All-media reporter of rule of law daily Xing Dongwei Zhai Xiaogong
"Buying a fake while knowing it is fake" refers to the act that the buyer still buys a commodity while knowing that it is fake and shoddy, and claims punitive damages from the producer or seller on this ground.
The punitive damages stipulated in the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests are aimed at encouraging people to use the punitive damages mechanism to crack down on the illegal and infringing acts of business operators. However, more and more "professional counterfeiters" are making profits, hitting the porcelain or taking the opportunity to extort money from businesses.
Recently, the People’s Court of Wenchang City, Hainan Province pronounced three cases of Pengmou v. a company’s information network sales contract dispute, which clarified the judicial attitude of cracking down on counterfeiting and selling fakes, and also clarified the scope of application of punitive compensation requests stipulated by law, which is of positive significance for maintaining market order and protecting consumers’ legitimate rights and interests.
Ordinary online shopping has "big articles"
Plaintiff Peng bought a high-definition computer camera named "PHILIPS" in the online shop of Taobao platform of a defendant company, and paid 44.56 yuan.
After signing the receipt, Peng read the VID value of the camera through the computer USB to inquire about the corresponding manufacturer. After sending an email to the manufacturer for inquiry, he replied that he had not produced a PHILIPS brand camera.Later, Peng bought 10 cameras of the same kind in different shops of the company’s JD.COM platform and Pinduoduo platform.
Peng appealed to Wenchang People’s Court on the grounds that the cameras sold in the company’s online shop were counterfeit PHILIPS trademarks, demanding that the defendant company refund the purchase price and compensate 500 yuan for each order.
Are profit-making claims protected?
Upon investigation, combined with the VID value of the goods involved in the case read by USB submitted by the plaintiff and the corresponding manufacturer’s email reply that "no PHILIPS brand webcam has been produced", it is found that the goods provided by the defendant are not PHILIPS brand cameras produced and manufactured by the manufacturer, and the defendant has not provided the legal source of the cameras involved and the corresponding brand sales qualification, so it is impossible to prove that the cameras sold by the defendant are PHILIPS brand products.
Fu Juan, the judge in charge, held that the court supported the plaintiff’s claim for a full refund of the camera involved.
With regard to the plaintiff’s claim that the defendant should compensate 500 yuan for each order, after investigation, the plaintiff bought 11 cameras of the same kind from different platforms after finding that they were not genuine. After purchase, she only checked the VID value of the cameras through the computer without actual use, and then filed punitive damages lawsuits respectively.
Visible, the plaintiff and ordinary consumers to buy goods for the needs of life is different, it is for the purpose of claiming profits to buy goods, the purchase behavior is only the front of the claim, so the plaintiff in this case should not be identified as consumers stipulated in the Consumer Protection Law, and the court does not support its claim that the defendant should compensate 500 yuan for each order.
Create an honest and healthy consumption environment.
The law protects the legitimate rights and interests of consumers, but it does not encourage the behavior of "knowing fakes and buying fakes" for profit. In the name of living consumption, individual buyers use punitive damages for their own profits, or even attempt to make repeated profits through the court’s successful judgment. This behavior seriously violates the principles of fairness and good faith, wastes judicial resources and disrupts judicial order, and should not be protected.
The law on the protection of consumers’ rights and interests gives consumers the right to demand punitive damages, aiming at guiding producers and operators to operate legally and protecting consumers’ rights rationally. The masses should consciously enhance their awareness of safeguarding rights according to law, and businesses should also produce and operate in good faith to jointly safeguard a good market economic order and a business environment ruled by law.
The scale of judicial protection
The judge in charge of this case believes that the people’s court should weigh the interests of all parties and handle it fairly according to law when handling such cases. First of all, the court should determine the nature and effectiveness of the act of "knowing and buying fakes" according to law. The court can give support and encouragement to the behavior of "knowing and buying fakes" for the real purpose of safeguarding consumers’ rights and interests; The court should stop and crack down on the behavior of "buying fakes with knowledge" for the purpose of making profits or taking the opportunity to blackmail.
Moreover, the court should reasonably determine the amount of punitive damages, not only considering the punishment for counterfeiting and selling fakes, but also avoiding the burden caused by excessive compensation. In fact, the real consumer behavior should be the behavior to safeguard the rights and interests of consumers, not the behavior to make profits or take the opportunity to extort money.