Trademark Infringement Caused by Data Crawling Behavior

With regard to trademark infringement, in short, without the consent of the trademark owner, the use of other people's trademarks may infringe, whether used as trademarks, trade names, trade names, domain names, trade decorations, etc., as long as consumers can identify the source of goods from the use of this sign, mistakenly believing that it is one or related to the right trademark, trademark infringement may be involved.

For example, the Shanghai Pudong New Area People's Court recently acceptedThe trademark dispute between "Little Red Riding Book" and "Know Season" is understood to be "Know Season"App used the "Little Red Riding Book" logo in the product picture without the plaintiff's permission and set "Little Red Riding Book Street Photograph" as the product label and search keyword., alsoMassive grabbing through improper meansPictures of the "Little Red Riding Book" platform and use them to promote their own products.The case involves a new type of unfair competition dispute arising from data capture between e-commerce platforms, and the court intendsPublic hearing of the case in early 2022.

Generally speaking, whether it constitutes an act of unfair competition should be defined from the following four aspects:

• First, the subject of unfair competition is the operator.
• Second, unfair competition is aimed at market competition.
• Third, acts of unfair competition violate the principle of good faith and recognized business ethics.
• Fourth, unfair competition harms the interests of multiple parties.

If the plaintiff can prove the existence of the damage from the above aspects, then the other party can be required to stop the infringement and reduce the corresponding damage in time. However, with the rapid development of Internet technology, the legal attributes of the market value of online big data products and the contradiction of ownership of rights have become increasingly prominent. Compared with obvious trademark infringements such as counterfeiting trademarks or counterfeiting and selling counterfeit products, similar"Little Red Book" and "Know the Season" These trademark disputes are becoming more common..

Data capture technology involves the network big data products, network operators through a lot of intellectual labor, in-depth development and system integration into independent of the network user information, the original network data outside the derivative data, substantial with the exchange value of goods. For network operators, network big data products have become an important property right. At present, whether to give network operators to enjoy the property ownership of big data products, the industry is also controversial, the first question is how to explain"Other acts that hinder or undermine the normal operation of network products or services legally provided by other operators".

In practice, in order to ensure that they have a sufficient basis for the right of claim, the parties can clarify the boundary of their rights through the contract. In the absence of direct evidence of grabbing behavior, the right can try to supplement and strengthen it from the result level. In addition, after the success of trademark registration, enterprises should also do a good job in trademark monitoring of the trademarks under their names, and quickly take measures to avoid unnecessary losses and prevent the brand reputation of enterprises from being affected. It can also reach long-term cooperation with professional intellectual property service institutions to help the cultivation of trademark brands and the all-round protection of enterprise intellectual property rights.