The online store claims to be a "Swiss Longines China store", and the watches sold are "Swiss authentic famous brands", and promises to pay 10 for one fake. When consumers found out that the watches they bought were counterfeit, the online store played Tai Chi and refused to admit it, and the fair law safeguarded the legitimate rights and interests of consumers.
The woman bought two "Longines watches" online and found them to be counterfeits, but the online store denied it
Mr. Tong is a lawyer at a law firm in Beijing, and his younger sister, Ms. Tong, is from Heilongjiang.
"I am my sister's carte blanche ad litem. Recently, Mr. Tong told a reporter from Huashang Daily Gale News in detail about the hardships and difficulties of his sister's rights protection after buying a counterfeit "Longines" watch in an online store.
According to Mr. Tong, in July 2023, his sister saw an online store called "Swiss Longines China Store" on Taobao promoting it online, and the men's watch sold in the store was "Swiss Genuine Famous Brand Longines Watch", with a price of 3,880 yuan and the words "Genuine Longines Watch Men's Fake One Pay Ten".
At the same time, the online store advertised a women's watch claiming to be a "Swiss Genuine Watch Women's Famous Brand Mechanical Watch", with a price tag of 3,980 yuan.
On July 26, 2023, Mr. Tong's sister, Ms. Tong, purchased the above two watches after paying 7,260 yuan. Before purchasing, Ms. Tong had communicated with the customer service of the online store. The customer service of the online store said that the men's and women's watches selected by Ms. Tong were all "original and genuine Longines", so that Ms. Tong could buy them with confidence.
On July 28, 2023, after Ms. Tong received the watch, she found that it was not a Swiss Longines watch at all - there was neither a Chinese Longines trademark, nor an English trademark LONGINES, nor a graphic trademark.
After communicating with the online store, the other party could not provide proof that the two watches were Longines watches, and simply claimed that the two watches were genuine and not fake.
The Huashang Daily Gale News reporter saw from the relevant chat records that on the day the watch arrived, Ms. Tong asked the customer service of the online store: "Dear, the watch has been received, I want to ask you if this is a Longines watch? I want to buy a Longines watch." ”
The customer service of the online store replied: "This is a Longines series LOSENGS brand watch...... Genuine Longines. ”
Ms. Tong said: "The Longines trademark is not like this, your trademark is not right at all." The customer service of the online store replied: "Genuine Longines, only genuine products, not good will not do it now." ”
The woman sued the online store and Taobao for "fake one pay ten", and the online store argued that it did not promise "fake one pay ten"
Mr. Tong said that after his sister found out that the two watches they bought were counterfeit "Longines", they complained to Taobao, but the problem has not been resolved. In desperation, in early February this year, his sister sued the online store and Taobao to the Suiyang People's Court in Heilongjiang Province.
In the complaint, Ms. Tong filed three claims: first, requesting the court to order the defendant to fulfill its promise to pay 10 times the amount of compensation according to the price of 7,260 yuan, in accordance with Article 44 of the Law on the Protection of Consumer Rights and Interests, and to pay her 10 times the compensation amount, i.e., 72,600 yuan, second, to order the second defendant (Taobao) to bear joint and several liability, and third, to have the two defendants bear the litigation costs of the case.
On March 1, 2024, the case was heard in open court. During the trial, the online store argued that it had been authorized by a company in Shenzhen to sell its watch brand "LOSENGS" (LOSENGS), which had its own intellectual property rights, in its Taobao store, and that the series of watches passed the product quality inspection and were not counterfeit and shoddy products.
Ms. Tong's cause of action was a product liability dispute, which was the tort liability that should be borne if the defective product caused personal injury or property damage to others, or if there was a risk of causing personal injury or property damage to others. The standard of proof is that the products sold are indeed defective, but Ms. Tong did not adduce evidence to prove that the watch involved in the case had quality problems and caused Ms. Tong's personal and property losses, otherwise the claim was unclear and should not be supported.
In addition, the online store did not intend to sell counterfeit goods, and did not make a promise of "one fake one pays ten", and the first item of Ms. Tong's claim had no factual and legal basis.
Finally, Article 44 of the Law on the Protection of Rights and Interests of Consumers, cited by Ms. Tong, is a regulation that restricts online shopping platforms and should not be used as a basis for expanding the legal liability of ordinary merchants. The court was requested to dismiss Ms. Tong's claim.
