Misleading false advertising refers to advertisers or advertising practitioners using vague and misleading language statements or expressions in advertisements to deliberately induce consumers to be dissatisfied with the goods or products provided by the advertiser. Service creates unrealistic expectations in order to promote sales and gain profits.
The prerequisites of guidance and misleading are different, so on the contrary, the consequences are also different. Misleading can also be said to deceive the rights and interests of consumers. The difference between guiding and misleading lies in the value and function of the product itself. As long as it is reasonable, it will guide consumers to look at problems with normal consumption and conquer consumers' inner needs with facts.
Consumers’ purchasing behavior depends on the information they have, which comes from corporate propaganda or the display of product (service) identification marks; on the other hand, it comes from other channels based on consumers’ own experience. Misleading consumers refers to the behavior of operators who, in order to seek illegal benefits, deliberately convey misleading information to consumers through the identification marks or advertisements of their own services, causing consumers to misunderstand and make wrong purchases. In fact, consumers can be misled by accepting false or misleading information. Definition Misleading behavior refers to behavior in which consumers are misled by accepting true but misleading information. In real market competition, many companies often use various means to deliberately release untrue, incomplete, and ambiguous information to consumers in order to mislead consumers and seek short-term economic benefits. This not only harms the interests of consumers, but also Those who endanger the legitimate rights and interests of competitors and disrupt the normal social and economic order should be punished by law.
First, legal regulations that mislead consumers
Using to display signs or publish information to mislead consumers violates the principle of good faith and is an act of unfair competition that violates business ethics. , is inherently deceptive. However, our country's laws focus more on the use of false information to commit commercial fraud, and the regulation of commercial misleading behaviors is only scattered in a few laws.
(1) Legal norms for operators to release misleading information
Many laws in our country emphasize that operators should provide truthful information based on the principle of good faith in external publicity. , complete information. For example, Article 19 of the "Consumer Rights and Interests Protection Law" stipulates that "Operators shall provide consumers with true information about goods or services and shall not make misleading and false propaganda." Questions raised about the quality and usage of services should be answered truthfully and clearly.” The Contract Law also clarifies the obligation of both parties to the transaction to accurately provide their respective information when applying. Article 42 of the Contract Law stipulates that if a party intentionally conceals important facts related to the conclusion of a contract or commits other acts that violate the principle of good faith and causes losses to the other party, the party shall be liable for damages. Article 9 of the Anti-Unfair Competition Law stipulates that operators shall not use advertising or other methods to make misleading and false propaganda about the quality, ingredients, performance, uses, producers, expiration dates, origins, etc. of goods.
Because misleading information is mainly released through advertisements, it is the most detailed specification among my country’s advertising review standards. Advertising review standards stipulate that advertisements must be true, legal, healthy, and understandable, and must not deceive or mislead the public. Advertisements must be identifiable and cannot use the Chinese flag, the national microblog logo, or the year of the national anthem. The characteristics, ingredients, production methods, prices, uses, quality, origin, guarantees, etc. of products or services in advertisements must not mislead the public, the public's trust in celebrities must not be abused for advertising, and comparative advertising must not be used to mislead consumers by association. In some financial, medical and other special advertisements, it is specially stipulated that "the public shall not be deceived or misled in any form."
(2) Legal regulations on product (service) labeling
1 .Related trademarks
Article 11 of my country’s Trademark Law stipulates what is prohibited in trademarks? d? d? d. Only the name, graphics, model of the product and marks that directly indicate the quality, main raw materials, functions, uses, weight, form and other characteristics of the product shall not be registered as trademarks. In addition, there is special protection for well-known trademarks.
Article 13 of the Trademark Law stipulates that if a trademark applied for registration on the same or similar goods is a well-known trademark that has been copied, imitated or translated by others and is likely to cause confusion, it shall not be registered and its use shall be prohibited. The Trademark Law also stipulates the legal liability for trademark infringement of "using a trademark that is identical or similar to the registered trademark on the same or similar goods without the permission of the trademark registrant." The "Trademark Law Implementation Regulations" also extend trademark infringement. It is also a trademark infringement to "use marks that are identical or similar to others' registered trademarks as product names or product decorations on the same or similar goods to mislead the public."
2. Regarding packaging and decoration marks.
my country's "Anti-Unfair Competition Law" stipulates that operators shall not use the unique names, packaging, and decoration of well-known products without authorization, or confuse them with other people's well-known products, causing buyers to mistakenly think that the products are It is a well-known product; it is not allowed to use the name of another person's company without authorization to make people mistakenly think it is another person's product; it is not allowed to forge or impersonate quality marks such as certification marks and famous brand marks on the product, forge the place of origin, and make misleading false representations about the quality of the product.
The "Product Quality Law" regards some identification marks as requirements for product quality. For example, it is prohibited to "forge the origin of a product, forge or use other people's factory names and addresses", and also requires products to "comply with the requirements of in-process products or other products." The product standards marked on the packaging conform to the quality status indicated by product descriptions, physical samples, etc." Article 27 of the "Product Quality Law" requires that "the label on the product or its packaging must be authentic, and there must be a product quality inspection certificate; the product name, manufacturer's name and address are marked in Chinese; according to the characteristics and usage requirements of the product , if product specifications, grades, main ingredients and content need to be marked, they should be marked accordingly in Chinese; if consumers need to be informed, they should be marked on the outer packaging, or relevant information should be provided to consumers in advance; the necessary production date and safe use The expiration date or expiration date and necessary warning signs or Chinese warning instructions "Accordingly, the Consumer Rights Protection Law stipulates that operators should provide consumers with true explanations and services regarding goods and services that may endanger personal and property safety. A clear warning.
