Recently, the "Oriental Selection" and Dong Yuhui's "small composition" incident continue to attract attention, and related topics continue to ferment.
On December 17, a live broadcast room called "Western Selection".
aroused the attention of netizens, because the anchor's style is similar to Dong Yuhui, netizens questioned that the anchor was imitating Dong Yuhui.
According to the homepage of the account, at 10 p.m. on the 17th, "Western Selection" started its first live broadcast, and the number of people in the live broadcast room once exceeded 40,000. Since then, the latest ** released in the early morning of the 18th said that "nearly 1 million ** volume was first broadcast", and said that it would continue to broadcast live at 10 pm on the 18th.
It is worth noting that on the morning of the 18th, the short** account was displayed abnormally, and the account name and avatar were no longer displayed. At present, the ** published by the account is no longer visible, and the nickname and avatar have been initialized.
In this regard, the relevant person in charge of the short ** platform told the reporter that the "Western Selection" account involves counterfeiting and improperly gaining popularity, and the platform has banned the account, withdrawn the live broadcast permission, erased the improper acquisition of fans, and canceled its profit-making permission.
This incident has aroused heated discussions among many netizens.
Some netizens think.
The account is an imitation and traffic scraping behavior.
should be sealed. 
There are also some netizens who think.
This act is suspected of violating the Anti-Unfair Competition Law.
It is an act of unfair competition.
Not only that, since the "Oriental Selection" live broadcast exploded, "Oriental Selection" has been applied for registered trademarks by many parties, in addition to New Oriental's Beijing New Oriental Xuncheng Network Technology Co., Ltd., including trading companies, logistics companies, etc., among which New Oriental Company has applied for a number of "Oriental Selection" trademarks have been successfully registered, and most of the trademarks applied by other companies have been rejected or are invalid.
In addition, trademarks such as "Western Selection", "Southern Selection", "Northern Selection" and "Dong Yuhui" have also been applied for registration by a number of companies, and the international classification involves convenience food, catering and accommodation, advertising sales, etc., among which the "Western Selection" applied by a company in Hangzhou and the trademark "Southern Selection" applied by a company in Xiamen have been successfully registered, and most of the other trademark applications have been rejected or invalidated.
So, does the launch of the high imitation number "Western Selection" constitute an infringement on the "Oriental Selection"?
Does the act constitute unfair competition?
Western Selection" adopted and Dong Yuhui.
Does live streaming by similar-looking anchors constitute infringement?
"Western Selection" and "Southern Selection".
Does the act of preemptively registering a trademark constitute an infringement?
What are the legal risks of this act?
Let's take a look at the professional interpretation brought by lawyer Lu Yang, a member of the lawyer expert database of "Rule of Law**" and a senior partner of Beijing Deheheng Law Firm!
1. Does the launch of the high imitation number "Western Selection" constitute an infringement on "Oriental Selection"?Does the act constitute unfair competition?
According to Article 6 of the Anti-Unfair Competition Law of the People's Republic of China, "Business operators shall not carry out the following confusing acts to mislead people into believing that they are the goods of others or that they have a specific connection with others: (1) using the same or similar marks as the names, packaging, decorations, etc. of goods that have a certain influence on others without authorization;(2) Unauthorized use of others' influential enterprise names (including abbreviations, trade names, etc.), names of social organizations (including abbreviations, etc.), and names (including pen names, stage names, translated names, and so forth);(3) Unauthorized use of the main body of the domain name, ** name, web page, etc., where others have a certain influence;(4) Other acts of confusion that are sufficient to lead people to mistakenly believe that they are the goods of others or that there is a specific connection with others. ”
At present, "Oriental Selection" has a good reputation among domestic live broadcast e-commerce platforms and maintains a continuous growth trend. In accordance with the Anti-Unfair Competition Law, "Oriental Selection" should be recognized as a service mark with a certain degree of influence. The text name registered by "Western Selection" on Douyin has a certain similarity with "Oriental Selection", and the indoor background setting, exterior framing environment, anchor appearance and dress, live broadcast style, ** editing, artistic text, and products with goods are highly similar to the overall visual effect of "Oriental Selection" live broadcast with goods, which will confuse consumers.
Therefore, under the circumstance that "Oriental Selection" already has a certain market popularity and influence and is known to the relevant public, "Western Selection" is suspected of taking advantage of the popularity and influence of "Oriental Selection" to seek commercial interests, create heat for its own live streaming platform, cause confusion among the public about the accounts of the two live streaming platforms, and cause the public to believe that there is a specific connection between the two live streaming platform enterprises, which is suspected of constituting unfair competition.
2. Does the use of anchors who look similar to Dong Yuhui for live broadcasts by "Western Selection" constitute infringement?
At present, Dong Yuhui, the anchor of "Oriental Selection", has won the favor of more than 20 million fans and has very high IP commercial value and influence. In the first article released by "Western Selection", whether it is from the dress of its male anchor, or the content of the live broadcast, the style of the live broadcast, etc., it is highly similar to Dong Yuhui of "Oriental Selection", and it may even cause consumers to be confused. Therefore, if the anchor of "Western Selection" deliberately imitates Dong Yuhui's live broadcast, causing damage to Dong Yuhui's dignity or reputation, it may also be suspected of infringing on Dong Yuhui's right to reputation.
