Welcome to IP Dragon’s Monthly Roar, your roundup of IP news in China. Written by IP Dragon’s brand new reporter “IP Lion”. In this IP Dragon’s Roar, Tsuburaya prevails in Shanghai IP Court, Green Sichuan Pepper was held generic, minors used as boosters of King of Glory, the Supreme People’s Court decided in the protracted The Legend case.
Good News for Animation Fans: Shanghai IP Court Verdict In Favor of The Japanese Producer’s Claim to Protect Its Ultraman Images With a Remedy of RMB2.5 million [IP Lion]
The IP disputes between the producer of the famous Japanese animation “Ultraman” series, Tsuburaya Production Co., Ltd. (the plaintiff, “Tsuburaya”), and a group of Chinese companies (the “defendants”) was dropped in the end after an appellate decision by the Shanghai Intellectual Property Court in January 2022. The court found that the abovementioned defendants had previously inserted in their commercial an animation which included the “Ultraman” and “Ultraman Jack” characters of Tsuburaya, which resulted in a profit for the defendants. The court thus identified the insertion by the defendants as constituting copyright infringement, and decided that the defendants had to jointly publish a statement for 10 consecutive days on Youku (www.youku.com) and Tudou (www.tudou. Com) with the intention of eliminating the adverse effects caused to the Tsuburaya by their torts, while placing a statement of the same content on their corresponding Sina Weibo and Wechat accounts, for 30 consecutive days respectively, with RMB2 million compensation to Tsuburaya.
Japanese animation is one of the collective memories of the generation born after 1980, but compared with US cartoon characters (like those of Disney and Marvel, etc.), Japanese animation characters have lagged in claiming their IP rights in China, and therefore, the abovementioned court decision involving Ultraman marks the success of renowned Japanese animation characters gaining domestic protection of intellectual property in China.
With this incentive, will more Japanese animation characters claim their IP rights in China?
News sources (in Chinese): https://mp.weixin.qq.com/s/FF3vaRM-23ngVGyw9YxeZg
Court judgment (in Chinese): http://www.hshfy.sh.cn/shfy/gweb2017/flws_view.jsp?pa=adGFoPaOoMjAyMKOpu6Y3M8Px1tU1NDS6xSZ3c3hoPTMPdcssz
From The Hometown of Spicy Hotpot: The Sichuan High Court Held That Hotpot Stores’ Use of “Green Sichuan Pepper” In Their names Does Not Constitute Trademark Infringement [IP Lion]
Spicy food enthusiasts shall not miss this news: the eye-catching dispute of trademark infringement of “green Sichuan pepper” has ended by an appellate decision of the Sichuan High Court in January 2022.
According to Sichuan High Court, the “green Sichuan pepper (青花椒)” identification used on the brand of hotpot shops did not constitute an infringement of trademarks. The Sichuan High Court held that green Sichuan pepper, the generic name used to refer to the condiments, has a long culinary history in the Sichuan region, while the natural association and delicate boundaries between catering services and dish seasoning products have greatly reduced the significance of this vocabulary. The use of “green Sichuan pepper” on the brand of hotpot shops is not yet able to significantly differentiate the word from the green Sichuan pepper usage in general awareness, and at the same time consumers do not misrecognize and confuse the defendant who operated in Sichuan and the plaintiff who operated primarily in Shanghai, and therefore the plaintiff’s use does not constitute an infringement of trademarks.
The aforementioned series of “green Sichuan pepper” trademark rights protection cases initiated by the plaintiff were filed as early as 2017, and most of them were litigated in 2021, with defendants involved from all over China and most of them were in Sichuan. As a company with principal business places in Shanghai, the plaintiff’s actions aroused the anger and disagreements of many Sichuan food lovers. In their eyes, the decision from the Sichuan High Court becomes the interesting ingredient of this spicy litigation dish.
