In accordance with the information released on the Haidian Court Website on 5 June 2021, Haidian Primary People’s Court (“Haidian Court”), Beijing, recently concluded the case of Saishi Trading (Shanghai) Co., Ltd. v. Laizhou Hongyu Art Crafts Co., Ltd. et al.(2021), determining that the live broadcast platform under the scenario of live streaming marketing can be deemed as an e-commerce platform, and shall comply with relating obligations pursuant to the “Administrative Measures for Livestreaming Marketing (for Trial Implementation)” (网络直播营销管理办法（试行)).
In this case, Plaintiff, Saishi Trading (Shanghai) Co., Ltd. (hereinafter referred to as “Saishi”) obtained the exclusive authorization to use "AGATHA" and two other trademarks through Agatha Diffusion Sarl. Saishi found that Laizhou Hongyu Art Crafts Co., Ltd (hereinafter referred to as “Hongyu”) sold handbags with the word “AGATHA” and specific logos during live streaming marketing on Douyin (“抖音”, the Chinese version of TikTok), and thus it filed a lawsuit against Hongyu and Beijing Microbroadcast Vision Technology Co., Ltd., the operator of Douyin (hereinafter referred to as “Microbroadcast Company”) on the grounds of infringement upon the exclusive right to use the trademark. Eventually, Haidian Court, the court of first instance, ruled that Hongyu should compensate Saishi for economic losses of RMB 300,000 and reasonable expenses of RMB 10,598.
In this case, Haidian Court held that platforms for e-commerce activities were no longer limited to traditional platforms with e-commerce as their major business, but also applicable to platforms with content generation and provision as their major business, such as online live streaming platforms and online audio-video platforms, which gradually provided their users with online live-streaming marketing services. For the latter platforms, if the services actually provided to the parties to the transaction are in line with the “E-commerce Law” (电子商务法), they should also be determined as e-commerce platforms.
According to the court’s opinions, the live streaming interface in Douyin shows the name, picture, price, and other information of the product involved. Users click on the “commodity” in Douyin and can then directly enter the product page without redirecting to other platforms. Users of Douyin may directly inquire about the order information of the product involved in the case via their Douyin account. When watching the live broadcast, users need to click on the shopping cart in Douyin to enter the e-store for purchasing the product. These facts confirm that Douyin, in the form of providing live streaming marketing services, provides dealmaking, information release, and other services for the trading parties in its platform. Moreover, a platform available for all parties to carry out trading activities independently is a kind of e-commerce platform. Therefore, Microbroadcast Company, as the operator of the Douyin platform, is an e-commerce platform operator.
This is the first case in China that the live broadcast platform under the scenario of live streaming marketing has been confirmed as an e-commerce platform.
Cover Photo by Xiaoyang Ou (https://unsplash.com/@odamao) on Unsplash
Contributors: CJO Staff Contributors Team