Since the launch of the "Iron Fist" operation this year, the Xi'an Municipal Market Supervision Bureau has fully integrated the investigation and handling of cases in the field of people's livelihood with the practical activities of "I do practical things for the masses", closely followed the prominent problems that the masses have strongly complained about and that public opinion is concerned about, struck a blow with a heavy fist, made precise efforts, investigated and handled a number of typical cases of a bad nature around the masses in accordance with the law, effectively safeguarded the good business order of the market, and effectively protected the legitimate rights and interests of consumers. The sixth batch of typical cases is hereby announced as follows:
1. Xi'an Guxintang Pharmaceutical Co., Ltd. Yanta Yannan Third Road Traditional Chinese Medicine Clinic did not have the "Medical Institution Preparation License" to prepare and use preparations
Case Summary: According to the relevant clues handed over by the Municipal Bureau, the law enforcement personnel conducted an on-site inspection of the residence of the parties, and found a total of 11 kinds of preparations such as four worm powder, liver flat powder, four worm pills, strong blood circulation powder, jade spirit cream, etc. formulated in the residence, as well as 290 kinds of chinese medicine formula granules such as "Salt Zhimu" and "Eucommia Charcoal" (the production enterprises are all China Resources Sanjiu Pharmaceutical Co., Ltd.), of which 15 kinds of Chinese medicine formula granules have exceeded the validity period. After investigation, the parties concerned did not obtain the approval documents for the preparation license of medical institutions and the use of Chinese medicine formula granules, nor did they file a record with the provincial bureau for the self-made preparations they prepared and the Chinese medicine formula granules used. After further inspection, it was found that the parties did not have any illegal acts such as the preparation license of medical institutions, the use of preparations, the purchase of Chinese medicine formula granules from illegal channels, and the use of expired Chinese medicine formula granules.
The above acts violate the provisions of the first paragraph of Article 98 of the Drug Administration Law of the People's Republic of China. According to the "principle of combining the old with the light", the 2015 version of the Drug Administration Law of the People's Republic of China is applicable to the two illegal acts of the parties preparing without a license, using homemade preparations and purchasing Chinese medicine formula granules from illegal channels. The time for the parties to use expired Chinese medicine formula granules was June 29, 2020, so it was decided to impose an administrative penalty on the 2019 version of the Drug Administration Law of the People's Republic of China for this act. 1. Confiscate 12.498kg of illegally formulated preparations, and confiscate 4185 bags of Chinese medicine formula granules; 2. Confiscation of illegal gains of 71,342.6 yuan; 3. And fined: 515577.08 yuan. The total amount of fines and forfeitures mentioned above is 586919.68 yuan
2. The false publicity case of the Eye Vision Correction Center of Xi'an Economic and Technological Development Zone
Case Summary: In April 2021, the law enforcement personnel of the Sixth Law Enforcement Brigade of the Comprehensive Law Enforcement Detachment conducted an on-site inspection of the company's suspected false propaganda behavior at the Eye Ding Vision Correction Center in Xi'an Economic and Technological Development Zone.
After investigation, xi'an Economic and Technological Development Zone Eye Vision Correction Center, without any basis, designed and produced two medals of "China's Glasses Industry Chain Preferred Brand" and "China's Most Influential Brand in Glasses Industry" to be placed in the business premises for business publicity activities to obtain more trading opportunities.
The above-mentioned acts violate the first paragraph of article 8 of the Anti-Unfair Competition Law of the People's Republic of China, which stipulates that "business operators shall not make false or misleading commercial publicity about the performance, function, quality, sales status, user evaluation, and honors they have won, etc., to deceive or mislead consumers", which has constituted false publicity. According to the specific facts and circumstances of the parties' illegal acts, the parties were ordered to stop the illegal acts, and it was decided to impose the following administrative penalties on the parties: a fine of 200,000 yuan
Third, Xi'an Beimei Family Service Co., Ltd. used the network to organize false transactions to carry out single speculation cases
Case Summary: In the course of investigating a technical service company suspected of organizing false transactions, the four major law enforcement teams of the comprehensive law enforcement detachment found that the publicity behavior of Xi'an Beimei Family Service Co., Ltd. was suspected of violating the Anti-Unfair Competition Law of the People's Republic of China. After filing and investigation, Xi'an Beimei Family Service Co., Ltd. signed an e-commerce custody service contract with a technical service company in 2021, and the contract period was from January 27, 2021 to May 5, 2021, and the contract stipulated that the parties would pay a fee of 8,000 yuan to a technical service company, and a technical service company would provide services such as increasing the collection volume by 1,000 items during the service period and 15 V4 or more big V high-quality praises to the parties' online stores. Help the parties' online stores to improve their rankings, increase exposure and traffic on Meituan and Dianping.
