Case courier
On October 19, 2022, Company A was authorized to obtain the exclusive right to use the online game software "Island" (hereinafter referred to as the "Game in Question") for an irrevocable perpetual license, and then on April 7, 2023, it was transferred to obtain all the rights of the game in question, including the authorization to operate, promote and protect rights. Company A launched the game on its official website.
Since December 2022, Company A has discovered that there are "water army" maliciously soliciting people in the game involved in the case operated by it, which is manifested in the fact that virtual players send other game promotion links on the game platform involved in the case, let real players download or give away game props to allow real players to add their own WeChat accounts, and then recommend games through WeChat chat and send other game promotion links for players to download.
After investigation, the domain name of the relevant game promotion link is the subordinate domain name owned by Company B. Company A immediately contacted Company B, and the two parties communicated through the establishment of a WeChat group to deal with the matter of pulling people in the game, and after Company A asked Company B to stop soliciting people in the WeChat group, Company B took measures to take care of the internal guild and block it if it was caught. However, the "water army" in the game involved in the case still occurs frequently.
Company A sued the court, demanding that Company B immediately stop the unfair competition and compensate it for economic losses and reasonable expenses. Company B argued that it had paid to entrust the game guild to promote its game, that the alleged act was carried out by a virtual player, not by it, and that the alleged act was a normal social interaction of the gamer, which did not constitute unfair competition.
The court held after trial
Company A and Company B are both online game operators and have a competitive relationship. The relevant game promotion links sent by the virtual gamers involved in the case show that the domain names are all subordinate domain names owned by Company B, and Company B pays to entrust the game guild to operate and promote its company's games, and although Company B adopts means such as blocking to stop the act of soliciting people, it will generate new links to continue to push, and Company B is the operator and beneficiary of the relevant promotion games, and should be found to be the subject of the alleged acts. Acquiring more players is an important means for game operators to increase revenue. Company B's acquisition of gamers by maliciously soliciting people is in fact a competition for the existing customer resources of the game involved in the case, and snatching trading opportunities from Company A, the operator of the game involved in the case, to obtain benefits, subjectively has obvious malice, objectively undermines the market order of fair competition, violates the principle of good faith and the generally accepted business ethics of the online game industry, and constitutes unfair competition.
Comprehensively considering the commercial value of the game involved in the case, the large number and long duration of the infringing links, and the subjective malice, it was decided that Company B should compensate Company A for economic losses and reasonable expenses totaling RMB 705,500. The first-instance judgment was that Company B immediately stopped the malicious solicitation behavior in the game involved in the case and compensated Company A for economic losses and reasonable expenses totaling 705,500 yuan. Company B appealed against the first-instance judgment. The final judgment of the Wuxi Intermediate People's Court rejected the appeal and upheld the original judgment.
What the judge said
According to Article 2 of the Anti-Unfair Competition Law of the People's Republic of China, business operators shall follow the principles of voluntariness, equality, fairness and good faith in their production and business activities, and abide by laws and business ethics. Conduct of business operators in the course of production and business activities that violates legal provisions, disrupts the order of market competition, and harms the lawful rights and interests of other business operators or consumers is an act of unfair competition.
In this case, Company B's malicious solicitation through virtual players was obviously an organized and large-scale marketing and promotion act, and Company B blocked the specific link after receiving feedback from Company A, and did not take other measures, essentially allowing the act of soliciting people, which used a lower cost than normal publicity and promotion to obtain customers, and increased the cost of maintaining the normal game operation of Company A, which violated the principle of good faith and business ethics, harmed the legitimate rights and interests of Company A, constituted unfair competition, and should be liable to stop the infringement in accordance with the lawand compensation for losses and other tort liabilities.
Online game developers and operators are reminded that they should abide by the principle of good faith and business ethics, correctly grasp the means and boundaries of game promotion, operate and promote their own games through legitimate and legal channels, and at the same time pay more attention to improving the quality of their own games, enhance the competitiveness of their games by increasing R&D and innovation, optimizing game functions, etc., and use "hard power" to attract game customers.
Links to legal provisions
▲Anti-Unfair Competition Law of the People's Republic of China
Article 2: Business operators shall follow the principles of voluntariness, equality, fairness, and good faith in their production and business activities, and abide by laws and commercial ethics.
"Acts of unfair competition" as used in this Law refers to conduct by business operators in their production and business activities in violation of the provisions of this Law, disrupting the order of market competition, and harming the lawful rights and interests of other business operators or consumers.
"Business operators" as used in this Law refers to natural persons, legal persons, and unincorporated organizations engaged in the production or sale of commodities or the provision of services (hereinafter referred to as "commodities include services").
Article 17: Where business operators violate the provisions of this Law and cause harm to others, they shall bear civil liability in accordance with law.
Where the lawful rights and interests of business operators are harmed by acts of unfair competition, they may file a lawsuit in the people's courts.
The amount of compensation for business operators that have suffered damage as a result of acts of unfair competition shall be determined in accordance with the actual losses suffered by them as a result of the infringement; Where the actual losses are difficult to calculate, they are to be determined in accordance with the benefits obtained by the infringer as a result of the infringement. Where business operators maliciously carry out acts of infringing on trade secrets, and the circumstances are serious, the amount of compensation may be determined between 1 and 5 times the amount determined in accordance with the methods described above. The amount of compensation shall also include the reasonable expenses paid by the business operator to stop the infringement.
Where a business operator violates the provisions of Articles 6 and 9 of this Law, and it is difficult to determine the actual losses suffered by the right holder as a result of the infringement or the benefits obtained by the infringer as a result of the infringement, the people's court shall make a judgment to give the right holder compensation of up to RMB 5 million based on the circumstances of the infringement.
▲Interpretation of the Supreme People's Court on <中华人民共和国反不正当竞争法>Several Issues Concerning the Application of the Supreme People's Court
Article 3: The people's courts may find that the norms of conduct that are generally followed and recognized in specific commercial fields are "commercial ethics" as provided for in article 2 of the Anti-Unfair Competition Law.
The people's court shall, in consideration of the specific circumstances of the case, comprehensively consider factors such as industry rules or commercial practices, the subjective state of the business operator, the willingness of the trading counterparty to choose, the impact on consumer rights and interests, the order of market competition, and the societal public interest, to determine whether the business operator violated commercial ethics in accordance with law.
When people's courts determine whether a business operator has violated business ethics, they may refer to the practice norms, technical norms, self-discipline conventions, and so forth formulated by the competent departments of the industry, industry associations, or self-regulatory organizations.
▲Civil Procedure Law of the People's Republic of China
Article 145:At the conclusion of courtroom debate, a judgment shall be made in accordance with law. Where mediation is possible before the judgment, mediation may also be conducted, and where mediation fails, a judgment shall be made in a timely manner.
(Swipe up and down to see more)
Source: Jiangyin Court
编辑：Sharon