A few days ago, the Beijing Haidian Court pronounced a judgment on the national first trademark right case that identified a live broadcast platform in a live-streaming scene as an e-commerce platform. In this case, Agatha China found that Laizhou Hongyu Arts & Crafts Co., Ltd. sold handbags with the word "AGATHA" and its specific icon on Tik Tok. Therefore, it sued Hongyu Company and Beijing Microseeding Horizon Technology Co., Ltd. to the court for infringing trademark exclusive rights.

After the trial, the Haidian Court judged that Hongyu Company should compensate Agatha China for economic losses of 300,000 yuan and reasonable expenses of 10,598 yuan in the first instance. In addition, the court determined that Microseeding Company, as the operator of Tik Tok, is an e-commerce platform operator. Considering that Microseeding Company has performed measures such as pre-review, reminder, and timely handling afterwards, that is to say, it has fulfilled its duty of reasonable care, so it should not be responsible for it.

The court held that, in combination of the trademark pattern involved in the case, the category of goods approved for use, the product involved and its accused logo on the price tag, the fact that Agatha China did not sublicense the trademark involved to a third party, and that Hongyu Company failed to submit sufficient evidence to prove its behavior complying with the provisions of the Trademark Law on the exemption of vendors, the conduct of Hongyu Company selling the goods involved in the case violated the provisions of Article 57, Paragraph 3 of the Trademark Law, which constituted infringement.

As for determining that Tik Tok belongs to which type of platform, the court held that with the innovation of Internet technology and the diversification of online marketing models, the current platforms for carrying out e-commerce activities are no longer limited to the traditional platforms with e-commerce as their main services, platforms whose main business is to produce and provide content, for example, Internet live broadcast platforms, Internet audio and video platforms, are gradually providing online live-marketing services for their users; for the latter, if the services they actually provide for the parties of the transaction conform to the aforementioned relevant definitions of the Commercial Law, the platform they operate should also be recognized as an e-commerce platform. Based on this, in this case, users of Tik Tok can engage in Internet marketing by opening the "window shop" function. The live-streaming interface of Tik Tok displays the name, picture, price and other information of the product involved. Users click the "window shop" in the platform, and they can directly enter the product page without jumping to other platforms. Tik Tok users can directly find about their order information for purchasing the goods involved in their Tik Tok account. When watching the live broadcast, they need to click the shopping cart in the interface and enter the small shop platform to complete shopping. With all the mentioned-above facts, it is determined that Tik Tok is a platform that provides transaction matching, information release and other services on itself in the form of supplying live-streaming marketing services, and enables transaction parties to independently conduct transaction activities, which means it belongs to e-commerce platform. And Microseeding Company, as the operator of Tik Tok, is the operator of the e-commerce platform.

This case is the national first case in which the live broadcast platform in the live –streaming scene is determined as an e-commerce platform. It is also the first judicial case to confirm the nature of this type of platform since the implementation of the "Management Measures for Webcast Marketing (Trial)". The case timely responded to the relevant legal issues in the mode of anchor live-streaming on the broadcast platform. It provided not only introduction for further regulating the behavior of webcast marketing platform, but also a reference perspective for judging similar cases.

From people.cn

June 9th, 2021