III. Unfair Competition Case over Kingsoft AntiVirus’s hijacking User Browser Homepage
Plaintiff Shanghai 2345 Network Technology Co., Ltd. filed a lawsuit against Defendants Beijing Cheetah Network Technology Co., Ltd., Beijing Cheetah Mobile Technology Co., Ltd., Beijing Jinshan Security Software Co., Ltd. for unfair competition [Civil Judgment (2016) H0115MCZ No. 5555 of Pudong New Area People's Court of Shanghai, members of collegiate panel: Gong Xiaoyan, Yang Jie, Sun Baoxiang. Civil Judgment (2018) H73MZ No. 5 of Shanghai IP Court, members of collegiate panel: Ding Wenlian, Yang Fuyu, Yi Jia]
[Case Brief]
The Plaintiff is the operator of 2345 URL navigation and 2345 ace browser, of which 2345 URL navigation ranks in the forefront of the Chinese website navigation market. The three Defendants jointly operated Kingsoft AntiVirus software, and changed the 2345 URL navigation homepage set by the end users to the Kingsoft AntiVirus Website hosted by the Defendant Beijing Cheetah Mobile Technology Co., Ltd. through the following actions: changing the browser homepage through the "garbage cleanup" function of Kingsoft AntiVirus; making the option of "Immediately lock the Doctor URL to the browser homepage and protect the browser homepage from being tampered with" ticked by default through the "one-click cleanup" pop-up of Kingsoft AntiVirus upgrade program, where regardless of whether the user cancels the option, the browser homepage will be changed; changing the browser homepage by Kingsoft AntiVirus's "one-click cloud killing", "version upgrade", "browser protection" and other functions, and different browsers are treated differently; making the option of “Set the drug tyrant navigation as the browser homepage” ticked by default through the “Installation Complete” pop-up of Kingsoft AntiVirus, where regardless of whether the user cancels the option, the browser homepage will be changed; inducing the users to click "one-click to open" to change the browser home page through Kingsoft AntiVirus’ pop-up of “turn on the secure URL navigation to prevent open the malicious website by mistake"; tamper with the user's computer registry data to change the browser home page through the Kingsoft AntiVirus uninstall program. The Plaintiff pleaded to the court to order that: 1. The three Defendants immediately stopped the unscrupulous competition against the Plaintiff of tampering with the homepage, hijacking the traffic, etc.; 2. the three Defendants publicly clarify the facts and eliminate the impact; 3. the three Defendants jointly compensate the Plaintiff’s economic loss of RMB 10 million yuan and the Plaintiff’s notary fee of RMB 13,060 yuan.
[Adjudication]
The court of first instance held that, the three Defendants, as operators of security software and software that directly compete with the general terminal software operated by the Plaintiff, failed to take necessary and reasonable methods to play the normal functions of the security software, which is an act that interferes with the operation of other software beyond reasonable extent. The three Defendants had directly infringed the internet users' right to know and the right to choose by utilizing the internet users' trust in it as the security software operator, or changing the users' browser homepages without informing them, or through false pop-ups and intimidating pop-ups, which act had caused real harm to the legitimate rights and good reputation of the Plaintiff while making illegal profits. In addition, the three Defendants’ act of making a distinction in the process of changing the internet users’ browser homepages through Kingsoft AntiVirus software may cause differences in the experience of different browsers for internet users, and improperly affect the users’ experience of the 2345 Browser as operated by the Plaintiff. In summary, the three Defendants' competition behavior not only violated the principle of good faith and generally recognized business ethics, but also violated the principle of equal competition. Therefore, the three Defendants were ordered to immediately stop the act of unfair competition, publish a statement to eliminate the impact, and jointly compensate the Plaintiff for economic losses of RMB 3 million yuan and reasonable expenses of RMB 13,060 yuan. After the first instance judgment was announced, the three Defendants filed an appeal. The court of second instance dismissed the appeal and upheld the original judgment.
[Typical Significance]
The judgment of this case found that the security software operator, in the name of guaranteeing the security of the computer system, arbitrarily changed or induced the user to change the browser homepage through false pop-ups, intimidating pop-ups, etc., thereby improperly robbing the traffic interests, which act not only harms the legitimate rights and interests of other operators but also infringes the end users’ right to know and choose, and violates the principle of good faith and generally recognized business ethics. The trial of this case not only maintains the market order, but also safeguards the interests of legitimate operators and internet users. It is of positive significance for regulating traffic competition and establishing competition rules in the Internet field.
photo from: qianyan.biz
