(By You Yunting) Recently, Mr. Shi Yuzhu, the senior executive of Giant Inc. has once again entered the flurry of public opinion. The main reason is that he claimed on his Weibo that the company has applied for 屌丝 as a trademark, and he also joked that anyone using the term must pay the company one yuan. (屌丝 (diaosi) means pubic hair in Chinese, but it has been used on the internet to popularly refer to losers). Curious about Mr. Shi’s words, the author checked the Trademark Office’s database for the application for 屌丝 in classes concerning online games. Perhaps because the application was filed recently, there is no indication of Giant Inc.’s application in the database. But, the author also found that Giant’s opponent, Suzhou Woniu Company, has applied for the trademark 屌丝侠 in Classes 9, 38, 41, and 42 on May of 2012, and all of these application are related to online games.
Due to the first application principle, there is a good probability that Giant’s application will be refused because of its similarity to the earlier application. In reality, however, according to Article 10 of the Trademark Law “those applications that are detrimental to socialist morality or customs or that have other unhealthy influences” cannot be used as trademarks. 屌丝 may indicate public hair or genitals, and therefore it obviously can be included in the scope of “detrimental to socialist morality or customs.” Even without considering first application elements, Giant’s application could not be awarded a trademark.
If a trademark cannot be obtained, then the applicant cannot enjoy exclusive rights. Therefore, it cannot stop others from using the name. Furthermore, Giant Inc’s use of 屌丝 in its online game will also face legal problems. The Advertisement Law requires that all ads comply with socialist morality. At the same time, the Interim Regulation on Online Publication by the General Administration of Publication and Press and the Interim Measures for Online Game Management by the Ministry of Culture require that online games not be against the socialist morality or prohibitive rules in the law. By the existing examination standard, 屌丝 probably meets these provisions.
It is worth contemplating that Mr. Shi Yuzhi is well-known for his business acumen, and it is beyond question that he is fully aware of his business’ bottom line. At the same time, his company has a very large legal team to provide it services. For this reason, he is certainly fully aware that the word 屌丝 cannot be registered as a game name or a trademark. Under such circumstances, why would he do what he knows is infeasible?
Those who understand but play dumb are always the smartest. This issue is clearly a strategy by Shi to use popular language to hype his product. Using this hot story to promote his company is a way to gain free advertising for his company’s products, which clearly is very cost-effective for the company. In a related story, another business team under Shi’s control, the health beverage, Naobaijin, claimed that Shi would reduce its bonus by sixty percent if it could not break into the Top 10 disgusting ads list. For this reason, promoting 屌丝 can also be seen one of Shi’s strategies to crassly promote his products.
As a game company serving mass players, using popular internet language to hype a game is undoubtedly an excellent tactic. But, this kind of promotion is a double-edged sword, On the one hand, promoting the internet’s poor taste culture allows the company to meet the demands of some consumers. But, this also inevitably repulses some consumers, which may bring some undesired consequences to the brand. But, as a clever entrepreneur, Shi obviously knows the risk, and his insistence on taking it shows that he believes that his main clients are those that accept such poor taste appeals. Giant Inc. has millions of users, and, at least by Shi’s judgment, most of them will accept this promotional culture.
In conclusion, socialist culture inevitably is not all pure and innocent. But, because low class words like “屌丝” can become very popular, using such poor taste tactics works for promoting products and gains the attention of the masses. This seems to be with no consideration of the ill will that that might come from the consumer. All of these issues clearly deserve our consideration.
Lawyer Contacts
You Yunting：86-21-52134918 youyunting@debund.com/yytbest@gmail.com
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I’m really eager to know if that name will be registered as a trademark.
If so, Intellectual property law should be reviewed… Indeed its aim is to help the owner for his products’ protection and also promotion but a certain balance need to be found between promotion (success) and moral order. Trademark protection imply protection of the owner but should also imply protection of the consumer. By using such term, public order seems not be take into consideration.