Mascot "Deer Baby" infringing registered trademark "White Deer Baby"?

Registered trademark "White Deer Baby"

Wendu reporter Wang Xiongtao

Wendu News One is a trademark registered by a cultural company, and the other is the mascot of the 14th Universiade in Zhejiang Province, two things that were not originally related, but recently they have been involved. Because both of them are based on cartoon deer as graphics, the former trademark name is "White Deer Baby" and the latter is called "Deer Baby". The "White Deer Baby" trademark registration unit believes that the mascot "Deer Baby" constitutes infringement against it. In this regard, the designer of the mascot "Luwa" said that the design idea came from his own imagination and did not refer to other works.

Culture Company: The mascot "Luwa" constitutes infringement against us

Mr. Ma, head of a cultural media company in the city, said that the mascot "Luwa" released by Wenzhou University for the 14th Zhejiang Provincial Universiade, whether in appearance or name, is very similar to the company's previously registered trademark "White Deer Baby", so he believes that the other party has infringed their trademark rights.

Accordingly, Mr. Ma presented two trademark registration certificates: one registration certificate contained a cartoon character named "White Deer Baby", the registration period was from April 7, 2014 to April 6, 2024, and the approved use of goods (Class 28) included toy balloons, toys, toy doll clothes, etc.; the other registration certificate had a registration validity period from January 21, 2014 to January 20, 2024, and the approved service items (Class 41) included education, organization of educational or recreational competitions, etc. The other content is basically the same as the former.

The reporter took two cartoon patterns for comparison, and found that the images were based on a deer with horns as a prototype, with similar appearance, but careful observation of antlers, head ornaments, eyes, arms, body shape and running posture are not the same. In this regard, Mr. Ma said that although some details are different, the overall similarity has reached 90%, and even the meaning of the image interpretation is basically the same, which has constituted infringement.

Mr. Ma believes that the Zhejiang Provincial University Games belong to the service specified in the registration certificate: the organization of educational or recreational competitions. Although the University Games itself is not profitable, when the Mascot of the Games is made into a toy and sold to the outside world, it will produce profitable behavior, which will also constitute infringement.

Wenzhou University: If the other party believes that it is infringing, it can contact the university

The designer of the mascot "Luwa" is Shen Teacher of the School of Fine Arts and Design of Wenzhou University, who said that the design idea comes from the story of the white deer latch flower when Wenzhou was built. The whole figure is based on a running deer as the prototype, which not only symbolizes Wenzhou as the pioneer area of China's private economy and the forefront of reform and opening up, but also reflects the spirit of college students' struggle and youth vitality.

"The fawn is as cute as a child, so it is named 'Deer Baby'", Teacher Shen said, these are his own imaginative ideas, he did not refer to other works, and did not know that there is such a trademark as "White Deer Baby".

In this regard, the relevant person in charge of the Propaganda Department of Wenzhou University said that the Zhejiang Provincial University Games was held for the first time in Wenzhou University, for this reason, the school collected emblems, songs and mascots from the society, selected excellent works among thousands of applied works, and finally determined that the mascot was the "deer baby" designed by Teacher Shen.

The person in charge said that they did not believe that the mascot "Luwa" constituted infringement against "White DeerWa". "First of all, the story of the white deer bit flower is the cultural wealth of the citizens of Wenzhou, and we cannot name the mascot 'Deer Baby' because the trademark registered by the other party is called 'White Deer Baby'; secondly, after careful comparison, we found that the two patterns are different in many details, and we cannot design based on the deer because the other party's design graphic is a fawn."

The person in charge believes that the cultural media company is suspected of speculation. If the other party believes that it constitutes infringement, it can report it to the school in accordance with normal procedures, and the school will communicate with it and properly handle the issue.

expert

Tell you

Visiting Professor of Wenzhou Intellectual Property Institute

Yang Wenguo

constitutes a similar trademark

Whether or not to infringe

It depends on the specifics

From the perspective of the use of goods and services, the mascot toy is the same as the 28th class of goods approved for use by the "White Deer Baby", and the mascot used for entertainment competitions at the Universiade is the same as the service on the 41 classes approved for use by the "White Deer Baby", which constitutes a similar trademark on the same kind of goods.

If Wenzhou University distributes "Luwa" toys free of charge only to promote and publicize the Games, this act is not a commercial use within the meaning of the Trademark Law, so it does not constitute trademark infringement in Article 57 of the Trademark Law; however, if it exceeds the scope of the Promotion and Publicity Games and sells the "Luwa" toys, it will constitute an infringement of the exclusive right to use the "White Deer Baby" trademark of Class 28 of the Cultural Company. There is some controversy as to whether the "Luwa" mascot infringes the exclusive right to use the trademark of the 41st class of the cultural company.

From the perspective of copyright, if Mr. Shen of Wenzhou University can submit evidence that the creation of "Luwa" works was completed earlier than the trademark application time of "Bailuwa", the trademark of the cultural company can be invalidated in accordance with Article 32 of the Trademark Law, "Applying for trademark registration shall not harm the existing prior rights of others". Similarly, the cultural company can also claim whether Mr. Shen infringed his copyright according to the order after the creation of his work was completed.