1. Using other people's works in advertisements may constitute copyright infringement.
20 15 Plaintiff Gaihua Creative (Beijing) Imaging Technology Co., Ltd. v. Defendant Tianjin Xiangyun Dermatology Hospital Co., Ltd. for copyright infringement. The defendant hospital used the pictures involved in the case for advertising in its Weibo without legal authorization. The plaintiff, as the sole authorized agent of Getty Company of the United States, has the right to use and defend rights in China, so he informed the court of the case by filing a complaint. Finally, the court ruled that the defendant hospital should compensate the plaintiff for its economic losses because it used the pictures involved in the case in its Weibo without the plaintiff's legal authorization.
In addition, when many advertising companies use popular channels such as WeChat, WeChat official account and Weibo to advertise, they may directly reprint other people's published works in part or in whole without the permission of the right holder. This is actually an act of infringing the copyright of others, and the obligee will investigate the tort liability according to law. There are many such cases in the local court.
It can be said that copyright infringement is the hardest hit area in the advertising industry, and there are countless lawsuits caused by copyright infringement every year. In fact, any advertising design or advertising creative product will inevitably draw lessons from previous works. Rational use of predecessors' intellectual achievements is actually encouraged and supported by China's copyright law. However, at present, the behavior of a large number of advertisers has gone far beyond the scope of learning from predecessors' thoughts, but has been copied or even directly copied. In this way, the right party will inevitably be investigated for tort liability in the future. Therefore, when designing advertising products in the future, enterprises must use other people's works by buying from the obligee.
Second, the use of other people's trademarks in advertisements may constitute trademark infringement.
American Xingyuan Company as a famous coffee chain brand? Starbucks? The legal holders of trademarks enjoy a high reputation all over the world. Because it found that Shanghai Starbucks Company privately used external light boxes, menus, brochures, in-store decoration and other forms in its coffee shop? Starbucks? Trademark, American Star Source Company and its unified Starbucks Company established in China sued Shanghai Starbucks Company and its branches to the court. Finally, after trial, the court ruled that the defendant Shanghai Starbucks Company and its branches were prohibited from using the goods legally possessed by the plaintiff in any form in the physical store they operated? Starbucks? Trademark, and compensate the plaintiff for economic losses according to law.
Many well-known enterprises often use other people's well-known trademarks in their advertisements in order to expand their influence. The author thinks that this hitchhiking behavior is very short-sighted. Once this kind of behavior is found to be infringing by the court, it not only needs to pay high economic compensation, but also directly ruined the opportunity to establish its own brand. In advertising design products, there must be no? Next to the famous brand? Wait for ideas. For our country, it is the long-term way for enterprises to establish their own excellent brands by providing high-quality products and services.
Third, use others in advertisements.
The image of well-known commodities constitutes unfair competition.
LOUISVUITTONMALLETIER v. Shanghai Xingui Real Estate Development Co., Ltd. and other unfair competition disputes (2004) Hu (Zhi) No.242, who is the plaintiff Louis Vuitton? Lu? Trademark registrants enjoy a high reputation all over the world. Defendants Xingui Real Estate Company and Shanghai Lidu Company used them in their large-scale outdoor advertisements without permission? Lu? Registered trademark, and will bear? Lu? Brand handbags are placed in the most conspicuous position in the advertising screen. Therefore, the plaintiff sued the defendant for trademark infringement and unfair competition.
In this case, because the defendant company is a real estate development company, it was used in the advertisement. Lu? The act of trademark does not constitute trademark use, so it does not constitute trademark infringement. But the court held that the two defendants knew? Lu? Handbags have a high reputation and still stand out for nearly one-third in huge advertisements. It is deliberately using the plaintiff's resources to improperly obtain benefits, which constitutes unfair competition.
The behavior of using other people's well-known commodity images in advertisements is very similar to the aforementioned behavior of using other people's registered trademarks. They all take advantage of other people's competitive advantages and hitchhike. Article 5 of China's Anti-Unfair Competition Law clearly stipulates that operators shall not use the unique names, packaging and decoration of well-known commodities. Therefore, in order to avoid legal risks, enterprises should do their duty of reasonable care when making and designing advertisements, so as to avoid the familiar commodity image of others.
Four, false advertising content may constitute false propaganda.
