Chinanews.com, August 26th (Song Yusheng, a reporter from China-News Finance and Economics) "I thought it was Bruce Lee at first sight" "I always thought it was authorized"...
The case of Bruce Lee's daughter v. Real Kung Fu Fast Food was held in Shanghai on August 25, which once again sparked discussions among netizens.
According to previous reports, in 2019, Bruce Lee Enterprises, LLC (Bruce Lee Co., Ltd.) sued Shanghai Real Kung Fu Fast Food Management Co., Ltd., Guangzhou Real Kung Fu Catering Management Co., Ltd., and Guangzhou Real Kung Fu Fast Food Chain Management Co., Ltd., demanding "real Kung Fu" Immediately stop using Bruce Lee's image, clarify on the media page for 90 consecutive days that he has nothing to do with Bruce Lee, and compensate 210 million yuan for economic losses.
However, Zhen Kung Fu insisted at the time that there was "no infringement".
Does real kung fu really have to lose 210 million?
Is the real kung fu trademark suspected of "bad faith registration"?
Wang Xinxia, member of the Trademark Professional Committee of the Beijing Lawyers Association and senior partner of Beijing Zhongyong Law Firm, accepted an interview with a reporter from Zhongxin Finance on the 25th.
Graphics: Peng Jingru
The following is the interview transcript:
Zhongxin Finance and Economics reporter
: In this case, Bruce Lee's daughter claimed 210 million yuan from Real Kung Fu, which aroused public attention.
In similar trademark infringement cases, how is the claim amount generally determined?
What factors need to be considered?
Wang Xinxia
: Generally speaking, the amount claimed in a trademark infringement case is determined in accordance with Article 63 of the Trademark Law of the People's Republic of China.
The following factors can be considered in determining the amount claimed in a trademark infringement case.
Specifically, it includes: 1. Determined according to the actual loss suffered by the right holder due to the infringement; 2. Determined according to the benefits obtained by the infringer due to the infringement; 3. Reasonably determined with reference to the multiple of the trademark license fee; 4. The court decides, If it is difficult to determine the loss of the right holder, the profit of the infringer and the license fee of the trademark, the people's court shall award a compensation of less than 5 million yuan according to the circumstances of the infringement.
Judging from the judgment results of previous cases, when the court determines the amount of compensation, the factors that are generally considered include: the popularity of the trademark involved, the nature of the alleged infringement, the degree of subjective fault, the sales scope of the infringing products, the sales time and price, and the reasonableness of rights protection. expenses, etc.
Zhongxin Finance and Economics reporter
: We have noticed that the Trademark Law stipulates that within five years from the date of trademark registration, the prior right holder or interested party may request the Trademark Review and Adjudication Board to declare the registered trademark invalid.
For malicious registration, the owner of a well-known trademark is not subject to the five-year time limit.
How is "bad faith" generally determined in law?
Wang Xinxia
: According to Article 18.4 of the "Guidelines for the Trial of Administrative Cases of Trademark Authorization and Confirmation" of the Beijing High Court, the determination of "bad faith registration" is clarified.
The following factors can be combined to determine the "bad faith registration" stipulated in Paragraph 1 of Article 45 of the Trademark Law:
1. The disputed trademark has a relatively high degree of similarity with the prior well-known trademark; 2. The prior well-known trademark has strong distinctiveness and popularity; 3. The goods designated for the use of the disputed trademark have a relatively high degree of correlation with the prior well-known trademark; 4. 1. The applicant of the trademark in dispute and the owner of the prior well-known trademark have had trade relations or cooperative relations; 5. The applicant of the trademark in dispute and the owner of the prior well-known trademark are close to their business addresses; 6. The applicant of the trademark in dispute and the prior well-known trademark owner The owner of the trademark has had other disputes, which is enough to know the well-known trademark; 7. The applicant of the trademark in dispute has had an internal relationship with the owner of the prior well-known trademark; 8. After the applicant of the trademark in dispute has applied for registration of the trademark, it is 9. The applicant of the trademark in dispute has registered a large number of trademarks with strong distinctiveness and popularity of others.
Zhongxin Finance and Economics reporter
: Specifically, in the case of Bruce Lee's daughter v. Real Kung Fu Fast Food, do you think that the trademark involved may be judged as "bad faith registration" and be revoked?
Wang Xinxia
: In this case, the application for the trademark "True Kung Fu and Figure" was filed in 2004, and the registration was approved in 2008. It has been 14 years since the registration was approved. Exceeded the stipulation that "it needs to be filed within 5 years from the date of registration".
If an application for invalidation of the trademark "Zhen Kung Fu and Figure" is applied under the five-year time limit, the plaintiff in this case not only needs to prove that the trademark registrant is malicious, but also has evidence to prove that the trademark application for "Zhen Kung Fu and Figure" in 2004 In the past, the Bruce Lee portrait has been used as a trademark and has reached a well-known level.
Based on the facts presented so far, I think it is very unlikely that the invalidation application for the trademark "True Kung Fu and Figure" will be supported.
Zhongxin Finance and Economics reporter
: Previously, basketball star Jordan sued Jordan Sports for trademark infringement, which attracted public attention.
Do you think there are any similarities between the real kung fu case and the Jordan case?
Wang Xinxia
: I think the real kung fu case and the Jordan case have many similarities.
First, the trademarks used are highly consistent with the portraits of celebrities; second, they have been registered as trademarks for a long time and have been used for a long time, and the 5-year statutory deadline for filing invalidation has passed, and the accused trademark is still a valid registered trademark; third, both It is the conflict between trademark rights and personality rights.
Zhongxin Finance and Economics reporter
: We have noticed that the court information of the real kung fu case shows that the cause of the case is a general personality right dispute.
This is similar to the Jordan case, will it affect the final ruling?
Wang Xinxia:
Personality rights are the rights of life, body, health, name, name, portrait, reputation, honor, privacy and other rights enjoyed by civil subjects.
According to Article 994 of the Civil Code, the personal interests of the deceased are protected, and if the name, portrait, reputation, honor, privacy, remains, etc. of the deceased are infringed, their spouses, children, and parents have the right to request the perpetrator to bear the civil liability. responsibility.
In the case of Bruce Lee's daughter v. Zhen Kung Fu Fast Food for infringement of personality rights, according to the Jordan case, I think it is more likely that the infringement is established, but the damages for infringement of personality rights are based on Articles 1182 and 1183 of the Civil Code, which is different from trademark infringement. Compensation, the claim of more than 200 million yuan may be difficult to obtain support.
(Finish)
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