Chapter 19 Chapter Six: The First Military Image Case in China

It is believed that Shenzhen Xinhe Arts and Crafts Co., Ltd. maliciously used the words and images of the guard of honor of the three services of the Chinese People's Liberation Army for as long as 4 years in order to promote its products "General Saber" and "Red Eight Rifles", and put the deputy captain The saber in Li Bentao's hand was replaced by the company's saber, which seriously infringed upon the honor guards, portrait rights, and name rights of the guard of honor of the three armed forces. He Arts & Crafts Co., Ltd. went to court.This is the first lawsuit filed to protect the image of the military since the founding of New China.

On July 31, 2006, the Beijing No. 1 Intermediate People's Court made a final judgment on the case. The court finally determined that Xinhe Company had infringed on the overall portrait interests and name rights of the honor guards of the three armed forces, and required Xinhe Company to stop the infringement and disclose to the honor guards Apologize, and order Shenzhen Xinhe Arts and Crafts Co., Ltd. to compensate the guard of honor of the three armed forces in RMB 800,000. As the image representative of the three services of the Chinese People's Liberation Army, the guard of honor brigade, after more than a year of hard work, went to court twice to defend their rights with swords, defended their legitimate rights and interests with legal weapons, and defended the sharpness and purity of the saber.

The saber was changed into a saber, and the guard of honor of the three armed forces claimed 2.48 million yuan The Guard of Honor Brigade of the First Division of the Chinese People's Liberation Army, also known as the Guard of Honor of the Three Services, was established in 1952. Li Bentao, the current deputy captain of the guard of honor of the three services, is the youngest executive officer in the history of the guard of honor of the three services of the Chinese People's Liberation Army and the executive who has completed the most ceremonial tasks. State and military leaders have received and sent off foreign presidents, heads of state, and senior military generals more than 600 times, and have been praised by party and state leaders, military commission leaders, and foreign heads of state many times. In 1997 and 1999, at the handover ceremonies of the Sino-British Hong Kong regime and the Sino-Portuguese Macau regime that attracted worldwide attention, Li Bentao, as the executive officer of the guard of honor, held a saber in his tall and straight military posture, showing the Chinese soldiers in the eternal moment of history. elegant demeanor.The image of Li Bentao holding a saber not only appears in various media, but also often appears on the covers of various calendars, pictorials and even ordinary notebooks.

Because the guard of honor of the three services not only represents the image of the army, but also the image of the country, so many large domestic companies have sought out the guard of honor and are willing to pay huge sums of money for the guard of honor of the three services to advertise for their companies.But they strictly enforced the military's prohibition of doing business, and have never advertised for any company for decades. However, by chance, the officers and soldiers of the guard of honor of the three armed forces discovered that they had struggled to maintain their reputation of "resisting corrosion and never sticking to it" for decades, and it was damaged by a company in Shenzhen.

In the first half of 2005, a leader of the Guard of Honor Brigade received a call asking if the Guard of Honor Brigade was advertising for a company in Shenzhen.The leader was very puzzled, the Guard of Honor Brigade had never made any advertisements in violation of army regulations.He quickly asked what was going on, and the other party said that there is a "General Saber" and "Red Eight Rifle" on the market now with a price of 3,800 yuan. Just replaced the saber with a saber.Using the image of a soldier to advertise a company in this way will really damage the image of the guard of honor of the three armed forces in the hearts of the people across the country.

Putting down the phone, the leader quickly asked Li Bentao if he had taken photos for the company's advertisements, but Li Bentao denied it and angrily demanded a thorough investigation into the matter.Since then, the Guard of Honor Brigade has been questioned one after another by various parties. At the same time, according to insiders, there are three people who appeared in the advertisement of the "General's Saber" including Zhang Hongjie, the captain of the First Squadron of the Guard of Honor of the Three Armed Forces. Almost everyone thinks that the Guard of Honor Brigade Advertisement for the company in Shenzhen stained the sharp saber with copper rust, and the reputation of the guard of honor was greatly damaged.

