This case launched a specific analysis combining the traditional civil law on the act of offer invitation and the definition of the patent law on the act of promising to sell, as well as the current "Internet +" environment. The photo album managed by the e-commerce store operator can be set to be viewed publicly or privately. At the same time, it has special properties, such as the function of the network picture library.
First-instance case number: (2018) Zhejiang 02 Civil Judgement No. 1289
【The main takeaway of the trial】
Whether the product pictures displayed in the e-commerce store’s photo album belong to the promised sales behavior, should be combined with whether the album system to be set for public viewing or private viewing, whether web browsers may have the association that the operator may have this product, and whether the right holder can provide further evidence that after viewing the product pictures of the store and web browsers contacting the accused infringer to make a product purchase request, the latter promised or actually sold the same product, so that the album viewer’s invitation of the offer was confirmed. Those factors can help determine whether the display behavior of the store's product image has the attributes of an offer invitation and belong to an act of promised sales.
【Case Introduction】
Plaintiff: HANSGROHE SE
Defendant: Ningbo Hangzhou Bay New Area Fangfang Sanitary Ware Factory (referred to as Fangfang Sanitary Ware Factory)
Hansgrohe is the owner of the design patent with the patent number ZL2013 3 0372386.5 and the name "hand shower". The patent application date is August 5, 2013, and the authorization announcement date is January 22, 2014. The patent right is still valid. On November 3, 2017, Hansgrohe entrusted an agent to apply for evidence preservation notarization at Shanghai Luwan Notary Office. On the same day, under the supervision of the staff of the notary office, they went to Fangfang Sanitary Ware Factory to purchase the products involved. The receipt issued by the factory records: "5 sets of BF09 Hansgrohe, 25 yuan, 125 yuan." The notary office issued the (2017) Shanghai Notarization No. 4106 on March 2, 2018. On March 19, 2018, Hansgrohe entrusted an agent to apply for evidence preservation notarization at Shanghai Luwan Notary Office. On the same day, the notary office notarized: In the Store Album" of the e-commerce shop "Ningbo Fangfang Sanitary Ware" of Fangfang Sanitary Ware Factory on the e-commerce platform 1688.com, there are many product pictures including pictures of the products involved. The Notary Office issued the (2018) Shanghai Notarization No. 1008 on March 2, 2018.
In conclusion, Hansgrohe sued Fangfang Sanitary Ware Factory to the Intermediate People's Court of Ningbo City, Zhejiang Province. The court held that:
By trial comparison, the alleged infringing design fell into the protection scope of the design patent right in the case. Regarding the assumption of civil liability, the products sold by the defendant purchased by the notary, after comparison, indeed infringed the plaintiff’s design patent, which constituted a sales infringement according to law, and the defendant should bear the corresponding compensation liability. The plaintiff did not find any semi-finished products or molds or infringing products being produced in the defendant’s business premises judged from the existing evidence during the on-site notarization of the purchase. The defendant also stated in the court trial that the products were purchased from other places. Therefore, the accusation of the plaintiff against the manufacturing act was not accepted.
Regarding the accusation of promising to sell infringing products, the court held that whether the product pictures in the e-commerce store's photo album belong to the nature of promised sales should be comprehensively analyzed and determined. As a photo album managed by the store operator, the e-commerce store photo album can generally be set to be viewed publicly or privately according to the needs of the store operator. It also has the function of a network picture library. When the store operator sets the product map to be viewed publicly, it makes web viewers have an association of whether the operator may have the product for sale, However, compared with the products on the shelves in the e-commerce store, the simple product photo display without textual statement containing sales intentions is not enough to prove that the defendant’s act of displaying this product photo having the nature of an offer or an invitation to an offer. Therefore, this form of product photo displaying does not deviate from the function of a mere album and should not be regarded as an act of promising sales. However, if the plaintiff further proves that after browsing the product pictures on the defendant’s shop, viewers contacting the defendant to ask for the product purchase, the defendant promised or actually sold the same product, then the display behavior of the product pictures in the shop has essentially the attribute of an offer invitation, which is an act of promised sales. The facts of this case belong to the latter, so the defendant’s display of product pictures in the e-commerce store’s photo album is a sales infringement.
In summary, the court's first-instance judgment: Fangfang Sanitary Ware Factory stopped infringement and compensated Hansgrohe for losses.
【Typical meaning】
In recent years, with the popularization of network communication software, diversified publicity channels such as online and offline have gone hand in hand, and the effect has become more convenient. The implementation methods of promised sales have also undergone more profound changes. Regarding promised sales, it is generally believed that the actor should have the intention to provide goods in a commercial sense and express his sales intentions to specific or unspecified audiences. In this case, the plaintiff claimed that there were a variety of product pictures including pictures of the products involved in the shop’s album operated by the defendant on the e-commerce platform, and the display of the pictures of the infringing product was an act of promised sales. The defendant objected that the product pictures in the shop are only used as an effect picture, it is not on the store shelf to sell the product, so it is not a sales promise.
Regarding this dispute, this case launched a specific analysis combining the traditional civil law on the act of offer invitation and the definition of the patent law on the act of promising to sell, as well as the current "Internet +" environment. The photo album managed by the e-commerce store operator can be set to be viewed publicly or privately. At the same time, it has special properties, such as the function of the network picture library.
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