Does 360’ s QQ Guard Constitute Unfair Competition against Tencent? Part II

u6610322904267603108fm21gp0_副本 (By Luo Yanjie) Today, we would give our opinions on 360’s unfair competition ruling.

Lawyer’s Comments:

The case is a part of the “3Q battle”, and has garnered wide attention in the society. Both parties in the case have submitted large amounts of evidences to support their claims. As showed in the judgment, the case seems to be very complicated. Moreover, because 360 provided the service for free, 360’s lose in the case has gained the sympathy of Internet users. However, from a legal standpoint, this case is not difficult. The ruling against 360 was proper for the following reasons:

1. The promotion of ads and charges are of the lawful items

It shall first be pointed out that despite the annoying functions in QQ, like the pop-up ads or value added service, these functions are of the legal profit model of Tencent. As known to all, QQ is a free software (despite the various charging items, the basic function of the software, namely the messaging is free). For Tencent, to fulfill the designed function of its software, it has invested many resources in hardware and management cost, and naturally it should be repaid through the ads or value added service. As long as such ads or value-added services do not violate the laws of China, these functions are legal and legitimate. Therefore, if other companies prevent the lawful advertising of Tencent, thereby reducing the chances of lawful transactions for Tencent and its clients, it would be of unfair competition.

2. The judgment of unfair competition of “QQ Guard is because it is not only a guard software

360 is a noted software security developer in the industry, and if its product of QQ Guard only ensures the security of the software as it claims (like destroying Trojan or preventing the account from being stolen), it is our belief that no court would find it liable for unfair competition. According to the above stated purpose of the QQ software, that any change or limit to QQ was made for the safety of its client’s computer, the software seems to be reasonable.  However, in the written judgment we find that QQ Guard’s function is not only limited to that, it could also filter the ads in QQ, add misleading words for software evaluation, and even replace the interface of the software. The above conducts are not for the security of the user’s software and computer, and objectively speaking, damages the commercial promotion and profits of QQ software. Basing on the aforementioned analysis, the court’s ruling that 360 is guilty of unfair competition is proper.

In conclusion, the ruling that 360 is liable for unfair competition due to its QQ Guard software was not complicated. The judgment was based on the fact that QQ Guard disrupted many functions of QQ, and such disruptions could not be reasonably argued that it was for the security of the user’s computer. With regards to the judgment in the case, 360 has appealed to the Supreme Court of China. Our website will keep a close look at the case, and will continue to provide our readers with the latest progress of the case.

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