Does the Merchandizing Rights Fall into the Protection for Priority Right in China Trademark Cases?

(By Ning Tinggang) Beijing Intellectual Property Court recently introduced some movie, TV series, music, animation and game related cases it heard in 2015 and 2016 via its public WeChat platform, including the trademark “Kuroko Basketball” invalidity case which inspired me. The way that the court dealt with this case shows a new trend of protecting merchandizing interests which we legal professionals should pay attention to.

Case Introduction

Kuroko Basketball is a popular comic work about basketball created by ふじまき ただとし, a Japanese comics artist. The work was serialized on the magazine SHONEN JUMP published by Shueisha since the second issue in 2009, and then was adapted for an animation and first broadcast on 7th April 2012. The plaintiff, SL Sport Ltd. in Kaiping (“SL Company”), filed a trademark-register application to the trademark office on 19th July 2012. As approved, this trademark (“Disputed Trademark”) should be used under Class 25. In addition, SL Company registered tens of trademarks closely connected with popular comics works such as Kuroko Basketball and SLAM DUNK that Shueisha had published, including trademarks used under Class 18, 24, 25, 35 and other types of commodities or services. Thus, Shueisha filed a request for declaration of invalidity of the Disputed Trademark.

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For What Reason Should an E-Group Administrator Be Brought to Account for an Unauthorized Piece of Work Transmitted through the E-Group: Indirect or Direct Infringement?

(By Albert Chen)Last year Beijing Intellectual Property Tribunal dealt with an infringement case involving a QQ group and made the same decision as the first-trial court that the group’s administrator should be responsible for the infringement, but with different reasons. Detailed analysis of differences in the reasons for decision given by the two courts will help you answer the question of whether the group administrator should be brought to account for direct or indirect infringement.

Case Introduction

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Why It Is Difficult to Protect Copyrights in Live-Show Platforms in China?

(By You Yunting) Some users of ZHIHU.com (One of the most well-organized community for sharing knowledges online) asked: Would the network host infringe any right while singing at his or her own live-show room? If one host receives the user contributions from the audiences for his or her singing at such live-broadcast room, would such behavior infringe any right? Here come my answers:

The biggest problem of the hosts’ singing at their own live-show rooms is not about whether such behaviors infringe any right or not. Instead, the right holders of such songs have tremendous difficulties in protecting their rights.

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Case Analysis: Legal Risks in Franchise Business

(By Yu Zhiyuan) I recently represented a client who was finally the winning party to a typical franchise dispute case, from which we can learn most legal risks possibly facing franchisors and franchisees during their performance of franchise business as well as operational standards and risk control measures for businesses in the brand chain industry.

  1. Case Facts  

In this case, the franchiser, owner of a well-known early childhood education brand, entered into a franchise agreement with each franchisee to perform franchise activities as a chain store dealing in the franchiser’s brand. As mutually agreed, in addition to one-off franchise fees and deposits, each franchisee should pay royalty fees in advance before each royalty year begins, and if there is any overdue payment of royalty fees, penalties.

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What Startups Need to Know to Protect Their IPR in China

 (By You Yunting) I was once asked by a journalist what the foundation of intellectual property  courts and the ratification of the Opinions on Quicker Development of the Globally Influential Scientific and Technological Innovation Center matter to small and medium-sized startups, and replied the outcome of those two events were the same, both of which ultimately aimed to enhance the awareness of intellectual property throughout our society and guide small and medium-sized enterprises to establish a competition barrier and a management philosopher on how to avoid infringing others’ intellectual property rights. As governmental authorities define and set official instructions and policies, each startup should take full use of its intellectual property during daily operation, trying to become positioned to succeed, just like a well-known Chinese aphorism says that even the pig can fly when the typhoon comes. Combined with my experiences, this article mainly deals with the issue of how small and medium-sized startups seek intellectual property protection both internally and externally.

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DeBund Succeeds in Pushing Copycat Game App from AppStore

Recently, DeBund takes a big step forward in providing mobile internet legal services that You Yunting Team, on behalf of clients, succeeds in pulling a popular game from the AppStore by more than 10 lawyer’s letters.

The Developer of the complained game copied large amounts of background elements of a well-known game, including graphic design, plots, role names and geographic names, and also used the brand of the original game. The Developer also made a cartoon modeling on the game characters, and did a slight change to the game name, not exactly the same as the original game. The infringed benefits greatly from the complained game to millions of yuan every month.

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Does Unauthorized Use of Screenshots in Game Guide Constitute Infringement?

(By You Yunting) A game guide, also known as game strategy guide, is an essential reference for players. Generally, a game guide may quote pictures and screens from the game itself. But if without authorization, it triggers questions whether this quotation causes copyright infringement. In the following, a similar case will be introduced.

