News background
 
Advertising has always been a major profitability model for video sites. However, in recent years, there have been many browser fast forward video ads, which has aroused the dissatisfaction of video websites. Some video websites even brought suits in the courts. For example, iQIYI filed a lawsuit against four operators of Orange browser, Lianchuang Company, against People's Court of Haidian District, Beijing on the ground of unfair competition and claimed 2 million yuan.
 
After hearing the court, IQIYI company and four Xianglianchuang companies with industry competitors, four Xianglian Chuang provided orange browser can watch the video site Icicle fast forward pre-game ads, the Act in violation of the provisions of Article II of China's Anti-Unfair Competition Law constitute unfair competition, the court finally ruling four as Lianchuang company orange pages in the browser home page top position for 72 consecutive hours to declare the elimination of the impact of compensation and love Ikki The company has an economic loss of 300,000 yuan and a reasonable expenditure of 50,000 yuan.
 
At present, video websites serve users mainly through "advertising + free video playback", but more and more browsers, servers and the like are selling fast-forwarding advertisements. This is a unfair competition that is in violation of generally accepted business ethics or is it Respect for consumer choice of technological innovation? The writer takes the case of unfair competition of iQIYI v. 4 Xianglianchuang Company as an example. Whether the two belong to the same trade operators with competitive relationship, whether fast forward advertisement constitutes unfair competition or infringement of unfair competition Responsibilities and other aspects of the analysis, hoping to judge for the future case of similar disputes helpful.
 
Identify competition
 
Article 2 of China's Anti-Unfair Competition Law stipulates that "unfair competition" as referred to in this Law refers to the act in violation of the provisions of this Law, undermining the lawful rights and interests of other operators and disturbing the social and economic order by operators. Legal persons, other economic organizations and individuals engaged in goods or for-profit services ".
 
Si Xiang Lianchuang Company argued that it is not a competitor with Iqiyi Company. However, the form of market trading is diversified and complicated. The competition between the operators may be either directly reflected in the same commodity or Services, may also be indirectly reflected in a similar goods or services, and may even be reflected in the same or similar goods or services. Therefore, the determination of competitive relationship is not limited to the specific manifestation of the goods or services provided by the operators in the particular market transactions in the dispute. Even if the operators provide goods or services that are not the same or similar, such acts should also be considered as improper if the market transaction behavior of the operators damages the legitimate rights and interests of other operators and disrupts the social and economic order Competitive behavior.
 
On the surface, the four companies linked to create a company operating orange browser, a browser network service provider, love Fantastic Art provides video playback service, but the case, four eletronic companies as Orange browser software operations Side, provided by the mobile web browsing service, you can browse through the Orange browser Ikiy website and client video content, so the orange browser in the case of the relevant acts of love Fantastic Art client and mobile phone wireless communication protocol (Wap) the use of browsing has had a substantial impact, it may affect the legitimate rights and interests of Iqiliyi companies. Therefore, IQIYI Co., Ltd. and Si Xiang Lianchuang Co., Ltd belong to the same kind of inter-bank operators. The related activities implemented by Siu Lianchuang through Orange browser should be regulated by Anti-Unfair Competition Law.
 
Define fast forward ads
 
In recent years, there have been several lawsuits in our country triggered by fast-forwarding advertising. Cheetah browser filter video advertising case was the first to be concerned about the industry and led to the discussion of the case, since then, "Extreme Routing" router was unfairly contested due to shielded video ads, "ADsafe" net master software also due to shielded video ads by a number of Video site sued the court, the recent trial is Meizu router video ads shielded unfair competition disputes.
 
In such cases, the defendant uses a more neutral technique as his defense. The principle of technology neutrality refers to the neutrality of technology itself, not to any use of technology is neutral. Even when using neutral technologies, the legitimate rights and interests of others should still be respected and new technologies should be applied within the boundaries permitted by law. Therefore, the use of technologies should be implemented in a necessary and reasonable form and should be in accordance with the principle of good faith and the recognized business of the Internet industry The basic moral requirements. Article 2 of China's Anti-Unfair Competition Law stipulates that "in conducting market transactions, operators shall abide by the principles of voluntariness, equality, fairness, honesty and credibility and observe generally accepted business ethics."
 