As the guard of honor of the three armed forces representing national prestige and military prestige, they must not suffer such injustice, let alone allow anyone or any institution to damage their reputation.The leaders of the guard of honor brigade did not dare to neglect, and immediately searched for advertisements for the so-called "General's Saber" and "Red Eight Rifles" that damaged the reputation of the guard of honor of the three armed forces based on relevant clues. Soon, officers and soldiers of the Guard of Honor Brigade discovered in the Beijing market that Shenzhen Xinhe Company had used the name and image of the Guard of Honor Brigade of the Three Armed Forces in its brochures for the "Red Eight Rifle" and "General's Saber".The officers and soldiers were very angry about this behavior of using military images and names at will to seek commercial interests. "The sacred saber cannot be stained with copper rust!" The leader of the guard of honor decided to take up legal weapons to safeguard his own interests , to defend the image and majesty of the soldiers.

In April 2005, lawyers entrusted by the Guard of Honor Brigade of the Three Armed Forces submitted a complaint to the Beijing Haidian District Court. Eight rifles, taking advantage of the admiration and admiration of the people of the whole country for the Chinese People's Liberation Army, use the portraits and names of our troops as products for advertising.For this reason, we believe that Xinhe Company deliberately infringed on the name rights, portrait rights, and reputation rights of the guard of honor for as long as four years, covering the whole country from Xinjiang to Shenzhen. A total of 8,181 pieces of "Shotgun" were produced, and the amount of illegal profits was huge. Based on the current price of 3,800 yuan per piece, the sales volume was 60 million yuan.In order to protect the legitimate rights and interests of the guard of honor of the armed forces, we filed two lawsuits: one is to request the court to order Xinhe Company to stop the infringement, eliminate the impact, and apologize; the other is to request the court to order Xinhe Company to compensate 2.48 million yuan.

After receiving the complaint from the guard of honor, Shenzhen Xinhe Company submitted a statement of defense to the court of first instance.In his statement of defense, he made the following excuses for his actions: One is the purpose of the design and production of "General with Sword" and "Red Eight Rifles". In addition to the commercial interests of the producers, it is more to express their respect for the people who have fought bravely and used their youth and blood to make a contribution to the founding of the Republic. The reverence of the People's Liberation Army with immortal feats is the propaganda and commemoration of the revolutionary spirit.Whether it is the appearance of the product or the promotional materials, it reflects the deep respect for the great People's Liberation Army everywhere.

Second, the guard of honor of the armed forces does not have the status of a legal person and does not enjoy personal rights stipulated by law, so it is not a suitable plaintiff in this case.The reason is that the honor guard of the three services is a brigade under the First Guard Division of the Chinese People's Liberation Army. It is not a military institution with an independent organization above the regiment, and it is not a military institution legal person. Third, it did not infringe on the name right of the guard of honor of the three armed forces. The name of the guard of honor of the three armed forces is "The Guard of Honor of the First Division of the Chinese People's Liberation Army". Xinhe Company's products and advertisements did not refer to the above-mentioned name, nor did it use the above-mentioned name or similar, similar There is no violation of the name rights of the honor guards of the three services, such as "First Guard Division Honor Guard Brigade" and "First Division Honor Guard Brigade" and other confusing names for related activities or publicity. "Guard of honor of the three armed forces" is not a special term referring to the guard of honor of the three armed forces. "Guard of honor of the three services" is not a name legally owned by the guard of honor of the three services after registration or approval. The guard of honor of the three services does not have the right to name the above-mentioned words and the right to exclude others from using them. It is not inappropriate to use the term "guard of honor of the three services".The guard of honor of the armed forces has no right to claim that Xinhe Company violated its name right.

