On-the-spot inspection by law enforcement officers found that the leather shoes sold in the party's footwear area were marked with trademarks of "peonyboyr" and "Rabbit Shadow (graphic) R", but a plexiglass nameplate of "Playboy R" was placed at the warning position of the counter, followed by a barcode with the word "Playboy", and the words "Playboy" were marked on the price tag, receipts sent to consumers and computer receipts. 【 Types of evidence and matters to prove 】 After the playboy filed the case, the case-handling personnel collected ① on-site transcripts; Involving 2 items; ③ heel barcode, price tag, receipt, computer receipt, trademark registration certificate of American Playboy Enterprise International Co., Ltd., registration certificate of American Playboy Development Group (Hong Kong) Co., Ltd. and certificate of transfer of registered trademark of peonyboyr, and Zhejiang Qingtian Plejbo Yiye Shoes Co., Ltd. is authorized to use Rabbit Shadow (graphics) and peonyboyr. 4. Statement of the parties; ⑤ Site photos; 6. Testimonies about consumers, etc. The above evidence proves that the parties concerned used the name "Playboy" as a false propaganda means when selling the leather shoes with registered trademarks of "Rabbit Shadow (Graphic)" and "peonyboyr" produced by Zhejiang Qingtian Preboyi Shoes Co., Ltd., which led to consumers' mistaken purchase and harmed the legitimate rights and interests of consumers and related operators. [Controversy Focus] After careful analysis, the case-handling personnel have formed the following opinions on how to characterize and punish this case: The first opinion is that the behavior of the parties selling another brand of leather shoes in the name of "Playboy" violates the provisions of the first paragraph of Article 19 of the Consumer Protection Law of People's Republic of China (PRC). That is, "business operators shall provide consumers with the true information of goods or services, and shall not make misleading false propaganda", and shall be punished according to Item (6) of Article 50 of the Consumer Protection Law of People's Republic of China (PRC). The second view is that "Playboy", as an internationally renowned trademark, has been widely known among consumers, which has produced a certain popularity and distinctiveness. When consumers see the nameplate, price tag, receipt and computer receipt marked "Playboy R", they will naturally think that it is a product registered with the trademark "Playboy". Therefore, the behavior of the party concerned infringes the rights and interests of the owner of the registered trademark of Playboy, which constitutes trademark infringement, that is, it violates the provisions of Item (5) of Article 52 of the Trademark Law "causing other damage to the exclusive right of others to register a trademark" and Item (1) of Article 50 of the Regulations for the Implementation of the Trademark Law "misleading the use of marks identical or similar to other people's registered trademarks as commodity names or decorations". The third opinion is that Playboy, as a well-known commodity, is used without the permission of the parties concerned, which violates the second paragraph of Article 5 of People's Republic of China (PRC) Anti-Unfair Competition Law: "Unauthorized use of the unique name, packaging and decoration of well-known commodities, or the use of names similar to well-known commodities, causes confusion with other people's well-known commodities, so that buyers mistakenly think that it is the well-known commodity." The fourth opinion is that the parties concerned directly made misleading false representations on the goods by sticking the bar code of "Playboy" on the heels of the shoes they sold, which violated the provisions of Item (4) of Article 5 of the Anti-Unfair Competition Law of People's Republic of China (PRC): "Forge or falsely use quality marks such as certification marks and brand-name marks on the goods, forge the place of origin, and make misleading false representations on the quality of the goods". The last opinion is that in the process of selling non-playboy leather shoes, the parties use the nameplate "Playboy R" in the warning position of the place, and use "Playboy" as the product name in the barcode, price tag, receipt and computer receipt of the product, which is really misleading and false propaganda. Violation of the first paragraph of Article 9 of the Anti-Unfair Competition Law of People's Republic of China (PRC): "Operators shall not make misleading false propaganda on the quality, composition, performance, use, manufacturer, expiration date and place of origin of goods by advertising or other methods", and shall be punished according to the first paragraph of Article 24 of the Anti-Unfair Competition Law of People's Republic of China (PRC). [Evaluation] After careful examination, the author thinks that the last opinion should be adopted and the parties should be punished qualitatively. The reason is that the first opinion refers to the misleading false propaganda behavior of the parties to consumers, but Article 50 of the Consumer Protection Law of People's Republic of China (PRC) clearly stipulates the illegal situation of the operators listed in Article 50. "People's Republic of China (PRC) Product Quality Law" and other relevant laws and regulations have provisions on the punishment organs and methods. However, "People's Republic of China (PRC) Anti-Unfair Competition Law" clearly stipulates the provisions and punishment methods for the illegal acts of misleading false propaganda of commodity names, so the first opinion is wrong. The second opinion is that there is also the fact that the parties use the same logo as others' registered trademarks as commodity names, misleading the public and infringing on others' exclusive right to use