News

Judgment Gist

After the endorsement period of Fujian Yake Company and Yake China Company has expired, without Zhou Xun’s consent, they used Zhou Xun’s name and portrait on the outer packaging produced and sold by them, infringing on Zhou Xun’s name and portrait rights, and shall bear the corresponding infringement. responsibility. The court comprehensively considered Zhou Xun’s popularity, the degree of fault of Fujian Yake Company and Yake China Company, the use of Zhou Xun’s name and portrait, scope of use, time of use, and current market factors to determine Zhou Xun’s economic loss as 1 million Yuan.

Beijing Daxing District People’s Court (2016) Beijing 0115 Minchu No. 13157 Civil Judgment

Beijing Second Intermediate People’s Court (2018) Jing 02 Min Zhong No. 3948 Civil Judgment

Beijing Higher People’s Court (2019) Jingminshen No. 23 Civil Ruling

Case Introduction

The plaintiff Zhou Xun once signed an endorsement contract with the defendant Yake China. The endorsement period was from November 25, 2012 to November 24, 2014. In order to facilitate the removal of the defendant Yake China after the end of the endorsement period, the plaintiff Zhou Xun gave it to the defendant Yake China has a two-month delisting period, which ends on January 24, 2015. The defendant Yake China will no longer use the name and portrait of the plaintiff Zhou Xun in any way.

However, during the endorsement period, the defendant Fujian Yake Company and the defendant Yake China Company used the name and portrait of the plaintiff Zhou Xun on other unauthorized products without the authorization of the plaintiff Zhou Xun. What's more, during the endorsement period and removed from the shelves. After the full expiration of the period, the defendant Fujian Yake Company and the defendant Yake China Company continued to highlight the name and portrait of the plaintiff Zhou Xun on the packaging of many series of products such as "Yake V9 Vitamin Sandwich" without the authorization of the plaintiff Zhou Xun. .The aforementioned products were openly sold on the website of the defendant Jingdong Company (www.jd.com). The defendant Fujian Yake Company and the defendant Yake China Company publicly used the name and portrait of the Plaintiff Zhou Xun on many of their products without the authorization of the Plaintiff Zhou Xun, and sold them through various channels such as the Internet, which seriously misled the public and caused the public misunderstanding that the plaintiff Zhou Xun has continued to endorse the company, which not only brought substantial benefits to the company, but also caused heavy economic losses to the plaintiff.

The plaintiff Zhou Xun sent a lawyer's letter to the defendant Yake China before the lawsuit, but the defendant Yake China did not respond, and refused to stop the infringement. It continued to use the name and portrait of the plaintiff Zhou Xun. The intentional infringement intention was obvious, so she sued the court.

Claims

Zhou Xun, the plaintiff’s request：

1. Order Fujian Yake Company and Yake China Company to immediately stop producing and selling products bearing Zhou Xun's name and portrait, and withdraw products bearing Zhou Xun's name and portrait; 2. Order Fujian Yake Company and Yake China Company to apologize to the plaintiff Zhou Xun in the non-center position of the "Legal Evening News";

3. Order JD.com to immediately stop selling the products of Fujian Yake Company and Yake China Company bearing Zhou Xun's name and portrait on its website;

4. Order Fujian Yake Company and Yake China Company to jointly compensate Zhou Xun for economic losses of 10 million Yuan and reasonable expenditure of 10,000 Yuan for rights protection.

Defendant's Rebuttal

Fujian Yake Company and Yake China Company jointly argued that:

1. The defendant Fujian Yake Company and the defendant Yake China Company did not use the plaintiff's name and portrait rights on the information network. The products involved on JD.com claimed by the plaintiff Zhou Xun were not operated by the defendant Fujian Yake Company and the defendant Yake China; the plaintiff Zhou Xun claimed that only the Yake flagship store was operated by the defendant Fujian Yake Company and the defendant Yake China. The flagship store did not have products involved in the case. The self-operated store was not operated by the defendant Fujian Yake Company or the defendant Yake China Company, and the purchase invoice issued to the plaintiff Zhou Xun was not owned by the defendant Fujian Yake Company or the defendant Yake China; Tmall.com of the product involved in the case was not operated by Yake Company, and the product group could not display the date, and could not prove that the defendant Fujian Yake Company and the defendant Yake China were still producing and selling after the endorsement period expired. The product batch number shown on page 194 of the evidence is 2013 October 12, 2010 was during the endorsement period; the plaintiff Zhou Xun claimed that the defendant Fujian Yake Company and the defendant Yake China Company continued to use the plaintiff Zhou Xun’s name and portrait on their official website www.yakefood.com after the endorsement period expired. Already asserted in another case, and was ordered by the court to apologize on the official website and compensate 1.5 million Yuan.

