Our reporter Liu Jinmeng photo
editorial comment/note
Since the emergence of "professional counterfeiters", this group has been controversial. It is undeniable that "professional counterfeiters" have played a positive role in promoting market purification and establishing consumers’ awareness of rights protection. However, when some of them are no longer aiming at solving consumer disputes, but demanding high compensation, or even falsifying evidence to extort money from businesses and using malicious complaints to report for their own profit, "counterfeiting" has changed its flavor.
"Counterfeiting" has become a "fake fight", which obviously deviates from the original intention of legislation and the original intention of protecting consumers. On the contrary, the real problem of consumer rights protection cannot be solved. In just three months, it involved cracking down on "malicious reporting of illegal profit-making behavior" and "taking ‘ Counterfeiting ’ The central document of the name of extortion was issued twice. At the legislative level, all localities have also strengthened the revision of relevant legal provisions and resolutely said no to extortion under the banner of "safeguarding rights."
Li Hua (pseudonym), the owner of a silk scarf dealer in Changchun, wanted to compromise and spend money when he was asked for compensation by a "professional counterfeiter" with a silk scarf material appraisal report. However, not long ago, he approached the Changchun Consumers Association for consultation, only to realize that he could first compare the report issued by the claimant with the quality inspection report of the goods themselves.
It was discovered by this comparison that the silk scarves inspected by the claimant were simply "crowned with pride" and the goods were completely different. Li Hua immediately reported the case and lamented that he "successfully escaped a robbery."
Recently, a survey by the Workers Daily reporter found that some people are actually making "professional claims" for illegal profits in the name of "professional counterfeiting". Its purpose is not to crack down on counterfeiting and protect consumer rights, but to demand high compensation, create a large number of malicious reports, and repeatedly extort money from businesses.
Change the bag, blackmail and pester the lawsuit, and "fake" becomes "fake"
Zhong Ping, secretary-general of Changchun Consumers Association, still remembers that more than ten years ago, a gentle and articulate complainant came to Changchun Consumers Association, reflecting that the food he bought in a supermarket violated the regulations and was labeled as health care function, and wanted to claim compensation.
After exchanging professional knowledge with him, the complainant said, "I have traveled a lot in Northeast China, as far as you know", and Zhong Ping realized that she had met a "professional counterfeiter". At that time, Zhong Ping was deeply impressed by this gentle and professional complainant with reasonable demands.
"At that time, I quite agree with the emergence of these people. Because they are very professional, their behavior can play a positive role in purifying the market, and the other is to urge our relevant staff to improve their business ability and quality. " Zhong Ping said.
"On our complaint platform, many people directly say that they are professional counterfeiters, and the scope of complaints is getting wider and wider." Zhong Ping said, "At first, most of them were aimed at food. Later, communication services, clothes, furniture and other commodities became the targets of counterfeiting, and many of them claimed for details such as product descriptions and advertising words."
After handling many cases, Zhong Ping gradually discovered that many "professional counterfeiters" have turned "counterfeiting" into fraud.
"Some people report maliciously, not for the purpose of purifying the market, but for asking merchants to take money privately, implement threats, false evaluations or even blackmail, falsify evidence and make illegal profits." Zhong Ping told reporters that she had been complained to the higher authorities by a very strong "professional counterfeiter". Once such cases were not handled as expected, they would repeatedly complain and importune.
The shopkeeper engaged in cross-border e-commerce in Hangzhou, Zhejiang Province was threatened to report by a mother and son from Shanghai on the grounds of defective product labels, and had to "pay tribute" to 600 yuan’s goods every month for two consecutive years, until they were sentenced for extortion; A Taobao shop owner was targeted by "professional counterfeiters" for using exaggerated slogans and had to pay 2,000 yuan for recognition; The QQ group claiming for counterfeiting claims that it only needs 30 yuan to "learn from the teacher" to obtain the "claim tips" … …
According to the recent symposium on professional claim behavior, which was jointly attended by the market supervision department, China Consumers Association and enterprise representatives, in recent years, the number of malicious complaints and reports of "professional claim" initiated in the name of "counterfeiting" and "safeguarding rights" has exceeded 1 million every year.
In the court’s judgment, professional counterfeiters win or lose differently.
