Isn't the film red much?
Recently, the popular movie "Chosin Lake"
Caught in the storm of trademark and copyright infringement.
On October 12, on the 13th day of the release of the movie "Chosin Lake", the box office has exceeded 4.25 billion, temporarily ranking 6th in the total box office list of mainland film history. Some people predict that "Chosin Lake" will reach 5.5 billion at the box office, although the final box office is still unknown, but the confirmed information is enough to make this movie extraordinary - "Chosin Lake" has now broken 26 records in film history.
However, along with the huge flow of "Chosin Lake", in addition to honor, there is also an infringement storm. Recently, a netizen who called himself "Director Hao Ping" posted a video saying that the movie "Chosin Lake" violated the trademark rights of others, and posted a trademark registration certificate printed with the three words "Chosin Lake" and a work grade certificate named "Ice and Snow Changjin Lake".
This move has aroused the disgust of many netizens, and even dismissed it with comments such as "obviously touching porcelain". But the truth is probably not so simple. In addition, before the release of the movie "Chosin Lake", the preemptive registration fever of "Chosin Lake" has become a hot topic in the media, which shows that the problems encountered by the movie "Chosin Lake" at least wake up for the intellectual property protection of the film and television industry: as soon as possible layout.
Don't laugh at the porcelain
"'Chosin Lake' is accused of trademark infringement, and it cannot be laughed at with 'touching porcelain'." On October 12, China Press, Publication, Radio, And Telegraph (net) published an article commenting on the matter.
Previously, more netizens believed that netizens who called themselves "Director Hao Ping" were rubbing heat. A senior lawyer's post in the circle of friends is one of the representative views and has been widely quoted: "The heat of rubbing should also have a bottom line, and the heat of the great battle of rubbing Chosin Lake with the trademark of Chosin Lake is very difficult to accept." Trademark rights also have a scope of application, and the indiscriminate exaggeration and distortion of the interpretation of trademarks will bring unnecessary confusion and misleading to the public, which is worrying. ”
However, it is undeniable that there is indeed an indisputable fact of prior rights. The "other" in the mouth of "director Hao Ping" is Beijing Jiadian Water Culture Media Co., Ltd. It is understood that on October 29, 2020, it submitted an application for trademark registration of "Chosin Lake" and obtained a trademark registration certificate on July 14, 2021, and the international classification involves class 41 education and entertainment, including "film production other than advertising films", "film screening", "film distribution" and so on. According to Article 57 of the Trademark Law, the use of a trademark identical to its registered trademark on the same kind of goods without the permission of the trademark registrant is an infringement of the exclusive right to use a registered trademark.
But this does not mean that the movie "Chosin Lake" is suspected of trademark infringement. Dong Binghe, a professor at soochow University's Wang Jian Law School, said in an interview with a reporter from the "Rule of Law Daily" that legally speaking, Changjin Lake can now be recognized as a foreign geographical name known to the audience, and in the absence of other meanings, it cannot be used as a trademark according to the second paragraph of Article 10 of the Trademark Law. At the same time, the use of "Chosin Lake" as the name of the film is a description of the place where the story told by the film takes place, but in fact does not play a role in distinguishing the source of the goods, and does not constitute a use in the sense of trademark law. Therefore, it does not constitute an infringement of the exclusive right to use a previously registered trademark. A movie is neither a commodity nor a service, and a trademark is a sign that distinguishes the source of goods or services, that is to say, the use of the three words "Chosin Lake" in the movie "Chosin Lake" is not a use in the sense of the Trademark Law. Moreover, the trademark "Changjin Lake" registered by Beijing Jiadian Water Culture Media Co., Ltd. is 41 classes, and 41 classes are film-related services, not the film itself.
Dong Xiaomeng, manager of the trademark department of Hankun Law Firm, also holds the same view. "The film name 'Chosin Lake' comes from the name of the war site, indicating that the battle took place in the Chosin Lake area, and consumers will have a certain understanding of the background of the story when they see the movie name, in fact, Chosin Lake does not play a role in representing or pointing to the source of goods or services, that is, the movie name "Chosin Lake" is a non-trademark use, so it does not involve trademark infringement."
In terms of alleged copyright infringement, Tao Xinliang, honorary dean of the School of Intellectual Property of Dalian University of Technology and distinguished professor, gave the view that the name of the work registered by Hao Ping is "The Story Outline of "Ice and Snow Changjin Lake", and there is no evidence similar to the content of the film. Moreover, from the perspective of the application time, the suspicion of copyright and registered trademark infringement is also excluded.
The precedent of many disputes
In any case, this storm has also raised a wake-up call for trademark protection in the film and television industry.
