Why is it difficult for consumers to get compensation for counterfeit goods purchased online?
2024-08-28
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Original title: Merchants refuse to admit that the platform shirks responsibility and buyers cannot afford it (lead topic)
Why is it difficult for consumers to obtain compensation for counterfeit goods purchased online? (Topic)
Legal Daily reporter Wen Lijuan, trainee reporter Ding Yi, intern Gao Ziqi
Mr. Zhang, a resident of Qingdao, Shandong, was very angry after buying 98 downlights online but none of them turned out to be genuine.
Recently, Mr. Zhang bought a batch of downlights of a certain brand at the direct sales store of ×× Lighting Mall on an e-commerce platform. However, after checking with the customer service of the brand, it was found that these downlights were not produced by his company. Realizing that he had bought fakes, Mr. Zhang asked the merchant to "refund one and compensate three", but was rejected.
A reporter from Legal Daily found that there are many people like Mr. Zhang who have purchased counterfeit goods online, and the product names and store names of these counterfeit goods are usually marked with "×× direct sales", "×× brand authentic products", "direct shipment from bonded stores", etc. Some stores are even officially certified flagship stores.
In practice, what is more frustrating to consumers than buying fakes is the difficulty in protecting their rights. The reporter randomly interviewed dozens of consumers in Beijing, Shanghai, Hunan, Hebei and other places. They all said that it was difficult to get compensation after buying fakes. Some merchants denied selling fakes and refused to compensate; some merchants "passed the buck" and insisted that they were also deceived by upstream manufacturers; some merchants simply closed their stores and ran away. Some consumers asked for help from e-commerce platforms, but the other party either asked them to continue negotiating with the merchants or chose to ignore them.
Experts interviewed pointed out that online stores selling fake goods are suspected of infringing consumers' rights to know, choose, trade fairly, and personal and property safety, and should be punished according to law. However, in practice, it is not easy for consumers to successfully protect their rights after buying fake goods online. It is recommended that e-commerce platforms establish and improve complaint handling mechanisms, strengthen the review of the names and qualifications of merchants, and that relevant regulatory authorities use information technology to improve the ability to deeply explore and accurately enforce laws against illegal online store sales of fake goods.
Online stores selling counterfeit goods are common
Accidentally bought fake goods
Mr. Zhang planned to buy downlights online because of the renovation of his house. After some searching, he saw that the products in the direct sales store of ×× Lighting Mall were marked as official genuine products of a certain brand, and the store also displayed the authorization certificate of the brand, so he bought 98 downlights at one go, spending 1596.4 yuan. After receiving the goods, Mr. Zhang checked the authenticity of the goods through the official channel of the brand, but he did not expect the other party to reply that they did not have this model of product, and this store was not in the list of officially authorized outlets.
Mr. Zhang immediately contacted the merchant, who said that they were a franchise store of the brand and that all the products they sold were genuine, but that they could return the products and refund them. However, the merchant did not respond positively to the official test results of the brand provided by Mr. Zhang. Mr. Zhang believed that the merchant's attitude indirectly reflected that they were selling fake products and that they should "return one and compensate three".
Ms. Han from Shanghai had a similar experience recently. She bought a baby bottle from a merchant on an e-commerce platform. After receiving the goods, she scanned the code and found that the font size of the anti-counterfeiting webpage was inconsistent. She suspected that she had bought a fake, so she confirmed with the brand's official customer service. The other party said that the product she bought was a counterfeit, and the merchant was on the brand's official list of fake stores.
After discovering the problem, Ms. Han communicated with the seller immediately, but the seller denied selling counterfeit goods and did not agree to compensation. In desperation, Ms. Han asked the e-commerce platform for help, but the response she received was that "the platform is not a law enforcement agency and can only help apply for a refund." The platform then threw the responsibility of solving the problem to the seller. However, the seller turned a blind eye to her request, and after several days, there was no progress.
In desperation, Ms. Han left a message to the seller: "If you refuse to refund one and compensate three, I will submit relevant evidence and sue directly." On the morning of receiving the message, the seller called and said that compensation could be negotiated, but tried to reduce the compensation amount by saying that the verification results were different because of the different versions of the baby bottles, but Ms. Han refused. After some arguing, the seller finally paid the compensation 16 days after receiving the goods.
