——E-commerce Series No. 8

When encountering situations where fake goods may be sold, who will judge the authenticity is also an important step. For merchants, if they claim to sell genuine goods, they generally use authorization letters, purchase orders, etc. as evidence; platforms have more resource advantages than merchants and can directly entrust brands to conduct appraisals. When the brand is identified as fake, the platform directly determines that the merchant is selling fake goods and will impose penalties according to the rules. Through the analysis of this case, we can further understand the reasons for determining the authenticity of goods.

Case introduction:

Xiamen Dekefeisi Trading Co., Ltd. (hereinafter referred to as the "merchant") is the owner of the Jingdong website, Beijing Jingdong Sanbailu Shidu E-commerce Co., Ltd., Jingdong The website technical service provider "Beijing Jingdong Century Trading Co., Ltd. (the above-mentioned companies are collectively referred to as "Jingdong") is a registered merchant.

During the period of store operation, Jingdong Company, Jingdong Century Company and Dekefeisi Company On the grounds that the store's sale of counterfeit goods constituted a serious violation, the two stores were closed, their wallets were frozen, 100 points were deducted, and Dekfess was required to pay a liquidated damages of 1,000,000 yuan.

After the complaint was invalid, the merchant filed a lawsuit in court, demanding that JD.com refund the purchase price, platform usage fees, etc.

JD.com subsequently filed a counterclaim, requiring the merchant to pay liquidated damages of 2 million yuan, which would be used first to offset the outstanding payment, deposit, etc. Deduction.

During the court hearing, the following facts were found:

1. According to Article 2.1 of the "JD Open Platform Product Quality Sampling Management Specifications", one of the JD.com platform rules, JD.com conducts random inspections and purchases. The samples are entrusted to nationally recognized third-party quality inspection agencies with CNAS and CMA qualifications, copyright/brand rights holders or their designated/authorized legal persons, individuals or other organizations.

2. JD.com L'Oreal products were purchased from each store and then mailed to L'Oreal Company. L'Oreal Company issued two appraisal conclusions, both of which indicated that the products involved were counterfeit.

3. JD.com provided its own information regarding the legality of the appraisal process. A video of the process of entrusting a purchasing agency to unpack, repackage and submit the goods for inspection after purchasing the goods involved, as well as a forensic opinion letter issued by the Fujian China Securities Judicial Identification Center; for the identification of the brand owner, JD.com provided L'Oreal shares Co., Ltd. authorizes L'Oréal to authenticate the authenticity of goods marked with relevant logos, a letter of authorization, a L'Oréal S.A. trademark registration certificate, a notarial certificate, and a business license.

Court decision:

The court of first instance determined as follows:

Although the merchant did not recognize the evidence provided by JD.com and submitted the distribution rights certificate, invoice, goods list and payment receipt to refute it, this was not enough to prove The fact that the goods involved in the case sold by the merchant are genuine is not enough to overturn the above identification conclusion. The merchant shall bear the adverse consequences of failure to provide corresponding evidence. Therefore, the evidence submitted by JD.com can form a complete chain of evidence. Therefore, the court accepted Jingdong’s claim and was able to identify the merchant. The goods involved in the case sold were counterfeit goods.

The court of second instance determined whether counterfeit goods were sold as follows:

First, it is necessary to clarify whether the brand of the goods involved is qualified to identify the authenticity of the goods. First, the two parties have clearly agreed that the brand party can conduct the appraisal; second, according to the "Reply of the State Administration for Industry and Commerce on the Authenticity of Products Using Registered Trademarks" and other regulations, the brand party is entrusted with the legal use of the registered trademark. The identification of persons shall comply with the requirements of relevant laws and regulations. Therefore, in this case, JD.com’s entrustment of the brand’s appraisal is valid and should be based on the brand’s appraisal results.

Secondly, regarding the issue of whether the goods were purchased from the two stores opened by the merchant on JD.com.

JD.com provided a series of evidence, especially the video, which reflects the entire process of receiving the goods from the purchasing agency, unpacking the outer packaging, taking out the purchased goods, and repackaging the purchased goods in digitally coded bags. This is enough to prove that the goods were purchased from Merchant store.

In addition, according to the purchase certificate provided by the merchant, the purchase quantity reflected is significantly less than the sales quantity, which further proves that the fact that the merchant is selling fake goods is established.

Lawyer’s statement:

1. Unlike handwriting identification, medical damage identification and other identifications that have universal standards, the ratio of raw materials and formula ratios such as clothing and cosmetics must meet national standards and industry standards. Standards and other minimum standards are sufficient, and no disclosure is required due to trade secret protection. In this case, the trademark holder or brand owner is better able to judge whether the product involved is a counterfeit product based on its understanding of the product.

2. In this case, the purchase certificate provided by the merchant ended up becoming one of the basis for the court to determine that fake goods were sold. If there is no appraisal conclusion from the brand, and the merchant cannot provide a reasonable explanation for the abnormal situation that the purchase quantity is significantly less than the sales quantity, the merchant will generally have to bear adverse consequences.