The Asian Organizing Committee v. a real estate company and a technology company in a dispute over infringement of the exclusive right of special signs
-- Infringement of the exclusive right of the special sign of the Organizing Committee shall be liable for compensation
keyword
- civil
- Disputes over infringement of the exclusive rights of special signs
- Indemnification
- Special signs
Basic facts of the case
The Asian Organizing Committee alleged: Hangzhou won the right to host the 2022 Asian Games. On March 28, 2016, the General Office of the State Council issued the Letter of the General Office of the State Council on Agreeing to Establish the Organizing Committee of the 19th Asian Games in 2022 (Guo Ban Han [2016] No. 27), which formally established the Asian Organizing Committee and carried out the preparation and organization of relevant events as the management and organizer of the Asian Games. In accordance with the provisions of the Regulations on the Administration of Special Signs, the Asian Organizing Committee submitted applications to the State Intellectual Property Office for the registration of 12 special signs, including the "19th Asian Games in 2022" and "Hangzhou Asian Games". On April 17, 2020, the State Intellectual Property Office issued Announcement No. 357 for approval. On March 17, 2021, when the Asian Organizing Committee searched for "Hangzhou Asian Games" on Baidu's website, it found that the first search result was "Hangzhou Asian Games_Landscape Era丨Face to face with the third SKP in the country_Hot seat..", which is the marketing page of a real estate company developing the real estate "Landscape Era". After investigation, the marketing message was published by a technology company. "Hangzhou Asian Games" is a special symbol of the Asian Organizing Committee. The use of "Hangzhou Asian Games" as a search keyword for the real estate without the authorization of a real estate company and a technology company infringed the exclusive right of the special sign of the Asian Organizing Committee and constituted unfair competition. The Sub-Organizing Committee confirmed that the litigation claim is: a real estate company and a technology company jointly compensate the Sub-Organizing Committee for losses (including reasonable expenses) totaling 1.5 million yuan.
A real estate company argued that the content of the real estate company's advertisement included "next to the Hangzhou Asian Games", which was in essence a description of the geographical location of the real estate and did not constitute an infringement of the exclusive right of the special sign of the Asian Organizing Committee. According to the "release contract" signed between a real estate company and a technology company, a real estate company provided a technology company with six non-infringing keywords and corresponding material packages, and a technology company found that the keywords "skp" and "Asian Games" provided by a real estate company were not available during the debugging and testing of a technology company, and then a technology company modified them to "Hangzhou SKP" and "Hangzhou Asian Games" without authorization, and released them through Baidu. Even if the act is found to be infringing, there is no subjective malice on the part of a real estate company. The advertisement involved in the case was published on March 12, 2021, and on March 19 of the same year, a real estate company received a complaint from the Asian Organizing Committee and took the advertisement offline on the same day. The "Shanshui Era" project is an unfinished building project, and a real estate company has organized overtime construction after attracting investment, and the project has been completed and accepted. A real estate company contributed to the overall image improvement of the Hangzhou Asian Games and requested the court to consider it as appropriate when determining the amount of compensation.
A technology company argued that, according to the Release Contract, a real estate company assigned keywords to a technology company every month, and the technology company submitted the keywords to Baidu's platform for review. After being approved by Baidu, a technology company designs an advertising entry based on the keyword and bids to obtain the top advertising space, and then the real estate company can obtain keyword search traffic. It is this model that is followed by the advertising in question. The full expression of the alleged infringing entry is "Hangzhou Asian Games_Next to the Landscape Times--", in which "next to the Hangzhou Asian Games" refers to the geographical location of the "Landscape Times" real estate near the Asian Games, and the entry is only a description of the geographical location of the real estate development of a real estate company, which will not cause confusion and misidentification among the relevant public. Even if the advertisement involved in the case constituted infringement, a technology company only carried out advertising according to the requirements of a real estate company in the process of advertising, and had passed Baidu's keyword review before placing it, and the relevant traffic benefits were also enjoyed by a real estate company. A technology company is not the perpetrator or beneficiary of the alleged infringement and has fulfilled its obligation to review. A technology company subjectively did not have the intention of infringing or clinging to the popularity of the Asian Organizing Committee, and immediately deleted the advertisement after receiving the complaint from the Asian Organizing Committee. A technology company's profit based on the contract was extremely meager, and there was no competition with the Asian Organizing Committee, so the court was requested to make a prudent determination.