Xinhe Company believes that the guard of honor of the three armed forces does not have the right of portrait, and there is no situation in which Xinhe Company violated its right of portrait.According to the relevant provisions of our country's laws, the right of portrait belongs to the right of personal personality, which is only enjoyed by natural persons, and legal persons do not have the right of portrait.The guard of honor of the three armed forces claimed that their portrait rights had been violated without legal basis. As for whether it infringes upon the honor guard of the armed forces, Xinhe Company argues that the instruction manuals for the "General's Saber" and "Red Eight Rifles" are part of the product and are not commercial advertisements. It is impossible to misunderstand the public by promoting products in the name. Although the instruction manuals for "General's Saber" and "Red Eight-step Gun" involve the "guard of honor of the three services", they do not specifically refer to the guard of honor of the three services. Content, it is impossible to cause damage to the honor guard of the armed forces.The legal operation of Xinhe Company should be protected by law, and there is no factual or legal basis for the guard of honor of the armed forces to demand economic compensation.The claim of the guard of honor of the three services has no factual and legal basis, and it requests the court to dismiss it. Found to have violated the right of reputation, the first trial compensated 100,000 yuan Before the first instance hearing in Haidian Court, the court sent the summons to the defendant Shenzhen Xinhe Company in accordance with the law, but until the hearing, Xinhe Company only provided the court with a statement of defense, but did not appear in court to respond to the lawsuit.The Haidian Court finally decided to hear the case in absentia.Coincidentally, because the army had a foreign affairs mission that day, none of the officers and soldiers of the guard of honor of the three services came, but lawyers represented them in court. Lawyer Zou, the agent of the guard of honor of the three armed forces, said angrily in court that the defendant's actions have seriously damaged the image of the army and are a mockery of the country's prestige and the military's prestige! "What's worse is that, in order to promote its products, the defendant even replaced the special command knife of the guard of honor of the three armed forces in the hands of Li Bentao, the deputy captain of the guard of honor of the three armed forces, with a general's saber with a computer, and also made Li Bentao's face very dark, deliberately Highlight the words 'General's Saber'!" The lawyers of the guard of honor of the armed forces also cited the infringement of the defendant company in court: In order to promote the handicrafts such as the "general saber" and "red eight rifles" produced by them, they first used " The honor guard of the three services” and claimed that the “Red Eight-step Rifle” was the first semi-automatic rifle imitated in my country, but in fact, the guard of honor of the three services has been using semi-automatic rifles as protocol guns.Afterwards, Xinhe Company added pictures representing the captains of the three phalanxes saluting together in media advertisements, brochures, CDs, and product posters.They also misuse military insignia and make people think their products are made in-house by the military.After the guard of honor of the armed forces discovered the matter, they negotiated with the defendant many times, but the defendant did not stop the infringement. In court, the lawyer showed the notarized sealed bag of the brochure purchased by the notary office from the defendant's business office, and the court unsealed it in court.At the same time, Lawyer Zou also explained that when purchasing, the other party stated that they could not issue an invoice, and just gave a receipt without a company seal, but the official seal of the Military Supplies Production Technology Research Institute of the General Logistics Department of the Chinese People's Liberation Army was stamped on the receipt.After investigation, it was found that the Military Supplies Production Technology Research Institute had been restructured and renamed, and the original official seal had been abolished in July 2003, and the official seal held by the defendant Xinhe Company was obviously forged.At the same time, the former Military Supply Production Technology Research Institute of the General Logistics Department produced testimony showing that they signed a one-year contract with the defendant to supervise the production of sabers, but this contract was terminated as early as March 31, 2002. After that, Xinhe Company could not Merchandise is sold under the name of the Institute. According to the plaintiff's lawyer's calculation, the defendant Xinhe Arts & Crafts Co., Ltd. has been infringing for 4 years, covering the whole country from Xinjiang to Shenzhen, producing 8,181 guns and swords each, and according to the latest calculation of 3,800 yuan per piece, the sales At 60 million yuan. After the trial, the Haidian Court confirmed the subject qualifications to participate in the civil lawsuit, and determined that