In recent years, the development of Chinese style pop music is changing with each passing day, and the "opera x pop" style is becoming a new trend in the national style, which is defined by the media as "the popular entrance to Chinese opera culture" and is welcomed by many young people. Established in 2018, the "One Green Onion" team focuses on the integration and innovation of traditional opera and pop music, and has gained a high reputation in the industry because of the adaptations of works such as "Blue and White Porcelain", "Mortal Song" and original songs "Wild Waves" and "Xijing Yan". However, a year after the establishment of the team, a dispute arose over the ownership and use of the name "One Green Onion".
Recently, the Beijing Fourth Intermediate People's Court concluded the case in the second instance and ruled that the stage name "A Little Onion" belonged to the team producer Zhou Moucong, and the defendant cultural company should bear the tort liability for its name right. This case is a case involving the attribution of stage names, which has strong typical significance.
01. Brief introduction to the case
Since 2012, Zhou Moucong has published music works on many new media and music platforms under the stage name "A Little Onion" and "A Green Onion", which is derived from the homonym of his name "Cong".
In 2018, a cultural company signed a five-year contract with Zhou Moucong, agreeing that Zhou Moucong and the three contracted artists of the cultural company will form a team together, with Zhou Moucong as the producer to create "Beijing Opera + Pop" and "Chinese Style" form music works and sing by the company's three artists, the cultural company can use the name of "a small green onion" to promote and market the team's music works with the participation of Zhou Moucong. In the first year of cooperation, the two parties created musical works such as "Fenglingdu", "Jianghu Town", "Mei Zhou Lang" and "Ballad Tuo", and participated in the recording of a number of music variety shows, and the popularity of "A Little Onion" has been significantly improved.
After the end of 2019, the cultural company gradually arranged for three artists in Zhou Moucong's team to release musical works not created by Zhou Moucong in the name of "a small green onion" and "a small onion and a green onion", and his unauthorized use of the stage name involved in the case on other people's music works did not obtain Zhou Moucong's consent or authorization, so Zhou Moucong sent letters to stop it many times but failed to succeed. During this period, the cultural company also submitted a large number of trademark applications for "a small green onion" without authorization, but the trademark application was not approved due to Zhou Moucong's opposition. In order to protect his legal rights to his stage name, Zhou Moucong sued a cultural company to the court, requesting that a cultural company be ordered to stop using the stage name "One Green Onion", publish a statement clarifying that "One Green Onion" is Zhou's stage name on the homepage of the relevant platform, and compensate for reasonable expenses such as economic losses.
A cultural company believes that as a commercial company operating the "One Green Onion" team, filing a corresponding trademark application is also a commercial operation act to enhance and protect the brand value, and the contract between the two parties has not been terminated, and the company's use of the title "One Green Onion" to package, create, publicize and promote the "One Green Onion" music team should not be deemed to constitute an infringement of Zhou Moucong's name right.
02. Trial judgment
The court of first instance held that the contract between the two parties had not been terminated and was still within the validity period, so the cultural company's use of the title "One Green Onion" to package, create, publicize and promote the "One Green Onion" music team during this period should not be deemed to constitute an infringement of Zhou Moucong's right to the name, and Zhou Moucong could claim his corresponding rights against the unauthorized use of the stage name "One Green Onion" that might occur after the contract expired or was announced, and accordingly dismissed all of Zhou's claims.
Zhou Moucong was not satisfied and appealed to the Beijing Fourth Intermediate Court. The Fourth Intermediate People's Court held in the second instance that Article 1012 of the Civil Code stipulates that natural persons enjoy the right to a name and have the right to decide, use, change or permit others to use their names in accordance with the law, provided that they must not violate public order and good customs. Article 1017 stipulates that pen names, stage names, screen names, translated names, trade names, names and abbreviations of names that have a certain social reputation and are used by others to cause confusion among the public shall refer to the relevant provisions on the protection of the right to name and the right to a name. "A green onion" is Zhou Moucong with the homophone "onion" in his name "green onion" evolution, Zhou Moucong since 2012 in the field of Chinese style music using "green onion", "a small green onion" "a small onion onion" and other specific names to publish online music works, according to the evidence submitted can prove that it enjoys a high reputation in the field of national style music, so "a small green onion" in the field of national style music has the function of identifying specific natural persons, and Zhou Moucong can establish a stable correspondence, Zhou Moucong has the right to "green onion" "A small green onion" and "a small green onion" advocate the protection of the right to refer to the name.
