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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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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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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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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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 UniStrong’s Navigation Found Guility of Copyright Infringement against Microsoft?

microsoft

(By Luo Yanjie)Our previous post How does Microsoft Settle Its Problems of Software Copyright Infringement in China introduced the difficulties of protecting its rights and interests in China. However, in today’s post, the court decided the trade practices constituted copyright infringement and ruled in favor of Microsoft, thus boosting confidence for all software owners.

Introduction to the Case:

Appellant (defendant at first instance): Beijing UniStrong Science & Technology Co., Ltd (“UniStrong”)

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Is It Illegal for the SARFT to Prohibit Installing Youku and Iqiyi in Internet Cable Box?

广电总局

Is It Illegal for the SARFT to Prohibit Installing Youku and Iqiyi in Internet Cable Box?

–Analysis on the Prohibition of Installing Youku App and Iqiyi App on the Internet Cable Box

(By You Yunting) According to some media reports, the State Administration of Press, Publication, Radio, Film and Television (the ”SARFT”) issued a rule to local administrations requesting to delete Youku App, Iqiyi App, Sohu App and browsers from Wasu Box and Internet cable Set-top boxes (the “boxes”), which enables users to support TV, games, online video, music and photos. At first glance, i was astonished how it could be called boxes if without Youku App, Iqiyi App and browsers. However, Hangzhou Wasu Digital TV Media Group confirmed receiving the rule shortly after the reports came out. That being the condition, we would like to analyze the rule.

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Traditional Media shall Enhance Themselves against Internet Infringement

toutiao

(By You Yunting) According to news media’s reports, the National Copyright Administration of China (the “NACA”), State Internet Information Office (the “SIIO”), Ministry of Industry and Information Technology (the “MIIT”) and the Ministry of Public Security (the “MPC”) recently initiated the 10th special campaign dubbed “Sword Net Action” against online piracy and infringement, centered on cracking down on some websites’ unauthorized reprint from traditional media. This “Sword Net Action” could be better for traditional media, but governmental action gradually has different stages. Traditional media must improve practicing skills in the legal campaign against new Internet media.

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Could Toutiao.com Achieve a Settlement with Traditional Media?

toutiao

(By You Yunting) Toutiao and its investors would never have thought that a bomb from traditional media would come close on the heels of the Toutiao announcement that it had secured $100 million USD of Series C financing at a valuation of $500 million USD. The Beijing News made a comment “Toutiao.com: Whose headlines are they?” to attack the copyright infringement of Toutiao.com. Afterwards, Toutiao instantly replied, categorically denying infringement. However, just as the trees may wish to be still, the wind doesn’t stop, Toutiao may prefer the criticism to stop, but the traditional media will not subside. Soon, the copyright infringement of Toutiao soon became a public focus, being the subject of a variety of media’s collective enforcement on the grounds of copyright infringement.

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Why China‘s Courts Decided the Enterprise’s Use of “Personal Edition” Software Constitute Non-infringement?

(By Luo Yanjie) Rhino Software Inc. developed the Serv-U software, a kind of widely adopted FTP server terminal software to help the transmission of documents on websites. In recent years, Rhino Software Inc has been continuously trying to enforce its rights against unauthorized use of Serv-U in China, but the results are not satisfied. In our previous Questions and Solutions to Enforcement of Rights Protection By Overseas Software Enterprise in China, we had analyzed the reasons why Rhino Software Inc encountered obstacles in its protection. That the trial version for 30-days free use made Rhino Software Inc unable to the affirmation of infringement was the reason why Rhino Software failed in today’s post.

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How Many Ways would be Available to Protect Online Copyright?

 (By You Yunting) Within the World Intellectual Property Day approaching, Zhihu.com invited me to answer some questions about the popularization of intellectual property rights with the second topic below regarding what channels of online copyright enforcement would be available in China.

Yesterday, we discussed what are the difficulties in the online copyright enforcement in China. With different types of infringement, today I will discuss how to protect online copyright. Actually, there are three channels consisting of online criticism, complaints and litigation.

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