the guard of honor of the armed forces is eligible to be the plaintiff in this case.However, there is no support for the claim that the right to portrait and name rights proposed by the guard of honor has been violated, and only the right to reputation has been violated. The Haidian Court held that the right of reputation is the personality right enjoyed by civil subjects to retain and maintain the social evaluation of their own attributes and values.In commercial activities, Xinhe Company uses a large number of images such as military parade for the 50th anniversary of the honor guard of the three services, officers saluting, drills, and inspections for publicity.The guard of honor of the three armed forces displays the image of the three armed forces of the sea, the land and the air, and is responsible for welcoming and seeing off foreign heads of state and heads of government. The image of the guard of honor of the three services on various occasions has brought it relevant reputation, but Xinhe Company used the image of the guard of honor of the three services on various occasions for commercial purposes without its consent. The purpose and wide publicity will inevitably lead to the reduction and damage of the external image of the guard of honor of the three services, which is enough to cause a decrease in social evaluation. Therefore, it is determined that the behavior of Xinhe Company has violated the right of reputation of the guard of honor of the three services. As for the portrait rights and name rights claimed by the guard of honor, based on the fact that the portrait rights belong to the scope of personal rights, they belong to the inherent rights of natural persons according to the nature of their rights, and are exclusive. The portrait rights holders are only natural persons, not other civil subjects other than natural persons. Therefore, the court believes that there is no legal basis for the portrait right claimed by the guard of honor of the three armed forces and does not support it.Regarding whether the name right was violated, the Haidian Court held that although the name "Guard of Honor of the Three Armed Forces" was used in the product description of Xinhe Company, its written description was a description of the facts, and civil subjects have the right to Others are prohibited from interfering, misappropriating, and counterfeiting its name, but the behavior of Xinhe Company neither constitutes interference, misappropriation, or counterfeiting of the proprietary name, nor does it use the "guard of honor of the three armed forces" to directly promote its products. Therefore, it is determined that Xinhe Wo company does not constitute an infringement of the name rights of the guard of honor of the three armed forces. On November 29, 2005, the People's Court of Haidian District, Beijing made a first-instance judgment, rejecting the request of the guard of honor of the armed forces to confirm that Xinhe Company had infringed its right of name and portrait, confirmed that Xinhe Company had violated the right of reputation of the guard of honor of the armed forces, and assumed the responsibility to stop Civil liability for infringement, restoration of reputation, elimination of influence, apology, and compensation for damages.Shenzhen Xinhe Company was ordered to take ownership of the "General with Sword" and "Red Eight Rifle" products related to the 50th anniversary military parade, officer salute, drill, inspection and other pictures related to the Guard of Honor Brigade of the First Guard Division of the Chinese People's Liberation Army The brochures, CDs, and hanging paintings of the company are all destroyed, and they are not allowed to be used or transferred again, so as to stop the infringement.Make a public apology in the media and compensate RMB 100,000. Prevent merchants from advertising under the banner of the army, and pay 800,000 yuan in the second trial After the Haidian court made the judgment, the guard of honor of the armed forces and Shenzhen Xinhe Company refused to accept the judgment of the first instance, and both appealed to the Beijing No. 1 Intermediate People's Court. The main reason for the appeal of the guard of honor of the armed forces is that Xinhe Company used the pictures of the officers of the guard of honor of the armed forces to advertise, not because of the personal appeal of these officers in the advertisement, but to highlight its products by pursuing the meaning of the armed forces embodied in the uniforms of the officers. reputation, the original trial classified it as an infringement of the right of reputation and did not protect it separately, which is not conducive to maintaining the image of the People's Army; Xinhe Company used the "guard of honor of the three armed forces" in its propaganda for many times, with the fundamental purpose of misleading consumers and constituting a Violation of its right to name. Although the guard of honor of the armed forces won the lawsuit at the first instance, they still believe that an important fact of infringement was omitted in the judgment of the first instance, that is, Xinhe Company took the photo of the captain of the guard of honor of the armed forces holding a saber, and replaced the saber