Did this hot IP news wet your appetite? IP Dragon’s Roar has more for you. Bon appetite!News sources (in Chinese):
https://news.sina.com.cn/c/2022-01-17/doc-ikyamrmz5693223.shtml
http://scfy.chinacourt.gov.cn/article/detail/2022/01/id/6483727.shtml
A Stumbling Block For The Trendiest Mobile Game? A Shanghai District Court Verdict An Immediate Cessation on Apps’ Function of Allowing Minors to Be A “Booster” of The Game “King of Glory” (“王者荣耀”) [IP Lion]
“Boosters” are those people that conduct the upgrading, practice, acquisition of equipment, and other services in online games for the game account holder who pays them with a commission for their services. Because it involves the risk of theft of the game account and disobeys the account management policy of game companies, the boosters mainly work on third-party platforms outside the game reach service with customers on these platforms.
In China at the moment, the trendiest mobile online game is “王者荣耀” (King of Glory), a multiplayer online battle arena (MOBA) game produced by Tencent. Without a doubt, this trendiest MOBA game is targeted by massive booster platforms, where they even allow minors to be a booster.
However, the Pudong District Court of Shanghai made a pre-filed decision in January 2022 on behavioral preservation, ordered the “Power Levelling Help” (“代练帮”) app operated by the Beisheng Company to immediately stop the recruiting and using minor boosters for the game “King of Glory” (“the involved game”), and the “2345 Company” immediately stopped providing the Power Levelling Help app at its “2345 mobile phone assistant” until Beisheng Company stopped the minor’s booster service.
In this case, applicant Tencent claims that it is the copyright holder of the involved game and exclusively operates the game. According to China’s requirements for protecting minors, Tencent applied a system of real name and anti-addiction measures in the involved game, minors are only able to play between 20:00 to 21:00 on Fridays, Saturdays, Sundays, and legal holidays. Apart from these measures, the game service agreement of the involved game also defines that the game user must not provide their game account number to others to do booster-like activities of a commercial nature.
Beisheng Company operates the Power Levelling Help app in the form of “billing cash” and setting up a special category for the involved game to solicit and encourage minors to use their platform to do booster business commercially and thus the minors could avoid the regulation of the anti-addiction system.
This appeal was supported by the court. The court held that the Power Levelling Help app also made it possible for users to bypass the real name and anti-addiction measures, which resulted in compromising the game experience, legitimate interests of other players, and the public interest of protecting minors.
News sources (in Chinese):
https://finance.sina.com.cn/chanjing/gsnews/2022-01-05/doc-ikyakumx8414052.shtml
https://www.sohu.com/a/514551119_116237
Good News For The First Generation of PC Online Game Player in China: Supreme People’s Court’s Verdict Ended The Protracted IP Disputes of “The Legend” [IP Lion]
As one of the collective memories of China’s first generation of online enthusiasts, the large multi-person online role play game the Legend of Mir 2 (“The Legend”), profoundly influenced the development of the game industry in the two decades.
The Korean-based Actoz Soft and WeMade Entertainment originally developed independently as two shared copyright holders of The Legend. But starting from 2016, WeMade successively and independently authorized The Legend to a series of enterprises and established an IP company of The Legend.
Besides that, WeMade also took litigation actions against Actoz Soft. On 30 June 2017, Actoz Soft extended the software license agreement of The Legend to 28 September 2023. WeMade contended that the extension infringed its rights and therefore filed a suit in Shanghai requesting that this extension was ineffective and claimed reimbursement of RMB 1 million. Later, on 23 January 2018, the Shanghai International Arbitration Center determined that Actoz Soft’s extending agreement was effective. WeMade, however, still insisted on the grounds of the agreement’s violation of its rights, bringing proceedings at multiple Chinese courts.
Eventually, in January 2022, the Supreme People’s Court rendered a final decision that the Actoz Soft’s extending agreement was non-tortious and that the conduct of WeMade (using the notice to instead of negotiation, hiding the information of transaction parties and promoting new license holder independently, etc.) infringed Actoz Soft’s legal interests.
WeMade’s behavior (even when arbitration and low-level litigation had already ruled that its behavior was infringing, still filed lawsuits in many Chinese courts to try to proof the other party’s infringement) has many followers in the market. However, pursuing the trial principle of “same case and same judgment” in today’s China, the Supreme People’s Court’s precedent has put a lid on this kind of behavior in the game industry.
News sources (in Chinese):
https://m.21jingji.com/article/20220111/herald/b4f12ba5086cf0e354968969579f4fb1
htmlhttp://www.iprchn.com/cipnews/news_content.aspx?newsId=132731