3. As far as the company name is concerned.
The "Enterprise Name Registration Management Regulations" stipulate that an enterprise is only allowed to use one name, and it shall not be the same as or similar to the name of a registered enterprise in the same industry within the jurisdiction of the registration authority. Article 9 of the "Regulations on the Registration and Management of Enterprise Names" also stipulates that enterprise names must not contain "content or words that may deceive or misunderstand the public."
It can be found from the above laws that although there are many laws in my country involving misleading consumer behavior, there are very few special provisions and many imperfections. This is an important reason for the frequent occurrence of misleading behavior in the market. This shortcoming is mainly reflected in three aspects: first, the regulations on infringement of other people's identification marks are not detailed, especially there are too few regulations on cross-counterfeiting; second, the legal liability for infringement of consumer information rights is lacking; third, the publicity The "misleading" standard lacks legal norms.
Second, legal countermeasures to stop misleading consumers
(1) Clear "misleading" standards
The difficulty in regulating misleading consumer behavior lies in how to judge the misleading standard. Commercial (service) publicity and display is an art. Too strict standards will stifle the creativity of publicity and reduce its viewing value; too loose standards are not conducive to effective consumer protection. Based on this, although many laws in our country stipulate that operators cannot mislead the public or make misleading statements, our laws do not clearly define the criteria for "misleading". Because it is impossible to completely refine the "misleading" standard, the judgment standard should be fixed and flexible, requiring different general attention based on different market transaction concepts, and can also be based on product type, information acceptance level, decision-maker, etc. Make adjustments. When necessary, specific administrative departments or judicial departments can introduce a "hearing" system to understand whether the general public will be misled. At the same time, the principle of overall observation can be adopted to judge by comparing the main parts with the principle of isolated observation at different times and different places.
(2) Protection of various identification marks.
Various identification marks are economic resources for enterprises, but their functions are different, and our country's legal regulations also focus on this. For example, my country's trademark protection system is relatively complete, but the legal status and protection system of trade names and product names are not clear.
Therefore, a large number of conflicts between identification marks appear in our social life. If it cannot be properly resolved, it will undoubtedly encourage market competitors to obtain illegal benefits by finding legal loopholes. Then it is necessary for us to reorganize the existing laws and integrate the protection of various identification marks.
To implement integrated protection, we must first clarify the prohibited content and rights of various identification marks (such as trademarks, company names, product names, unique packaging, unique decoration, quality marks, etc.). ); Secondly, it is necessary to establish a complete rights confirmation procedure and unify the necessary identification mark registration rights to the State Administration for Industry and Commerce to achieve the uniqueness of the identification mark and alleviate conflicts between various rights.
It is not necessary to implement unified legislation to implement integrated protection, because many laws in our country have provisions for registered trademarks, company names, names, unique names of well-known commodities, packaging and decoration, and quality marks. The stipulation of the same social relationship from different legal levels is a reflection of the diversity and complexity of economic life. It is inevitable that there will be a certain degree of overlap and intersection in the legal adjustment network of identification signs. However, it needs to be emphasized that legislative products should be complementary in resources, rather than simply overlapping and similar. Although the use of prohibitive clauses in competition laws in Western countries is only a negative remedy, it effectively solves the occurrence of commercial misleading behaviors to a certain extent. At present, our country should also expand the scope of identification marks stipulated in Article 5 of the Anti-Unfair Competition Law, determine the content of identification mark infringement, and provide a clear legal basis for regulating cross-counterfeiting.
Clear responsibility for infringement of consumers’ information rights
There is no doubt that consumers have the right to know, but whether illegal acts caused by misleading information constitute infringement, our country’s laws do not Not specified. Our country's laws stipulate the legal liability that actors should bear for illegal acts caused by misleading information. For example, the "Product Quality Law" stipulates that if operators should clearly provide identification marks and instructions but fail to do so, it can be considered that the product quality is defective. If this causes personal or property damage to others other than the defective product, the producer shall bear liability for compensation. The advertising law, securities law and other laws also stipulate the liability for publishing false or misleading information, but what is the most important law in my country to protect consumers? d? d? d. The "Consumer Rights and Interests Protection Law" only stipulates that it is illegal for operators to publish untrue, unreliable, and incomplete information when selling goods or providing services, which affects the consumption of others or causes damage to others. The "Consumer Rights and Interests Protection Law" does not specifically stipulate the liability of operators for providing "misleading" information in the "Legal Responsibility" chapter. Therefore, in practice, operators often exercise the "final right of interpretation" and pass on the responsibility for misidentification and purchase to consumers. Consumers often consider themselves unlucky, which encourages operators to mislead others.
According to the principle of unity of legal spirit, the Comprehensive Product Quality Law and the Advertising Law stipulate that the Consumer Rights Protection Law should make it clear that if an operator provides inappropriate information after judging according to the above-mentioned "misleading" standard, Operators should take necessary remedial measures, and consumers should also have the right to terminate the contract and demand compensation for losses.
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