in his hand with a photo by computer. "General Saber" produced by Xinhe Company.In addition, they also believed that the compensation amount of 100,000 yuan awarded by the court of first instance was too low to achieve the purpose of protecting the image of the guard of honor of the armed forces, so they requested the court of final appeal to impose a heavy sentence. The reason for Xinhe's appeal is that their use of part of the image of the guard of honor of the three services in product descriptions will not lower their social evaluation and will not damage the other party's right to reputation.Xinhe Company did not slander or slander the honor guard of the armed forces, which did not comply with the elements of reputation infringement stipulated by law, and the amount of compensation judged has no basis in law. After receiving the complaint from the Guard of Honor and Xinhe Company, the Beijing No. 1 Intermediate People's Court held a public hearing on the case.The difference between this court session and the deserted one in the first trial is that more than 30 officers and soldiers of the guard of honor of the three armed forces, dressed in uniforms of landing, sea and air force, entered the auditorium of the court. .Xinhe Company, which has been absent in the first trial, also sent a lawyer and a designer to respond to the lawsuit. The legal representative of Xinhe Company, Mr. Tu, also appeared in court to participate in the lawsuit. During the trial, lawyers from both sides had a heated debate in court around their respective claims.The lawyer for the guard of honor of the armed forces proposed in court that Li Bentao, the captain of the guard of honor holding a saber in the picture, was sitting in the auditorium and could testify in court if necessary.However, Xinhe Company stated that it has admitted to using the photos of the guard of honor of the three services, and there is no need to testify about it. This opinion was adopted by the court.Due to the large differences between the two parties, the out-of-court mediation under the auspices of the court also failed because the parties could not reach an agreement. After careful review of the case, the First Intermediate People's Court made three basic determinations: The first is to determine that the interests of the overall portraits of officers and soldiers of the guard of honor should be protected.Although the content of the photo involved in the case is a portrait of an officer of the guard of honor of the three services, the photo reflects the image of the guard of honor of the three services. This image has a relatively high commercial value, and this value is formed by the efforts and dedication of the guard of honor of the three services on its own image. of.Therefore, although the guards of honor of the armed forces cannot enjoy the portrait right of the photo according to the law, the guards of honor of the armed forces have rights and interests in the overall portrait interests brought about by the use of the photos, which should be protected by law.Although the guard of honor of the armed forces is not a commercial profit-making unit, if others use the photos of the guard of honor of the armed forces without authorization, it will definitely cause damage to the interests of the guard of honor of the armed forces, and their behavior constitutes infringement.Without the consent of the guard of honor of the three services, Xinhe Company used the image of the guard of honor of the three services for commercial purposes on various occasions and widely publicized it. If the interests of the overall portrait owned by the army are violated, the civil liability for stopping the infringement, restoring the reputation, eliminating the influence, making an apology, and compensating for losses should be assumed in accordance with the law. The second is to determine that the use of the name for the purpose of profit constitutes an infringement.Using other people's names without permission shall be deemed as an infringement of name rights.Xinhe Company used the name "Guard of Honor of the Three Services" many times in the promotion of its products, without obtaining the consent of the Guard of Honor of the Three Services.And from the analysis of the purpose of use, its use of the name does not belong to the scope of news reports.Although on the surface, the company’s use of the name “Guard of Honor of the Three Services” is a description of the facts, and it does not use the name of the Guard of Honor of the Three Services to directly promote its products, the fundamental purpose of Xinhe Company’s use of the name “Guard of Honor of the Three Services” is to protect itself. The promotion of the products belongs to the use for profit.Xinhe Company used the name of the guard of honor of the three armed forces for the purpose of making profits, and its behavior constituted an infringement of the name right of the guard of honor of the three armed forces. The third is to determine that slander and defamation acts of reputation infringement are not established.According to the law: slandering or slandering the reputation of a legal person in written or oral form, which causes damage to the legal person, should be deemed as an act of infringing