The Consumer Protection Department of Zigong Industrial and Commercial Bureau of Sichuan Province received a complaint from the operator of a franchise store in Dazhou City, saying that the slimming instruments, slimming massage cream and slimming food purchased in Zigong XX slimming beauty club had no product certificate, no trademark and no factory name and address; After taking and using it, consumers have bad symptoms such as diarrhea, general weakness, drowsiness and upset.
After preliminary investigation, Zigong XX slimming beauty club is a self-operated store of Sichuan XX slimming beauty technology development and promotion co., Ltd. The company implements unified decoration, unified image, unified use of instruments and products to carry out slimming beauty services, and generally charges every consumer who comes to lose weight 1980 yuan. In the service process, the store massages with instruments, and then packages three capsules (slimming food) with different colors, claiming to be "conditioners" with the words "slimming beauty" printed on them, and sells them to consumers. The store claims that the green and white capsules are "slimming element" produced by Chengdu Beiai Cosmetics Co., Ltd., the blood cyan capsules are "green camellia" produced by Hunan Yueyang Herbal Bioengineering Co., Ltd., and the pure white or other colors are "Xiu Yuan Qing" produced by Hunan Yueyang Herbal Bioengineering Co., Ltd. and "Detoxification and Beauty Capsule" produced by Yunnan Panlong Haiyun Pharmaceutical Co., Ltd.
After investigation, the edible and medicinal capsules used and sold in the operation of Zigong XX Slimming Beauty Club are products produced by other companies that use registered trademarks. The club will remove the original packaging, then put it in a small paper bag with its own name on it and sell it to consumers as its own product.
Case analysis and qualitative analysis
Article 52 of the Trademark Law stipulates: "Any of the following acts is an infringement of the exclusive right to use a registered trademark: …… (4) The act of changing the registered trademark of a trademark registrant and putting the goods with the changed trademark on the market again without the consent of the trademark registrant." It can be seen that the behavior of the parties in this case constitutes trademark infringement, and this case is also the first typical case of reverse counterfeiting investigated and dealt with by Zigong industrial and commercial system.
Trademark reverse counterfeiting is a violation of the Trademark Law and the first paragraph of Article 9 of the Anti-Unfair Competition Law. Operators are not allowed to make misleading false propaganda to commodity producers or places of origin by advertising or other methods. The victim has the right to demand the infringer to bear civil liability in the form of compensation or compensation according to the provisions of Article 20 of the Anti-Unfair Competition Law.
Trademark reverse counterfeiting is fraudulent from the perspective of protecting consumers' rights and interests, and consumers can claim compensation from the parties according to law.
To sum up, the trademark reverse counterfeiting in this case violated the Trademark Law, the Anti-Unfair Competition Law and the Consumer Protection Law at the same time. According to the specific circumstances of this case, the author thinks that qualitative punishment should be carried out according to the Trademark Law and its implementing regulations.