Ms. Zhang, a citizen of Xicheng District, Beijing, fell into the trap of fake cosmetics. She bought four bottles of primer on an e-commerce platform. After receiving the products, she opened the packages and tried them out. She found that the primer she bought this time was completely different from the same one she had used before in texture and moisturizing degree, and the color was also different after applying evenly.
"I have been using this primer for more than a year and have used up three bottles. After discovering something strange, I compared the empty bottle I had used up before with the one I bought this time, and found that the length and width of the bottles were very similar, but the color of the cream was different in depth, and the label on the bottle had the name of another brand." Ms. Zhang said that the merchant openly stated in the product details on the web page that they were the ×× brand, but added the words "same model" at the end. Even the pictures were pictures of genuine products, and no difference could be found before unpacking.
Finally, Ms. Zhang applied for a refund for the other three bottles that had not been opened, saying that the product did not match the description. "But what if I only bought one bottle? I would probably have to keep the fake product because it was opened."
In reality, there are many consumers who buy fakes online. A media survey of 2,005 respondents found that 46.5% of the respondents had bought fakes during online shopping. Skin care products/makeup, clothing, shoes and hats, and electronic products are more commonly accused of being fake.
According to the "2024 '618' Consumer Rights Protection Public Opinion Analysis Report" released by the China Consumers Association, during the 20-day monitoring period from June 1 to 20, 2024, there were more than 214,000 pieces of negative information about "counterfeit and shoddy products", with an average of 11,000 pieces per day.
It is difficult to implement the policy of paying three times the price for fake products
It is not easy to protect consumer rights
According to the Consumer Protection Law, if an operator engages in fraudulent behavior in providing goods or services, he or she shall, at the request of the consumer, increase compensation for the losses suffered by the consumer. The amount of increased compensation shall be three times the price of the goods purchased by the consumer or the cost of the services received. If the amount of increased compensation is less than 500 yuan, it shall be 500 yuan.
However, the reporter found in the interview that when many consumers asked for "refund three times the amount" from the merchants because they bought fake goods sold under the banner of genuine products, few people got the compensation they wanted. One interviewee said frankly, "It is too difficult to protect rights. Don't even think about 'refund three times the amount'. It's good enough to get some money back."
Ms. Liu, who was attending college in Changsha, Hunan, bought two bottles of La Mer skin care water in a store called "×× Beauty Store" that claimed to have "official discounts" and "bonded direct delivery." After receiving the goods, she took them to a third-party authentication platform for testing and found that they were fake. She contacted the merchant, but the merchant denied selling fakes and said that if Ms. Liu wanted to return the goods for a refund, she had to choose "refund due to personal reasons" as the reason for the return. Ms. Liu repeatedly asked the platform to intervene before she got a refund and received an additional 96 yuan in platform compensation.
Ms. Hao from Yunnan ordered a pair of baby diapers on a platform. The genuine product is called "Lion Kingdom" and the brand is "Babycare". The product name is the same as the genuine product, but after receiving the product, the product packaging shows "Lion Jade Kingdom" and "Babycate". After opening the package, a strange smell hit her nose. After many communications, the platform agreed to "only refund" and there was no follow-up.
Ms. Wen, a resident of Chaoyang District, Beijing, recently bought a 379-yuan fashion brand bag on an e-commerce platform. Before placing the order, she deliberately chose a store named after the fashion brand's online store because she was afraid of buying a fake. The store also had a high number of fans and sales, and was ranked first on the search page. But after receiving the bag, she was shocked - the stitching of the bag was uneven in many places, the color was completely different from the picture, and there was an extra small pocket on the back of the bag that was not on the original.
After realizing that she had bought a fake bag, Ms. Wen immediately contacted the merchant, but the merchant refused to admit that it was a fake, saying that "the new employee sent the wrong product." Ms. Wen asked the merchant to provide the brand's genuine authorization, but the merchant said that he could not provide it. After several hours of negotiation, the merchant said that he was willing to return the 259 yuan price difference as a "goods for old customers," but refused to return the product on the grounds that "it is a critical period of season change and returns will affect store data."
