It was once said that there was a routine to crack down on counterfeits. For example, some people go to the supermarket to hide the goods that are about to expire, find them and buy them after the expiration date, and then complain to the supermarket for compensation.
However, such crackdown on counterfeits is indeed ironic.
Later, I came into contact with a professional anti-counterfeiting case and got a glimpse of the tip of the iceberg. First of all, the anti-counterfeiting industry has specialized. Laws, regulations and national standards of a certain field / product can be found at hand. Secondly, teamwork. Take the fight against counterfeits as a profession and make profits by it. Team operation and provide knowledge support. Again, I've been through many battles. Wuhan Chai filed 307 food safety lawsuits in 2014, and there were no less than 100 cases related to the dozen dummies I came into contact with, including many familiar legal persons, such as China Resources, Tongrentang and Wal Mart.
Through the consumer rights and interests protection law (hereinafter referred to as the "consumer law") and the food safety law and other laws and regulations, professional anti-counterfeiters have realized "White Wolf" by returning one compensation for three and one compensation for ten. Does the consumer law protect these people? The most closely related to this is Article 3 of the provisions of the Supreme People's Court on Several Issues concerning the application of laws in the trial of food and drug dispute cases [provisions of the Supreme Court on Several Issues concerning the application of laws in the trial of food and drug dispute cases] Article 3: if a dispute arises over the quality of food and drugs, and the buyer claims rights against the producer or seller, and the producer or seller defends against the buyer on the ground that the buyer knows that there are quality problems with food and drugs, the people's court shall not support it.], In short, it means that knowing and buying fake are protected by law.
Take a look at the following data. The 15 effective civil cases obtained by searching "no litigation" with "whether or not it is a consumer" as the key word [the statistics are as of December 5, 2016. The effective civil cases refer to the cases in which the courts respond to the identity defense raised by the producers and consumers against the plaintiff. These cases cover Anhui, Hunan, Hubei, Inner Mongolia, Jilin, Guangdong, Shanxi, Jiangsu and Guizhou.], The results are as follows:
First, professional counterfeiters belong to the category of consumers. Among the 15 cases, only one case in Shanxi denied the consumer identity of professional Dummies (Xing Zhihong), but another similar case, the same dummies, went through the first trial, the second trial and the retrial. The second trial confirmed their consumer identity, and the retrial maintained the identification of the second trial.
Second, self admission may be a breakthrough to deny their "consumer" identity. Let's take the case of Xing Zhihong as an example. The defendant submitted materials (including "online query results directory of Xing Zhihong, a professional counterfeiter", "Xing Zhihong's open letter to the store of the director of the Municipal Bureau of industry and Commerce claiming that he is a professional counterfeiter", "list of complaint materials for purchasing fake claims (provided by the industrial and commercial bureaus at all levels)", "mediation statement for successful claims obtained through industry and commerce" "Effective judgment related to Xing Zhihong", etc.) proved that the plaintiff was a professional dummy beater, and the plaintiff "did not deny this" at the court hearing. Finally, the court determined that Xing Zhihong was not a consumer in the consumer law. However, only stating that the consumption behavior is abnormal and the purchase motive is not pure is groundless in the law, and the court will not accept it.
Third, even if the "consumer" status of the professional counterfeiter is denied, the basis for the judgment to reject the claim for compensation has nothing to do with it. These bases are generally as follows: 1. The goods sold by the defendant meet the national standards; 2. The plaintiff has no evidence to prove that the consumption of the product caused personal, property or other damage; 3. The evidence can not identify that the company "intentionally" or "knowingly" sells products that do not meet the standards.
It can be seen that questioning its "consumer" status can not achieve effective defense. These cases have a broad understanding of "consumers", that is, as long as there is no evidence to prove that consumers purchase products for the needs of production and business or professional activities, or not for the purpose of putting them into the market again, they should be regarded as living consumption, and should not be denied the qualification as consumers.
So far, how can businesses turn passivity into initiative? Know yourself and know your enemy, and you will be invincible in a hundred battles. Through sorting out the first 40 cases related to the plaintiff of the anti-counterfeiting case I contacted, we can draw two laws: 1. The packaging problem of "attacking" goods. According to the requirements of national mandatory standards such as general rules for labelling of prepackaged food for different commodity categories, points out the places on the outer packaging that do not meet the national standards, such as the content of ingredients, the date of production as required, and the warning words (such as "excessive drinking is harmful to health"). 2. "Attack" the flaws in the merchant's review obligation. Such as failure to provide the original of the inspection report, failure to provide the "attached list of liquor circulation", failure to provide the proof materials with the bottle body code as the production date within the date specified by the court.
Therefore, the merchants should at least: 1. Improve the outer packaging information of the commodities they operate according to the relevant national mandatory standards; 2. Fulfill the obligation of purchasing review (such as requiring the manufacturer to provide the business license, organization code certificate, food hygiene license and tax registration certificate), and keep the original written documents in the process. In cases where individual merchants win, There are also examples of successful defense of their own opinions through the reply of administrative organs [in the (2016) Liao 0103 min Chu No. 3786 case, the counterfeiter claimed that the content of vitamin E was not marked on the packaging of Hershey Chocolate. In addition to doing well in product packaging and purchasing review, the company also replied through the administrative organs (for example, the reply letter of the national food safety standards review committee, the reply letter of the District Bureau of quality and technology supervision, and the reply letter of Jinshan Branch of Shanghai food and Drug Administration) proving that the vitamin E of the product involved complies with the principle of bringing in and does not need to mark the vitamin E content. At the same time, the counterfeiters did not prove that the consumption of chocolate caused personal and property damage, and there were no other violations of national food safety standards. In the end, the court rejected the compensation request of the counterfeiter, and the merchant won the lawsuit.], You may refer to it.
There is a sentence in a certain judgment: "There is a need for a proper balance between protecting the legitimate rights and interests of consumers and punishing improper business practices. Consumers' active exercise of supervision rights is conducive to purifying the market and should be supported. However, professional 'anti-counterfeiting' activities aimed at making profits or even profits may disrupt the normal market order and should not be advocated. Business operators, especially food operators, should self demand with strict standards and timely improve their own non-standard and illegal business practices For. " Therefore, strict self-discipline of businesses is the fundamental way to benefit themselves and consumers.