On-site inspection by law enforcement officers found that the leather shoes sold in the shoe area of ??the party were marked with the trademarks "PEONYBOYR" and "Rabbit Shadow (Graphic) R" on the packaging boxes and inside the shoes, but they were clearly marked on the counter. A "Playboy R" plexiglass nameplate is placed on the shoe, and a barcode with the word "Playboy" is affixed to the heel of the leather shoe. "Playboy" is used as the product on the price tag, receipts issued to consumers, and computer receipts. name. [Evidence type and proving matters] After the PLAYBOY case was filed, the investigators collected ① on-site transcripts; ② items involved in the case; ③ shoe heel barcodes, price tags, receipts, computer receipts, and the "Playboy" trademark registration of American Playboy Enterprises International Co., Ltd. Certificate, "Rabbit Shadow (Graphic)" registration certificate of American Playboy Development Group (Hong Kong) Co., Ltd. and "PEONYBOYR" registered trademark transfer certificate, and it also authorizes Zhejiang Qingtian Pleiboy Shoes Co., Ltd. to use "Rabbit Shadow" (Graphics)" and "PEONYBOYR" registered trademark authorization certificates and other documentary evidence; ④ Statements of the parties involved; ⑤ Photos of the scene; ⑥ Testimonies of relevant consumers, etc. The above evidence was collected to prove that the parties used the name "Playboy" when selling leather shoes with the registered trademarks "Rabbit Shadow (graphic)" and "PEONYBOYR" produced by Zhejiang Province Qingtian Pleiboy Shoes Co., Ltd. Adopting false propaganda methods, causing consumers to misunderstand and make mistaken purchases, harming the legitimate rights and interests of consumers and related operators. [Focus of Dispute] After careful analysis, the case investigators have formed the following opinions on how to characterize and punish this case: The first opinion is that: the party used the trade name of "Playboy" to sell leather shoes that were actually another brand of leather shoes. Making misleading and false propaganda to consumers violates the provisions of Article 19, Paragraph 1, of the Consumer Rights and Interests Protection Law of the People’s Republic of China, that is, “Operators shall provide relevant goods or services to consumers.” "True information must not be used to cause misleading false propaganda", and should be punished in accordance with Article 50 (6) of the "Consumer Rights and Interests Protection Law of the People's Republic of China". The second opinion is that: "Playboy", as an internationally renowned trademark, has been widely known among consumers and has a certain degree of visibility and distinctiveness. When consumers see nameplates, price tags, receipts and computer receipts with "Playboy R" on them, they will naturally think that they are products with the "Playboy" registered trademark. Therefore, the behavior of the party concerned infringes upon the rights and interests of the owner of the registered trademark "Playboy" and constitutes trademark infringement, that is, it violates Article 52 (5) of the Trademark Law: "causing other damage to the exclusive right to use the registered trademark of others" "" and Article 50, Paragraph 1, of the "Regulations for the Implementation of the Trademark Law": "Using a mark that is identical or similar to another person's registered trademark on the same or similar goods as a trade name or product decoration to mislead the public." Penalties should be imposed in accordance with Article 53 of the Trademark Law and Article 52 of the Implementation Regulations of the Trademark Law. The third opinion holds that: "Playboy" is a well-known product, and the parties involved use it without permission, which violates Article 5, Item (2) of the "Law of the People's Republic of China on Anti-Unfair Competition": "Unauthorized use of well-known products" Unique names, packaging, and decoration, or packaging and decoration with names similar to those of well-known goods, causing confusion with other people's well-known goods and causing buyers to mistake them for the well-known goods, shall be governed by the provisions of the People's Republic of China *Penalty shall be imposed in accordance with the provisions of Paragraph 2 of Article 21 of the Anti-Unfair Competition Law of the People's Republic of China. The fourth opinion is that the party concerned affixes a bar code with the word "Playboy" on the heels of the leather shoes it sells, which is directly on the product. The misleading false representation above violated Article 5, Item (4) of the Law of the People's Republic of China and the State Against Unfair Competition: "Forging or falsely using quality marks such as certification marks, famous and quality marks, etc. on goods." , falsify the place of origin, and make misleading false representations about product quality" shall be punished in accordance with the provisions of Article 21, Paragraph 1, of the "Law of the People's Republic of China and the State Against Unfair Competition".