on the right of reputation of the legal person.In this case, the social evaluation of the guard of honor of the three armed forces declined because Xinhe Company violated its image.Xinhe Company did not slander or slander the honor guard of the armed forces.Therefore, the guard of honor of the armed forces believes that Xinhe Company violated its right of reputation and demanded that the company bear the corresponding civil liability, which has no basis in law and should not be supported. Comparing the two judgments of the first and second instance courts, we can find that the courts have different determinations of the infringed "three rights" claimed by the honor guards of the armed forces. Regarding the right of reputation: the court of first instance held that Xinhe Company used the image of the army on various occasions for commercial purposes without the consent of the guard of honor of the three services, and widely publicized it, which would inevitably reduce and damage the external image of the guard of honor of the three services, which is enough to cause social evaluation The fact that it was lowered violated the right of reputation of the unit.The court of second instance held that Xinhe Company did not slander or slander the honor guard of the armed forces.Therefore, the guard of honor of the armed forces believes that Xinhe Company violated its right of reputation and demanded that the company bear the corresponding civil liability, which is groundless in law and should not be supported. Regarding the name right: the court of first instance held that although Xinhe Company used the name "Guard of Honor of the Three Armed Forces" in its promotional materials, it did not constitute interference, misappropriation, or counterfeiting of the name, nor did it use "Guard of Honor of the Three Armed Forces" to directly write about its products Propaganda, so it does not constitute an infringement of the name rights of the guard of honor of the three armed forces.The court of second instance held that the fundamental purpose of Xinhe Company to use the name "Guard of Honor of the Three Armed Forces" was to promote its own products, which belonged to the purpose of profit-making, and its behavior constituted an infringement of the name guard of honor of the Three Armed Forces. Regarding the right to portrait: the court of first instance held that the image rights proposed by the guard of honor of the three armed forces, because there is no provision on image rights in the laws of our country, and considering the damage caused to the guard of honor of the three armed forces due to the use of a specific image in this case, judicial relief can be granted within the scope of the right of reputation. Therefore, it is not listed as a separate right for protection.The court of second instance held that Xinhe Company used the image of the guard of honor of the armed forces on various occasions for commercial purposes without obtaining consent, and widely publicized it, which would inevitably reduce and damage the external image of the guard of honor of the armed forces and infringe on the ownership of the armed forces. overall portrait interests. On July 31, 2006, the Beijing No. 1 Intermediate People's Court made a public judgment on the case.At 9 o'clock in the morning, more than 30 officers and soldiers of the guard of honor of the three armed forces went into the court collectively after going through the procedures of observing in the No. 1 Intermediate People's Court of the city, and sat in the auditorium.The case was originally scheduled to be pronounced at 9:30 in the morning, but the court had been waiting for a long time. The seat of the appellant, Shenzhen Xinhe Company, was still empty, and the judge subsequently pronounced the sentence in absentia. "The original court applied the law improperly, and this court amended the judgment." At 9:50, the judge read out the final judgment.The Beijing No. 1 Intermediate People's Court finally confirmed that the portrait rights and name rights of the guard of honor of the three armed forces had been violated, but it did not support the claim that its right of reputation was violated. A final judgment for compensation of 800,000 yuan in damages. After the verdict was pronounced, Mr. Tu, general manager of Shenzhen Xinhe Arts & Crafts Co., Ltd., said: "We still haven't figured out what's going on, and how the case was brought to court." Mr. Tu said that if possible, he would continue to appeal.Mr. Tu said, "The core of this matter is actually that we used a picture of three soldiers saluting in our product manual." Mr. Tu didn't think the company violated any laws, because this picture can be seen on the streets and alleys. See, it can be regarded as a public picture, and they also scanned this picture from the cover of a notebook. After the verdict, officers and soldiers of the guard of honor of the three armed forces immediately applauded warmly, and attorney Zou, the attorney, was even more delighted from ear to ear.She told reporters: "Nowadays, the phenomenon of many businesses advertising under the banner of the military is intensifying. This momentum is very bad. The guard of honor of the armed forces is fighting this lawsuit. social ills.”