Ms. Wen turned to the platform customer service for intervention, and explicitly requested "refund one and compensate three times". However, the platform customer service suggested that she continue to communicate with the merchant, saying that "the platform has no law enforcement power and cannot impose fines on merchants". Ms. Wen had no choice but to file a complaint with a third-party complaint platform and the 12315 consumer complaint hotline.
The reporter searched for "counterfeit and shoddy products" as a keyword on a third-party complaint platform and found that there were more than 30,000 related complaints, most of which were "under processing", and only a few had the results of "replied" or "completed".
Experts interviewed pointed out that online merchants selling counterfeit and shoddy products violate relevant laws and regulations such as the Consumer Rights Protection Law, the E-Commerce Law, and the Product Quality Law, and are suspected of infringing on consumers' rights to know, choose, trade fairly, and personal and property safety. Their behavior should be punished according to law. If the e-commerce platform fails to strictly perform its obligations such as qualification review and daily management, the platform shall bear corresponding responsibilities according to the specific circumstances; if the platform knows or should know that merchants on the platform have violated laws and regulations or violated consumer rights, and fails to take timely measures, resulting in damage to consumer rights, the platform shall bear joint and several liability according to law.
"In practice, it is not easy for consumers to successfully protect their rights after buying counterfeit goods. They face too many challenges." Ge Youshan, senior partner of Beijing Jiawei Law Firm, gave examples, such as the high cost of rights protection and cumbersome procedures. In addition, e-commerce platforms do not provide consumers with efficient and smooth channels for rights protection, which objectively increases the difficulty of rights protection.
Chen Yinjiang, deputy secretary-general of the Consumer Rights Protection Law Research Institute of the Chinese Law Society, believes that it is not easy for consumers to prove their rights. Some products are difficult to identify as fakes based on their appearance, and testing not only involves time and economic costs, but also involves testing qualifications and testing procedures. Consumers spend money and time to apply for testing unilaterally, but the results may not be recognized by the merchant; if consumers ask the merchant to test together, they may face the situation that the merchant will not cooperate.
Platform strengthens qualification review
Improve the complaint handling mechanism
"Whether online or offline, the phenomenon of selling counterfeit goods objectively exists. The particularity of online transactions determines that the phenomenon of selling counterfeit goods online is more common. This phenomenon has been repeatedly banned and is the result of the combined effect of multiple factors." said Zhao Zhongkui, associate professor at the School of Economic Law of Southwest University of Political Science and Law.
He analyzed that, first, it is difficult to enforce the law against online sales of counterfeit goods. Traditional law enforcement mechanisms may fail to enforce the law when faced with the phenomenon of online counterfeiting. For example, when merchants engage in online transactions in private homes, on-site inspections are difficult because of the involvement of private rights. The lack of cross-departmental and cross-regional linkages in law enforcement departments has greatly increased the difficulty of enforcing the law in cross-regional online counterfeiting cases. Second, the threshold for online trading platforms is low, and the cost of selling counterfeit goods by merchants on the platform is low. Merchants need to meet relevant conditions or qualifications to enter the platform, and many platforms have lowered the conditions for entry and qualification review in order to attract more merchants to enter, laying hidden dangers for the chaos of counterfeiting. The low threshold for entering the platform allows merchants who have been ordered to close their stores to easily switch to other platforms. For these merchants, the legal deterrent effect of administrative penalties such as "ordering to stop production and sales" and "revoke business licenses" is insufficient.
"In addition, some consumers, driven by the desire for bargains, 'knowingly buy and use fake products', which also contributes to the production and sale of counterfeit goods," said Zhao Zhongkui.
In order to further strengthen the governance of counterfeit goods, the State Administration for Market Regulation issued the "Notice on Carrying out the 2024 National "Quality Month" Activities" on August 2 this year, requiring severe crackdowns on infringement and counterfeiting activities. Carry out publicity activities to punish infringement and counterfeiting crimes in accordance with the law. Release a number of typical cases involving product quality disputes, concentrate on handling a number of public interest litigation cases in the field of food and drug safety, strengthen the interpretation of the law through cases, effectively deter crimes, and enhance the legal awareness of the masses.
