—Does Chinese Makers of Steve Jobs Action Figures Constitute Crime?
I have done a research on the biggest C2Cwebsite, TaoBao, finding at least two hundreds web selling Steven Jobs action figures with various sizes, the prices of which range from 4 dollars to 100 dollars that are much cheaper than 99.99 dollars of In Icons. Obviously, the Apple and the owner of right of Steven Jobs’s likeness shall combat the infringing products in China.
(The pictures above are the screenshot of the TaoBao, those doll made in China are much more cheaper in China）
Therefore, the Bridge IP Law Commentary would like to discuss the following two issues: first, how to identify the nature of the un-authorized Steven Jobs action figure’s infringement according to Chinese laws and regulations; second, how to combat the infringing Steven Jobs doll sold in China.
I． How to identify the nature of the un-authorized Steven Jobs action figure’s infringement according to Chinese laws?
The Telegraphy reports that the warning letter send by Apple to In Icons says “any toy that resembles the technology company’s logo, person’s name, appearance or likeness of its products is a criminal offence.” However, in our opinion, this kind of infringement doesn’t constitute crime according to Chinese laws and regulations. The infringement of Steven Jobs doll involves as follows:
- The right of Steve Jobs’s likeness;(for more analysis on the issue, please click here)
- If the dress and held Apple products of the doll are scaled-model replicas with same proportion of the originals, the right of design and copyright of the iPad, iPhone, Levi’s and Issey Miyake shall be involved;
- If there are logos or trademarks on the dress and held Apple products of the doll, the rights of registered trademarks related with the relative products shall be involved.
According to the Criminal Law of the People’s Republic of China, the infringement of right of likeness isn’t a criminal offence. However, despite faking patent, trademark and copyright are criminal offences, the damage of using these rights on the doll is obviously minor than that of direct copy , therefore the behaviors of making and selling the figure aren’t a criminal offence. In our view, the manufacture of un-authorized doll definitely infringes the relevant owners’ right of likeness, trademark, design and copyright. According to Chinese laws, all the above owners are entitle to demand the infringers (including the maker, seller and online-auctioning site) stop infringement.
II． How to combat the infringing Steven Jobs doll sold in China
According to the experiences of the attorney of the Bridge IP Law Commentary, two points shall be emphasized when to combat products infringing intellectual property right (including the said products infringing the right of likeness): to combat the maker and sales channel. Generally, those making infringing products are with high awareness, therefore it is difficult to find them, even if they are found the collection of evidence is also a problem. In accordance with our experiences, the obligees can ask attorney or commercial investigation company to disguise customers to seek the makers, and then find the makers’ addresses by asking for seeing productions and directly go to the markers’ place by an excuse for order; meantime the notaries disguising customers shall report the whole trading process as a completed evidence collection.
It shall be admitted it is a complicated process for find of makers and evidence collection, even sometime the evidence collection fails due to it is discovered by the makers. But it relatively simple to combat the sales channel, because the online sales occupies high proportion of sales. Actually, in China, the B2C websites seldom sell infringing productions for their afraid of legal liability for infringement, but most infringing products are sold in the Chinese biggest C2C trading platform, TaoBao. Hence, the obligees can authorize Chinese attorneys, such as us, to collect evidence for sales of infringing production, then send TaoBao letter to demand off-self, and finally sue the sales and freeze their AliPay (Chinese PayPal) and related bank accounts.
Certainly, you can directly send a letter to TaoBao to demand off-self of infringing products. For more details, please refer to How to Combat Knockoffs on Taobao.com.
For more analysis on the issue, please click here.
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Author:Ms. Chen Danhong
Paralegal of DeBund Law Offices
Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.