"Fairytale King" caught in a tug-of-war for rights protection
How to strengthen the "fence" of trademark protection
◎Reporter He Xinghui
Protection of intellectual property rights and prohibition of abuse of intellectual property rights are like the two sides of a coin. They are both for the intellectual property system to truly promote social development. Only the awareness and concept of "strict protection" and "abuse of abuse" can eradicate malicious cybersquatting. The act of trademarks.
A few days ago, the fairy tale king Zheng Yuanjie publicly announced that he would stop writing the monthly magazine "The Fairy King" and devote himself to protecting the rights of the three trademarks "Pipiru", "Shu Ke" and "The Fairy King".
Over the past 36 years, 495 issues of "The King of Fairy Tales" have been published, with a total of more than 200 million copies printed, affecting millions of readers.
But what bothers Zheng Yuanjie is that many of his characters and the 4 words "Fairy Tale King" frequently encounter malicious cybersquatting. After years of hard work, there are still 672 infringing trademarks waiting to be protected.
Rights protection tug-of-war exposes imperfect trademark protection
His academic performance is not good, and he is not the kind of good boy that the school teacher likes, but he is kind-hearted, just and brave, and has a story in him-the Chinese boy described by Zheng Yuanjie is called Pipiru.
In 1985, with the launch of "The King of Fairy Tales", a large number of literary characters such as Pipiru, Luxisi, Shuke, Beta, etc., became famous with Zheng Yuanjie's fairy tales, which influenced generations of children.
However, after a few years, who would have thought that these characters were all registered as trademarks: "Pipiru" became pigskin meat, "Suke" turned into an underwear brand, and "Fairy King" became the flagship of children's clothing e-commerce shop.
On the road to defending rights in these years, Zheng Yuanjie was almost alone in "fighting".
He memorized the "Copyright Law" and the "Trademark Law" thoroughly, and even risked his life to obtain evidence to defend his rights, but his "records" were not outstanding: in 20 years, there were 672 trademarks, of which only 16 successfully defended their rights.
In an interview with the media, Zheng Yuanjie revealed that, on average, it takes 6 years to "take down" a disputed trademark and cost about 90,000 yuan.
Among them, the "tug-of-war" for the rights of the three trademarks of "Pipiru", "Suck" and "Fairy Tale King" has been going on for several years.
Take the protection of the "Pipilu" trademark as an example. After Zheng Yuanjie filed a lawsuit, the trademark of the sued company was initially ruled to be invalid.
Later, the trademark registrant filed a lawsuit in the Beijing Intellectual Property Court and sent it back for retrial. After the relevant review agency ruled that the trademark can be used, Zheng Yuanjie continued to sue...Because of the twists and turns of the rights protection process and no final victory, Zheng Yuanjie was exhausted.
“This exposes the imperfections in the protection of trademarks in my country. Although the trademark law has provisions on the protection of prior rights, it is not perfect.” Pan Helin, executive dean of the Institute of Digital Economy, Zhongnan University of Economics and Law, said that most of our country Trademark ownership is still registration as the only requirement for obtaining rights, rather than "actual use" and "true intention."
However, the international protection of prior rights has become a general trend. In foreign countries, as long as the earliest user can prove that he has used it earlier, he can apply for cancellation even if the trademark has been registered for many years.
Attorney Yu Qingkai, director of the Intellectual Property Professional Committee of the Guiyang Lawyers Association of Guizhou Province and a senior partner of Beijing Yingke (Guiyang) Law Firm, believes that the purpose of using the names of people to preemptively register the names of people with a certain degree of influence into their own trademarks To promote their own goods or services, this is a kind of malicious subjective and does not have legitimacy.
Judging from judicial practice, such peculiar phrases such as "Pipiru" and "Shuke" were originally created by the right holder. It stands to reason that the right holder should enjoy the copyright, but there is no corresponding right attribution in the current legal system. And protection basis.
"Blacklist" may not be able to stop the trend of malicious squatting of trademarks
In 2020, there are approximately 13.4 million trademark applications worldwide, and China ranks first in the world with approximately 9.3 million trademark applications by category.
According to preliminary statistics, as of the end of the third quarter of 2021, there were 34,300,631 valid registered trademarks nationwide, an increase of 6,920,766 over the same period of the previous year, an increase of 25.27% over the same period of last year.
But in stark contrast, cybersquatting is rampant.
The suddenly popular teenager Ding Zhen was "snatched" and the great power tool "Sky Eye" turned into a pack of cigarettes. Even "Zhong Nanshan" and the Olympic athletes were spotted.
In recent years, wave after wave of "hot spot" trademark news has been frequently searched.
This phenomenon of following the trend of cybersquatting, in fact, has
Come to the opposite of meaning.
