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during the mid-autumn festival that just passed, we may not have eaten mooncakes, but we ate as much “mooncake melon” as we could.

first, there was the "hong kong meicheng mooncakes" sold through live streaming by brother yang. relying on the slogan "hong kong mooncakes with monthly sales of 50 million yuan are not available in hong kong", it has frequently dominated the hot search list for many days.

it is reported that xiao yangge's live broadcast room repeatedly used the words "hong kong meicheng" to sell mooncakes, but the mooncake packaging showed that it was not produced in hong kong, but in guangzhou. according to blue whale news, the largest online shopping platform in hong kong does not sell "meicheng mooncakes", and several agents of the mooncake brand also said that the company "has no stores in hong kong."

on september 18, the guangzhou huadu district market supervision and administration bureau issued a report on the situation involving meicheng mooncakes. hong kong meicheng food group has registered trademarks such as "meicheng" and "hong kong meicheng mooncakes" in hong kong, which are approved for use on mooncake products. it has authorized the trademarks to guangzhou meicheng food company for use.

image source: reference [2]

the incident of meicheng mooncakes’ “real or fake hong kong identity” has not yet subsided, but the “macau identity” of the pu ji mooncakes, which were sold in the “yihui xingxing” live broadcast room, has also begun to be questioned.

information on puji's online stores on various platforms shows that many of its products are produced in zhuhai, the manufacturer is "zhuhai puji food co., ltd." and the supervisor is "macau puji food co., ltd." macau puji food co., ltd. issued a statement saying that it has a real and valid trademark registration in macau and has an authorization contract with the zhuhai manufacturer.

image source: taobao puji flagship store (left), douyin puji food flagship store (right)

the trademark is from hong kong and macao, but it is produced and sold in the mainland. many consumers are therefore wondering: what brand is this? is it false advertising?

is a trademark a brand?

the "hong kong meicheng mooncakes that are not available in hong kong" has been hotly discussed, and the macau pu ji, which has a registered trademark in macau but is "not available in macau", has become a new controversy in recent days.

according to a report by southern metropolis daily on september 19, staff of zhuhai pu ji food co., ltd. said that pu ji is a macau brand that has registered its trademark in macau but has no stores and currently only has stores in zhuhai.

subsequently, the weibo account "pu ji shou xin" authenticated as zhuhai hao yida trading co., ltd. responded with a post, with attached pictures showing that it has physical stores at the tourist transportation intersections of zhuhai and macau, such as the "hong kong-zhuhai-macao bridge" and the "hengqin port entry checkpoint". although the address is close to macau, baidu maps shows that the address of the relevant physical store is in zhuhai city, not in macau strictly speaking.

image source: weibo @葡记手信, baidu map app

before september, many netizens in the comment section of @paul kei macau portuguese souvenirs on xiaohongshu also questioned that "there is no store in macau". the official customer service responded in june that "the macau store is being renovated and upgraded."

image source: xiaohongshu @paul kei macau portuguese souvenirs

at this point, the focus of the debate is clear: if a product has a trademark but is not produced and sold in the country where the trademark belongs, can it still be called a local brand?

lei jiamao, a lawyer at hebei hounuo law firm, told yidu that trademarks registered in hong kong or macau can be legally authorized for use by mainland enterprises, and the relevant goods or services can be called brands of the place where the trademark belongs. however, if the trademark has no substantial commercial operations, no production and sales in hong kong and macau, and the trademark has no reputation or influence in hong kong and macau, it cannot be claimed as a big brand, big brand, high-end brand, etc. in hong kong and macau during publicity, otherwise it will be suspected of false advertising.

“if the trademark registration of the two mooncakes complies with the trademark law, there is nothing wrong with the brand itself as the trademark belongs to the place,” zhang jing, deputy director of the beijing lianggao law firm, also told yidu. however, the production and sales of mooncakes have nothing to do with hong kong and macao, but they promote misleading information such as “must eat in hong kong” and “must eat in macao”, making consumers mistakenly believe that the mooncakes are produced in hong kong and macao, which is suspected of misleading and defrauding consumers.

this was the reason for the previous controversy over "hong kong meicheng mooncakes".

not only does the mooncake brand print the eye-catching words "hong kong meicheng" on the packaging, but brother yang also uses terms such as "hong kong meicheng" and "high-end mooncakes" when promoting and selling the mooncakes in his live broadcast room.

image source: screenshot of live video

the “macau card” played by “pu kee mooncakes” is also the subject of similar controversy.

in the promotional copy of @paul kei macau paul kei souvenirs on xiaohongshu, words such as "high-end macau mooncakes" are often seen; the account profile of the paul kei food flagship store on douyin also says "paul kei takes you to the food capital of macau", and in the promotional video of the "macau paul kei limited gift box", "authentic macau", "macau pastries" and "must-buy in macau" are mentioned many times.

image source: douyin puji food flagship store

lei jiamao added that based on the general perception of ordinary consumers about brands, if one only emphasizes "hong kong mooncakes", "hong kong brand", "macao brand", etc. during sales promotion without truthfully and comprehensively disclosing the production and sales of mooncakes with this trademark in hong kong and macao, it is also misleading and suspected of false advertising.

but in general, regardless of the quality and taste of the mooncakes, the issue of "the authenticity of the mooncakes from hong kong and macao" that netizens are concerned about cannot be ignored. what follows is what kind of legal issues the "authenticity" may face, which is also the concern of netizens.

