How to Protect Public Service and Product Marks

(By Lv Xuanxuan)Information about “one-stop online services” and the app of “in Shanghai” for the general public appeared on the official website of “the People’s Government of Shanghai” on 22 February 2019. Online “windows” such as “in Shanghai”, “With You”, “One-stop Online Services”, “On Your Hands”, “On Your Fingertips” give more convenience to the public to deal with administrative affairs. However, the application of the internet plus will make it more difficult to prevent “free riders” in the public service area. Search results generated by search tools in certain apps using key words about the above services frequently show account numbers and service marks that are very similar to or even the same as the official service names. This article aims to explore the protection of public service and product marks in hope of contributing to the construction of the “service government”[1].

Question 1: Why do public service and product marks have to be protected?

Shanghai No.2 Intermediate People’s Court decided a case of protecting rights relating to the “Shanghai World Expo” (“World Expo Case”)[2] over ten years ago. During the first trial, the court found that the defendant Shanghai Honghui Real Estate Development Ltd. obtained economic profits by using “expressions in the theme of the Shanghai World Expo” and the “logo of the Shanghai World Expo” in the forms that were similar to or the same as the official ones and called its building area as “士博汇”, which is pronounced in the same way as the Chinese translation of the “World Expo”, without permission of the Shanghai Bureau of World Expo Affairs, and therefore infringing the special mark owner’s rights in the logo of, copyrights in the Chinese and English versions of the theme of, proprietary rights in the name of and the special mark owner’s right in the “Shanghai World Expo 2010”.

As different types of people are involved in the provision of public services, they are gradually changing from ones mainly provided by the government to ones provided by legal entity or other organizations by contract in the form of government procurement as directed by the government. In the “World Expo Case”, the court decided that “the name of the World Expo had huge business value due to its great influence and appeal”. Public services and products have incalculable business value as well. In addition, the direct result, for example, of “one-stop online services” is reduction of time needed for ordinary people to deal with administrative affairs and administrative costs. However, if counterfeits prevail, the public trust in and the reputation of public service and product providers will be damaged and so will public interests. Therefore, steps are to be taken to prevent public interests from being damaged by illegal uses of public service and product marks.

Question 2: How can we protect public service and product marks?

Public service and product marks mainly consist of words, images, colors, videos and their combinations and have the functions to recognize the providers and/or the services. For example, in education, medical, retirement, health, culture, sports and other areas, people usually use the marks on public services or products, whether provided by the government, a public institution or a legal person or other organization designated by a government purchaser, to efficiently check the qualifications, reputation, ability of the provider, the matters to be dealt with, etc. By studying how the marks were protected in the “World Expo Case”, we can find general approaches to protect public services and products.

First, copyrights. Marks usually consist of words, images or videos and are usually designed in a special way. In general, public service and product marks can be considered as “works” and are copyrightable by law from their completion date because they meet the criteria on the “originality” of works under the Copyright Law. Uses by third parties of the marks without permission of the owner of copyrights therein are infringement of the marks and prohibited by law.

Second, special mark rules. According to the Special Mark Rules, special marks mean names, abbreviations, logos, mascots and other marks that are formed by words or shapes and used for SC-approved national and international cultural activities, sports events, scientific studies and other social non-profit activities. Special marks registered with the administration for industry and commerce of the State Council are protected by the Regulations. Owners of the special marks can prohibit non-permitted people from using words, shapes or their combinations that are the same as or similar to the (registered) special marks. If two marks have basically no difference that can be seen, they are the same. If two marks contain words that are similar in shape, pronunciation, meaning or graphics that are similar in structure or color or are similar in overall structure when combining all elements together so that the general public are very likely to confuse them or believe that there is a link between them, they are similar. The significance and popularity of the special mark in question should be considered when deciding if it is similar to another mark.

Third, trademark registration. In business and commerce, trademarks are important for customers to recognize different service providers and manufacturers. No trademark applications can be similar to a registered trademark or a prior trademark application under a class of the same or similar products or services. For example, the Chinese Welfare Lottery Issuance Center applied for registering a “two-color ball UNIONLOTTOdp and its graphic”[3]. The defendant applied for registering the names of its special welfare lotteries as full-class trademarks. Most of the applications were approved although a small number of them were refused because they were similar to prior registered trademarks. It is surely helpful to prevent unauthorized uses, protect interests of lottery holders and maintain a good reputation of the “Chinese welfare lotteries”.

Question Three: What is legal liability for infringement of public service and product marks?

As stated above, if a mark for public services and products is appropriately protected, the Copyright Law, the Regulations of Special Marks, the Trademark Law, the Unfair Competition Law and the General Principles of the Civil Law will severally or jointly apply with respect to civil liability for paying damages for infringement. Despite the possible largest legal amount of damages, other types of civil liability for infringement are more important to the public domain. For example, making apologies to the public by the means required by public media or the owner could have an important effect on the public attitude. Therefore, I suggest that non-profit organizations, public institutions and public service and product suppliers actively deal with the issue of protecting their marks in the public interests.

[1] Knowledge Graph for a Study of the Domestic Public Service System by Jiang Xiaoping and Su Nan on p55 of the Journal of the Shanghai Administration Institute of May 2014. “From 2002 to 2005 local governments started their attempts to construct a “service government”. The idea of administrative services came into existence from the academia at that time. Focusing on improvement of public service and social administration functions of the service-oriented government, the academia started to study how to establish the public service system. The Decision of the Central Committee of the Communist Party on Several Major Issues Concerning the Construction of a Harmonious Socialist Society discussed and passed by the six plenary session of the sixteenth central committee in October 2006 states that one of the priorities is to construct the service government and gradually establish a basic public service system for all the people”.

[2] Case No. (2004) H.E.Z.M.W.(Z) C.Z.No.140

[3] A series of administrative actions in 2018 with Case No. (2018) J.73.X.C.No.6385, 6386, 6387 and 6388 between the Chinese Welfare Lottery Issuance Center and the Trademark Examination Committee of the State Administration for Industry and Commerce against the decision of the Trademark Office to refuse the request for reexamination of the trademark application for the “two-color ball UNIONLOTTOdp and its graphic” under Classes 14, 18, 40, 42, 43, 44, etc.

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