after "hong kong meicheng mooncakes", "macau puji mooncakes" are also produced in guangdong. is this considered unfair competition?
2024-09-21
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after several anchors were suspected of "misleading consumers" when promoting "hong kong meicheng mooncakes", the "macau pu ji mooncakes" sold in the "yihui xingxing" live broadcast room were also suspected of similar circumstances.
recently, a product called "macau puji molten custard mooncake" was recommended in the live broadcast of "traveling with hui" and sold at 108 yuan per box. the product is also sold in the douyin flagship store "puji food flagship store". the douyin "puji food flagship store" customer service told the reporter of china business news: "our factory is located in zhuhai, guangdong, and the product packaging and promotional pages are marked with 'made in zhuhai, guangdong'."
in the two recent mooncake sales incidents, consumers are more concerned about:if a company registers a company or trademark in hong kong (or other overseas regions) and then produces and sells the product in the mainland, is the product considered a hong kong brand or an overseas brand?
tianhe law firm partner chen jun analyzed that brand building does rely on product sales and promotion activities.if there is no substantial business operation in hong kong and only a registered trademark is held, then the relevant products can only be regarded as products with hong kong registered trademarks, rather than "hong kong brands".
chen jun further analyzed: "the formation of a brand is a complex process. it not only depends on legal registration, but also needs to be established through continuous market activities and consumer recognition. in business practice, the value of a brand is often reflected in the quality assurance, service commitment and cultural connotation behind it. therefore, if a brand does not carry out any substantial business activities in hong kong, such as no physical stores, no advertising, no customer service, etc., then even if it has a registered trademark, it is difficult for the brand to gain consumer recognition and trust. in this case, the product can only be identified as a product with a hong kong registered trademark, rather than a real 'hong kong brand'. a real brand needs to build its unique market position and image through continuous market interaction and consumer experience, rather than just relying on legal registration."
zhao zhanling, a lawyer at beijing jiawei law firm, also believes that if a trademark is merely registered in hong kong or overseas, but not produced or operated in hong kong or overseas, and the relevant products are still promoted and sold in mainland china, but claimed to be hong kong brands or overseas brands, then this behavior is suspected of constituting false advertising, which not only violates the provisions of the anti-unfair competition law and the advertising law, but also constitutes consumer fraud.
regarding the question of whether "macau puji mooncakes" has a physical store in macau, the douyin customer service of "macau puji mooncakes" stated that the company's offline stores currently include macau puji souvenirs freshly baked store hengqin port store, macau puji souvenirs freshly baked store hengqin pedestrian street store, macau puji souvenirs freshly baked store hong kong-zhuhai-macao bridge store, macau puji souvenirs freshly baked store qingmao port store, etc. the customer service also added that on april 1, 2024, the zhuhai hengqin port was officially handed over to the macau special administrative region government for use and was subject to the jurisdiction of the macau special administrative region government in accordance with the laws of the macau special administrative region government. although the customer service did not answer directly, the implication was that one of the stores was under the jurisdiction of macau.
first financial news reporter learned thatsome businesses in the market now take advantage of the psychology of some consumers and entrust third-party agencies to register companies and trademarks in overseas regions. later, when selling products in the mainland chinese market, some businesses will add the names of overseas regions to the full brand name as a marketing tool.
in this regard, chen jun believes thatsuch cases involve unfair competition such as false advertising.regarding the illegality of such behavior, article 8 of the anti-unfair competition law clearly stipulates that operators shall not make false or misleading commercial propaganda about the performance, function, quality, sales status, user evaluation, honors, etc. of their products to deceive or mislead consumers. this legal provision is mainly aimed at protecting the legitimate interests of competitors in the same industry and ensuring the fairness of market transactions. at the same time, article 20 of the consumer rights protection law also stipulates that when operators provide consumers with information on the quality, performance, use, validity period, etc. of goods or services, they must ensure the authenticity and comprehensiveness of the information and shall not make false or misleading propaganda. this clause emphasizes the operator's obligation of good faith in the process of information transmission, as well as the respect and protection of consumers' right to know.
experts suggest that consumers should be careful to identify such brands, but there is no need to worry too much about food safety issues.
chen jun believes that for consumers, in daily life, when faced with new brands on the market, especially those products marked with "supervised by hong kong xxxx company" or "trademark licensee of hong kong xxxx company" on the product packaging, and other information marked shows that the actual production and sales entities are all mainland enterprises, consumers must be alert to potential risks, such as the false propaganda revealed in the meicheng mooncake incident. in this meicheng mooncake incident, food safety issues were not initially involved. however, given that the incident involved false propaganda by product producers, sellers and well-known internet celebrities, the public has raised doubts about product quality. nevertheless, as long as the product meets all necessary safety and quality standards before being put on the market, consumers do not actually need to worry too much about food safety issues.
zhao zhanling reminds consumers that they should not blindly believe in the merchants' propaganda, but should determine whether it is a so-called hong kong brand or an overseas brand based on the merchant's actual production and operation location. in addition, hong kong or overseas brands are not necessarily synonymous with high quality, so it is recommended that consumers treat merchants' brand propaganda rationally.
(this article comes from china business network)
