With the development of the network industry and e-commerce shopping, "scalping", "scalping" and "false comments" have become frequent illegal acts in the Internet field. In the past judicial practice, the court often regarded the successful implementation of "volume brushing" as the standard for determining the formation of unfair competition. Recently, the Beijing Intellectual Property Court concluded a special case of "volume brushing".
In this case, although the behavior of "scalping" implemented by the actor has not yet been completed, the court of second instance, on the basis of analyzing the legitimacy and rationality of the platform's rights protection, pointed out that the court of first instance had wrongly identified the "damage" in the first paragraph of Article 17 of the Anti unfair Competition Law, and then corrected the judgment of first instance, It was determined that the act of selling "swipe volume" goods targeted at the fast hand short video platform on the sued website also constituted unfair competition, and ordered the infringer to bear the reasonable expenses for protecting the rights of the obligee.
Does the selling of "brush volume" goods for short video platforms constitute unfair competition?
Beijing Fast Hands Technology Co., Ltd. (referred to as "Fast Hands") is the operator of Fast Hands short video platform. In 2021, Fasthand sued the court of first instance, claiming that the Yingyang Yuhong Waterproof Material Store Department (referred to as "Yuhong Store Department") implemented the act of providing "fast hand" short video platform users with "fast hand - fast brush double click 100" and other "brush volume" goods on the respondent website it operated, which damaged the business system built by Fasthand on the fast hand short video platform, It may cause users to doubt the authenticity of the data on the fast hand short video platform, thus affecting the commercial interests of fast hand companies and constituting unfair competition.
Screenshot of the accused website. Source: Beijing Intellectual Property Court
After hearing, the court of first instance held that according to the changes in the amount of play and likes reflected by the existing evidence, it was not enough to prove that the Yuhong Store Department had implemented the "volume scanning" service for the false growth of short video play and likes on the fast hand short video platform, and the fast hand company should bear the adverse consequences, so it decided to reject all claims of the fast hand company.
After the judgment of the first instance was made, Fast Hand Company was not satisfied and appealed to the Beijing Intellectual Property Court, saying that although there was no evidence in this case to prove the successful "volume swiping" behavior through the respondent website, due to the existence of "volume swiping" products such as "Fast Hand - Fast Swipe Double Click 100" on the respondent website, Consumers may have doubts about the authenticity of the data on the fast hand short video platform when browsing the relevant services on the sued website, which may damage the interests of fast hand companies. Therefore, the business behavior against the "volume swiping" behavior itself can constitute unfair competition.
Beijing Intellectual Property Court: The website involved in the case selling "brush volume" goods constitutes unfair competition
After hearing, the Beijing Intellectual Property Court held that, in view of the behavior of operating "swipe volume" goods on the sued website, according to the introduction of its goods, it showed that "swipe volume" goods could help users of the fast hand short video platform to obtain false broadcast volume and other traffic data. Judging from the legal context, the Anti unfair Competition Law of the People's Republic of China should apply Paragraph 2 of Article 8. The second paragraph of Article 8 of the Anti unfair Competition Law of the People's Republic of China and Article 17 of the Anti unfair Competition Law constitute a complete basic clause for claims.
As for whether the website operators' behaviors involved in the case constitute unfair competition, the court held that, first, the users of the fast hand short video platform who "swipe" through the products such as "fast hand - fast swipe double click 100" sold by the respondent website are "other operators" in this provision, and they "swipe" by purchasing "swipe" products The behavior of "" constitutes false propaganda. Therefore, as the main body providing assistance, Yuhong Store Department is a "business operator" who helps others to make false propaganda in the second paragraph of Article 8 of the Anti unfair Competition Law.
Second, as the operator of the fast hand short video platform, the business interests enjoyed by fast hand companies based on traffic data such as likes, comments and broadcast volume will also be harmed by the false "volume swiping" behavior. In the case that the sued behavior is aimed at users of the fast hand short video platform, the "brush volume" goods on the sued website may be purchased at any time, and the sued behavior is illegal, the court of second instance determined that it is both legitimate and reasonable for the fast hand company to take such actions as obtaining evidence to purchase and bringing a lawsuit against the "brush volume" goods sold on the sued website. Therefore, the reasonable expenses such as evidence collection fees and attorney fees paid by Fasthand for this purpose should belong to the damage caused by the sued behavior of Yuhong Store Department.
To sum up, the Beijing Intellectual Property Court decided to revoke the judgment of the first instance. Because Yuhong's sales department had been cancelled during the second instance of the case, it also ordered its operator, Meng, to bear the reasonable expenses for safeguarding the rights of the express company.
The judge interpreted the law: "damage" also includes damage to reasonable expenses paid to stop unfair competition
Wan Chao, the assistant judge of the Second Trial Division of Beijing Intellectual Property Court, explained that the platform's lawsuit against the operation and sale of online "volume skimming" goods, Article 8, paragraph 2, and Article 17 of the Law of the People's Republic of China on Anti unfair Competition constituted a complete basic claim. In this case, the court, in accordance with the provisions of the law, determined whether the actor constituted the "operator" in the second paragraph of Article 8 and whether the platform constituted the "other person" who was damaged.
Although the "volume swiping" behavior involved in the case did not actually cause the consequences of "volume swiping", the court of second instance held that the "damage" specified in Article 17 of the Law of the People's Republic of China on Anti unfair Competition not only includes the damage directly caused by unfair competition behavior, but also includes the damage of reasonable expenses paid to stop unfair competition behavior. Even if no direct damage has occurred, the reasonable and legitimate expenses paid by the victim to stop the unfair competition act are also the "damage" that should be compensated under this article.
For this reason, the court stated that the products sold on the respondent's website, such as "fast hand - fast brush double click 100", all contained the words "fast hand", indicating that the respondent's behavior was aimed at users of the fast hand short video platform; When the fast hand company in this case took place to collect evidence, the respondent website continued to operate normally. The respondent website clearly showed that "part of the business was opened within 30 minutes" and other content. The products such as "fast hand - fast swipe double click 100" on the respondent website could also be purchased at any time; The "volume swiping" of goods on the sued website may lead some operators to obtain benefits through illegal means, which is illegal.
Therefore, it is both legitimate and reasonable for Fasthand to take such actions as obtaining evidence to purchase and filing a lawsuit against the defendant's website operation and sales of "swiping" software products. Therefore, the reasonable expenses such as evidence collection fees and attorney fees paid by Fasthand for this purpose should belong to the damage caused by the sued behavior of Yuhong Store Department. On this basis, the court of second instance revised the judgment of first instance.
Checked by Wu Xingfa
