Reborn I want everything

Chapter 89

The staff of the judicial system failed to fully realize the important academic value of today's case in the first place.

Those business people who came to watch the excitement would not even realize it.

Therefore, when Ari Baba's boss Ma, Sun Yu, all the wives and executives, plus Ding Sanshi took their seats in the auditorium, they were also surprised to find that there were quite a lot of experts and professors here today.

Next to Boss Ma sat a well-mannered old professor in his 50s, and Boss Ma liked to make friends and had a high emotional intelligence, so he chatted with him in a low volume that would not be driven out by the bailiff.

"Where does this teacher get a job?" Boss Ma said while handing over a business card in an approachable manner.

"Zhang Fan, Peking University Law School." The old man didn't give any more titles, and also only exchanged them after reading Boss Ma's business card first.

That posture seems to be that Boss Ma's status is any lower, and Director Zhang will disdainfully say, "I'm sorry, I didn't bring my business card today".

Boss Ma took a glance and found that the other party was still the deputy director of the Intellectual Property Department, so he immediately respected him.

In 03, Boss Ma's status in the world was not too high. When he met a dean or department head of a top prestigious school, he really dared not underestimate him.

……

On the other side, the plaintiff and the defendant had already arrived at the venue. After the clerk Qin Nuan confirmed the identities and documents of both parties and their attorneys, he invited the presiding judge to sit in. After the presiding judge confirmed that both parties had not requested recusal, he announced the formal opening of the trial.

The two sides quickly entered into a verbal confrontation. The plaintiff did not hire a lawyer, but the plaintiff, Gu Zhe, spoke by himself.

Gu Zhe first briefly described the part of the fact finding he collected, and cross-examined the evidence for the implementation of the finding.

The whole process lasted about half an hour, which was rather boring, but it was considered fast.

Because the two sides have no disagreement on the factual part, everyone recognizes that this is the case, so there is nothing to repeat.

The main difference between the two parties lies in the determination of the legal nature of the facts and the application of legal provisions.

After the cross-examination was over and entering the legal opinion statement, Gu Zhe began to talk eloquently:

"Dear presiding judge, based on the above facts, we believe that the defendant has infringed the Tianyuan trademark held by 'Tianyuan Optics', the brand's public exposure, and brand promotion interests, and in fact violated Article 52, Section 4 of the "Trademark Law" Provisions of the clause:

Any of the following acts constitutes an infringement of the right to exclusive use of a registered trademark: ([-]) Changing its registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark on the market again. "

（注：我国《商标法》经过了多次修订，这里说的第52条第4款，针对的是2001年修订、书中2003年时适用的法律。目前的最新版即2019修订，该条款已经挪到了第57条第5款。）
……

As soon as Gu Zhe said this, the lawyer opposite him naturally had to state his opinion and slowly refute.

It's a pity that the layman business leaders in the auditorium couldn't understand these terminological debates, so they had to ask the law professors around them for advice.

Boss Ma asked Director Zhang of Peking University next to him in a low voice:
"Professor Zhang, we only know that counterfeiting other people's brands is infringement, why not using other people's brands is also infringement? What exactly is the 'reverse counterfeiting' infringement mentioned by Gu Zhe?"

Director Zhang saw that Boss Ma was quite wealthy and a new Internet star, so he showed his temper patiently: "It's very simple. From a legal point of view, combined with the "Trademark Law" and "Anti-Unfair Competition Law", an enterprise can use its own The purpose of brand launching products on the market is not only to earn profits, but also to earn goodwill and brand exposure.

If you only prohibit others from falsely using your brand, but do not prohibit others from maliciously damaging your brand exposure, then over time, the popularity of the maliciously restricted brand will decline, which is of course a kind of infringement.

In the development history of my country's trademark judicial practice, a similar case occurred as early as 1996: At that time, it was a garment factory in the western suburbs of Beijing, which held a trademark called "Hongye Brand" and produced trousers.Because of its low price, good quality, and good quality, Xiangjiang Crocodile, a foreign brand that entered the mainland at that time, fell in love with it—the crocodile brand we often wear has three independent brands, one from Xiangjiang, one from Lijiapo, one from France, and one from English. Words are different.

That Xiangjiang crocodile was interested in the quality and style of Hongye trousers, and was too lazy to open a factory in the mainland to produce them, so he directly purchased Hongye trousers in large quantities. After the trucks were pulled away, he cut the Hongye trademark and directly put the crocodile trademark on it. Re-sell.This led to a sharp drop in the exposure of Hongye trousers in the market and in the eyes of consumers, and gradually became unknown.