In the case of unfair competition dispute between China Pharmaceutical University and Fu Rui Science and Technology Company, the Supreme People's Court Announcement No.6, 2005, the plaintiff, China Pharmaceutical University, is a key university directly under the Ministry of Education, and has made many scientific research achievements in the field of pharmacy, which has been transformed into a medical device and drug supply market through its affiliated enterprises. The defendant, Fu Rui Company, used the plaintiff's name without permission when promoting the capsule products that it claimed had the effect of promoting the brain development of infants. After learning the situation, the plaintiff appealed to the court, demanding that the defendant stop false propaganda and compensate the economic losses.
The judge held that the defendant, Fu Rui Company, violated the principle of good faith and accepted business ethics, not only violated the plaintiff's name right of China Pharmaceutical University, but also occupied the business reputation of China Pharmaceutical University for free, objectively making the public mistakenly believe that its products originated from China Pharmaceutical University, deceiving consumers, damaging public interests and constituting unfair competition. Finally, the defendant was sentenced to apologize and compensate the plaintiff for economic losses of 654.38+10,000 yuan.
In this case, Fu Rui's behavior is a typical false propaganda behavior. It wants to use the goodwill of China Pharmaceutical University to promote its products and deceive consumers. In the short term, many consumers may be fooled and bring them certain economic benefits. However, once this fact is recognized by the court, it will inevitably become a fraud company in the eyes of the public and will never be able to recover the fate of failure.
5. Fabricate false facts in advertisements
Damage to competitors may constitute commercial slander.
Shanghai Zhongyan Information Technology Co., Ltd. v. Shanghai Gaby Data System Co., Ltd. (20 12). Both the plaintiff Gaby Company and the defendant Zhongyan Company are websites providing online shopping guide, product information comparison and shopping rebate services. Cnsic said in its official statement that Gaby is a company? Illegal cottage rebate website? ,? Cheating consumers illegally? . And through its official Weibo and other channels to vigorously promote.
The court of first instance held that the defendant's behavior of China Tobacco Company fabricated false facts and spread them to unspecified objects, which objectively damaged the commercial reputation of Gaby Company and constituted a commercial defamation act as stipulated in China's Anti-Unfair Competition Law. The court of second instance upheld the judgment of first instance.
In this case, it can be clearly seen that the original defendant and the defendant have the same business scope and belong to direct competition. In the fierce competition, in order to gain a competitive advantage, China Tobacco Company adopted the means of commercial slander. This kind of behavior is clearly stipulated in China's Anti-Unfair Competition Law. The author believes that commercial slander may achieve certain results in the short term, but with the continuous improvement of China's legal system, it is inevitable to escape legal sanctions.
Six, the use of others in advertising
Photos, names, etc. Infringe on others' right to portrait and reputation.
Advertisements often involve the right of reputation and portrait of natural persons or legal persons, and related disputes will inevitably arise in the process.
Weng Xu v. Deyang Junsha Advertising Co., Ltd. and Deyang Jinhong Real Estate Co., Ltd. (2005) In caseNo. Chu Di 1369, the two defendants used the plaintiff's artistic photos in outdoor advertisements of their real estate without permission, and the court finally ruled that the defendant's behavior violated the plaintiff's portrait right, and sentenced the defendant to compensate the plaintiff for mental damages and apologize.
In the dispute between the plaintiff Shenhua Club and the defendant Trenton Company over infringement of the right to name, Trenton Company, as a furniture manufacturer, introduced Trenton Company's furniture products in its Nordic style furniture advertisement. 99 Shenhua moved to a new home. What about you? Champion? Words, etc Finally, after hearing the case, the court of first instance held that there was no need for Tereton to spread the information of Shenhua to the public in the advertisement of distributing Nordic furniture. This practice of the company is nothing more than to promote its own products. In order to expand the effect of commercial advertising and obtain commercial benefits, Tereton Company transferred it without the consent of Shenhua Club? Shenhua? The use of relevant content in its commercial advertisements makes Shenhua Club unable to control its intangible property and benefit from it. Therefore, the company was sentenced 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, we must not use other people's portraits and names at will, so as not to end up in an embarrassing situation of infringement.
With the improvement and standardization of the advertising market, how to stand out from many competitors has become the ultimate goal of every enterprise. But in the process of achieving this goal, we must try to avoid touching minefields and red lines. The problem of advertising infringement is very complicated and will involve all aspects of the law. Above, the author only studied several common advertising infringements for readers' reference. It can be said that advertising is the vane of the development of every enterprise. The author believes that in today's increasingly perfect market economy in China, just competitive behavior is the way to win the development of enterprises, and advertising should also attach importance to independent innovation and must not use other people's intellectual achievements at will.