registered trademarks. However, the behavior of the parties can be identified as unfair competition through the following analysis. First, the leather shoes sold by the parties have legally registered trademarks of "Rabbit Shadow (Graphic) R" and "peonyboyr" on the box and inside the shoes; Secondly, from the subjective intention of the parties, the parties confuse the shoes they sell with the well-known shoes "Playboy" through misleading false propaganda by calling the trade names, which makes the buyers mistake the goods; Third, judging from the result of this behavior, the parties made misleading false propaganda on the name of leather shoes, and used deception to make consumers mistake and purchase by mistake, thus infringing consumers' right to know, independent choice and fair trade. At the same time, the actions of the parties indirectly infringe on the interests of honest competitors, crowd out the market share of other honest operators, violate the principles of honesty and fairness, and the unfair competition that hinders equal competition is very obvious; Fourthly, judging from the final disposal of the items involved, if the trademark law is used for qualitative treatment, the leather shoes involved in the case will be confiscated and destroyed (of course, whether to destroy them depends on the specific situation), but it is obviously inappropriate to do so. However, it is legal, reasonable and reasonable to allow the parties concerned to eliminate the influence on the leather shoes involved, that is, to remove the bar code, nameplate and price tag with the word "playboy" and not to issue receipts or computer receipts in the name of "playboy", which also reflects the humanization of administrative law enforcement. Article 24 of the Anti-Unfair Competition Law stipulates this. Therefore, the second opinion is inappropriate. The third opinion is that the parties used the name of the well-known commodity "Playboy" leather shoes when selling non-Playboy leather shoes, which violated the second paragraph of Article 5 of the Anti-Unfair Competition Law. It is true that "Playboy" leather shoes have a certain popularity in the market and are also well known by the relevant public. However, Article 3, paragraph 3 of the Provisions of the State Administration for Industry and Commerce on Prohibiting Unfair Competition in Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities stipulates: "The unique names of well-known commodities mentioned in these Provisions refer to the names of well-known commodities that are significantly different from the generic names. Except that the name has been registered as a trademark. " And so is Playboy. Accordingly, the third opinion cannot be established. There are similarities and differences between the fourth opinion and the last opinion, but through the following analysis, we can finally determine which opinion is accurate. First, Articles 5 and 9 of the Anti-Unfair Competition Law stipulate that there are three ways to publicize commodities: commodities, advertisements and other ways. The acts stipulated in Article 9 of the Anti-Unfair Competition Law are different from the acts of false statements stipulated in Article 5. The "other means" in Article 9 does not include the direct promotion of commodities, and the "false propaganda" on commodities should belong to the false representation as stipulated in Article 5. In this case, it is the focus of the fourth and final opinion to determine which form the behavior of the parties belongs to. Analyzing this case, the false propaganda of the parties concerned is not only false in content, but also has caused consumers to misunderstand the goods, which is a typical unfair competition. Through the investigation of consumers, it is known that the behavior of the parties in this case directly marking the word "playboy" on the barcode of leather shoes is not the main reason for the buyer to mistake and purchase by mistake. Consumers reported that the barcode used in this product is located at the root of leather shoes, and it is too small to be recognized without careful observation. The "Playboy R" plexiglass nameplate placed at the warning position on the party's counter and the price tag, receipt and computer receipt printed with the name of "Playboy" are the main reasons for the buyer's mistaken purchase. According to this, it can be concluded that the parties are using "other methods" to make misleading false propaganda about the goods; Second, although the propaganda target mentioned in Article 9 of the Anti-Unfair Competition Law does not directly include the name of the commodity, it is only described by the word "equivalent", but the contents of false propaganda by operators in real economic life are constantly being refurbished and emerge in an endless stream, which cannot be exhausted by a law. The Supreme People's Court's Summary of the Symposium on the Application of Legal Norms in the Trial of Administrative Cases (Fa Zi [2004] No.96) explains: "After listing the typical applicable matters, the legal norms are expressed in words such as" etc. ". And "others", which is an illustrative clause that is not completely listed. Matters expressed in general terms such as "equality". "and" others "are matters other than those explicitly listed, and the general situation should be similar to that listed." According to the above analysis, it can be concluded that the behavior of the parties in this case is misleading false propaganda by using "other methods", which violates the provisions of Article 9 of the Anti-Unfair Competition Law and should be punished according to the provisions of Article 24 of the Anti-Unfair Competition Law. It also proves that the final opinion is correct. Contributed by Legal Unit of Changting County Administration for Industry and Commerce