The last opinion is that when the parties involved were selling non-"Playboy" leather shoes, they used the "Playboy R" nameplate on the notice location in the place, and on the product's bar code, price tag, receipt, and computer receipt. Using "Playboy" as a product name is actually misleading and false propaganda, which violates Article 9, paragraph 1, of the "Law of the People's Republic of China and the State Against Unfair Competition": "Operators shall not use advertising or other methods to "Making misleading and false propaganda about the quality, ingredients, performance, usage, manufacturer, expiration date, origin, etc. of goods" shall be based on Article 20 of the "Law of the People's Republic of China against Unfair Competition" The penalties specified in Article 4, Paragraph 1. [Commentary] After careful review, the author believes that the last opinion should be adopted to impose qualitative punishment on the parties. The reason is: the behavior of the parties making misleading and false propaganda to consumers as mentioned in the first opinion does exist, but the "China Article 50 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests clearly stipulates that the illegal situations of operators listed in Article 50 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests, the Law of the People's Republic of China on Product Quality and other relevant laws and regulations, and If the punishment method is stipulated, it shall be implemented in accordance with the provisions of laws and regulations. The "Law of the People's Republic of China and the State Against Unfair Competition" has clear provisions on the penalties and methods for the illegal conduct of parties making misleading and false propaganda on product names, so the first opinion is wrong. The second opinion holds that the fact exists that the party used the same symbol as another person’s registered trademark as a product name on the same product, misleading the public and infringing on the exclusive rights of other people’s registered trademarks. This fact also exists. However, after the following analysis of the behavior of the parties concerned, it can be determined that the focus is unfair competition. First, the leather shoes sold by the parties have the legal registered trademarks "Rabbit Shadow (Graphic) R" and "PEONYBOYR" on the packaging boxes and inside the shoes; second, from the perspective of the parties' subjective intention, the parties caused misunderstandings by using the product names. The unfair competition method of false propaganda caused the confusion between the leather shoes he sold and the well-known leather shoes "Playboy", causing buyers to misidentify the goods; thirdly, judging from the results of this behavior, the parties involved changed the name of the leather shoes Making misleading propaganda and using deceptive means to cause consumers to misunderstand and make wrong purchases, consumers' rights to know, make independent choices and fair transactions are infringed. At the same time, the behavior of the parties indirectly infringes the interests of honest competitors, crowds out other honest operators from the market, violates the principles of good faith and fairness, and is very obvious unfair competition that hinders equal competition; fourthly, From the perspective of the final disposal of the items involved in the case, if it is dealt with qualitatively according to the Trademark Law, the leather shoes involved in the inventory of the parties involved will inevitably be confiscated and destroyed (of course, whether they are destroyed will depend on the specific circumstances), but this is obviously inappropriate. However, if the parties are allowed to eliminate the influence of the leather shoes involved in the case, that is, remove the bar codes, nameplates and price tags with the word "Playboy", and not issue receipts and computer receipts with "Playboy" as the product name, it will appear to be legal and legal. It is reasonable and reasonable, and also reflects the humanity of administrative law enforcement, and Article 24 of the Anti-Unfair Competition Law has this provision. In this case, the second opinion is also inappropriate. The third opinion held that the party used the name of the well-known product "Playboy" leather shoes when selling non-"Playboy" leather shoes, which violated the provisions of Article 5, Item (2) of the Anti-Unfair Competition Law. It is true that "Playboy" leather shoes have a certain reputation in the market and are also known to the relevant public. However, Article 3, Paragraph 3 of Article 3, Paragraph 3 of the State Administration for Industry and Commerce No. 33 "Several Provisions on Prohibiting Unfair Competition Acts of Counterfeiting the Unique Names, Packaging, and Decoration of Well-known Goods" stipulates: "The unique names of well-known goods as mentioned in these regulations refer to Trade names that are unique to well-known goods and are significantly different from common names, except where the name has been registered as a trademark." This is exactly the case with "Playboy". Accordingly, the third opinion cannot be established. The fourth opinion has similarities and differences with the last opinion, but through the following analysis, which opinion can be finally determined to be accurate. First, Articles 5 and 9 of the Anti-Unfair Competition Law stipulate that the promotion of goods is divided into three forms: "on goods", "advertising" and "other methods". The behaviors stipulated in Article 9 of the Anti-Unfair Competition Law are different from the acts of false representation stipulated in Article 5. The “other methods” in Article 9 do not include direct promotion on the goods. The "false propaganda" mentioned above shall be the act of false representation regulated in Article 5.

The focus of the fourth and final opinion is the determination of the form of the parties' conduct in this case. Analysis of this case shows that the parties’ false propaganda not only falsely promoted the content, but also caused consumers to misunderstand the products, which is a typical act of unfair competition. Through investigation of consumers, we learned that the behavior of the parties in this case directly marking the word "Playboy" on the bar code of leather shoes was not the main reason for buyers to misunderstand and purchase. Consumers reported that the barcode used for this product is located at the base of the leather shoe and is so small that it cannot be read without careful observation. The "Playboy R" plexiglass nameplate placed in the notice position on the party's counter and the price tags, receipts and computer receipts with "Playboy" as the product name were the main reasons for the buyer's misunderstanding and mistaken purchase. Based on this, it can be determined that the party concerned used "other methods" to make misleading and false propaganda for the goods; secondly, although the publicity objects mentioned in Article 9 of the "Anti-Unfair Competition Law" did not directly include the "trade name", they only used The word "wait" is used to describe it, but in real economic life, the content of false propaganda by operators is constantly updated and emerges in endlessly, which cannot be exhausted by one law. The Supreme People's Court's "Minutes of the Symposium on the Application of Legal Norms in the Trial of Administrative Cases" Fa Zi [2004] No. 96 explains: "Legal norms are expressed with words such as "etc." and "others" after enumerating the typical applicable matters. , are illustrative provisions that are not completely enumerated. Matters expressed in general terms such as "etc." and "others" are matters other than those explicitly listed, and the situations they summarize should be similar to those listed. matter". Based on the above analysis, it can be determined that the behavior of the parties in this case is to use "other methods" to make misleading and false propaganda about the product name, which violates the provisions of Article 9 of the "Anti-Unfair Competition Law" and should be followed in accordance with the "Anti-Unfair Competition Law" "Penalty specified in Article 24. It also proves that the last opinion is correct. Contributed by the Legal Affairs Unit of Changting County Industrial and Commercial Bureau