In the course of its business, Xi'an Beimei Family Service Co., Ltd., a party in this case, violated the first paragraph of Article 8 of the Anti-Unfair Competition Law of the People's Republic of China, which states that "business operators shall not make false or misleading commercial publicity about the performance, function, quality, sales status, user evaluation, and honors they have won, etc., so as to deceive or mislead consumers." " constitutes an offence of false publicity.
In view of the short time, small social impact, and no greater social harm caused by the parties' above-mentioned acts, they can actively cooperate with the investigation in the process of handling the law enforcement personnel's case, admit their own illegal facts, and take the initiative to provide relevant evidentiary materials; Recognize that their business behavior is illegal, take the initiative to mitigate the harmful consequences of illegal acts, and ensure in the enterprise situation statement that they will operate in good faith and legally in the future, which is in line with the statutory circumstances of mitigating punishment. Decision: Order the parties to immediately stop the illegal acts and impose a fine of 100,000 yuan
4. Shaanxi Wanlian Jinzhou Real Estate Co., Ltd. is suspected of false publicity
Case Summary: In September 2021, the Zhouzhi County Market Supervision Bureau received complaints from the complainant on the People's Network and the government hotline that when he purchased the wanlian jinzhou real estate project under the jurisdiction of Shaanxi Wanlian Jinzhou Real Estate Co., Ltd. in 2020, the parties promised to give away the entire area of the north-facing balcony of the purchased house in the form of a publicity advertisement. However, when receiving the house, it was only half of the area of the north-facing balcony, and the complaining party falsely publicized and deceived consumers. After filing and investigation, the building was developed and operated by Shaanxi Wanlian Jinzhou Real Estate Co., Ltd., and in March 2020, the publicity brochure floor plan distributed to buyers at its sales office marked the area of half gift area and full gift area with color difference and text illustration, and marked the area donated by different apartment types with text. As a property right, transaction, tax collection, and protection of the legitimate rights and interests of house owners, the national standard "Real Estate Survey Specification" formulated stipulates that the right to use the full or half area of bay windows, balconies and variable spaces is obtained by the buyer based on the provisions of the state's "Real Estate Survey Code", and is not donated by the developer. The part of the area advertised and donated by it is not included in the plot ratio according to regulations, and the property rights certificate cannot be obtained.
The parties sell commercial housing on the basis of the measurement of the building area, and the part that is not included in or half of the building area is declared as a gift, which is to use the loophole in the calculation method of the building area, under the banner of the gift, to mislead many buyers, buyers who want to buy houses or buyers who want to choose other communities, so that they have a wrong understanding of the purchase information, make a wrong choice, occupy market share, and increase the purpose of real estate sales. According to the second paragraph of article 20 of the Anti-Unfair Competition Law of the People's Republic of China, "if a business operator violates the provisions of Article 8 of this Law and publishes false advertisements, he shall be punished in accordance with the provisions of the Advertising Law of the People's Republic of China".