is there any problem with the hong kong and macau mooncakes that cannot be bought in hong kong and macau?

let’s look at the mooncake brand first.

lei jiamao said that if a company legally holds a trademark or produces and sells mooncakes with legal authorization, and the mooncakes it produces and sells also comply with food safety laws and regulations, and there are no illegal activities such as counterfeiting and selling fake goods, false advertising, etc., then the general production company does not need to bear legal responsibility.

in other words, if it does not involve counterfeiting and selling fake goods or false advertising, there is indeed nothing wrong with what the meicheng mooncake manufacturer, guangzhou meicheng food technology co., ltd., told the media before: "there is no law that stipulates that hong kong brands cannot be produced in the mainland."

on september 18, the guangzhou huadu district market supervision and administration bureau issued a report on the situation involving meicheng mooncakes, stating that no illegal behavior has been found in guangzhou meicheng food technology co., ltd., one of the producers of "hong kong meicheng mooncakes"; the company was recently inspected on-site three times, and no major food safety risks have been found.

however, lei jiamao added that if the companies involved and the companies that sell goods engage in false advertising during promotion and sales, consumers can request "refund one and compensate three" in accordance with the consumer protection law.

the case has been filed against three sheep network technology co., ltd. for allegedly "misleading consumers" during live broadcasts.

if the situation is true, what will be the impact on the anchor? lei jiamao pointed out that if the anchor engages in false propaganda and deceives or misleads consumers into purchasing goods, the anchor should bear the corresponding compensation liability according to the provisions of the "e-commerce law" and the "advertising law".

however, the “first batch of victims of maxim’s mooncakes” are facing difficulties in protecting their rights.

after the "false advertising" caused controversy, many consumers applied for refunds but were rejected. meicheng customer service said that "mooncakes belong to the category of seasonal special food and do not support 7-day unconditional return and exchange service." in january this year, taobao adjusted the seven-day unconditional return policy and added "mooncakes are fresh and perishable products and do not support 7-day unconditional return."

but whether it is the meicheng mooncake product packaging or xiao yangge’s live broadcast promotion, it is shown that the shelf life is 80 days.

image source: screenshot of live video

how to determine “fresh and perishable goods” and “seasonal special foods” in laws and regulations or judicial practice?

"the mooncakes involved have a shelf life of 80 days and generally cannot be considered as fresh and perishable goods," lei jiamao said, but mooncakes do have a special seasonality and after the mid-autumn festival they may face depreciation, price cuts, or even no one buying them.

"from a safety perspective, it is reasonable for food not to support 7-day no-reason returns," zhang jing also believes.

however, regarding the meicheng mooncake incident, both lawyers pointed out that "there are reasons for returning the goods."

lei jiamao believes that if consumers return goods based on false advertising or food quality issues, they have a reason to return the goods, and the merchant cannot refuse to return the goods on the grounds that they are seasonal special foods. moreover, if the above situation exists, consumers have the right not only to request a return, but also to request corresponding compensation.

in addition, regarding the mooncake ingredient "black truffle" that was vigorously promoted in xiao yangge's live broadcast room, some consumers believed that since the ingredient list of "meicheng black truffle lava milk yellow mooncake" only added more than or equal to 2% of "black truffle lava sauce", and in the "black truffle lava sauce", "quickly frozen black truffle" only ranked fourth. therefore, many consumers believe that black truffle is not the main ingredient in the ingredient list of meicheng mooncakes and should not be exaggerated.

in this regard, zhang jing said that there is a difference between black truffles and black truffle lava sauce. if a very small ingredient is promoted as the main ingredient, this may also be suspected of misleading consumers and false advertising.

as for the issue discussed by many consumers as to whether the policy of “ten times compensation for fake products” should be adopted, the two lawyers also gave an explanation from the perspective of food safety.

"the prerequisite for a tenfold compensation is that there are food safety issues," zhang jing pointed out that regardless of whether the merchant has committed fraud, as long as its food does not meet food safety standards, it should "refund one and compensate ten."

lei jiamao also said that if a company knowingly produces or sells food that does not meet food safety standards, consumers can demand compensation of ten times the price or three times the loss. if the mooncakes themselves do not have any quality or safety issues, they cannot claim "return one and get ten times the compensation" or "fake one and get ten times the compensation."

in other words, if the mooncakes in question have not been identified as having food safety issues, there is no clear basis for the "10% compensation".

"but if it is determined that there is false advertising, you can claim 'refund one and compensate three'," lei jiamao added.

the "make friends live room", which had previously sold meicheng mooncakes, was also implementing the "refund one and compensate three" compensation policy.

image source: weibo @交个朋友直播室

before clearing their true or false identities, the relevant mooncake brands and the live-streaming hosts will have to continue to be scrutinized by all parties.

after all, they are not the only ones who are in a state of distress.

“i can’t finish the food and i can’t give it away. what should i do?” innocent consumers also want to escape.

references:

[1] southern metropolis daily. the "macau mooncakes" sold by yuhui xingxing on live broadcast are made in zhuhai! the manufacturer claims to have no stores in macau.

[2] daily economic news. the "hong kong mooncakes" sold by xiao yangge are made in guangdong and cannot be bought in hong kong? the company responded: there is no law that prohibits hong kong brands from being produced in the mainland! lawyer: it may be suspected of false advertising and defrauding consumers.

[3] taotian express. note: taobao’s “7-day no-reason return” policy has been adjusted.

author: yang panlian

editor: tennessee

editor on duty: minmin