Was treated unjustly? Netease take an examination ofing is pulled appeal to elegant Shi Landai, clai

Civil / Li Junhui is proofreaded / Chen Li

Is relation of competition of a person of same business between manufacturing business and distributors?

This ought not to make the thing of the problem originally, became an unintelligible issue it seems that.

A few days ago, because resent " Netease take an examination ofing pulls the sea to buy " the commodity of the sale is maintained to be sham commodity, hangzhou actor sells a network limited company of science and technology and Netease round-the-world buy limited company (the following a general designation " Netease take an examination ofing is pulled " ) Chinese consumer society, Yashilan black (Shanghai) trade limited company (the following abbreviation " Shanghai of elegant Shi Landai " ) , , ask 4 the accused delete experience file report, carry loss of apologetic statement, compensation 21 million yuan.

Netease take an examination ofing is pulled appeal to say, 1) any appraisal aptitude that Shanghai of elegant Shi Landai approbates without state law, its have no right incapable also have quality goods identification to experience case commodity. 2) Shanghai is elegant Shi Landai " Netease take an examination ofing pulls the sea to buy " wait for the competitor of a person of same business that crosses trade of condition phone trading company and commercial interest conflict square. 3) what issue below the circumstance that Shanghai is in elegant Shi Landai to also conflict without evasive interest without legal aptitude is alleged " false " survey report does not have any public letter power, it is right " Netease take an examination ofing pulls the sea to buy " commercial bespatter.

So, the issue came, above all, commodity is true tasting still is copy is risked article, by who should be differentiated after all? Next, differentiate commodity true bogus or copy to risk, whether to belong to law to provide medium quality identification? Finally, whether is competition belonged to to concern between manufacturing business and its subsidiary and the distributors without accredit?

On Feburary 7, 2018, print of Chinese consumer society was sent " 2017 " double 11 " investigation of network shopping value, quality, after service experiences a report " , the report says, "Double 11 " during, discovery " Netease take an examination ofing pulls the sea to buy " be made work " Xuan of 15ml of frost of elite of ministry of eye of ANR of elegant Shi Landai " department copy is risked article.

To this, netease take an examination ofing is pulled express, they make quality goods state for a short while, and via be being checked strictly oneself, the product purchases the elegant Shi Landai that its sell from chinese mainland condition outside normal and lawful channel. This commodity is bought via sheet of consumer net fluctuation, netease is round-the-world buy limited company to mail a storehouse to deliver goods continuously by Hong Kong, via lawful entry the sale gives Chinese churchyard customer, accord with regulation of state law policy completely.

So, how should be the relevant report that Chinese consumer society issues limitted? Its entrust the product of elegant Shi Landai that Shanghai of elegant Shi Landai buys to electric business platform to undertake true bogus differentiate, whether to put in undeserved place?

According to " consumer rights and interests protects a law " thirtieth sets 7 times, "Join the action of right beneficial to harming consumer, give through mass communication agency disclose, criticism " , it is the legal duty that the consumer such as consumer society organizes.

Accordingly, chinese consumer society is made and hair mercery is like " 2017 " double 11 " investigation of network shopping value, quality, after service experiences a report " behavior, it is to fulfil the legal obligation that its safeguard consumer to close right increase.

Nevertheless, according to " consumer rights and interests protects a law " thirtieth sets 7 times at the same time, complain item to involve commodity and service quality issue, consumer society " can entrust the appraiser identification that has a qualification, appraiser ought to tell appraisal opinion " .

So, differentiate commodity true bogus, where is the category of commodity quality problem that whether belongs to need appraisal?

Apparent, unlike commodity whether stand or fall, eligible or accord with the appraisal item such as corresponding standard, differentiate or differentiate commodity true bogus, unfavorable maintain belong to " the appraiser that possesses a qualification " exclusive appraisal item.

In fact, with " proving your Mom is your Mom " similar is, brand business or the goods that produce business to its undertake true bogus is differentiated, it is actually " proving your son is your son " .

Say simply, this problem can choose to entrust the appraiser that possesses a qualification to have identification already, also can choose brand business or produce business to undertake differentiating.