On August 21, the Supreme People's Court issued the "Interpretation on Several Issues Concerning the Application of Law in Handling Food and Drug Punitive Damages Dispute Cases", which stipulates that if the purchaser purchases food for personal or family consumption needs and there is no evidence to prove that he or she knew that the purchased food did not meet food safety standards but still purchased it, the punitive damages should be calculated based on the actual payment price at ten times the price, fully protecting the rights protection behavior of ordinary consumers.
Experts interviewed believe that to eradicate the breeding ground for counterfeit goods in online stores, comprehensive measures are needed from multiple dimensions including e-commerce platforms, merchants and consumers.
Ge Youshan pointed out that as a bridge for online transactions, e-commerce platforms should earnestly perform their supervisory duties and strengthen the review of the names and qualifications of merchants. For high-risk commodity categories, platforms should consider establishing cooperative relationships with professional third-party quality inspection agencies and implement professional quality inspections to effectively fulfill their obligations to consumers in terms of safety protection. At the same time, the platform should also establish and improve a complaint handling mechanism. Once counterfeit sales are discovered, immediate measures should be taken to assist consumers in safeguarding their rights, including but not limited to providing consumers with key evidence such as merchant store information, transaction records, and product batch information, so that consumers can effectively trace and take corresponding legal actions. For merchants who violate regulations, the platform should take immediate measures, such as suspending store operations, deducting deposits, and cooperating with regulatory authorities to investigate their legal responsibilities when necessary.
From the perspective of merchants, Ge Youshan believes that they should strictly abide by laws, regulations and regulatory requirements in every link of commodity production, transportation, sales and even after-sales service; they should improve the after-sales service system and provide services such as return, exchange and repair; they should actively respond to consumer complaints and handle them quickly to avoid escalation of disputes. Some merchants who sell fake goods have the mentality of "paying once and for all", mistakenly believing that their illegal behavior involves civil compensation liability at most, but in fact, the serious illegal behavior of merchants may involve multiple crimes in the criminal law, including the crime of producing and selling counterfeit and shoddy goods, the crime of counterfeiting registered trademarks, the crime of selling goods with counterfeit registered trademarks, and the crime of illegal business operations.
In Zhao Zhongkui's view, it is urgent to strengthen law enforcement. Big data, cloud computing and other information technologies can be used to increase the integration, analysis and judgment of relevant data information, improve the in-depth mining and precise law enforcement capabilities of online store sales of counterfeit goods, and achieve online discovery, source tracing, on-site investigation and punishment of e-commerce platform sales of counterfeit goods, so as to effectively regulate online store sales of counterfeit goods.
"It is recommended to promote comprehensive and integrated administrative law enforcement reforms in the field of online transactions, promote integrated online and offline law enforcement, and strengthen cross-regional collaboration, cross-departmental coordination, and coordination between superiors and subordinates. Through innovative law enforcement and tracking and tracing of illegal acts of selling counterfeit goods in online stores, comprehensive regulation of counterfeiting behavior can be achieved." Zhao Zhongkui said.
For consumers, the experts interviewed unanimously agreed that it is crucial to enhance self-protection awareness and rights protection awareness, and pay attention to verifying the production information, logos, merchant reputation, etc. of the goods before purchasing. When encountering acts that infringe on their legitimate rights and interests, they should promptly collect relevant evidence, such as shopping receipts, product packaging, product descriptions, communication records, etc., and protect their rights according to law.
"If consumers' legitimate rights and interests are damaged by purchasing counterfeit goods online, they can sue the merchants on the platform in court and demand compensation. If the trading platform cannot provide the merchant's real name, address and effective contact information; or the trading platform makes a promise that is more favorable to consumers, such as promising that if consumers buy counterfeit goods on the platform, the platform will compensate the consumer first; if the platform knows or should know that the merchant uses the platform to infringe on the legitimate rights and interests of consumers, but the platform fails to take necessary measures, in these three situations, consumers can also sue the trading platform." Zhao Zhongkui said.
He also suggested that, considering the high cost and long period for consumers to protect their rights through litigation, if consumers buy counterfeit goods on e-commerce platforms and negotiations fail, they can complain to the county-level market supervision and management department of the actual place of business or residence of the merchant or trading platform.
Source: Legal Daily