After trial, the court ascertained that on March 28, 2016, the General Office of the State Council issued the "Letter of the General Office of the State Council on Agreeing to Establish the Organizing Committee of the 19th Asian Games in 2022" (Guo Ban Han [2016] No. 27), agreeing to the establishment of the Asian Organizing Committee and its composition. On April 17, 2020, the State Intellectual Property Office issued Announcement No. 357 to approve 12 applications for the registration of special signs, including the "19th Asian Games in 2022" and "Hangzhou Asian Games" submitted by the Asian Organizing Committee, in accordance with the Regulations on the Administration of Special Signs. The names of the 12 distinctive signs approved for use are the 19th Asian Games in 2022, and the approved goods and services are from Classes 1 to 45 of the International Classification of Trademark Registration and Services, and are valid from April 17, 2020 to April 16, 2024. On May 10, 2021, Yu Weiting, a staff member of the Asian Organizing Committee, applied to the Hangzhou Internet Notary Office of Hangzhou City, Zhejiang Province (hereinafter referred to as the notary office) for notarization of evidence. On May 17 of the same year, the notary office issued (2021) Zhehang Net Zheng Nei Zi No. 5751 and No. 5752 notarial certificates respectively. A real estate company and a technology company signed a "release contract" in March 2021, and the two parties agreed on the entrustment of a real estate company to a technology company to place a "Shanshui Era" real estate advertisement on Baifang Network, and the cooperation period was from March 12, 2021 to June 11 of the same year, and the contract price was determined to be 100,000 yuan. On May 6, 2020, a real estate company issued a "Letter of Explanation and Commitment" to the Asian Organizing Committee, the main content: because a real estate company's Shanshui Times project appeared in the recent advertising content of the Hangzhou 2022 19th Asian Games mascot, suspected of infringing the relevant intellectual property rights of the Hangzhou 2022 19th Asian Games, after being informed by the Asian Organizing Committee and after internal verification by a real estate company, a real estate company made serious criticism and treatment of relevant internal departments and personnel and reserved internal punishment opinions. It also promises to regularly train the company's marketing planning port and third-party cooperative companies on relevant laws and regulations, deeply understand the relevant laws and regulations related to the intellectual property rights of sports events and ensure unconditional compliance in the future, strictly control all advertising content, and prevent the recurrence of such situations.
On October 9, 2021, the People's Court of Xiaoshan District, Hangzhou City, Zhejiang Province, rendered the (2021) Zhe 0109 Min Chu No. 12877 Civil Judgment: 1. A real estate company shall compensate the Asian Organizing Committee for losses (including reasonable expenses) of 900,000 yuan within 10 days from the effective date of the judgment; 2. A technology company shall be jointly and severally liable for the above-mentioned first payment obligation of a real estate company within the range of 600,000 yuan; 3. Reject the remaining litigation claims of the Asian Organizing Committee. After the judgment was pronounced, none of the parties appealed, and the judgment has taken legal effect.
Reasons for the Adjudication
The effective judgment of the court held that: 1. On the issue of whether the use of "Hangzhou Asian Games" as a search keyword in an advertisement published by a real estate company entrusted by a technology company infringes the exclusive right of the special sign of the Asian Organizing Committee. The Regulations on the Administration of Special Signs promulgated by the State Council in 1996 stipulate that special signs refer to the names and abbreviations, emblems, mascots and other signs used in national and international cultural, sports, scientific research and other social welfare activities approved by the State Council. According to the relevant provisions of the Regulations on the Administration of Special Signs, the owner of the special sign may use the mark on advertisements, souvenirs and other items related to its public welfare activities, and permit others to use the mark on the goods or services approved for the use of the mark. The user of the special sign shall sign a written contract with the owner. Anyone who uses a special sign for commercial activities without the permission of the owner of the special sign shall immediately stop the infringement and confiscate the illegal gains. The special sign of the "Hangzhou Asian Games" involved in the case has been submitted to the State Intellectual Property Office for approval and registration by the Asian Organizing Committee, and the exclusive right to the special sign has been obtained accordingly. At present, a real estate company and a technology company have set "Hangzhou Asian Games" as a search keyword for Internet advertisements without the permission of the Asian Organizing Committee, and their actions have constituted an infringement of the exclusive right of the special logo of the Asian Organizing Committee.