2. At present, there are no products involving the name and portrait of the plaintiff Zhou Xun on JD.com, NO.1 Store and Tmall.

3. The defendant Fujian Yake Company and the defendant Yake China Company did not have any infringements. Therefore, the plaintiff Zhou Xun's claim that an apology cannot be established, especially the publication of the apology is not commensurate with the specific method of the infringement and the scope of the impact caused.

4. The economic compensation and rights protection costs claimed by the plaintiff Zhou Xun could not be established and were obviously too high. The plaintiff Zhou Xun did not have any evidence to show the amount of his losses. Therefore, the plaintiff Zhou Xun claimed compensation of 10 million Yuan, which was unfounded by law.

The defendant Jingdong Company did not appear in court to participate in the lawsuit after being legally summoned by this court, nor did it submit a written reply

Verdict

First instance:

1. Fujian Yake Company and Yake China Company immediately stopped producing and selling products bearing the plaintiff's name and portrait of Zhou Xun, and withdrew the product bearing the plaintiff's name and portrait of Zhou Xun within seven days from the effective date of this judgment;

2. Fujian Yake Company and Yake China Company will publish an apology announcement in the Rule of Law Daily within seven days from the effective date of this judgment, and apologize to the plaintiff Zhou Xun (contents are subject to court review), and the publication period is ten days; If the above obligations are not fulfilled within the time limit, this court will publish the main content of the judgment in the relevant media, and the necessary expenses will be jointly and severally borne by Fujian Yake Company and Yake China Company;

3. Fujian Yake Company and Yake China Company will compensate Zhou Xun for economic losses of 1,000,000 yuan and rights protection losses of 8,700 yuan (performed within ten days after this judgment becomes effective);

4. Dismissed other claims of the plaintiff Zhou Xun.

Second instance: The appeal was rejected and the original verdict was upheld. Retrial: The retrial applications of Fujian Yake Company and Yake China Company were rejected.

Case Analysis/Study

The court of first instance held that, according to the provisions of our country's Civil Procedure Law, the parties have the right to reply and cross-examine the evidence submitted by the opposing party. Jingdong ××× litigation is deemed to have waived the litigation rights such as statements, cross-examinations and debates in court. Citizens have the right to name and have the right to change and use their own names in accordance with regulations, and prohibit others from interfering, embezzling, or counterfeiting. Citizens have the right to portraits, and they are not allowed to use their portraits for profit without their consent. Citizens whose name rights, portrait rights, reputation rights, and honor rights have been infringed, have the right to request that the infringement be stopped, their reputation restored, the effects eliminated, an apology, and compensation for losses may also be requested. In this case, Fujian Yake Company and Yake China Company used Zhou Xun’s name and portrait on the packaging produced and sold without Zhou Xun’s consent after the endorsement period expired, infringing on Zhou Xun’s name and portrait rights, and should bear the responsibility and the corresponding tort liability. Zhou Xun advocated that Fujian Yake Company and Yake China Company immediately stop the production and sale of products bearing Zhou Xun's name and portrait, and withdraw the sale of products bearing Zhou Xun's name and portrait. There are legal evidence and this court supports it. Zhou Xun's claim that Fujian Yake Company and Yake China Company should apologize is well-founded in law, but the way in which Fujian Yake Company and Yake China Company assume responsibility should be compatible with their infringement. The court will integrate Fujian Yake Company and Yake. The degree of fault of the Chinese company, the use of Zhou Xun’s name and portrait, the scope of use, the time of use, and current market factors determine the specific method of apologizing in accordance with the law. Jingdong ××× has removed the products of Fujian Yake Company and Yake China with Zhou Xun’s name and portrait on its website, so Zhou Xun advocated Fujian Yake Company and Yake China with the portrait of Jingdong ×××. The court no longer supports the company's products. Article 20 of the Tort Liability Law of the People’s Republic of China stipulates: “Where the infringement of the personal rights and interests of others causes property losses, compensation will be based on the losses suffered by the infringed; Compensation for the benefits obtained; the benefits obtained by the infringer are difficult to determine, and if the infringed and the infringer have inconsistent negotiations on the amount of compensation, and file a lawsuit with the people’s court, the people’s court will determine the amount of compensation according to the actual situation.” "About the Supreme People's Court" The "Interpretation of the Civil Procedure Law of the People's Republic of China" applies to Article 90: "The parties will provide evidence to prove the facts on which their claims are based or the facts on which they refute the other party's claims except as provided. Before the judgment is made, if the parties fail to provide evidence or the evidence is insufficient to prove their factual claims, the party who bears the burden of proof will bear the adverse consequences." In this case, Zhou Xun did not provide evidence to prove his infringement and the actual amount of losses caused or the economic benefits of Fujian Yake Company and Yake China Company’s use of Zhou Xun’s name and portrait, so the court comprehensively considered Zhou Xun’s popularity and the degree of fault of Fujian Yake Company and Yake China Company. The use of the name and portrait, the scope of use, the time of use, and current market factors determine Zhou Xun’s economic loss as appropriate to RMB 1,000,000.