3. Does the act of preemptively registering trademarks by "Western Selection" and "Southern Selection" constitute infringement?
According to Article 57 of the Trademark Law of the People's Republic of China, "any of the following acts shall be deemed to be an infringement of the exclusive right to use a registered trademark: (1) without the permission of the trademark registrant, using a trademark identical to its registered trademark on the same kind of goods;(2) Without the permission of the trademark registrant, the use of a trademark similar to the registered trademark on the same goods, or the use of a trademark identical or similar to the registered trademark on similar goods, which is likely to cause confusion;(3) Selling goods that infringe upon the exclusive right to use a registered trademark;(4) Forging or manufacturing the registered trademark logo of another person without authorization, or selling the counterfeit or unauthorized manufacture of the registered trademark logo;(5) Replacing the registered trademark without the consent of the trademark registrant and putting the goods with the replaced trademark on the market;(6) Intentionally facilitating the infringement of others' exclusive right to use a trademark, or helping others to infringe upon the exclusive right to use a trademark;(7) Causing other damage to the exclusive right to use a registered trademark of another person. ”
Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases stipulates that: "The following acts are acts that cause other damage to the exclusive right to use a registered trademark of another person as provided for in Article 57(7) of the Trademark Law: (1) The use of words identical or similar to the registered trademark of another person as the trade name of the enterprise on the same or similar goods is likely to cause misidentification among the relevant public;(2) copying, imitating or translating a well-known trademark registered by another person or its main part to be used as a trademark on non-identical or dissimilar goods, misleading the public, causing the interests of the registrant of the well-known trademark to be harmed;(3) Registering words that are identical or similar to the registered trademarks of others as domain names, and conducting e-commerce transactions of relevant goods through the domain name, which is likely to mislead the relevant public. ”
Article 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases stipulates that: "The people's court shall, in accordance with the provisions of Article 57(1) and (2) of the Trademark Law, determine that trademarks are identical or similar in accordance with the following principles: (1) the general attention of the relevant public shall be the standard;(2) Comparison of the overall trademark and the main part of the trademark shall be carried out, and the comparison shall be carried out separately in the state of isolation of the objects of comparison;(3) To determine whether the trademarks are similar, consideration shall be given to the distinctiveness and popularity of the registered trademarks for which protection is sought. ”
To comprehensively determine whether trademark squatting acts such as "Western Selection" and "Southern Selection" constitute infringement, comprehensive consideration should be made from the three aspects stipulated in Article 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases, namely, the general attention of the public, the comparison of the whole and part of the trademark, and the distinctiveness and popularity of the protected registered trademark.
At present, the popularity and public attention of "Oriental Selection" are relatively high, the network influence is large, and some of the contents of the trademarks "Western Selection" and "Southern Selection" are the same as "Oriental Selection" or are Xi inertly believed to have some kind of association. Therefore, the act of preemptively registering trademarks such as "Western Selection" and "Southern Selection" may be suspected of constituting infringement.
4. What are the legal risks of maliciously preemptively registering trademarks in hot spots?
China's Trademark Law stipulates that an application for trademark registration shall not infringe upon the existing prior rights of others, nor shall it preemptively register a trademark that has been used by others and has a certain influence by improper means. Article 58 of the Trademark Law of the People's Republic of China stipulates that: "The use of a registered trademark or an unregistered well-known trademark of another person as a trade name in an enterprise name, misleading the public, and constituting an act of unfair competition, shall be dealt with in accordance with the Anti-Unfair Competition Law of the People's Republic of China." ”
Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China stipulates that: "Where a business operator commits any of the following confusing acts, which is sufficient to mislead people into believing that it is another person's goods or has a specific connection with another person, the people's court may make a determination in accordance with Article 6, Item 4 of the Anti-Unfair Competition Law: (1) Unauthorized use of a mark that 'has a certain influence' other than that provided for in Paragraphs 1, 2 and 3 of Article 6 of the Anti-Unfair Competition Law;(2) Misleading the public by using the registered trademarks or unregistered well-known trademarks of others as trade names in the name of the enterprise. ”
Due to the extremely high popularity of the "Oriental Selection" trademark, if some Internet platforms register trademarks such as "Western Selection" and "Southern Selection" for the purpose of free-riding and famous brands, their use has the effect of objectively misleading the public, making the public mistakenly believe that they have a specific connection with "Oriental Selection" such as commercial association or licensed use, and such behavior may be determined as an act of unfair competition because it violates the market transaction principles of good faith and fair competition.
In addition, applying for trademark registration of the names of public figures such as "Dong Yuhui" without authorization is an act that violates the principle of good faith and infringes on the name rights of others. Malicious squatting may face administrative penalties, and the relevant trademark ** institution may be ordered to make corrections, imposed warnings, fines or even be held criminally liable. At the same time, the prior right holder may claim compensation from the malicious squatter through a civil lawsuit.
*:Rule of law**.