So, to controversy commodity " Xuan of 15ml of frost of elite of ministry of eye of ANR of elegant Shi Landai " , does Shanghai have elegant Shi Landai to undertake differentiate or deciding without the right?

Shanghai established elegant Shi Landai on November 8, 2005, be by " ESTEE LAUDER INTERNATIONAL INC " (namely company of elegant Shi Landai) contributive the foreign legal person that create is solely invested enterprise.

Say simply, shanghai of elegant Shi Landai is company of elegant Shi Landai subordinate and wholy-owned subsidiary, between its and elegant Shi Landai " mother child " or " father and son " the relation is beyond question.

In addition, from " elegant Shi Landai " or " ESTEE LAUDER " brand is registered in light of, it is no matter outside the condition, still be home, its trade mark right the person is elegant Shi Landai.

So, the Shanghai of wholy-owned subsidiary elegant Shi Landai of company of elegant Shi Landai, whether does subordinate to elegant Shi Landai commodity undertake true bogus differentiate?

Shanghai of elegant Shi Landai is in to its the product of elegant Shi Landai of domestic sell on commission, can undertake true bogus is differentiated of course, so, to coming from the product of elegant Shi Landai that is not home market, shanghai of elegant Shi Landai has right or capable to undertake differentiating?

Generally speaking, shanghai of elegant Shi Landai should have authority to undertake differentiating, but, because the product source of overseas market is different, shanghai may be in elegant Shi Landai differentiate the existence on ability to be not worth, the help that needs to get company of elegant Shi Landai or cooperate.

Netease take an examination ofing is pulled think, the controversy goods that sells on its platform " Xuan of 15ml of frost of elite of ministry of eye of ANR of elegant Shi Landai " be not copy to risk article, taste really however. So, whether is this controversy commodity tasted really, still need You Yashi Lan Dai undertakes differentiating or other the appraiser that possesses appraisal qualification has special identification.

Say simply, whether is controversy commodity belonged to be tasted really or copy is risked article, be not through be being bought simply, be on the move proof or receipt are OK " from card innocence " .

Nevertheless, if be the undeserved operation of Shanghai of elegant Shi Landai really, those who cause overseas market is true article be differentiated to be copy to risk by the mistake article, so, help the loss that cause to should differentiating a result to be taken an examination of to Netease, whether does Shanghai of elegant Shi Landai need to assume responsibility?

Basis " tort liability law " the 6th regulation, "Behavior person because other people of fault enroach on is civil rights and interests, ought to assume tort responsibility " .

Accordingly, should decide whether does Shanghai of elegant Shi Landai need to be pulled to Netease take an examination ofing assume tort responsibility, depend on at 2 o'clock: Above all, netease take an examination ofing pulled the legitimate rights and interests that needs him proof to be damaged by, for instance, netease take an examination ofing is pulled produce a lot of users to withdraw goods action really and compared to the same period or annulus is compared all than ever advanced etc;

Next, netease take an examination ofing is pulled should prove mistake of existence of Shanghai of elegant Shi Landai, prove its namely by sampling observation " Xuan of 15ml of frost of elite of ministry of eye of ANR of elegant Shi Landai " belong to truly taste really.

In addition, notable is, although Netease takes an examination of even up stage to sell and come from overseas market " Xuan of 15ml of frost of elite of ministry of eye of ANR of elegant Shi Landai " belong to truly taste really, netease take an examination ofing is pulled with elegant Shi Landai whether is competitor of a person of same business belonged to between Shanghai, return existence uncertainty.

On one hand, this involves Netease take an examination ofing to pull the part that in trading, acts is taxed in the sea, what its assume is platform part, still sell the home the part, namely the sea cleans out commodity after all sell an user with whose name; On the other hand, stage of even up of Netease take an examination ofing sold product of elegant Shi Landai to whether obtain the legal authorization of elegant Shi Landai.

Nevertheless, taking one with another, the trend of this case is worth to pay close attention to really, among them the legal problem of drag in, have actuality already, also have specific aim, not only the true bogus that the issue closes the sea to clean out commodity differentiates a problem, the channel that the issue involves brand trade or still produces business or sale management are politic.