"Kuaishou" sues "Douyin" for infringement, claiming 5 million in damages
On May 12, according to the Haidian Court website, because it was believed that when searching for the words "Kuaishou" in a third-party app, the top search result was "Douyin Short Videos," Beijing Kuaishou Technology Co., Ltd., the developer and operator of Kuaishou, filed a lawsuit against Beijing Weibao Shijie Technology Co., Ltd. in court, requesting it to stop the infringement and demanding 5 million yuan in compensation.
The plaintiff, Kuaishou Company, claims that it is the developer and operator of the well-known short-video mobile application 'Kuaishou', and has obtained the exclusive right to use the 'Kuaishou' trademark from the trademark owner, Beijing Dajia Internet Information Technology Co., Ltd. After years of operation, the 'Kuaishou' mobile application has become one of the most popular short-video mobile application platforms in the country, enjoying a very high user base and recognition, and the trademark involved in the case has also achieved a very high level of fame in the relevant field.
Kuaishou Company found that when entering the words 'Kuaishou' in the third-party app store '360 Mobile Assistant,' the first search result that appeared was not the 'Kuaishou' product. The top search result was actually the 'Douyin Short Video' app, and a 'Promotion' label was displayed on the right side of the app name. Clicking on this search result could lead to the installation and normal use of the 'Douyin Short Video' app. According to the app store announcement and the 'Douyin Short Video' User Service Agreement, Beijing Weibo Shijie Technology Co., Ltd. is the developer and operator of 'Douyin Short Video.'
Plaintiff Kuaishou Company believes that the defendant's act of setting 'Kuaishou' as a paid keyword takes advantage of the company's opportunity to heavily promote and operate its products during the Spring Festival, as well as the popularity of the 'Kuaishou' trademark, to promote its own products. Moreover, because the functions of both parties' products are highly similar, relevant internet users originally intended to search for related products by searching 'Kuaishou,' but the search results were linked to products operated by 'Douyin.' As a result, the specific association between the products provided by Kuaishou Company and its registered trademark is weakened, thus substantially harming Kuaishou Company's exclusive trademark rights, and therefore constitutes trademark infringement.
In addition, the defendant's actions objectively caused internet users who intended to download 'Kuaishou' to find the installation link for 'Douyin Short Video' as the first result when searching for the program name in third-party app stores, thereby increasing the opportunity for the 'Douyin' product to acquire users, reducing the number of users that should belong to 'Kuaishou', and harming its lawful interests. This behavior constitutes a typical case of confusing another's product name, known as 'feeding on others' and 'free-riding', and constitutes unfair competition.
Recently, the Haidian Court accepted this case and it is under further trial.
Keywords are what users enter into search engines that can most effectively summarize the information content they are seeking. Keyword search refers to a new online marketing model in which advertisers can select keywords themselves and pay according to users' click-through rates. It is a type of keyword advertising (keyword bidding ranking) model.
With the development of Internet technology, "trademark use" has taken on more diverse forms. In the field of keyword search, trademark infringement can generally be determined by examining whether the trademark is used in the search process and results to see if it meets the elements of trademark infringement. If a third party's trademark is not directly used in the search keywords, but the reputation of others is leveraged through technical or other covert means to gain traffic and revenue, it may have obtained an unfair competitive advantage, constituting unfair competition.
According to Article 57 of the Trademark Law of the People's Republic of China, any of the following acts constitute an infringement of the exclusive right to use a registered trademark:
(1) Using a trademark identical to a registered trademark on the same type of goods without the permission of the trademark registrant;
(2) Without the permission of the trademark registrant, using a trademark similar to their registered trademark on the same type of goods, or using an identical or similar trademark on similar goods, which is likely to cause confusion;
(3) Selling goods that infringe on the exclusive right to a registered trademark;
(4) Forging or unauthorizedly manufacturing another person's registered trademark logo, or selling forged or unauthorizedly manufactured registered trademark logos;
(5) Replacing another person's registered trademark with a different trademark without the consent of the trademark registrant and putting the goods with the replaced trademark back into the market;
(6) Intentionally providing convenient conditions for the infringement of another person's exclusive trademark rights, or assisting others in committing acts that infringe on trademark rights;
(7) Causing other damage to another person's exclusive right to use a registered trademark.
Regarding unfair competition, according to Article 2 of the "Anti-Unfair Competition Law of the People's Republic of China":
Unfair competition acts as referred to in this Law refer to acts by operators that, in their production and business activities, violate the provisions of this Law, disrupt market competition order, and harm the lawful rights and interests of other operators or consumers.