Introduction to the Case:

Plaintiff: Shanghai Aurogon Information and Technology Co., Ltd (the “Aurogon”)

1st Defendant: China Zhongdian Media Co., Ltd (the “ZD Media”)

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Qvod Vs China Government: RMB 260 million Punitive Fine for Copyright Infringement?

qvod

(By You Yunting) Introduction to the Case:

Plaintiff: Shenzhen Qvod Technology Co., Ltd (the “Qvod”)

Defendant: Market Supervision Administration of Shenzhen Municipality (the “MSA”)

Court of first instance: Shenzhen Intermediate People’s Court

The MSA filed a case with the Shenzhen Intermediate People’s Court, and claimed to cancel the punitive fine of RMB 260 million from the MSA. On 30th of December 2014, the Shenzhen Intermediate People’s Court held the trial as the case is still on that trial.

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Does Story Plot Plagiarism Constitute Copyright Infringement in China?

(By You Yunting) Introduction to the Case:

In the first half of 2014, Palace 3: the Lost Daughter is a 2014 Chinese historical television series written and produced by Yu Zheng. In April 2014, a Taiwanese writer Chiung Yao made a letter claimed that Palace 3: the Lost Daughter (the “disputed show) was based on her novel Plum Blossom Scar (the “reference novel”), but Yu Zheng delayed. On May 28, 2014, Chiung Yao filed a lawsuit, claiming that Yu Zheng was unauthorized to copy her original core plot, recompose the disputed drama and produce and broadcast the disputed show with another 4 defendants. Chiung Yao thought that Yu Zheng had seriously violated her right of adaptation and cinematization, causing great mental damage, and requested Yu Zheng to immediate stop infringement, eliminate influences, make an apology and compensation of RMB 20 million for economic loss.

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What is the Procedure When It Comes to the Registration of Imported Software in China?

(By Wang Ting and You Yunting) Today we will discuss the legal restrictions and application procedures in regard to the introduction of foreign software into China.

  1. Copyright Protection of Imported Software

The Protection of Computer Software Regulations dividends the protection of imported foreign software into two types:

  • Software first distributed within the territory of China shall have copyright;
  • Software concluded with China by the countries to which the creators belong or in which the creators reside habitually or under the international conventions to which China is a member state shall enjoy its copyright.

China has concluded the Berne Convention for the Protection of Literary and Artistic Works with more than a hundred countries in the world. Taking that into consideration, under most circumstances if the requirements above can be met, the creator of the introduced software can cite the convention to gain copyright protection which is equal to Chinese citizens.

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Youku Steals the Originality, How Can the Student Fight Against Plagiarism?

追气球的熊孩子

(By You Yunting) A post named the Teenagers Cannot Be Bullied was made by a 19-year-old student to complain that Youku.com ripped off his idea, causing a big stir online. The 19-year-old student and his fellows succeeded in taking photos of the earth from flying a hot-air balloon and then published their experience named the Kids Who Chase the Balloon and photos online. Afterwards, staffs from Youku.com contacted him, saying that they would like to address a short video to write down their behaviors. Then they reached an agreement through emails that the 19-year-old student and his fellows would cooperate with Youku.com in making a creative short video from the post the Kids Who Chase the Balloon.

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Does Tudou.com Require Permission for the Use of YYeTs’ Unauthorized Subtitle Translation in China?

tudou

(By You Yunting) YYeTs is one of fansub groups in China, which translated foreign films and television program and subtitled into a language other than that of the original by fans (not officially licensed translator). YYeTs have translated many foreign films and television programs and developed very fast in China.

Recently,  YYeTs claimed that, as Tudou.com used, without permission, YYeTs’ subtitle translation for the video of the Voice and deleted the names of translator, YYeTs tried to negotiate with Tudou.com but was blamed for illegal translation. That raised a question: without the permission of the right holder for the Voice, could YYeTs’ translation receive protection from the Copyright Law?

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Could Jewelry Design be Protected by the China’s Copyright Law?

胜利之v

(By Luo Yanjie) It is common in China that a jewelry of the same design would be manufactured and sold by different jewelry shops in the industry of China’s jewelry. With regard to the initial source of the jewelry design, a lot jewelry companies and even consumers are not concerned whoever firstly designs the jewelry. In reality, a well-designed jewelry that took designers a great intelligence shall be protected by the Copyright Law. In today’s post, we will introduce a case where a jewelry design is succeed to be protected by the Copyright Law, sharing with readers.

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Introduction to Ownership of the Performer’s Right in China

(By Luo Yanjie) As China recently ratified the Beijing Treaty on Audiovisual Performances, in today’s post, we will introduce the system and cases of the performers’ rights in the Copyright Law. As for who holds the performer’s right, different judgments will be found through three cases. Who holds the performer’s right? The performer, the company/organizationthat hires the performer, or the performing company/organization? These different judgments can become an obstacle for the further development of China’s performing arts.

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Why Did NCA Officials Attend Sohu.com’s Press Conference against Toutiao.com?

(By You Yunting) Recently, Sohu vs Toutiao has attracted attention from the media. Sohu sued Toutiao for copyright infringement and unfair competition, whilst Toutiao filed lawsuits against Sohu for defamation. It is quite normal for two enterprises in competition to take legal proceedings against each other. However, what really surprised us was, in their dispute, that governmental officials attended Sohu’s press conference, in favor of Sohu. In today’s post, we will discuss the reason for theimproper governmental interference. Comments and suggestions are most welcome.

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