Because he discovered that the audio on the Porsche car he purchased was not the original “BOSE” brand, Chongqing owner Chen Bo sued Chongqing Haoda Famous Car Sales Co., Ltd. (hereinafter referred to as “Haoda Company”) to the court, demanding “one refund and three compensations”.

Suspected of counterfeiting “BOSE” car audio. Photo courtesy of interviewee

The Paper previously reported that in August 2017, the Yubei District People’s Court of Chongqing Municipality made a first-instance judgment, finding that Haoda’s fraud of the vehicle’s audio involved constituted fraud on the whole vehicle, and ruled that Haoda Company “refunded one and compensated three”. Haoda Company was not satisfied with the judgment and the appeal was later dismissed. Haoda Company was still not satisfied and applied to the Chongqing Higher People’s Court for a retrial.

On November 18, 2020, the Chongqing High Court heard the case, and no judgment has yet been rendered.

When selling the car, it was found that the audio was not the original

Chen Bo’s Porsche sedan was purchased on March 6, 2015 as the “Macan”. According to him, the manufacturer provides the basic configuration of the car, and the consumer chooses the interior, the size of the fuel tank, the configuration of the wheels, etc. Among them, the interior audio is also in the optional range. Chen Bo, who pays attention to sound quality, chose the American speaker brand “Dr”.

The invoice provided by Chen Bo showed that the total price of the Porsche sedan loaded with the “Dr.” audio was 619,800 yuan.

In June 2017, Chen Bo was ready to sell the car. “I drove the car to the used car (trading) market, and the master who knew the car found that there was a problem with the audio trademark.” Chen Bo recalled that listening to the introduction of the car dealership, if it was a real “doctor” audio, the “BOSE” logo would not fall: “He said that I was sticking this logo.”

Subsequently, Chen Bo found the Haoda company that sold him the car for negotiation. Chen Bo said that the solution given by Haoda is to replace the original “Dr. ” audio and maintain the Porsche for free for life.

Chen Bo did not agree to the plan, and sued Haoda to the Yubei District Court, demanding “one refund and three compensations”.

Court of first instance: refund one compensation three

According to the first-instance judgment rendered by the Yubei District Court in August 2017, the Chongqing Xindiao Traffic Accident Judicial Appraisal Institute issued an “Appraisal Opinion” on April 8, 2018, entrusted by the court. The appraisal opinion was: Although the “BOSE” brand logo was pasted on the surface of the audio area of the vehicle involved in the case, after investigation and comparison, the audio system of the vehicle involved was a non-“BOSE” brand Porsche car audio system.

After the visit of the Yubei District Court to the domestic Porsche 4S store dealers and the official website of Porsche, the Porsche car sales model is: Porsche manufacturers provide the basic configuration of each model, and then consumers adopt the optional mode according to their own needs, and choose the high-end configuration of the vehicle and pay the price. According to the consumer’s optional list, Porsche manufacturers assemble the optional devices at the time of vehicle production, and all optional equipment is part of the complete vehicle and is one of the manufacturer’s factory acceptance criteria. The model of the vehicle involved in this case, the “BOSE” brand audio is among the optional accessories.

During the trial, Haoda stated that it was not an importer of automobiles and only purchased from the previous family and sold it. The court asked where Haoda purchased the car in question and required the corresponding sales contract and basic information. Haoda claimed that it did not know the previous seller, and did not submit evidence such as the sales contract to the court.

The Yubei District Court found that the offshore importer of the vehicle involved had determined that the vehicle in question did not have a “BOSE” brand audio configuration when it intended to import the vehicle in question (futures).

The court also found that the telephone recording between Chen Bo and Li Moudong, the legal representative of Haoda Company, on July 27, 2017, showed that Li Moudong agreed to replace the audio of the vehicle involved in the case with the original imported “BOSE” brand audio.

The judgment stated that the “BOSE” brand audio installed by the Porsche manufacturer has become part of the overall quality of the vehicle in question, and is one of the criteria for judging whether the vehicle meets the factory quality after selection; In addition, as a luxury car brand, consumers expect not only the usual driving functions, but also the pursuit of better driving experience and riding enjoyment, and brand audio is also an important part of providing better driving experience and riding enjoyment. In other words, whether the vehicle involved is equipped with “BOSE” brand audio is sufficient to influence Chen Bo’s decision on whether to purchase a car.

The court held that Haoda’s fraudulent acts of fabricating and concealing the audio configuration caused the vehicle involved to not meet the vehicle quality standards agreed by both parties, which was sufficient to influence Chen Bo’s decision on whether to purchase a car. Therefore, the fraud of the vehicle audio of the Haoda Company constituted fraud of the whole vehicle. The Yubei District Court ruled to revoke the “Automobile Sales Contract” signed between Chen Bo and Haoda Company; The judgment was that Chen Bo returned the purchased vehicle within 10 days from the effective date of the judgment, and Haoda Company returned Chen Bo’s purchase price of 619,800 yuan; the judgment was that Haoda Company paid Chen Bo 1,859,400 yuan in compensation within 10 days from the day after the effective date of the judgment.