For film and television producers, on the one hand, they must respect the intellectual property rights of others and fulfill reasonable duty of care; on the other hand, they must protect their rights, register trademarks at the film shooting or planning stage, and provide legal protection for films and their derivatives.
Similar lessons are not uncommon in the film and television industry. In August 2015, after the release of the movie "The Legend of Xuanyuan Sword", Daewoo Information Co., Ltd. sued the producer in court, believing that the other party had infringed the exclusive right to use its "Xuanyuan Sword" registered trademark. After the first instance and appeal, in October 2019, the Beijing Intellectual Property Court rendered a final judgment, ordering the defendants to immediately stop the unfair competition of using "The Legend of Xuanyuan Sword" as the title of the film, and to compensate Daewoo for economic losses and reasonable expenses of 65,000 yuan.
In 2019, Wang Mou sued Beijing Happy Twist Film Co., Ltd., the screenwriter and producer of the movie "The Richest Man in Xihong", to the court on the grounds that the copyright and other rights of his "Property Heirs have money" were infringed. The case lasted two years, and in the end, the court of second instance found that Wang's alleged infringement was not established.
In order to avoid unnecessary disputes, many producers began to lay out intellectual property rights before the release of the film, such as: "Young You", "Assassination of a Novelist", "Hello, Lee Huan Ying", "Detective Chinatown" and other movies have been registered as trademarks long before the release.
There are even film producers who have been laid out to the point of being called "crazy". For example, after "Nezha's Reincarnated Magic Child" became popular, the producer Guangguang Media has submitted as many as 1820 trademark registration applications, most of which are related to the "Nezha" movie, including the character names of the magic child Nezha, the demon child of Nezha, Mrs. Yin, Boiling C, MOTONEZHA and many other film stories. This behavior of light media once caused a lot of controversy. Proponents argue that the producer's application for a registered trademark for its products is beyond reproach, while opponents point out that a large number of registered trademarks are suspected of hoarding in a short period of time, and that Nezha himself is a well-known mythological figure, and whether it is reasonable to be monopolized.
Pre-layout prevents backorder
In a sense, this is probably also the result of the frequent occurrence of "squatting" of well-known IP in the film and television industry.
According to the "China Film Box Office" app of the National Film Special Funding Office, in 2020, the total box office of Chinese mainland films has reached 20.274 billion yuan. The boom in the film market has also led to an increase in cases of unfair competition over intellectual property rights, most commonly copyright and trademarks.
The incident of pirate registration of the name of the blockbuster movie occurs from time to time, and "Wolf Warrior" and "Hello, Li Huanying" have all encountered similar incidents. The "Chosin Lake" is also the object of preemptive registration, and the reporter retrieved 28 "Chosin Lake" trademark applications on the China Trademark Network on the evening of October 12. Among them, the producer of the movie "Changjin Lake", Bona Film Group Co., Ltd., has 3 cases, which are 41, 28 and 16 categories, which were applied for on September 24, 2021; Beijing Jiadian Water Culture Media Co., Ltd. is 4 cases, which are 9 and 11 categories applied on December 28, 2020, and 41 and 35 categories applied on September 24, 2020.
The two coincide on 41 classes. Dong Binghe told reporters that Beijing Jiadian Water Culture Media Co., Ltd. has been approved to register the "Changjin Lake" trademark on the 41st class of services, which constitutes a legal obstacle for Bona Pictures to register the "Changjin Lake" trademark on the 41st class of services.
"Bona Pictures' trademark application has certain difficulties, because there is an earlier trademark, and according to the trademark administrative examination process, it may be blocked by the prior trademark." Dong Xiaomeng said.
Dong Xiaomeng suggested that the film and television industry can lay out the trademark first, in fact, the main purpose of the layout of the trademark is to prepare for the launch of peripheral products in the later stage, or to prevent others from rubbing the heat of the film name in the future and making profits.
Back to the "Chosin Lake" infringement storm, according to media reports, 4 days after the start of Bona Pictures' movie "Chosin Lake", other companies applied for the "Chosin Lake" trademark registration and seized the first rights. And if it is true that because there is already the same trademark in the relevant category, Bona Pictures' trademark application is rejected, then it is undoubtedly a big regret for Bona Pictures, which has invested a lot of effort in the production of the movie "Chosin Lake". Other film and television production companies should learn from this.
However, we must also pay attention to avoid exaggerating the risks excessively, Dong Xiaomeng reminded, "If it is only the title of the film itself, there is no absolute necessity to lay out the trademark, the fundamental reason is the independent title itself, which is not a trademark use."
The author | Zhang Wei, an all-media reporter of the Rule of Law Daily
Source: Rule of Law Daily