Case Brief:

Baidu Online Network Technology (Beijing) Co., Ltd. (hereinafter referred to as Baidu) is the developer and operator of "小度" (Xiaodu) AI electronic products, including "小度在家1S" (Xiaodu at Home 1S) (hereinafter referred to as "Xiaodu smart speaker"). "Xiaodu xiaodu" is the voice instruction with a wake-up and operation function used by Baidu for the AI electronic products. After long-term use, the product name "小度" and the voice instruction "xiaodu xiaodu" have had a certain influence. Baidu found out that Beijing Zile Technology Co., Ltd. (hereinafter referred to as Zile) has engaged in the production and sale of the Duyaya learning machine, an AI electronic product same as the Xiaodu smart speaker. Zile prominently uses "小杜" (also pronounced as "xiaodu") to refer to its product in the publicity contents on its official website and in the Duyaya learning machine, uses the voice instruction "xiaodu xiaodu" in the Duyaya learning machine for wake-up and operation, and publicizes this feature on its official website. Baidu deems that the above acts cause confusion among the public and constitute unfair competition. Beijing Jingwei Zhicheng E-commerce Co., Ltd. (hereinafter referred to as Jingwei) sells the Duyaya learning machine, which constitutes contributory infringement. Baidu filed a lawsuit, requiring the two defendants to cease the sued act and requiring Zile to eliminate the impact and compensate for economic losses and reasonable expenses totaling 3 million yuan.

The People's Court of Haidian District, Beijing, held that after Baidu's extensive use and promotion, "小度", as the product name of its smart speaker, belongs to the product name with certain influence as stipulated in Article 6.1 of the Anti-Unfair Competition Law. The voice instruction "xiaodu xiaodu" is a specific and indispensable voice instruction that frequently appears when users use the Xiaodu smart speaker. This voice instruction has established a clear and stable relationship with Baidu and its products, has a high reputation and influence, and should be included in the protection scope of rights and interests under Article 6 of the Anti-Unfair Competition Law of the People's Republic of China (2019 Amendment). The act of using without permission the voice instruction of others that meets the above conditions belongs to other acts of confusion sufficient to mislead a person into believing that a commodity is one of another person or has a particular connection with another person as stipulated in Article 6.4.

In combination with the reputation and influence of "小度" and "xiaodu xiaodu", the Xiaodu smart speaker and the Duyaya learning machine are similar products in terms of function, customers, sales channels, etc. Zile's conduct of the sued act is subjectively malicious, and objectively can easily mislead the relevant public in believing that the Duyaya learning machine and Baidu's Xiaodu smart speaker and its related services may have specific relations in terms of product research and development, technical support, authorization and cooperation and other aspects. The above acts of Zile constitute unfair competition. The first instance court ruled that Zile shall eliminate the influence and compensate Baidu for economic losses of 500,000 yuan and reasonable expenses of 50,000 yuan. The first instance judgment of this case has come into effect.

Comments:

This is the first case of unfair competition by copying a voice instruction in China. In this case, the legal principles are accurately grasped, the scope of protection and applicable conditions for other acts of confusion in Article 6.4 of the Anti-Unfair Competition Law are clarified, the act of maliciously confusing and misleading the public in the AI product market are effectively regulated, thereby guiding market operators to engage in positive competition by proper means such as independent research and development, and innovation and upgrading, maintaining the fair competition order of the AI product market in the process of innovation and development, and meanwhile, fully considering the legitimate rights and interests of consumers.

(Source: the Official WeChat Account of the Beijing Higher People's Court)