Lawyer's Statement

Both the right of name and the right of portrait belong to the category of the right of personality as stipulated in Article 990 of the Civil Code. Articles 993, 1012, and 1018 of the "Civil Code" all stipulate that natural persons have the right to permit others to use their names and portraits. That is, the personal rights of names, names, portraits, etc., which have commercial value, give the parties the right to obtain relevant remuneration by permitting others. No organization or individual may infringe on the name rights or name rights of others by means of interference, misappropriation, fraudulent use, etc. Without the consent of the owner of the right of portrait, no portrait of the right of portrait may be produced, used, or published. Citizens whose right of name and portrait are infringed. Have the right to request that the infringement stopped, their reputation restored, the effect eliminated, an apology, and compensation for losses may also be requested. Civil liability for infringement of portrait rights and name rights will comprehensively consider the occupation, scope of influence, degree of fault of the perpetrator and the victim, as well as the purpose, method, and consequences of the behavior, and in accordance with the provisions of Article 1182 of the Civil Code, " Compensation will be based on the losses suffered by the infringed or the benefits obtained by the infringer; the losses suffered by the infringed and the benefits gained by the infringer are difficult to determine. The infringed and the infringer negotiated inconsistently on the amount of compensation and filed with the people’s court. In case of litigation, the people's court will determine the amount of compensation based on the actual situation."

In combination with this case, when determining the property loss, the infringed Zhou Xun’s losses due to the infringement or the benefits obtained by Fujian Yake Company and Yake China Company due to their infringement should be considered to determine the specific amount of compensation. The damage compensation for the infringement of the right of name and portrait is a debt of infringement. Therefore, according to the constitution of the infringement, the victim should provide evidence for the loss suffered or the profit of the infringer. In this case, Zhou Xun did not provide evidence to prove the damage, the losses suffered and the profit of the infringer. As an entertainer, Zhou Xun has a high reputation in China. Her name and portrait rights have certain commercial value. If they are used for commercial purposes such as advertising, they generally need to pay a considerable amount of consideration to obtain authorization, and use her name or portrait without permission. , Which directly affects the property benefits that it should obtain. Based on Zhou Xun’s popularity, the degree of fault of Fujian Yake Company and Yake China Company, the amount of compensation determined by the court based on Zhou Xun’s name and portrait, the use of Zhou Xun’s name and portrait, the scope of use, the time of use, and current market factors are not obviously inappropriate.

Statement:

This article was originally created by the lawyers of JAVY Law Firm. It only represents the author's own views and should not be regarded as a formal legal opinion or suggestion issued by JAVY Law Firm or its lawyers. If you need to reprint or quote any content in this article, please indicate the source.