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"Celebrity endorsement" and "celebrity recommendation"

It is one of the magic weapons for merchants to increase sales

However, the use of celebrity portraits without the celebrity's authorization

"Rigging for popularity" and "driving traffic" will constitute infringement

recently,

Well-known actor and director Jia Ling

Successfully sued a black coffee producer,

Received 100,000 yuan in compensation.

Various brands claiming to be "the same as Jia Ling's" infringe Jia Ling's portrait rights

Using infringing boxing photos on black coffee

Jia Ling sued for 300,000 yuan

In February 2024, the movie "Hot and Spicy" directed and starred by Jia Ling was released in mainland China. The inspirational weight loss story in the movie inspired many beauty lovers. Subsequently, a group of businesses under the banner of "Jia Ling's Same Style" used Jia Ling's image for advertising without her consent.

In "Hot and Spicy", Jia Ling's inspirational spirit of losing 100 pounds infected many audiences.

Jia Ling claimed that in April 2024, she discovered that Anhui XX Health Industry Development Co., Ltd. printed her portrait on the packaging of the company's "Ms. Jia Black Coffee" without her consent.The defendant misled the public and created the false impression that the plaintiff was endorsing him for profit.As a well-known entertainer, the plaintiff’s portrait has certain commercial value.”

Jia Ling said that the defendant used the value of her portrait to attract users to consume and obtain commercial benefits, but this was based on the premise of damaging her licensing rights and her portrait rights.This behavior has seriously violated her legal rights and interests.

Based on this, Jia Ling filed a lawsuit in court, demanding that Anhui XX Health Industry Development Co., Ltd. stop infringing (including but not limited to deleting relevant promotional pages, destroying infringing materials, etc.); and apologize in the newspaper;Compensation for economic losses and reasonable rights protection costs totaling 300,000 yuan.

Court: Stop the infringement

Compensation for economic losses of 100,000

Anhui XX Health Industry Development Co., Ltd. argued that it disagreed with Jia Ling's lawsuit request, because her company only produced 5,000 boxes, and the packaging boxes were provided by a business company in Xiamen. "When our company was reviewing it, we didn't realize it was Jia Ling."

The court found that Anhui XX Health Industry Development Co., Ltd. is the manufacturer of "Ms. Jia IM Black Coffee".The outer packaging of "Ms. JiaTM Black Coffee" features a cartoon image of Jia Ling boxing.. This "Ms. JiaTM Black Coffee" is sold on major e-commerce platforms.

The court held that a portrait is a reproduction of a natural person's appearance on a material carrier. The connotation of a portrait emphasizes the recognizability of a natural person's facial image. The material carrier and means of reproducing a portrait do not affect the fact that a natural person's facial image that exists in a certain form belongs to the category of a portrait. As long as the cartoon reflects a recognizable natural person image, the cartoon image can be classified as a portrait, and thus become the object of protection of portrait rights under Chinese law.

Natural persons enjoy the right to their portrait. Without the consent of the portrait right holder, the portrait of the portrait right holder may not be produced, used or disclosed. In this case, the defendant company used a cartoon image of Jia Ling boxing on the outer packaging of its "Ms. Jia TM Black Coffee", which can reflect the recognizable image of Jia Ling.This use was not done with Jia Ling’s consent and infringed upon Jia Ling’s portrait rights.

The court held that as a well-known Chinese actress and director, Jia Ling’s portrait has certain commercial value. The defendant’s infringement on her portrait rights will inevitably lead to damage to the economic interests contained in her portrait rights, and it is easy for the public to associate the plaintiff with the defendant’s brand endorsement relationship. As neither party was able to provide evidence to prove the actual losses suffered by the infringement or the benefits obtained by the defendant from the infringement in question, the court combined the commercial value of the plaintiff’s brand endorsement, the cost of rights protection, the defendant’s degree of fault, purpose, method, duration, and compensation ability, etc.The defendant was ordered to compensate for economic losses of 100,000 yuan。

Based on this, the Qiaocheng District Court ruled that Anhui XX Health Industry Development Co., Ltd. must stop the infringement, not produce any more products that infringe on Jia Ling's portrait rights, publicly apologize to Jia Ling, and compensate Jia Ling for economic losses of 100,000 yuan.

In this regard, netizens have expressed:

Support Jia Ling in defending her rights!

Merchants take advantage of the popularity to sell products

Citizens should not be deceived

It is understood that after the movie "Hot and Spicy" was released, many businesses started to use crooked ideas to take advantage of the popularity of the product packaging, and some products were cartoonized with Jia Ling's classic pose of holding boxing gloves in "Hot and Spicy" for promotional advertisements. The reporter found that there are still many such cases on e-commerce platforms.

In April this year, Beijing Dawan Entertainment Culture Media Co., Ltd. issued a statement saying that it has discovered that some unscrupulous businesses have used the artist Jia Ling's portrait without her permission, falsely claiming that the artist endorses or cooperates with their brand or product, misleading the public into believing that the brand or product has a cooperative relationship with the artist. In response to the above situation, the company solemnly declares:Any endorsement or cooperation not announced through official channels is false information. The company has entrusted lawyers to protect its rights in accordance with the law. Consumers are advised to carefully identify and avoid being deceived.

On April 16 this year, the official Weibo account of the movie "Hot" released a number of anti-counterfeiting pictures, including the same "Hot" T-shirt as Jia Ling, the same weight loss black coffee as Jia Ling, and other products.The film company claimed that director Jia Ling and the movie "Hot" have never endorsed or authorized any fat-reducing or sugar-free drinks, foods, medicines, cards, beauty salons, etc., and reminded netizens not to be deceived.

Source: Guangzhou Daily, compiled from Anhui Business Daily and Xiaoxiang Morning News