Court of Second Instance:

Upholding the original judgment is conducive to industry standardization and self-discipline

Haoda Company was not satisfied and appealed. In April 2019, the Chongqing No. 1 Intermediate People’s Court issued a judgment rejecting the appeal and upholding the original judgment.

The Chongqing First Intermediate Court held that the focus of the dispute in the second instance of the case was whether Haoda Company constituted consumer fraud against Chen Bo. According to the available evidence in this case, the car purchased by Haoda Company from Shangjia did not have the configuration of “BOSE” audio, but the configuration of the car sold to Chen Bo clearly stated that there was “BOSE” audio, and the audio was not “BOSE” audio, so Haoda Company obviously engaged in fraud and deceived consumers, and its intention to deceive consumers was obvious. Although car audio does not involve vehicle driving safety, “BOSE” audio is expensive, and Haoda companies obtain high profits through fraud, and at the same time, they also damage the property rights of consumers.

According to Articles 8, 16 and 20 of the Law on the Protection of Rights and Interests of Consumers, consumers have the right to know about the goods they purchase, and business operators have the obligation to truthfully inform the goods information, so that consumers can express their intentions based on their true wishes and correctly exercise relevant rights by ensuring consumers’ right to know. The premium of the vehicle brand involved in the case is relatively high, and it can also be seen from the clear agreement on the configuration of each component in the contract that consumers purchase a car based on their trust in the automobile brand and the pursuit of high-end configuration of the whole vehicle, and consumers expect to purchase the whole vehicle rather than a certain part, and should be claimed according to the standard of “refund one compensation three” of the whole vehicle.

At the same time, consumers, as a weak party, do not have professional knowledge, their ability to identify the authenticity of goods is limited, the vehicle audio fraud involved in the case is not ordinary people can detect with the naked eye, if consumers do not find such goods defects, the seller can be exempted from legal liability for its fraudulent behavior to obtain excess profits, so in such cases, the treatment according to the vehicle “refund one compensation three” is also fair to the seller, which is conducive to promoting the standardized self-discipline and healthy development of the industry.

Chongqing High Court arraignment

The appraiser appears in court for questioning

After the judgment of the Chongqing First Intermediate People’s Court, Haoda Company was still not satisfied and applied to the Chongqing High Court for a retrial.

In July 2019, the Chongqing High Court issued a ruling to bring the case to trial. The Chongqing High Court held that Haoda’s application for retrial met the circumstances stipulated in Item 6 of Article 200 of the Civil Procedure Law (Note: If a party’s application meets any of the following circumstances, the people’s court shall retry it: (6) The original judgment or ruling was indeed wrong in the application of law).

In September of the same year, the Chongqing High Court heard the sales contract dispute case. After the hearing, the collegial panel found that the appraisal opinion made by the Chongqing Xindiao Traffic Accident Judicial Appraisal Institute (Note: the audio system of the vehicle involved in the case is a non-“BOSE” brand Porsche car audio system) was inconsistent with the entrusted matters (Note: whether the audio on the vehicle involved was an “BOSE” brand audio system), and Haoda Company objected to the conclusion and method of the appraisal, holding that whether it was a “BOSE” brand audio should be determined by the manufacturer, and the appraisal agency did not have this qualification. The appearance comparison method used does not completely exclude uniqueness.

In September 2020, the appraisal agency wrote a written reply to the Chongqing High People’s Court, clarifying that the identification conclusion pointed out that the vehicle audio involved in the case was neither a “BOSE” brand audio nor a “BOSE” brand car audio assembled by Porsche’s original factory.

After the collegial panel informed Haoda of the above reply, the company insisted on its previous objection and applied in writing for the appraiser to appear in court.

On November 18, 2020, Mr. Bai, an appraiser of Chongqing Xindiao Traffic Accident Judicial Appraisal Institute, appeared in court for questioning. In response to the presiding judge’s question “on what basis is the conclusion that the audio of the vehicle involved in the case is a non-‘BOSE’ brand audio”, Mr. Bai said, “This can be seen from the appearance of the trademark. ”

The presiding judge asked, “Is there a difference in sound quality?” Mr. Bai replied: “I don’t compare the sound quality.” ”

Mr. Bai said that in addition to the difference in appearance, “the location of the installation, there is no secondary audio, and the trademark is not, it is determined that it is not ‘BOSE’ audio”.

After the conclusion of the court’s investigation, the collegial panel adjourns the hearing, and the collegial panel will make a judgment on a later date after deliberation based on the facts ascertained and the evidence in the case.

On November 22, Chen Bo told The Paper: “The lawsuit has been fought for three and a half years, and now the other party has questioned the appraisal. Before the lawsuit, the owner of Haoda Company admitted that it was not the original audio, otherwise he would offer to replace the original audio for me? During the first instance and second instance, the lawyer of Haoda Company also admitted that it was not equipped with original audio. ”

Chen Bo believes that audio fraud is an established fact, and the issue of the case should be the issue of how to compensate for audio fraud. He said that it is obvious from the trademark alone that there is a clear difference between the two, why are he still struggling with whether the audio is original? If none of the appraisers hired by the court can identify the audio involved in the case, it will inevitably greatly increase the difficulty of consumer rights protection.

Source: The Paper