As one of the fastest growing industries in my country, the advertising industry plays an important role in modern economic life. As of the end of 2015, there were 672,000 advertising business units nationwide, an increase of 23.6% over the previous year; 3.073 million advertising employees, an increase of 13.0%; and advertising revenue was 597.34 billion yuan, an increase of 6.6%. Not only is the advertising industry growing rapidly, but the intellectual property infringement issues involved in advertising releases are also very complex. Due to the weak legal awareness of advertising rights holders and suspected infringers, cases of advertising infringement of intellectual property rights occur frequently, which has become a bottleneck for the healthy development of the advertising industry. In order to promote the healthy and rapid development of the advertising industry and protect the interests of advertising rights holders and consumers, advertisers’ legal awareness and legal knowledge need to be strengthened. Below, based on my own litigation experience, the author conducts a brief study on the intellectual property infringement issues that may be involved in advertising for readers' reference.
1. The use of other people’s works in advertisements may constitute copyright infringement
In 2015, the plaintiff Huagai Creative (Beijing) Image Technology Co., Ltd. sued the defendant Tianjin Xiangyun Dermatology Hospital Co., Ltd. for copyright infringement. . The defendant hospital used the pictures involved in the case in its Weibo advertising without legal authorization, and the plaintiff, as the rights holder of the pictures involved, the American company Getty, is the only authorized agent in China that enjoys permission to use, rights protection and other rights. A complaint tells the defendants in this case to the court. Ultimately, the court ruled after a trial that the defendant hospital had to compensate the plaintiff for economic losses because it used the pictures involved in the case in its Weibo promotions without obtaining the plaintiff’s legal authorization.
In addition, when many advertising companies use the popular WeChat public accounts, Weibo and other channels for advertising, they may directly reprint part or all of other people's articles without the permission of the rights holder. The content of works that have been published is actually an infringement of other people's copyrights, and the rights holders will be held accountable for infringement according to law. There are many such cases in courts across the country.
It can be said that among the infringement cases in the advertising industry, copyright infringement is the hardest hit area, and there are countless lawsuits caused by copyright infringement every year. In fact, any advertising design or advertising creative product will inevitably draw on the works of its predecessors. The rational use of the intellectual achievements of predecessors is actually encouraged and supported by my country's copyright law. But at present, the behavior of a large number of advertising publishers has gone far beyond the scope of learning from previous ideas, but plagiarizing large sections or even directly copying. If you do this, you will inevitably be held liable for infringement by the rights party in the future. Therefore, when companies design advertising products in the future, they must use other people's works by purchasing them from the rights holders.
2. The use of other people’s trademarks in advertisements may constitute trademark infringement
As the legal holder of the trademark of the famous coffee chain brand STARBUCKS, the American Star Source Company enjoys a high reputation around the world. visibility. Because it was discovered that Shanghai Starbucks Company was privately using the STARBUCKS trademark in its own coffee shops in the form of external light boxes, menus, brochures, in-store decorations, etc., the American Star Source Company and its unified Starbucks Company established in China filed a lawsuit against Shanghai Starbucks. The company and its branches went to court. In the end, the court ruled after trial that the defendant Shanghai Starbucks Company and its branches were prohibited from using the plaintiff's legally held trademark "STARBUCKS" in any form in the physical stores operated by them and compensated the plaintiff for economic losses in accordance with the law.
In order to expand their influence, many less well-known companies often use other people’s highly famous trademarks in their advertising. The author believes that this free-riding behavior is very short-sighted. Once this kind of behavior is found to be infringing by the court, in addition to having to pay a high financial compensation, it will also directly ruin the opportunity to build your own brand. In advertising design products, there must be no ideas such as "similar to famous brands". Especially for our country, establishing our own excellent brand by providing high-quality products and services is the long-term way for enterprises to operate.
3. The use of other people’s well-known product images in advertisements constitutes unfair competition
Unfair competition in LOUISVUITTONMALLETIER sued Shanghai Xingui Real Estate Development Co., Ltd. In the dispute case (2004) Shanghai No. 2 Zhong Min Wu (Zhi) Chu Zi No. 242, the plaintiff Louis Vuitton is the registrant of the "LV" trademark and enjoys a high reputation around the world.
The defendants Xingui Real Estate Company and Shanghai Lido Company used the registered trademark "LV" in their large-scale outdoor advertisements without permission, and placed the handbag with the "LV" trademark in the most prominent position in the advertising screen. Therefore, the plaintiff sued the defendant for trademark infringement and unfair competition.
Since the defendant company in this case is a real estate development company, its use of the LV trademark in advertisements does not constitute trademark use and therefore does not constitute trademark infringement. However, the court held that the two defendants knew that the LV handbag was highly famous and still highlighted it at a proportion of nearly one-third in the huge advertisement. They deliberately used the plaintiff's resources to obtain benefits unfairly, which constituted unfair competition.
The behavior of using other people’s well-known product images in advertisements is very similar to the aforementioned use of other people’s registered trademarks. They are both free-riding behaviors that take advantage of other people’s competitive advantages. Article 5 of my country’s Anti-Unfair Competition Law clearly stipulates that operators shall not use the unique names, packaging, or decoration of well-known commodities. Therefore, in order to avoid legal risks, companies should exercise reasonable care when producing and designing advertisements, and avoid other people's already well-known product images.