The reporter used "professional counterfeiting" as the key word in China’s refereeing documents online, and retrieved 1,382 refereeing documents this year, which was significantly lower than 3,348 last year. In many documents with a relatively recent date, the counterfeiters won or lost in court judgments, and most of them were sentenced to return the goods because of the real problems of the goods, and the multiple compensation claims were not supported.
In July 2018, the post-90s "professional counterfeiter" Han bought 12 bottles of imported brand red wine in a wholesale supermarket in Qingdao twice, paid 20,160 yuan for the wine, and filmed the whole purchase process. Subsequently, Han sued the supermarket to the court of the jurisdiction on the grounds that the imported red wine labels sold by the supermarket did not meet the national standards, requesting an order to return the purchase price and paying 10 times compensation of 201,600 yuan.
During the trial, the four effective judgments submitted by the defendant supermarket showed that Han had sued several different defendants at the same time in the Xiangzhou District People’s Court of Zhuhai City, Guangdong Province, and all of them demanded the defendants to refund the purchase price and pay 10 times the compensation on the grounds that the purchased products did not have Chinese labels. At the same time, the forms of evidence submitted by Han in several cases are basically the same. According to statistics, there are more than 50 cases in this batch, involving more than 4 million yuan.
The court of first instance ruled that the supermarket returned the payment of 20,160 yuan to Han, but did not support his claim of 10 times. Han refused to accept it and appealed to the Qingdao Intermediate People’s Court. The final judgment of Qingdao Intermediate People’s Court was changed: the supermarket returned the payment of 20,160 yuan to Han, and paid him compensation of 201,600 yuan, and Han returned the red wine.
"Professional counterfeiters" are not so lucky.
Xingmou has successively purchased 75 electric vehicles with a certain brand exceeding the standard, and commissioned the research institute to conduct testing. The results show that many items of electric vehicles are unqualified. Since 2017, Xing has gone through 17 court sessions, rulings and judgments, sued the court for a return and was punished with "one loses three". The Court of Final Appeal held that Xing, as a professional counterfeiter, did not buy or use goods or receive services for his daily needs, and was not a consumer as stipulated by law, so he did not support his claim of triple compensation.
Defining the red line is the key between legality and illegality.
"It’s a cold winter in the spring … … I suggest that all colleagues who fight counterfeiting must follow the principles of legitimacy, necessity, rationality and legality. " In April this year, "anti-counterfeiting fighter" Wang Hai said at the fifth "315 Anti-counterfeiting Forum" held in Beijing.
Wang Yuqi, a lawyer of Guangdong Guanghe (Changchun) Law Firm, told the reporter that from the actual case, there is only a thin line between the legality and illegality of professional counterfeiting, and the attitude of judicial practice is becoming more and more cautious.
The reporter of Workers Daily found that in recent days, many courts have issued judgments against "professional claimants" under the banner of "defending rights" and "counterfeiting", which are actually extortion.
For example, a 90-year-old man in Longyan, Fujian used the absolute term "extreme words" defined by the advertising law to make malicious complaints and extortion against online shop sellers, and was sentenced to 1 year and 8 months in prison by the court and fined 15,000 yuan; Shanghai Changning District Court sentenced Wang, a "professional claimant", to three years and three months in prison and fined him … … According to media reports, not long ago, four provinces and cities, including Henan and Xiamen, listed "professional counterfeiting" for extortion and illegal profits as "eliminating evils".
"The urgent task is to explore effective methods on the basis of summarizing the characteristics and problems of professional claims, and clearly define the red line between legal claims for professional counterfeiting and extortion. Reasonable and legal professional counterfeiting should be supported, but extortion must be punished. " Wang Yuqi said.
"Judging from the complaints this year, professional anti-counterfeiting behavior has been significantly reduced." Zhong Ping suggested that while opposing and severely punishing illegal counterfeiting, relevant departments should also formulate attractive reward mechanisms for legitimate "professional counterfeiters", guide them to exercise their anti-counterfeiting rights in the right way, play their positive role, and unblock the combination. Only in this way can the root cause be cured.
Some netizens also said that professional anti-counterfeiting was born to meet the market demand, and it was the market that finally exercised the right of elimination. Enterprises don’t sell fakes, product quality passes, and business integrity, counterfeiters will gradually disappear.