Does unauthorized sales constitute infringement?

Unauthorized sales are a common phenomenon on Internet e-commerce platforms. Without the authorization of the brand, the sales behavior is separated from the brand's management and unregulated, leading to disorderly low-price competition and seriously disrupting the brand's normal business order. The following is an analysis of whether unauthorized sales constitute infringement and how to resolve it:

First of all, the current law does not prohibit the mere unauthorized sale of goods, that is, the law does not stipulate that "no unauthorized sale or purchase"; on the contrary, with the ownership of the product, it is transferred from the brand to the dealer through buying and selling. or an unspecified transferee, the transferee who obtains the ownership of the goods can dispose of the goods at will in accordance with the Property Law, and no other person has the right to interfere.

So, does the law not interfere with unauthorized sales?

Now let’s take a look at the different solutions provided by Zhongzhuozhi based on the characteristics of unauthorized sales and different situations.

1. If a registered trademark is used as a product name, the trademark owner may sue in accordance with the Trademark Law

The characteristic of Internet marketing is that "keyword" search using search engine technology must be used; if the brand owner's trademark has been registered and is used in product names by unauthorized sales stores, then this use of the registered trademark will Use of a trademark requires the permission of the trademark owner. Failure to do so constitutes infringement.

Legal basis:

Article 48 of the Trademark Law “…uses trademarks in advertising, exhibitions and other commercial activities to identify the source of goods.”

Article 57 “Anyone who commits any of the following acts shall infringe the exclusive right to use a registered trademark: (1) Using the same trademark as the registered trademark on the same product without the permission of the trademark owner…”

2. Unauthorized stores that mark low prices in sales activities and falsify orders or modify sales will be prosecuted under the Anti-Unfair Competition Law

1. In stores that are not authorized to sell, in addition to marking low prices on products, it is common to fake orders and modify sales;

2. Or use a product name that the brand has a certain influence on, and use it as a product name in unauthorized stores;

In response to the above two situations, the brand can file a lawsuit against the unauthorized store in accordance with the Anti-Unfair Competition Law.

Legal basis:

Article 6 of the "Anti-Unfair Competition Law" "Operators shall not engage in the following confusing behaviors to cause people to mistake other people's goods for others or have a specific connection with others: (1) Use without authorization a trade name that has a certain influence on others..."

Article 8 “Operators shall not make false or misleading commercial publicity about the performance, sales status, user reviews, etc. of their products to deceive or mislead consumers.”

3. During the implementation of the first two solutions, if evidence is obtained that the dealer supplies products to unauthorized stores, the dealer will be held accountable for breach of contract according to the "Agency Contract"

In the first two lawsuits, based on the defendant’s defense, the legal source of the goods sold can usually be known, and the legal source must be the brand’s legal distributor; the brand can rely on written evidence provided by the unauthorized store and the relationship with the brand. The "Agency Contract" between dealers stipulates that dealers will be held liable for breach of contract.

Friendly reminder: Each of the above options has advantages and disadvantages; the specific solution selection needs to be determined based on the brand’s infringement situation and its own sales channel management regulations. The brand owner’s own sound business and management structure is a prerequisite for obtaining legal protection.