IQiyi company's business model is free to provide video playback services, in order to attract users, users view the video for free for the price of the video content before playing to watch the length of the ad, or choose to become a paid member to jump before the film Ads watch the video directly. Iqiyi company by advertising advertisers to collect web pages, video before pushing the cost of advertising, charging members to become members to pay membership fee to maintain its purchase of copyright and technical services expenditures in order to achieve profitability.
 
In this case, the evidence shows that the four-way Lianchuang Orange browser objectively realized the purpose of fast-forwarding Iqiyi site pre-commercial ads so that some users can fast forward the films of Aiqiyi using the orange browser Advertising and do not have to pay Iqiyi company membership costs, the act of direct interference and serious damage to the interests of Aiqi Arts, which squeeze the Aiqi Arts company's market share, unfairly gaining a competitive edge, which will result in Ai Qi Yi ads Fees and membership fee income reduction, endangering the normal operation of Ichiyatu company, grabbed Iqiyi company's legitimate business interests. As a professional web browser provider, SiLun Lianchuang Company should know it well. Therefore, its competitive behavior is in violation of the principle of good faith and universally accepted business ethics and belongs to the unfair competition stipulated in Article 2 of the Unfair Competition Law behavior.
 
Judge tort liability
 
With regard to the tort liability, the court held that the defendant, like Lianchuang Company, should bear the civil liability for stopping the infringement, eliminating the influence and compensating for the losses caused by unfair competition. The defendant has stopped the unfair competition involved in the case, the plaintiff withdraws the court proceedings to stop the infringement, the court no longer orders the defendant to stop infringement.
 
The defendant's behavior caused the user to mistakenly believe that there was some kind of cooperation between the Orange browser and AIQIYI Co., Ltd., and could fast forward the pre-production advertisement without purchasing the AIQIYI member. Therefore, the defendant's unfair competition caused a certain degree of malpractice to the plaintiff Influence, should be to eliminate the impact, Iqiliyi company requires four as Lianchuang company in its official website on the top position for 72 consecutive hours to eliminate the impact of the announcement, in accordance with the law, and with the four Xianglianchuang infringement caused by the company The extent of the adverse effects is as substantial and the court supports it. Article 20 of China's Anti-Unfair Competition Law stipulates that "Where an operator, in violation of the provisions of this Law, causes damage to an infringed operator, it shall bear the liability for damages and the losses suffered by the infringed operator are hard to calculate, and the compensation shall be The infringer's profits earned during the infringement due to the infringement; and shall bear the reasonable expenses paid by the infringed operator for investigating unfair competition by the operator against his lawful rights and interests. "
 
In this case, IMC did not provide any evidence of the actual amount of losses suffered as a result of unfair competition, nor was there any evidence that IVC was so awarded However, the four-figure Lianchuang Company has attracted the users of Iqiyi through unfair competition and should bear the civil liability for the compensation for the economic loss of Aiqiyi Company. Court consider the following factors to decide the specific amount of economic loss: First, Ikki art company in the video site more well-known; Second, from the love Fantastic Art submitted to the infringing publicity certificate, I love Fantastic Art video playback on the site more Large, the larger number of users of the network; Third, I love Fantastic Art website is rich in video content; Fourth, from Iqiyi company forensics point of view, orange browser fast forward ad feature can also be hot in the Fantastic Art website Sowing the video to be achieved, the four astronomical joint creation company obvious subjective malicious; Fifth, the evidence does not show the four companies Lianchuang operating scale and orange browser's operating scale. Based on the above considerations, the court discretion should be compensated for the loss of 300,000 yuan for Aiqiyi Company. I love odd Fitch company advocates a reasonable expenditure of 50,000 yuan I love Fantastic Art rights and proper expenses, the court to support it.