Typical case

According to the judgment [(2019) Gan Min End No. 591], Jiuyan Quan Company is a manufacturer and distributor of "Xingxiangyuan" apricot peel tea and obtained the trademark of "Xingxiangyuan" on December 14, 2017. In June 2018, the company found that the legal representative of Hanson Ruida Company sent a "solemn statement" in its wechat circle of friends stating: "Apricot fragrant Garden brand apricot peel tea produced by the old taste beverage factory has very serious product quality problems, our factory requires the market to withdraw all, please be sure to pay attention to the store, immediately contact the distribution personnel unconditionally return the product in full, such as ignoring this statement of any related problems, all by the store, the factory will not be responsible." At the same time, our factory's old flavor brand apricot skin tea and the only brand apricot skin tea are used normally without problems." The statement was spread in the wechat circle of friends and adversely affected the company's goodwill. Jiuyan Spring company then reported to the industry and Commerce Department, Gansu Province Jiuquan City Suzhou District industry and commerce bureau made a fine of 10,000 yuan on Hansen Ruida company punishment decision. After nine eyes Spring company filed a lawsuit on the grounds of defamation of goodwill, requiring Hanson Ruida Company to stop the infringement, eliminate the impact and compensate for the loss. After hearing, the People's Court held that Hanson Ruda Company, knowing that Jiuyan Spring Company operates "Xingxiang Yuan" brand apricot skin water and does not enjoy intellectual property rights of the three words "Xingxiang Yuan", without any factual basis, made up a "solemn statement" and released it in its wechat circle of friends. The "Xingxiangyuan" brand apricot peel tea in the statement is only one word different from the "Xingxiangyuan" registered trademark that Jiuyan Quan Company enjoys the exclusive right to trademark, and the pronunciation is the same, forming a high degree of similarity, enough to cause public misunderstanding, and its behavior undermines the market operation order of fair competition, constituting a slander on the goodwill of Jiuyan Quan Company. Hansen Ruida Company was judged to eliminate the influence within the original wechat circle of friends and compensate Jiuyan Spring Company for economic losses.

Free speech and commercial vilification

Freedom of expression refers to the right of citizens to express their thoughts and opinions on various political and social issues through various forms of language. A business operator shall have the right to evaluate the goods or services of others in the course of production and business activities, provided that such right shall not be abused. Business operators shall abide by the principles of voluntariness, equality, fairness and good faith in their operations and abide by laws and business ethics. Article 11 of the Anti-Unfair Competition Law stipulates that "business operators shall not fabricate or disseminate false or misleading information to damage the commercial reputation of competitors and the reputation of their products." The prohibition of commercial defamation is essentially a necessary restriction of the principle of honesty and credit to the operator's freedom of speech. Goodwill is the corporate image and market evaluation that the operators carry out marketing and advertising on their products or services in the market operation activities, and then settle down; It is the intangible assets of the operators and is of great significance in the business competition. Commercial slander damages the goodwill of competitors and reduces their competitiveness. It is generally believed that the elements of commercial defamation are: there is a competitive relationship between the parties; The perpetrator has the act of fabricating or spreading false facts; The conduct of the actor has caused or may cause damage to the goodwill of the counterpart; The doer is subjectively intentional. Business operators in the meaning of the Anti-Unfair Competition Law refer to natural persons, legal persons and unincorporated organizations engaged in the production, operation or provision of services for commodities. The parties concerned are business operators, and the competitive relationship is a prerequisite for the formation of commercial slander. If the parties are not operators, or are operators but do not have a competitive relationship, it does not constitute commercial slander in the sense of the law against unfair competition. The objective aspect of commercial denigration is to fabricate and spread false information, denigrate and derogate the goodwill of competitors, and cause or may cause certain damage to them. Specifically, fabrication and dissemination of false facts include false information fabricated out of thin air or malicious distortion of the real situation, as well as misleading information that is unfair, inaccurate and incomplete in stating objective facts. (2017) Guangdong Min End No. 517 Guangdong Biou Investment Co., LTD., Zhong Limin Commercial bribery unfair competition dispute case of second instance judgment pointed out: Objectively existing facts can be divided into three states: true, false and inconclusive. If the operator does not objectively and fairly state the "inconclusive" state of the inconclusive facts, but deliberately propagandifies the inconclusive state as a fact that has been concluded, misleading the public and causing the goodwill of competitors to be debased. This situation also belongs to fabricating and spreading false facts. Therefore, whether to fabricate and spread false facts is an important boundary between the operator's freedom of speech and commercial slander.