The Zhouzhi County Market Supervision Bureau ordered the parties to eliminate the impact within the corresponding scope and gave the parties an administrative penalty of 4.5 times the advertising costs, and fined THEM: 120,000 yuan
V. Xi'an Baochenghang Auto Parts Co., Ltd. sales of auto parts infringing the exclusive right to use trademarks
Case Summary: On July 12, 2021, the Sixth Law Enforcement Brigade of the Comprehensive Law Enforcement Detachment received a report from BMW Motor Co., Ltd. about the sale of infringing BMW auto parts by Xi'an Baocheng xing auto parts Co., Ltd. Law enforcement officers immediately conducted an on-site inspection of the company, and seized 281 goods suspected of infringing the exclusive right to use registered trademarks. After further investigation, the parties twice purchased 297 pieces of counterfeit BMW auto parts at a lower price than the market price for sale in their stores, and at the time of the case, the parties had sold 16 pieces with a sales amount of 1935 yuan. Entrusted by BMW (China) Automobile Trading Co., Ltd. Guangzhou Dingxin Commerce Co., Ltd. to identify the BMW parts sold by the parties as goods that infringe the exclusive right to use the registered trademark, with reference to the market sales price of the accessories of the parties, the total illegal business turnover of the parties is 30,685 yuan. The parties concerned were unable to provide the purchase receipts, and they knew that the goods they were selling were infringing and counterfeit goods, which violated the provisions of Article 57 of the Trademark Law of the People's Republic of China and constituted an infringement of the exclusive right to use a registered trademark.
According to the second paragraph of Article 60 of the Trademark Law of the People's Republic of China, "if the administrative department for industry and commerce finds that the infringement is established when handling it, it shall order it to immediately stop the infringing act, confiscate or destroy the infringing goods and tools mainly used to manufacture infringing goods or forge registered trademark logos, and if the illegal business turnover is more than 50,000 yuan, it may be fined not more than five times the illegal business amount, and if there is no illegal business amount or the illegal business amount is less than 50,000 yuan, it may be fined not more than 250,000 yuan." Whoever commits trademark infringement twice or more within five years or has other serious circumstances shall be given a heavier punishment. If the seller does not know that the goods infringe the exclusive right to use a registered trademark, and can prove that the goods were legally obtained by himself and explain the provider, the administrative department for industry and commerce shall order the sale to stop" and impose penalties.
The above-mentioned acts of the parties have violated Article 57 of the Trademark Law of the People's Republic of China, and in accordance with the provisions of Article 60 of the Trademark Law of the People's Republic of China, the parties are hereby ordered to correct the above-mentioned illegal acts, and the final decision is made to punish the parties as follows: 1. A fine of RMB 40,000 yuan; 2. Confiscate 281 goods that infringe the exclusive right to use BMW's registered trademark
6. Xi'an Pratt Medical Technology Development Co., Ltd. operated a medical device case in which the label did not meet the regulations
Summary of the case: The comprehensive law enforcement detachment received a complaint from a domestic agent of imported medical devices, saying that an enterprise in Xi'an City sold counterfeit medical devices of its agent brand. The second law enforcement team of the comprehensive law enforcement detachment quickly joined hands with the Provincial Food and Drug Administration and the Municipal Public Security Bureau's Environmental Food and Drug Detachment to quickly conduct on-site inspections of the enterprises involved, and found 4 medical devices complained of at the scene, with a value of 598,000 yuan, because the parties could not provide purchase bills on the spot, and the law enforcement personnel sealed and seized the products involved in the case according to law.
In order to find out the facts, the second law enforcement brigade of the comprehensive law enforcement detachment has sent letters to a number of foreign market supervision departments and drug regulatory departments to implement the relevant information provided by the enterprises involved. The import information of the medical devices involved in the case was verified with the Market Supervision Bureau of Shijingshan District of Beijing Municipality, the Sales Data of the medical devices involved in the case was verified by the Market Supervision Bureau of Chaoyang District of Beijing Municipality, and the production of the medical devices involved in the case was verified with the Shanghai Municipal Food and Drug Administration. After verifying the authenticity of the relevant information, the technical personnel of the Anti-Smuggling Bureau of Xi'an Customs and the domestic agent of the brand were invited to conduct a technical appraisal of the medical devices involved in the case, and confirmed that the seized products were legally imported through the customs and were brand new products produced by overseas label production enterprises. After instructing the Shaanxi Provincial Food and Drug Administration, the medical device involved in the case cannot be identified as a medical device that has not obtained a medical device registration certificate.
Because the above-mentioned medical devices operated by the company did not indicate "production date, use period, etc." in the label, and there was no expression of "other contents are detailed in the instructions", it violated Article 18 of the Provisions on the Administration of Medical Device Labels and Instructions, and was ordered to correct the illegal behavior according to Article 67 of the Regulations on the Supervision and Administration of Medical Devices (2017) and imposed an administrative penalty of 20,000 yuan
Editor: Yang Jingzi
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