(By You Yunting) Mr. Wang Feng (in the Left Picture), the husband of the well-known international film star, Ms. Zhang Ziyi, is a famous singer in China, whose image has immense commercial value. Amateur singer Ding (in the Right Picture) became famous because of imitating Wang Feng in an imitation talented show. Except the similar appearance, he dressed up himself as Wang Feng did, sang the songs created by Wang Feng and even claimed to have his face changed in order to achieve a more vivid effect. As is reported that Wang Feng filed a lawsuit for infringing his rights of name and portrait against Ding who was suspected of profit-making publicity by using the name and photos of Wang Feng in Weibo. Wang Feng claimed to stop the infringement immediately and pay compensation for the infringement incurred.

Viewed from the brief introduction, it is hard to find out whether the right of name claimed by Wang Feng legally based on the Anti-Unfair Competition Law or the General Principles of the Civil Law. Personally speaking, it is more appropriate to apply the Anti-Unfair Competition Law because the Ding’s utilizing the name of Wang Feng is mainly for his own business, namely for promoting his concerts and marketing. This is a typical behaviour of unfair competition. Therefore, his action is violation of Paragraph 3, Article 5 of the Anti-Unfair Competition Law, stipulating that “using without authorization the name of another enterprise or person on their own goods and thus leading purchasers to mistake their commodities for those of the said enterprise or person” shall constitute unfair competition.

I appreciate the action of Wang Feng because he dared to protect his own rights against unfair competition through legal proceedings. However, since I have seen too many examples of event marketing purposes, I still have to worry about Wang Feng if the counter party still made promotions and marketing for himself without any limitation, thus damaging the interests of Wang Feng. In the field of the Internet where I work for, the unfair competition practices are very common. Many lesser-known companies made promotion and marketing through benefiting from the success and reputation of well-known brand and the enterprises. Although such enterprises are very disgusted with such action, they hold back from protecting their rights. Most enterprises eventually do not possess the courage like Wang Feng to protect their rights against infringement.

The reason for why I say that it takes much courage for Wang Feng to file lawsuits of unfair competition is that one of the important means of event marketing is to benefit from using others’ publicity. Those enterprises and the individuals are not afraid of the counter party’s safeguarding, but afraid of not safeguarding. The real purpose of the companies that take the unfair competition behaviour is to expand their popularity. As the saying has it, it takes two to make a quarrel. If the infringed protects their rights, it may fit in exactly with the infringer’s plan. Since any action of the well-known enterprises may be attracted close attention by the public, its lawsuits could often become a piece of news. Though the infringer that took unfair competition behaviour to market their products or services should be unknown or little known to the public, by benefiting from the success and the publicity of the well-known enterprises, they can make the public known their products and services.

For instance, by the end of 2014, Meizu Telecom Equipment Co., Ltd, a cell phone manufacturer, released its first low-end cell phone M1 Note in Beijing. Its frame is particularly eye-catching accounting for its similar appearance with iPhone 5C. Before the press conference, Meizu official openly gave the media an invitation similar to iPhone 5C mobile shell. Taken the Xiaomi, another cell phone manufacturer, which always prides itself powerful photographing function, as an example, its new-released MI 4 continues its excellent performance, whose stack camera even is claimed to compete with that of iPhone 6. Such instances are too numerous to mention one by one.

After the spread of such negative culture, many times event marketing benefiting from other’s success and popularity even develops into provocation marketing. The first step is to take advantage of the reputation of well-known enterprises or products for marketing. If they do not respond, the second step is to provoke the enterprises, and then use Weibo to campaign and market for themselves with the help of public relation companies. They even can respond under the guise of the infringed name to reach the purpose of advancing their products and services.

Why such marketing by means of unfair competition can have its way? There are two reasons: one is the culture, and the other is the system. On the one hand, the public cannot distinguish such incidents well. Most of the time, people have not been formed a view that treats the infringement as an extremely unpopular figure. The public sometimes even take delight in talking about the successful case of unfair competition. On the other hand, the current standard of compensation in the justice system is quite low. Even if the court decisions constitute an infringement, the cost resulting from their acts of unfair competition is often not too much. Moreover, the whole proceedings of the trial take too long, thus letting the infringer to take advantage of the proceedings and the judgment for the purpose of fixing the public concern and doing further marketing. Meanwhile, the court often keeps very cautious to examine and approve the injunction in unfair competition litigation. Such are likely to increase the arrogance of the marketers who used event marketing.

At least for the moment, the amateur singer claimed by Wang Feng still has the sense of shame. After Wang Feng filed proceeding, its company has not yet used any above-mentioned means of marketing. Instead, it removed the allegedly infringing content in the Weibo and Blog. Meanwhile, it is right that its staff also responded with no idea about this. Using unfair competition and taking advantage of others’ fame can indeed gain great benefits in a short term, but in the long run this approach reduces the consumers’ evaluation to the brand, undermining the reputation of the brand. As a result, the enterprises will eventually find this to be not worth the candle.

Lawyer Contacts

You Yunting：86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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