II. Pre-action Behavior Preservation Case over Unfair Competition Dispute Arising from Broadcast of Youku Videos by MoreTV Video Software
Applicant Youku Information Technology (Beijing) Co., Ltd. sued the Respondent Shanghai Qianshan Network Technology Development Co., Ltd. to stop the infringement of intellectual property rights before the before the action [Civil Ruling Paper (2018) H 0115 XB No. 1 of Pudong New Area People’s Court of Shanghai, members of collegiate panel: Hu Zhenyuan, Gui Jia, Chen Rongxiang; Civil Judgment (2017) HMZ No.233 of Shanghai High People's Court, members of collegiate panel: Gong Xiaoyan, Yang Jie, Jiang Guangrui]
[Case Brief]
Applicant Youku Company purchases genuine video content for users to watch or download on Youku. At the same time, it makes profits by charging advertising fees by advertising before the video plays, when the video pauses or when the page peripheral contents are played, or providing paid membership services to users, or charging special videos. The MoreTV video software developed and operated by the Respondent Qianshan Company is the video aggregation software that provides video on demand services to smart TV users. The Applicant sued that the MoreTV video software obtained a specific key value that can only be generated by the Applicant's background service program through technical means. That act undermined the Applicant's technical protection measures and illegally stole the Applicant's video storage link, finally realizing the purpose of providing the video contents of the Youku.com to the MoreTV video users in the form of blocking the Applicant's pre-film advertisement and suspending the advertisement; which act is based on the video contents purchased by the Applicant with huge expenditure, and imposes the bandwidth cost generated by video transmission on the Applicant, destroying the normal commercial operation activities of the Applicant of advertise before video, seriously interfering with the normal business activities of the Applicant, and has constituted unfair competition; which will cause irreparable damage to the Applicant if not being stopped in time. Therefore, it applied to the court to order the Respondent to immediately stop the unfair competition conducted by the MoreTV video software.
[Adjudication]
After review, the court held that the evidence provided by the Applicant could be used to preliminarily prove that MoreTV video software bypassed the pre-film and video pause advertisements set by the Applicant on Youku.com when linking hundreds of movies and TV works from Youku.com. As both MoreTV video software and Youku.com provide video playback services to consumers, there is a direct competition relationship between the two parties. The above behavior of the Respondent is essentially to separate the video content of Youku.com from the pre-film and video pause advertisements set by the Applicant as played together with the video content, which has damaged the legitimate rights and interests of the Applicant and may constitute unfair competition. Youku.com is the leading online video platform in China. MoreTV video software also has a large number of users. If the above-mentioned alleged infringements are not stopped in time, it may cause irreparable damage to the Applicant's competitive advantage and market share. The adoption of preservation measures will not harm the public interest, and the Applicant has provided a valid guarantee. In summary, it was ruled that the Respondent immediately stop the act of bypassing the pre-film and video pause advertisements set by the Applicant at Youku.com when playing the videos from Youku.com through the MoreTV video software link. After the ruling was made, the Respondent actively fulfilled the ruling and took the initiative to disconnect the more than 600 films and TV works involved in the MoreTV video software.
[Typical Significance]
Accurate application of the injunction on behavior before and during the prosecution is an important legal means for timely protection of intellectual property rights. This case is the first case on pre-action injunction for the video aggregation software unfair competition dispute. The Applicant had made sufficient evidence collection preparations before filing an application for pre-action behavior preservation. The ruling made by the court was based on clear facts and all-round grounds. Therefore, the Respondent consciously fulfilled the ruling, the possible subsequent intellectual property infringements were timely stopped, the loss of the Applicant were prevented from further expanding, and the legal rights and interests of the Applicant were protected in a timely manner. Thus, it is a judicial demonstration made for constructing a good business environment and market competition order.
