"Celebrity endorsement" and "Celebrity recommendation"
are magic weapons for merchants to increase sales
However, using celebrity portraits without the authorization of celebrities
"to gain popularity" and "drain traffic" will constitute infringement
Recently, Xiamen Haicang Court
issued such a case Typical case
A company publicly apologized for "impairing" the famous actress Ruby Lin
! compensation!
Case review
Picture source: @林心如微博
A cosmetics company opened online stores on various e-commerce platforms to sell shower gel, facial cleanser and other products. During the operation process, the company used Ruby Lin's portrait photos of participating in an entertainment program with its products. Spliced into a joint poster, use the posters with the words "Join hands with stars to become beautiful together" and "Ruby Lin's program recommendation" on the home page of the store. On the homepage and detail pages of multiple products sold in the store, mark "Same model from Ruby Lin's program" and "Ruby Lin's love" Recommended" and so on, and used posters made of Ruby Lin's portrait photos.
After Lin Xinrufang found out,
she sued six online store operators, namely a cosmetics company, to this court on the grounds that her right to portrait and name had been infringed.
During the court hearing,
all the infringing advertisements involved in the online stores had been deleted.
After the court, The trial held that:
regarding whether each defendant constituted infringement. Celebrity portraits and names have certain commercial value. A cosmetics company used Ruby Lin's portraits and names on six online stores involved in the case without Ruby Lin's permission, infringing Ruby Lin's portrait rights and name rights, and should bear corresponding tort liability. A cosmetics company claimed that it had obtained authorization from the entertainment program producer, but could not prove that it had obtained Ruby Lin's authorization for the portrait and name involved in the case.
regarding false endorsements. A cosmetics company combines Ruby Lin's portrait and name with a certain brand, and labels "Ruby Ruby's same model on the show" and "Ruby Lin wholeheartedly recommends", etc., which can easily lead the public to mistakenly believe that Ruby Lin has an endorsement relationship with a certain brand. Therefore, the cosmetics company has made false claims. Endorsement.
Regarding liability for infringement. Lin Xinru advocated an apology. Since a cosmetics company used Ruby Lin's portrait without permission on six online stores involved in the case, the carrier of the apology statement should also be on the six online platforms involved in the online store involved in the case. In addition, taking into account Ruby Lin's popularity, the degree of fault of a cosmetics company, the number and scope of use of the portrait and name involved in the case, the cosmetics company was determined to compensate for economic losses and reasonable expenses for rights protection.
verdict:
publicly apologized and compensated for 3 consecutive days!
1. Within ten days from the effective date of this judgment, a cosmetics company published an apology statement on the six online stores involved in the case for three consecutive days to apologize to Ruby Lin. The content of the apology must include the case number of the judgment of the case and the infringement of Ruby Lin's portrait rights, The main circumstances of the right to name;
2. A cosmetics company shall compensate Lin Xinru for economic losses (including reasonable rights protection expenses) totaling 70,000 yuan within ten days from the date of entry into force of this judgment.
After the first instance verdict, both parties agreed and settled the lawsuit.
The judge said:
Natural persons enjoy the right of portrait and have the right to make, use, disclose or permit others to use their own portrait in accordance with the law. Natural persons enjoy the right of name and have the right to decide, use, change or permit others to use their names in accordance with the law, but they must not violate public order and good customs. Citizens whose right to portrait or name have been infringed have the right to demand an end to the infringement, elimination of the impact, an apology, and compensation for losses.
Not only celebrities, every citizen's right to portrait and name are protected by law. In the era of traffic, online store operators should effectively enhance their legal awareness and pay attention to the protection of other people's name rights and portrait rights during publicity and promotion.
Source | Xiamen Haicang District People's Court, Strait Herald, fm1007 Fujian Traffic Broadcasting
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