Who is No. 1?

[Judge Dongtao Li]

The Facts

The plaintiff and the defendant are .com companies that provide the same online service: advertising Chinese law firms and lawyers.

The plaintiff began providing this service earlier than the defendant.

On its website, the plaintiff published an advertisement that identified his website as the “first website for full and concentrated promotion online of Chinese law firms and lawyers throughout the country.”

The defendant similarly claimed to be the “first website” of this type and emphasized that the site was "the most authoritative and comprehensive website for legal information at home".

The plaintiff sued the defendant for unfair competition through false advertising and asked the latter to:

(1) Stop the infringement (delete the false ad at its website);

(2) Apologize to the plaintiff publicly in some media;

(3) Compensate RMB 5,000 yuan; and

(4)Pay reasonable fees in this case.

The defendant argued that the unfair competition was not established but without evidence to prove that it had provided this service earlier than the plaintiff.

Opinion

The court held that the defendant used the meaningful terms “the first” and “the most authoritative” on its webpages, which referred negatively to the quality of similar service offered by other websites, including the plaintiff’s, but without any factual basis.

In this way, the defendant wanted to gain a competitive advantage, thus misleading the public and infringing the plaintiff’s right to competition. Therefore, the unfair competition was established.

The court rejected the plaintiff’s pleading (3) and (4) because the plaintiff didn’t bring any evidence to prove.

According to the Article 2 and 9 of the Law Against Unfair Competition of PRC[1], the court orders that:

1. The Defendant shall stop using false ad words including “the most authoritative” and “the first” upon the effective date of this Judgment.

2. The defendant shall publish an apology on the homepage of its website for 24 hours continuously to the plaintiff;

Contents of the apology shall be approved by this Court. If the defendant refuses to comply, the Court will publish an announcement at a special website. The cost and expenses occurred should be borne by the defendant.

3. Other pleadings of the plaintiff shall be rejected

After verdict, no party appealed.



[1] Article 2 Managers shall abide by the principle of voluntariness, equality, impartiality, honesty and good faith, and also adhere to public commercial moral in their business transactions.
"Unfair competition", in this Law, means activities made by managers who damage the others' legal rights and interests, disturb the order of social economy and violate the provisions of this Law.

"Manager", in this Law, means the legal person, the other economic organizations and individuals who deal with commercial business or profitable service (commodities in this Law in hereafter as to commodity which includes service).

Article 9 Managers shall not use advertisement or the other methods to make a false propaganda for the quality, composition, function, usage, producer, time of efficacy and place of production of commodities.

Advertising company shall not be an agent of, or design, or make, or propagandize false advertisement, if it know or should know the truth.