2. On the issue of whether the above-mentioned acts constitute unfair competition against the Asian Organizing Committee. Article 6(1) of the Anti-Unfair Competition Law stipulates that business operators shall not carry out acts of confusion by using the same or similar marks as the names, packaging, decorations, etc., of goods that have a certain influence on others, leading people to mistakenly believe that they are the goods of others or that there is a specific connection with others. As a well-known regional multi-sport event, the "Hangzhou Asian Games" has a great social influence in Asia. In this case, it has been ascertained that a real estate company entrusted a technology company to direct the relevant public searching for the keyword "Hangzhou Asian Games" to the "Shanshui Era" real estate advertisement link developed by a real estate company by setting up Baidu search keywords, which was sufficient to make the relevant public mistakenly believe that the real estate developed by a real estate company was related to the "Hangzhou Asian Games" to a certain extent, so as to use the reputation of the "Hangzhou Asian Games" to provide the possibility for it to enhance the popularity of the real estate and obtain greater commercial benefits. The essence of the "commercial mixing" involved in the case is an act of unfair competition that deceives consumers and undermines the order of fair competition.
3. On the issue of the civil liability that a real estate company or a technology company should bear. A real estate company, as the entrusting party of the advertisement publication contract involved in the case, was the ultimate user and actual beneficiary of the advertisement, and it failed to fulfill its duty of sufficient care, resulting in the occurrence of infringement, and should bear civil liability for the damage caused by the infringement in accordance with the law, and compensate for the economic losses caused to the Asian Organizing Committee. At present, the Asian Organizing Committee did not provide evidence on its actual losses and the profits of a real estate company, but claimed the application of statutory damages. As for the amount of damages to be borne by a real estate company, the court considered the following circumstances: 1. A real estate company had used pictures of the mascot of the Asian Games in its advertisement, and issued a Letter of Explanation and Undertaking to the Asian Organizing Committee in May 2020 based on the infringement of the intellectual property rights of the Asian Organizing Committee. 2. As a real estate development company, there is reason to believe that advertising has a significant effect on the number and price of real estate sales. 3. According to the WeChat records of a real estate company and a technology company on the issue of advertising, the court found that the duration of the infringement involved in the case was relatively short and the number of clicks on the infringing link was small. However, the infringer did not take the initiative to stop the infringement, but terminated it after negotiation by the infringed party. 4. The notary fees incurred by the Asian Organizing Committee for rights protection have actually been incurred, and although the lawyer's fees are settled in cash equivalents based on the Sponsorship Agreement, it does not affect the value judgment that reasonable remuneration should be paid for providing legal services. Based on the above analysis, the court supported the loss (including reasonable expenses) claimed by the Asian Organizing Committee for 900,000 yuan as appropriate, and did not support the excess. Article 31 of the Advertising Law of the People's Republic of China stipulates that advertising agents and publishers shall not engage in any form of unfair competition in advertising activities. As a software and information technology service company, a technology company should have a more professional judgment on the legality of publishing advertisements through the Internet than ordinary commercial entities. At present, a technology company has failed to fulfill its obligation of reasonable review, resulting in a real estate company infringing on the legitimate civil rights of the Asian Organizing Committee through the advertisements it publishes, and the Asian Organizing Committee has the right to require it to bear joint and several liability with the real estate company. In view of the court's consideration of repeated infringement in determining the liability of a real estate company, and the fact that a technology company was not related to the previous infringement of a real estate company, based on the principle that the liability is consistent with the degree of fault, it was determined that a technology company was jointly and severally liable for the compensation obligation of a real estate company within the range of 600,000 yuan. As for the internal dispute between a technology company and a real estate company arising from the "release contract", it does not affect the external civil liability of both parties due to joint infringement.
The court of first instance rendered the judgment in this case in accordance with Articles 120, 179, Paragraph 1 (8) and 1168 of the Civil Code of the People's Republic of China, and Articles 6 (1) and 17 of the Anti-Unfair Competition Law of the People's Republic of China.
Summary of the trial
Special signs refer to the names and abbreviations, emblems, mascots and other signs used in national and international cultural, sports, scientific research and other social welfare activities approved by the State Council. Paragraph 1 of Article 52 of the People's Republic of China Sports Law stipulates that the names, emblems, flags, mascots and other symbols of sports events held within the territory of China shall be protected in accordance with relevant national regulations. The act of setting a special sign as a search keyword for Internet advertising without authorization constitutes infringement, and the infringer shall bear corresponding liability.
Associate indexes
Articles 120, 179 and 1168 of the Civil Code of the People's Republic of China
Articles 6 and 17 of the Anti-Unfair Competition Law of the People's Republic of China
Article 31 of the People's Republic of China Advertising Law
First instance: Civil Judgment of Xiaoshan District People's Court of Hangzhou City, Zhejiang Province (2021) Zhe 0109 Min Chu No. 12877 (October 9, 2021)