Docket No.: 203, second instance (终), civil case (民), (2020) IP Court of Sichuan High People's Court (川知)

Lower Court Docket No.: 3863, first instance (初), civil case (民), (2018) IP Court of Chengdu Intermediate People's Court (川01)

Where operators provide similar services through falsified identities and biographies and cause confusion and misunderstanding among the relevant public as to the source and content of their services, it is an act of using relevant identifying elements to achieve general confusion and constitutes unfair competition.

STATEMENT OF THE CASE AND FACTS

Defendant-Appellant: Xie

Plaintiff-Appellee: Du Pont China Holding Co., Ltd. ("DuPont China"), DuPont (China) Research & Development and Management Co., Ltd. ("DuPont R&D")

DuPont China and DuPont R&D are among the top 500 multinational companies in the world, and their trademarks, such as "DuPont" and "杜邦", which are the same as or translated from each other, and "DUPONT", both Chinese and English trademarks, have been recognized as well-known trademarks by the State Administration for Industry and Commerce and the People's Court for many times. DuPont R&D was invested and established by DuPont China and is responsible for the "DuPont Sustainable Solutions" business, which is a training and consulting service for safety production management, relying on the safety production record and management operation experience of DuPont's system. Xie was a training instructor who conducted enterprise safety production management consulting and other businesses. In his online advertisements and actual lectures, he claimed that his career experience included being a 5S/TPM director and production manager of DuPont Southwest, production manager of DuPont Shanghai, SHE manager, 5S/TPM director, TPS manager, and production manager of DuPont Dongguan, SHE manager, TPS manager, and deputy general manager of production of DuPont factory, with the content of his lectures referring directly to the relevant content of DuPont's safety management, calling himself a "DuPont's safety management expert", and tagging himself as "DuPont Xie" on his blog. However, DuPont China and DuPont R&D had never established the above companies in China, nor had they ever had positions such as "5S/TPM Director" or "TPS Manager". DuPont China and DuPont R&D thus appealed to the Chengdu Intermediate People's Court in Sichuan Province, requesting that Xie be ordered to stop the unfair competition act, publish a statement to eliminate the adverse effects, and compensate for a total of economic losses and reasonable expenses at the amount of RMB 3 million.

In the first instance, the Chengdu Intermediate People's Court held that Xie was engaged in training services for lean production and safety management, which had constituted competition with the safety production consulting services of DuPont R&D. Xie fabricated his work experience and taught a number of safety management courses based on DuPont cases, which would easily lead the target audience of the training courses or potential consumers to believe that the contents of the DuPont case-based courses taught by Xie was the same as the training content of the "DuPont Sustainable Solutions" provided by DuPont R&D, or to easily believe that the two were related and of the same sources, leading to other confusion acts. In summary, the court ruled in the first instance that Xie should immediately stop his unfair competition acts addressed in the case, publish a statement to eliminate adverse impact, and compensate DuPont R&D for an economic loss of RMB 1.1 million and reasonable expenses of RMB 50,000.

Xie refused to accept the first instance judgment and appealed to the High People's Court of Sichuan Province. The parties of this case reached a settlement later and Xie  withdrew his appeal.

ANALYSIS

Typical business cases and quality corporate management methods obtained through public knowledge channels can be used as content of lectures for training and consulting. Therefore, teaching a DuPont case or mentioning DuPont in a course does not necessarily lead to the misidentification of the source of the course by the audience. In this case, Xie's misrepresentation of his work experience was not a direct promotion of the quality of his training courses, but his professional skills as a provider of training courses would directly affect the quality of the training courses, while the educational background and work experience of the instructor were usually important factors for the reference of the audiences to evaluate the professional skills of the instructor of relevant courses. Therefore, in this case, Xie falsified his identity as a former executive of DuPont and provided similar services of DuPont R&D, which had led to the misunderstanding of the relevant public about his affiliation with DuPont and was an act of causing overall confusion through the use of relevant identifying elements such as training services, thus constituting "other confusing acts" as stipulated in Article 6(4) of the Anti-Unfair Competition Law.

This case has not only analyzed the difference between "false publicity" and "confusion acts" in the Anti-Unfair Competition Law, but also clarified that "trademarks" protected by the Anti-Unfair Competition Law should be used in the sense of trademark and not restrict the legitimate use of others. The judgment of this case not only regulates the unfair competition act of using fabricated identity and employment history to obtain unfair competitive advantages, but also clarifies the basic principle that the content of consulting and training should not be monopolized by the subject(s) of the information source under reasonable and lawful circumstances, providing useful references for the trial of similar cases.