China Fund News Chenxi comprehensively summarizes
"touch porcelain" famous actresses to increase traffic? The latest court ruling is here!
Recently, the Haicang District People’s Court of Xiamen City issued an article on its official Weibo to “explain the law with a case”, ruling and justifying a cosmetics company’s behavior of using celebrity portraits without the authorization of Ruby Lin to “increase popularity” and “drain traffic”.
The court ruled that the cosmetics company must publish an apology statement to apologize to Ruby Lin and compensate Ruby Lin for a total of 700,000 yuan in economic losses. After the first instance verdict, both parties accepted the verdict and settled the lawsuit.
Let’s take a look at the details -
marked "Same as Ruby Lin's show"
Use portrait photos to make posters
Let's first look at the case review of this case -
A cosmetics company opened online stores on various e-commerce platforms to sell shower gel, facial cleanser, etc. product. During the operation, the company spliced Ruby Lin's portrait photos of participating in an entertainment program and its products into joint posters, and used posters with the words "Become beautiful together with stars" and "Ruby Ruby's program recommendations" on the homepage of the store.
In addition, the company also marked "Same model from Ruby Lin's show" and "Ruby Lin's wholehearted recommendation" on the homepage and detail pages of many products sold in stores, and used posters made of Ruby Lin's portrait photos.
After Lin Xinrufang found out, she sued six online store operators, a cosmetics company, to the court on the grounds that her right to portrait and name had been infringed. During the trial, the infringing advertisements of the online store involved in the case were deleted.
The cosmetics company had false endorsements
apologized + compensated 700,000 yuan
After hearing, the court held that:
• Regarding whether the defendants 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.
• On 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 will be determined to compensate for economic losses and reasonable expenses for rights protection.
In the end, the court ruled that the cosmetics company should publish an apology statement on the six online stores involved in the case for three consecutive days to apologize to Ruby Lin within ten days of the effective date of the judgment. The content of the apology must include the case number of the judgment of the case and the infringement of Ruby Lin. The main plot of portrait rights and name rights.
At the same time, the cosmetics company should compensate Lin Xinru for economic losses (including reasonable rights protection expenses) totaling 70,000 yuan within ten days from the date of the judgment.
After the first-instance verdict, both parties accepted the verdict and settled the lawsuit.
In the traffic era
Operators should enhance their legal awareness
In the "Judge's Statement" section, the Xiamen Haicang District People's Court stated that natural persons enjoy the right of portrait and have the right to produce, 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.
At the same time, citizens whose portrait rights and name rights 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, but also 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.
Similarly, at the beginning of this year, Shaanxi famous wine Xifeng Wine was sued by actor Huang Bo, which attracted widespread attention. Recently, Shaanxi Qinhuang Yuyan Xifeng Liquor Marketing Co., Ltd. publicly apologized to Huang Bo, saying that the company used Huang Bo in the promotion, sales and investment activities of the "Xifeng Liquor Qinhuang Yuyan" brand and related wine products without authorization. Bo's portrait and name will be used for commercial activities, and we promise that such infringement will not occur in the future.
In addition, there have been endless discussions in the market recently about "copycat" celebrity endorsements. For example, in May this year, "Fake Ice Black Tea Asked to Be Endorsed by Counterfeit Jay Chou" went viral on the Internet. The packaging of the "shanzhai iced black tea" involved is very similar to Master Kong's iced black tea. The spokespersons "Zhou Kou Jay" and Jay Chou "collide" on the packaging, and the related manufacturer is called "Daliyuan Beverage (Liaoning) Co., Ltd." In response, Dali Food Group, the company that owns the brand "Dali Garden", responded that the Liaoning company has nothing to do with Dali Garden and its products are not produced by Dali Garden.
In May this year, the State Administration for Market Regulation officially issued the "Interim Provisions on Anti-Unfair Competition on the Internet", which will come into effect on September 1. The "Interim Provisions" stipulate that: Operators shall not use the Internet to conduct confusion, leading people to mistakenly think that they are other people's goods (including services) or have a specific connection with others.
Editor: Joey
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