With the increasing number of "hot spot" trademark registrations, one after another registered trademarks is ridiculous.
Those registered trademarks, hoarded or sold, are often unimaginable high transfer fees and usage fees, and may even promote malicious cybersquatting to become a gray industrial chain-the registration fee only costs a few hundred yuan, but If the squatting trademark is a well-known person, it may involve subsequent transfers, which can earn hundreds of times or even tens of thousands of times.
Fortunately, the State Intellectual Property Office and related administrative law enforcement agencies usually adopt batch rejections for hot incidents and malicious cybersquatting by people.
For example, after the Chinese Olympic Committee called to stop the "malicious registration of trademarks", the State Intellectual Property Office issued a notice on its official website, rejecting 109 trademark registration applications such as "Yang Qian", "Chen Meng" and "Quan Hongchan".
The "Management Measures for the List of Seriously Illegal and Untrustworthy in Market Supervision and Administration" officially implemented on September 1 last year clarified that if a malicious trademark registration application harms the public interest, it will be included in the "List of Seriously Illegal and Untrustworthy."
Can this move the evil trend of malicious squatting of trademark registration in an instant?
In response, Pan Helin stated that, according to the Trademark Law, malicious squatting of trademarks belongs to the category of infringement, not the category of administrative punishment.
The severely dishonest list has a certain deterrent effect on trademark squatting, but there is still a problem of malicious squatting.
In judicial practice, there are currently no clear provisions on the elements of prior rights, improper means, and other squatting determinations, and the determination of subjective maliciousness is also controversial.
Therefore, listing on the list of dishonesty is only a reference model. The key is to clarify the legal boundary of malicious squatting of trademarks and increase the penalties for malicious squatting of trademarks.
Let the rule of law become a "fence" for trademark protection
Last year, the State Intellectual Property Office issued a notice specifically declaring a special action to crack down on malicious cybersquatting.
Among them, malicious rush to pay attention to the names of major technology projects that caused greater adverse social impact, malicious squatting of works or character names with higher reputation, etc., are all listed as targets of the crackdown.
The State Intellectual Property Office stated that it will strengthen overall coordination, expose typical cases, illegal individuals, enterprises and agencies in a timely manner, and promptly hand over to local law enforcement agencies for punishment of bad situations, and provide fair competition, innovation and conscious resistance for various market entities Malicious squatting of trademarks creates a good legal environment, market environment and social environment for intellectual property rights.
The "Guidelines for Building a Powerful Intellectual Property Country (2021-2035)" proposes that by 2035, my country's comprehensive intellectual property competitiveness will rank among the top in the world, and it will basically become a world-level intellectual property power with Chinese characteristics.
In the future, as my country's protection of intellectual property rights becomes stronger, the high-pressure situation of malicious squatting of trademark registration will become a new normal.
However, in recent years, a behavior under the banner of intellectual property protection is worthy of vigilance.
From the recent Sichuan restaurants being sued for infringement for the use of the words "green pepper" in the name of the dish, to the previous rights protection incidents of "Tongguan Roujiamo" and "Xiaoyao Town Hu spicy soup", the degree of trademark protection and the scope of protection have aroused public enthusiasm. Discussion.
In the opinion of some industry insiders, the protection of intellectual property rights and the prohibition of abuse of intellectual property rights are like the two sides of a coin. Both sides are to enable the intellectual property system to truly promote social development. Only the awareness of "strict protection" and "prohibition of abuse" Concepts can eradicate malicious squatting of trademarks.
It is imperative to use the rule of law to "stop leaks" for trademark protection.
Zheng Yuanjie suggested on Weibo that the Trademark Law should add a new clause: Registering trademarks of well-known literary character names and titles created by others within the copyright protection period must be authorized by the original author, and registered trademarks must not infringe the copyrights of others.
Attorney Yu Qingkai also suggested that legislation should be improved to protect the fair use of trademarks.
He said that from the perspective of trademark registration, the author did not apply for trademark registration for the role name and title of his work in time, which will cause difficulties for subsequent rights protection.
But on the one hand, it takes time and cost to register a trademark. On the other hand, if the current trademark law is not a registration for the purpose of use, it will be recognized by the intellectual property department as a malicious hoarding of trademarks and may be subject to administrative penalties. From this perspective In other words, there are certain legal risks for the author to apply for trademark registration for the role of his own work.
Therefore, this kind of role names and titles should be clarified as a new type of intellectual property rights, or the scope of copyright protection should be expanded to include previously used role names and titles of certain influence.
The industry believes that the "fence" of intellectual property protection can be further strengthened.
People expect that the "plugging" of the rule of law will allow some speculators to have no loopholes.