At that time, our country was still using the "Trademark Law" revised for the first time in 1993. There was no "reverse counterfeiting" clause in the law. The relevant provisions in the Unfair Competition Law helped Xijiao Garment Factory win the lawsuit.

Later, when the law was revised again in 2001, I wrote to the relevant committees, emphasizing the importance of adding the clauses against "reverse counterfeiting", and it was officially written into the "Trademark Law" when it was adopted by the country.

It is a pity that such cases are extremely rare. It has been almost two years since the law was amended, and there is not a single case in the country where reverse counterfeiting has entered the litigation process.Not to mention 01 to the present, even from 96 to the present, Gu Zhe's case in seven years.

In the judicial examination textbooks, the reverse protection clause is mentioned every year, or no case is given at all, or the Hongye trousers case is repeatedly mentioned.In today's case, the law examination textbook can finally repair this knowledge point. "

Boss Ma couldn't help being surprised when he heard this.He knew that Gu Zhe's case was rare, but he didn't expect it to be so rare. It was the only case in the whole country for seven years. What kind of rare protection did this exist?
He asked for advice very humbly and sincerely: "Why are such cases so rare?"

Director Zhang shook his head helplessly, and said in a familiar way: "It's very simple. For such a case to occur, there is a necessary prerequisite, that is, the victim and the plaintiff of the infringed trademark and brand rights must have an absolute cost advantage .

Your stuff should be well-designed, high-quality, worthy of being "take your stuff, but not your brand", and at the same time, the cost should have a huge advantage, so that others can get the goods through retail or other non-cooperative channels After that, it is still obviously profitable to increase the price and resell on OEM.

The case of Hongye trousers in 96 was due to the fact that luxury suits were involved, and imported brands were much more expensive than local ones, so the trousers themselves were worthless.

But after the case was judged and the law was revised, the companies knew that doing so was breaking the law, so they signed contracts directly with the OEM, and the two parties agreed to do OEM/ODM. own trademark.As a price, the brand owner is even willing to add a few dollars to the OEM for this purpose, plugging this legal loophole.

Today's case is obviously because Gu Zhe's products are too cheap and high-quality, and he doesn't talk about OEM cooperation with others, which caused his colleagues to take risks in order to buy his cheap goods——

Marx said that 300% profit will make capital dare to trample on all human laws.Now it seems that if you can buy Gu Zhe's cheap goods and sell them at the original shipping price of those brand owners, you will definitely have a 300% profit. "

Boss Ma thought about it for a while, and finally nodded with comprehension: "So... I understand the principle. The law believes that brand sales are accompanied by the dual attributes of 'earning profits' and 'earning popularity'.

So you can't deprive the popularity of something that others sell at a low price for earning popularity.If you don't give people popularity, you have to pay more money——

Similar to a best-selling author, if he writes a book with his own name and earns [-] per thousand words, then he might charge [-] words for Ni Kuang and Huang Yi as gunmen, because the authorship and The fame belongs to someone else.

However, according to this case... if the verdict is true, the intellectual property legal circles across the country will know that 'Gu Zhe's products have unique technical advantages and can keep the cost as low as sky-high'. "

Director Zhang didn't answer this question, and he didn't want to stir up speculation. Lawyers always talk about evidence.He has been immersed in the idea of ​​how to revise the "Intellectual Property Law" textbook after the judgment is over.

Boss Ma saw that he didn't answer, so he gave up and continued to listen quietly.

Fortunately, there was still a lot of verbal confrontation in the court. After Gu Zhe let the court accept that "the core of this case is reverse counterfeiting", the lawyers from the two Jincheng Firms on Lehman's side finally initiated a lawsuit. Bo Jedi fought back.

"Dear Chief Judge, our client believes that the enactment of Article 52, Paragraph 4 of the "Trademark Law" is intended to clarify the "false representation of competition" in Article 5, Paragraph 4 of the "Anti-Unfair Competition Law", Specific implementation in the field of trademark law.

Therefore, whether an act constitutes "reverse counterfeiting" under the Trademark Law should not only evaluate the elements of fact, but also evaluate the plaintiff's pre-emptive behavior based on the spirit of the unity of subjectivity and objectivity.

In this case, we believe that Tianyuan Optics itself was involved in the "dumping at a price below cost" mentioned in the "Anti-Unfair Competition Law". own trademark image.Therefore, its protection cannot be fully applied..."

The follow-up speech was rather lengthy, and the laymen in the auditorium could not understand it for a while, so Boss Ma, Boss Ding and others continued to ask Director Zhang and other experts for interpretation in a low voice.

