(By You Yunting) Recently stock markets have heightened topics about mobile game and serious competition disputes of intellectual property rights (the “IPR”) between China mobile games enterprises are often appeared in the newspapers. According to the reports, Beijing Chukong Inc., the developer of popular “捕鱼达人”(Fishing Joy) mobile games, was engaged in a controversy of IRP because earlier in December the Guangzhou-based SEALY Technology suspected Beijing Chukong Inc.’s “捕鱼达人”(Fishing Joy) of plagiarism on its arcade game product “捕鱼达人”. In response, Beijing Chukong Inc. alleged that: first, the online time of its “捕鱼达人”(Fishing Joy) was earlier than that of SEALY Technology and its mobile game had been reported to the Ministry of Culture. Second, Beijing Chukong Inc. owns the “捕鱼达人”trademark. Third, there are significant differences in art images and playing methods between two products.
On one hand, we cannot decide the rights and wrongs of this dispute because we are not parties. On the other hand, we could explain several legal problems about this dispute.
1. What’s the difference of IPR protection between Mobile Game and Arcade Game?
First, define a legal concept. Mobile Game refers to a game applied and played on smart phones and tablet computer while Arcade Game is a coin-operated entertainment game usually installed in public businesses. Whatever Mobile Game or Arcade Game is both software products. Both contents and names of the two Games shall be respectively protected by the Copyright Law and the Trademark Law.
There is, however, a main difference of the IPR protection involving the classification for each Game. In the Distinction Table for Similar Commodities and Services, Arcade Game shall receive protection of Class 9 for single games but Mobile Game shall be protected under Class 41 for game services provided on-line from a computer network. By the way, the hardware of Arcade Game constituted protection of Class 28 for games other than those adapted for use with television receivers only (Apparatus for electronic-), which protects hardware brands, not software brands.
2. Who owns the trademark of “捕鱼达人” (Fishing Joy) on earth?
In Beijing Chukong Inc.’s response that it owned the right to use the “捕鱼达人” trademark, upon our research on the official website of the Trademark Office, the first registrant of the “捕鱼达人” trademark under Class 9 and Class 41 is a company named Pook City Network Technology (Shanghai) Inc. (the “POOK”). According to the record, POOK applied for the “捕鱼达人” trademark on March 29, 2011, earlier than April 11, 2011 of Beijing Chukong Inc. Even though POOK’s “捕鱼达人” trademark was opposed into the procedure of a review by the Trademark Office, the record of the Trademark Office also demonstrates that the Beijing Chukong Inc.’s application is invalid.
Even though there may further two administrative lawsuits in Beijing No.1 Intermediate People’s Court and Beijing Higher People’s Court after the opposing procedure, in our experience, if POOK applied for the disputed trademark in which Beijing Chukong Inc.’s “捕鱼达人“ mobile game yet had not gained high awareness of the public, POOK may still be approved for the registration of the disputed trademark. At the moment, for Beijing Chukong Inc that is preparing to make a stock market listing, if its major brand is another’s, even though another may not sue Beijing Chukong Inc., potential risks enforces existing.
3. Will playing methods of games be under protection?
SEALY Technology suspect includes Beijing Chukong Inc.’s plagiarism on its arcade game. Whether the plagiarism on playing methods is illegal is another question. If Beijing Chukong Inc.’s mobile game was copycatted from the SEAL Technology’s copyrighted program and images, such plagiarism constituted copyright infringement in accordance with our Copyright Law. Just like Beijing Chukong Inc. said the playing methods are similar to that of SEALY Technology, it does not constitute copyright infringement. Because the idea-expression dichotomy principle is a most important principle of protection in the Copyright Law. Based on it, playing methods involve into idea and specific program and works of fine arts belong to expression. If there is a same idea with different expressions, there is no copyright infringement.
4. What kinds of approval shall apply for mobile game?
Beijing Chukong Inc. argued, in response, that it obtained approval from the Ministry of Culture. Actually, on one hand, the Ministry of Culture has loosened the approval for mobile game in this year that any internet entity holding an Internet Culture Business License within qualified reviewers to examine the contents and services of online game may be entitled to self-examine the contents without approval. On the other hand, from the distribution channels, there are two platforms for releasing a mobile game: Apple Inc.’s iOS Platform and Google’s Android Platform. The former one is issued overseas without any approval. As for the latter Android Platform, there are many Apps’ distribution platforms such as 91, 360 and Mumayi Market. If issuing a mobile game in China, the issuers have the obligation to examine the contents of a mobile game。
5. Is the name on copyright registration relevant to brand protection?
Many Internet entities will apply their gaming software for copyright registration due to the important role of copyright registration in China. First, there is a demand for copyright registration certificate on all distribution channels. Second, combining a copyright registration certificate with software test report, the Internet entities can make a registration of software products so as to receive tax benefits. However, where the Internet entity may be entitled to choose a name to register its software, the registration authority will not review software information. Actually, a copyright registration certificate presents that one once registered the software and cannot play a role of brand protection. In case that any internet entity protects its exclusive right of its software name, the only way is to register the software name as a trademark.