In fact, the problem of unauthorized sales in Pinduoduo is often the channel problem of manufacturers.
Because the products come from offline, many sellers who sell at low prices without authorization are actually the terminal dealers of the brand, or get goods from dealers at low prices. They put it online or offline to sell goods, or drain the online shop, or clear the goods close to the cost price when the products are not made, and so on. It has brought a lot of trouble to the brand. So how should manufacturers/brands deal with this problem of unauthorized sales?
In fact, this question covers two issues:
1: I didn't authorize you, and the merchants didn't authorize us to sell our goods. Is it infringement?
2. Is it trademark infringement to use our company's product trademark to display and publicize the title of goods?
We can look at these two issues separately.
1: Is it infringement to sell our products without authorization?
According to the rules of Pinduoduo intellectual property platform and the interpretation of trademark use right, after the manufacturer makes a payment transaction with the distributor or agent, the manufacturer receives the payment and the agent gets the product. Unless there is an independent distribution license agreement between the manufacturer and the agent, for example, it is not allowed to sell on Pinduoduo platform or similar e-commerce platform, the seller has no right to restrict the sales of the product in any channel. Therefore, Pinduoduo does not accept complaints initiated on the grounds that the manufacturer has not authorized sales. Therefore, according to the conventional understanding, unauthorized sales cannot be used as a reason for complaints.
2. Whether it is infringement to use our trademark to promote the use of products without our permission.
(1) Seller sells genuine products: it is a title if the products sold by the seller are genuine products actually produced by the manufacturer, but are sold on the Pinduoduo platform without the authorization of the manufacturer, and are displayed and promoted by using the corresponding brand trademark or name. According to the interpretation of the Trademark Law, after a manufacturer produces a product and sells it to an agent, the trademark right attached to the product has been exhausted, and the seller normally uses the product trademark or name to describe the product it sells, which is not an infringement, but a fair use scope. Therefore, the manufacturer cannot initiate a complaint or lawsuit on the grounds of infringement of the exclusive right to use a trademark.
(2) The product sold by the seller is not genuine or the seller can't prove the legal channel of the product: if the product sold by the seller is not genuine, or the seller can't prove the source of the product (that is, there is no receipt, the anti-counterfeiting code is scraped off, and the traceability code is scraped off, etc.), the authenticity of the product can't be identified. ), in this case, the use of the manufacturer's trademark for publicity and display can confirm the existence of infringement. 1: counterfeit trademark products, 2: cheat consumers, 3: sell fakes. In case of the above acts, you can directly file an intellectual property complaint or an offline lawsuit, and deal with it in the name of infringement of the exclusive right to use a trademark.
(3) The seller is not selling our products: If the seller is not selling our products, but using our trademark in the title for publicity and display, that is, there is trademark abuse and unfair competition, a trademark infringement complaint can be initiated.
As can be seen from the above discussion, the identification of trademark infringement complaints in Pinduoduo is in these two cases, and many manufacturers will ask, if the seller sells our company's products, but we want to deal with this behavior, is there no way but trademark?
Pinduoduo intellectual property protection platform, in addition to trademark rights, there are: copyright (copyright), patent rights, portrait rights and other ways and means to complain. The specific situation can be selected according to the different qualifications of each manufacturer.
Copyright can be filed on the brand website or Pinduoduo flagship store, and sellers can complain if they steal pictures or video advertisements that we enjoy copyright.
Patents are divided into design patents, utility model patents and invention patents. Patent information can be filed according to the actual situation, and then the corresponding patent infringement complaint can be initiated to delete the infringing link.
Portrait rights mainly complain about the unauthorized use of our portrait rights holders for publicity and display, such as spokespersons, advertisers and so on.