Director Zhang cleared his throat, and said disdainfully: "This defense is probably useless, let me give you an example that laymen can understand,
Just like the application of the "Consumer Rights Protection Law" to "double compensation", in the case of a professional anti-counterfeiting person, it was considered inappropriate to use the law. The reason was that the professional anti-counterfeiting person did not buy things for consumption. It was purchased deliberately to get double compensation, so it cannot be protected as an ordinary consumer.

The lawyers of the two Jincheng Firms just emphasized that "Gu Zhe first competed unfairly, and originally wanted to sell at a lower cost, regardless of brand image",
Since he himself doesn't cherish the brand image first.If others help him take the brand, it is not hurting his exposure, but making him less embarrassing.It is estimated that they have nothing else to defend, and they are worthy of the lawyer's fees if they make such a move.

However, regardless of whether their malicious speculation and derivation can be established, the key is that as long as Gu Zhe is willing to provide more evidence to prove that he did not dump, and prove that his cost is far lower than the selling price, then the defense of the defendant will not even be evaluated. The qualifications are gone—because the pre-factual basis for value judgments is gone. "

Boss Ma and the others half-understood what they heard, and then, Boss Ma, who had extremely high business acumen, suddenly had a thought in his mind: Could it be that this is also a game set up by Gu Zhe to prove his technical superiority in public?

Sure enough, as soon as Boss Ma had this idea, Gu Zhe in court began to cite evidence to prove that the "dumping at a price below cost" mentioned by the other party did not exist at all.

Lao Tzu's things are so cheap!Selling a pair for 30 yuan still has a gross profit of 12 times!The cost is only [-] yuan!
"Is he crazy? Isn't he a practitioner in the contact lens industry? Isn't he afraid of destroying the national low-grade soft lens contact lens market and price if he is so arrogant in arguing and disclosing the cost in court?"

It was not Boss Ma, Boss Ding and other Internet giants who had this kind of panic, but Haichang, Essilor, Bausch & Lomb and other giants in the contact lens industry who were also in the auditorium.

Is Gu Zhe going to kill a line? !
Or is he a sympathetic consumer, hoping that myopia patients all over the world can buy low-grade soft contact lenses at a cheaper price?That's why you have no nostalgia for the contact lens industry?
In contrast, the twists and turns of the trial have become less important to the industry.

However, it is still very important to people in academia - because a person who is a scholar may not necessarily meet an entrepreneur who can directly turn the table and start a track after a lifetime of learning.

An entrepreneur who dares to do this, unless he has enough confidence and cards, and is sure that he can destroy many tracks in his lifetime, so it doesn't matter if there is one more or one less, even if he destroys a line to stand up.

That feeling is similar to Thanos snapping his fingers.

……

Entrepreneurs and scholars outside the arena were shocked, and court chief Liu, Pan Xiaoting, and clerk Qin Nuan were so shocked.

As they read and reviewed, they actually felt a heroic sense of participating in the historical process, which is not only the history of law, but also the history of industry, and even more so, the history of science and technology.

After the court debate, President Liu announced a temporary adjournment for the collegial panel to discuss.

Originally, this kind of big case could also be sentenced at another day, but today there are so many people who came to observe and there are many legal media, so it is better to directly pronounce the sentence after discussion.

After everyone waited anxiously for half an hour, Chief Judge Liu announced the result with the judgment that Pan Xiaoting had drafted for him and which he nodded and approved.

After reading the verdict for 10 minutes, the final result is naturally that Lehman Glasses’ “reverse counterfeiting” of Tianyuan Optics’ brand rights and interests is clear and well-documented, and Tianyuan Optics will be compensated according to 20% of the order amount.

Lehman Glasses purchased a total of 6000 pairs of glasses, and each pair needs to pay an additional 5 yuan (the original price of the online bid is 30 yuan, and the actual purchase price after the full discount is 25 yuan. The compensation was returned to Gu Zhe), so Lehman Glasses was ordered to pay Tianyuan Optics 20 yuan.

The defendant's agent said in court that he would not appeal and could pay the 3 yuan at any time.

But anyone with a discerning eye knows that the 3 yuan is nothing, and the real storm is gathering with the 3 yuan judgment.

In the auditorium, the most anxious person was obviously the boss of Taobao. After the case was judged, he suddenly thought of a trouble:
"Not good! After Gu Zhe sued the person who bought the goods, he gained a lot of prestige, but what if his customers dare not come to Taobao to buy more? He doesn't care about the sales of the Tianyuan flagship store, we still need this benchmark! "

(End of this chapter)