Commercial defamation and reputational infringement

"Cihai" explained: "The name is named, praised as a good reputation, there is a good name, called the name of the reputation. "Reputation is the social evaluation of the civil subject's moral character, reputation, ability, credit, etc. The right of reputation refers to the civil subject's right not to be infringed upon by others. The civil subject includes natural person, legal person and unjuridical organization. Article 1024 of the Civil Code stipulates that civil subjects enjoy the right of reputation; No organization or individual may infringe upon the right of reputation of others by means of insult or slander. The act of insulting, libel and so on that damages the reputation of civil subject is an illegal act that constitutes the right of reputation tort. Specifically, there are insults, defamation, false news reports, improper materials of works, etc. The most important ways are insults and defamation. Insult refers to the intentional use of violence, words or other means to degrade the personality of others, damage the reputation of others, such as the use of abuse, insulting words to degrade the personality of others. Defamation refers to the act of fabricating false facts, vilifying the personality of others, and damaging the reputation of others. Both the infringement of reputation right and the commercial slander objectively have the behaviors of fabricating and spreading false facts, which often cause confusion in practice. How to distinguish the violation of reputation right from commercial defamation? It is generally believed that one of the differences between the two is whether there is competition between the parties. If the parties are operators with competitive relations, it constitutes commercial defamation; If the parties are not operators with competitive relations, it is an infringement of the right of reputation. For example, general consumers take the way of fabricating, spreading false facts to disparage the operator's goods or services, which constitutes an illegal act of violating the right of reputation in the sense of the Civil Code; If the operator adopts the method of fabricating or spreading false facts to disparage the competitor's goods or services, it constitutes the illegal act of commercial slander in the sense of the Anti-Unfair Competition Law. The reason why commercial defamation and reputation infringement are distinguished is that the applicable laws, constitutive conditions and legal consequences of the two are different.

Commercial defamation and false propaganda

False publicity refers to the operator's use of advertising or other methods in commercial activities to make false information that is inconsistent with the actual content of goods or services, resulting in customer or consumer misunderstanding. Article 8 of the Anti-Unfair Competition Law stipulates that business operators shall not make false or misleading commercial publicity about the performance, function, quality, sales status, user evaluation, or previous honors of their commodities to deceive or mislead consumers; Business operators shall not, by organizing false transactions or other means, help other business operators to carry out false or misleading commercial publicity. Both "false propaganda" and "commercial slander" are acts of unfair competition, and the objective aspects of both involve fabricating and spreading false information, which often leads to the confusion between commercial slander and false propaganda in practice. How to distinguish between "false propaganda" and "commercial slander"? It is generally believed that false publicity refers to the misleading false publicity made by operators to their business activities, goods or services by advertising and other methods to improve their reputation and enhance their market competitiveness; Commercial defamation focuses on making false statements about the business activities, goods or services of competitors, thereby damaging their business reputation and commodity reputation and reducing the market competitiveness of competitors. Therefore, although both false propaganda and commercial denigration involve the propaganda of false facts, the former's false facts are about oneself, with the purpose of promoting oneself, while the false facts of commercial denigration are about competitors, with the purpose of denigrating others, and the two point to different objects and purposes. For example, when an operator propagates an honor that belongs to a competitor as his own, it is a false claim, not a commercial slander.

Competition is one of the most basic operating mechanisms of market economy. In order to pursue and realize the maximization of business benefits, operators compete, and the result of competition is to realize the survival of the fittest and social progress. In market competition, business operators may publicize their own products or services, as well as comment or even criticize the products, services or other business activities of others. However, business operators must exercise their duty of care and care when making business comments or criticisms of others for the purpose of competition, which must be objective, true, fair and neutral, and must not mislead the public or damage the goodwill of others.