supervision and management departments and other relevant departments should actively guide market entities to conduct honest operations and fair transactions. Relevant departments should also promptly screen and supervise fake brands in the market and increase the crackdown on false propaganda. ”
(Source: Rule of Law Daily)