In court, Taobao argued that in this case, Ms. Tong claimed that the goods sold by the merchant were not genuine and demanded ten times the compensation, and Taobao held that whether the relevant goods were genuine could not be determined only by appearance or the behavior of the merchant, but should be authenticated by a professional appraisal agency entrusted by the court, and that the platform did not have the ability to confirm the authenticity of the relevant products, and the corresponding litigation claim should not be supported if there was no sufficient evidence, and should be rejected in accordance with the law.
In addition, the counterparties involved in the case were Ms. Tong and the seller, and Taobao Company was not the counterparty to the contract transaction, and according to the relativity of the contract, Ms. Tong should claim the contractual rights from the seller, and Taobao Company did not need to be liable.
As a provider of online trading platforms, Taobao has fulfilled its obligations of reasonable review, care and information disclosure, and has not made any commitments that are more beneficial to consumers, nor has it had any circumstances or subjective intentions that harm the legitimate rights and interests of consumers. In addition, Ms. Tong did not adduce evidence to prove that Taobao Company had a statutory cause for liability, and her claim against Taobao Company did not have a statutory basis for claim, and she had no right to require Taobao Company to bear any liability or joint and several liability (even if she was liable for compensation, it should be borne by the seller), and requested the court to reject all of Ms. Tong's claims against Taobao.
The court of first instance upheld the consumer's claim and ordered the online store to pay more than 70,000 yuan in compensation
The Suiyang People's Court of Heilongjiang Province ascertained the following facts at trial: On July 26, 2023, Ms. Tong purchased one piece of "Swiss Genuine Brand Longines Watch Men's Waterproof Tungsten Steel Mechanical Watch" from the "Swiss Longines China Store" on Taobao for 3,880 yuan, and purchased one piece of "Swiss Genuine Watch Women's Famous Brand Mechanical Watch" for 3,980 yuan. On the same day, Ms. Tong paid a total of 7,260 yuan.
Before purchasing, Ms. Tong communicated with the customer service of the online store, and the customer service said that the two watches Ms. Tong chose were original and authentic Longines products, and the quality was guaranteed, so she could buy them with confidence. In addition, the homepage of the transaction snapshot submitted by Ms. Tong shows that the promotional content of the online store has the words "Swiss Genuine Watch Male Fake One Pays 10" and "SF Free Shipping Fake One Pays 10".
The court of first instance held that, in light of the relevant evidence, it could be determined that the online store had falsely advertised the two watches purchased by Ms. Tong. The online store argued that the two watches sold by Ms. Fu Tong were of the "LOSENGS" brand, but the production unit of the watches was a company in Shenzhen, and they were not Swiss Longines watches promised in the sales of goods, so the court found that the two watches sold by the online store were counterfeit goods. In accordance with relevant laws, Ms. Tong's claim of "10 compensation for 10 false" was supported.
At the same time, the court held that in this case, Taobao had provided Ms. Tong with the relevant information of the online store, and that as the operator of the online trading platform, it had fulfilled its obligations and had not made a more favorable commitment to Ms. Tong, so it did not support Ms. Tong's claim that Taobao was jointly and severally liable.
Recently, the court of first instance ruled that the person in charge of the online store involved in the case should compensate Ms. Tong 72,600 yuan within 10 days after the judgment came into effect, rejected Ms. Tong's other litigation claims, and the online store should bear the case acceptance fee.
The plaintiff's lawyer said that the court of first instance ruled that Taobao was not liable and was considering whether to appeal
"The case is still on appeal, and I am considering whether to appeal in the past two days, because the court of first instance has not ruled that Taobao Company is liable. ”
On the afternoon of April 22, Mr. Tong told a reporter from Huashang Daily Gale News that he believed that the significance of the case was not that the consumer received ten times the compensation from the online store, but that he was more concerned about whether the platform (Taobao) should bear joint and several liability in similar cases.
According to Mr. Tong, the second paragraph of Article 44 of the Law on the Protection of Consumer Rights and Interests of the Mainland clearly stipulates that if the provider of an online trading platform knows or should know that the seller or service provider is using its platform to infringe on the legitimate rights and interests of consumers, and fails to take necessary measures, it shall be jointly and severally liable with the seller or service provider in accordance with the law.
"The online store involved in the case is called the Swiss Longines China store, I want to know, when it came up with this name, did Taobao censor it? Since the online store involved in the case has nothing to do with Longines in Switzerland, why can it be called this name?
Mr. Tong said that he did not know whether the online store and Taobao involved in the case would appeal.
Huashang Daily Gale News reporter She Hui Editor Dong Lin
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