4. Untrue advertising content may constitute false propaganda
In the unfair competition case of China Pharmaceutical University v. Furui Technology Company, the Supreme People's Court Gazette, No. 6, 2005 During the period, the plaintiff, China Pharmaceutical University, is a key university directly under the Ministry of Education. It has achieved many scientific research results in the field of pharmaceuticals and transformed them into the medical device and pharmaceutical supply market through its affiliated enterprises. The defendant Furui Company used the plaintiff's name without permission when promoting its capsule products that it claimed had the effect of promoting infant brain development. After learning of this situation, the plaintiff filed a lawsuit in court, requesting the defendant to stop false propaganda and compensate for economic losses.
The judge believed that the behavior of the defendant Furui Company violated the principle of good faith and recognized business ethics. It not only infringed the name right of the plaintiff China Pharmaceutical University, but also occupied the business reputation of China Pharmaceutical University for free. , also objectively caused the public to mistakenly believe that its products came from China Pharmaceutical University, deceiving consumers, harming the interests of the public, and constituting unfair competition. The final verdict was that the defendant apologized and compensated the plaintiff for economic losses of 100,000 yuan.
In this case, Furui’s behavior is a typical act of false propaganda. He wanted to use the goodwill of China Pharmaceutical University to promote his own products and deceived consumers. In the short term, many consumers may be fooled, which will bring them certain economic benefits. But once this fact is recognized by the court, it will inevitably become a liar company in the eyes of the public, and will never be able to save its fate of failure.
5. The fabrication of false facts in advertisements to harm competitors may constitute commercial defamation
In the appeal case of the commercial defamation dispute between Shanghai Zhongyan Information Technology Co., Ltd. and Shanghai Biga Data Systems Co., Ltd. (2012) Shanghai No. 2 Zhong Min Wu (Zhi) Zhong Zi No. 81, the plaintiff Bijia Company and the defendant Zhongyan Company are websites that provide online shopping guides, product information comparisons, and shopping rebate services. In its official statement, Zhongyan Company said that Bijia Company is an "illegal copycat rebate website" that "illegally deceives consumers." And vigorously promote it through its official Weibo and other channels.
The court of first instance held that the behavior of the defendant Zhongyan Company fabricated false facts and spread them to unspecified objects, which objectively damaged the business reputation of Bijia Company and constituted a violation of my country’s Anti-Unfair Competition Law. prescribed commercial defamation. The court of second instance upheld the judgment of first instance.
In this case, it can be clearly seen that the business scope of both the plaintiff and the defendant is the same and they are in a direct competitive relationship. In the fierce competition, Zhongyan Company adopted commercial defamation methods in order to gain competitive advantage. This kind of behavior is clearly regulated by my country’s Anti-Unfair Competition Law. The author believes that commercial slander may achieve certain results in the short term, but as my country's legal system continues to improve, it will inevitably be impossible to escape legal sanctions.
6. The use of other people’s photos, names, etc. in advertisements may infringe other people’s portrait rights or reputation rights
In advertising, the use of reputation rights and portraits of natural persons or legal persons is often involved. Rights, etc., and related disputes will inevitably arise during this process.
In Weng Xu v. Deyang Junsha Advertising Co., Ltd. and Deyang Jinhong Real Estate Co., Ltd. (2005) Jing Min Chu Zi No. 1369, the two defendants placed outdoor advertisements on their real estate without permission. The court ultimately ruled that the defendant's behavior infringed upon the plaintiff's portrait rights and ordered the defendant to compensate the plaintiff for mental damage and to apologize.
In the name right infringement dispute between the plaintiff Shenhua Club and the defendant Treton Company, Treton Company, as a furniture manufacturer, in addition to introducing Treton Company’s furniture products in its advertising of Nordic style furniture , and phrases such as "99 Shenhua moves to a new home, what about you?", "A champion" and so on. In the end, after the trial of the court of first instance, the court held that there was no need for Treton Company to disseminate Shenhua’s information to the public in its advertisements promoting the Nordic style furniture it distributed. The company's approach is nothing more than to achieve the purpose of promoting its own products. In order to expand the effect of commercial advertising and obtain commercial interests, Treton Company used Shenhua-related content in its commercial advertisements without the consent of Shenhua Club, causing Shenhua Club to be unable to control this intangible property of its own. Harm from benefiting from. Therefore, the company was ordered to apologize and compensate for economic losses. The court of second instance also upheld this judgment. This is enough to show that in the daily advertising of enterprises, one must not use other people's portraits and names at will, so as not to end up in the embarrassing situation of infringement.
As the advertising market becomes increasingly sophisticated and standardized, how to stand out among many competitors has become the ultimate goal of every enterprise. However, in the process of achieving this goal, we must try to avoid touching minefields and red lines. The issue of advertising infringement is very complex and involves all aspects of the law. The above author only studied several common advertising infringements for readers' reference. It can be said that advertising is the benchmark for the development of every enterprise. The author believes that today, as my country's market economy is becoming more and more perfect, legitimate competitive behavior is the way to win for enterprise development. Advertising and publicity should also pay attention to independent innovation, and must not use the intellectual achievements of others at will.