As to whether the specific name of "a green onion" has been infringed, the Fourth Intermediate Court held that it depends on whether the cultural company does not have the right to use the stage name and is sufficient to cause public confusion. The contract involved stipulated that Zhou Moucong would permit the cultural company to use the name "One Green Onion" for the musical works created by Zhou Moucong during the contract period and approved by the cultural company. After the dispute between the two parties over the performance of the contract, Zhou Moucong did not provide music works to the cultural company, so the relevant musical works released by the cultural company in the name of the "One Green Onion" team after the end of 2019 did exceed the scope of the name permission agreement, and from the perspective of the feelings of consumers or the public in a specific field, it would also make people misunderstand that the musical works during the period were produced by Zhou Moucong as the manager of the "One Green Onion" team. Therefore, the second instance of the Fourth Intermediate People's Court held that the cultural company's publicity activities after the end of 2019 had infringed Zhou Moucong's rights to the specific name of "a small green onion", revoked the first-instance judgment, ruled that the cultural company published a clarification statement that the stage name involved in the case belonged to Zhou Moucong on the self-media platform, and compensated Zhou Moucong for economic losses of 30,000 yuan.
03. The judge's statement
As we all know, names are signs and symbols that distinguish us from others in our social life. The generation of names is of great significance to us, it is not only necessary for us to engage in social activities, but also has a certain identity function. As far as the legal meaning of the name is concerned, after a natural person has a name, he can use the name as a mark to distinguish himself from other members of society, enjoy rights and obligations, such as being able to sign contracts for himself, better protect his reputation, etc., and the Civil Code also makes clear provisions on the protection of the right to a name, such as Article 1014, which clearly stipulates that no organization or individual may infringe on the right to name or name of others by interfering, misappropriating, counterfeiting, etc. At the same time, it is worth discussing whether specific names such as pen names, stage names, screen names, and trade names that are derived from names can also be protected by law like names, and whether liability for infringement of such specific names is worth discussing.
Article 1017 of the Civil Code stipulates that pen names, stage names, screen names, translated names, trade names, names and abbreviations of names that have a certain social reputation and are used by others that are likely to cause confusion among the public shall be subject to the relevant provisions on the right to name and the protection of names. It can be seen from this article that although pen names, stage names and other names do not need to be registered by statutory authorities, these pseudonyms, stage names and other names can play the role of identifying and representing a natural person, legal person or unincorporated organization in many cases, and can reflect the personality characteristics of civil subjects. If these names are abused or confused by others, they will also damage the personal dignity of natural persons and cause damage to the civil subject. Therefore, the protection of such names is conducive to better protecting the personal interests of civil subjects. However, not all pseudonyms, stage names and other names should be protected, and such names will only be protected by law if they meet two conditions: first, they have a certain social reputation or are known to the relevant public; Second, it is used by others enough to cause public confusion.
In real life, some writers and artists often replace their real names with pen names and stage names, which are even more well-known to society and the public than their real names. Based on this, Article 1017 of the Civil Code adds new protections for pen names, stage names, and screen names. Through the accurate application of this provision, this case explored and established the protection path of specific names such as stage names as the concept of name derivation, and effectively safeguarded the legitimate rights and interests of the infringed. At the same time, it should also be noted that, considering the considerable commercial value behind specific names such as pen names and stage names, when signing a contract, the right holder of a specific name such as a pen name or stage name should make clear, legal and reasonable agreements with the counterparty on the use, maintenance and distribution of the value generated by the specific name, so as to avoid the occurrence of relevant disputes as much as possible. If an infringement dispute arises, the relevant rights holder may protect its legitimate rights and interests through legal and effective remedies in accordance with the provisions of the contract and relevant evidence.