The infringement is not established, but it is a reminder to the film and television industry’s prior layout of trademarks. The
movie "Changjin Lake" was broadcast but was accused of infringing trademark rights and copyright experts said
□ Our reporter Zhang Wei
Is there a lot of shadow celebrity?
The recently hit movie "Changjin Lake" is caught in a storm of trademark and copyright infringement.
On October 12, the film "Changjin Lake" was released on the 13th day, and the box office has exceeded 4.25 billion yuan, temporarily ranking 6th in the total box office list of the mainland film history.
Some people predict that the box office of "Changjin Lake" will reach 5.5 billion. Although the final box office is still unknown, the confirmed information is enough to make this movie extraordinary-"Changjin Lake" has so far broken 26 film history records .
However, along with the huge traffic of "Changjin Lake", in addition to honor, there is also a storm of infringement.
Recently, a netizen who claimed to be "Director Hao Ping" posted a video saying that the film "Changjin Lake" violated the trademark rights of others, and published a trademark registration certificate with the words "Changjin Lake" and the name The registration certificate of the works of "Ice and Snow Changjin Lake".
This move aroused disgust from many netizens, and even dismissed it with comments such as "obviously touching porcelain".
But the facts are probably not that simple.
In addition, before the film "Changjin Lake" was released, the rush of "Changjin Lake" had become a hot topic in the media. It can be seen that the problems encountered by the film "Changjin Lake" are at least for the protection of intellectual property rights in the film and television industry. A wake-up: layout as soon as possible.
Distorted interpretation of trademarks is worrying
"Changjin Lake is accused of trademark infringement, and you can't laugh at'touching porcelain'." On October 12, China News Publishing and Radio and Television News issued a comment on the matter.
Earlier, more netizens believed that the netizens of "Director Hao Ping" were enthusiastic.
A senior lawyer’s post in the Moments of Friends is one of the representative viewpoints and is widely quoted: “The heat should also have a bottom line. The heat of the great battle of Changjin Lake with the'Changjin Lake' trademark is very unacceptable. Trademark rights There is also a scope of application. The infinitely exaggerated and distorted interpretation of trademarks will cause unnecessary confusion and misleading to the public, which is worrying."
But it is undeniable that there are indeed unquestionable prior rights facts.
The "other" in the mouth of "Director Hao Ping" is Beijing Jiadianshui Culture Media Co., Ltd.
It is understood that Changjin Lake submitted an application for trademark registration of "Changjin Lake" on October 29, 2020, and obtained the trademark registration certificate on July 14 this year. The international classification involves the 41st category of education and entertainment, including "except advertising Off-film film production, "movie screening", "movie distribution", etc.
According to Article 57 of the Trademark Law, the use of the same trademark as the registered trademark on the same product without the permission of the trademark registrant is an infringement of the right to exclusive use of the registered trademark.
But this does not mean that the film "Changjin Lake" is suspected of trademark infringement.
Professor Dong Binghe of Wangjian Law School of Soochow University 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 place name known to the audience. Article 2 shall not be used as a trademark.
At the same time, the use of "Changjin Lake" as the name of the movie is a description of the place where the story told by the movie takes place. It does not actually serve to distinguish the source of the goods, and does not constitute use in the sense of trademark law.
Therefore, it does not constitute an infringement of the right to exclusive use of the previously registered trademark.
The film 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 "Changjin Lake" in the film "Changjin Lake" is not in the sense of trademark law. use.
What's more, the trademark "Changjin Lake" registered by Beijing Jiadian Water Culture Media Co., Ltd. belongs to 41 categories, and category 41 is a service related to movies, not the movie itself.
Dong Xiaomeng, Manager of the Trademark Department of Han Kun Law Firm, also holds the same view.
"The name of the movie "Changjin Lake" is derived from the name of the war location, which means that the battle took place in the Changjin Lake area. Consumers will have a certain understanding of the story background when they see the film name. In fact, Changjin Lake cannot express or point to The role of the source of goods or services, that is, the film name "Changjin Lake" is a non-trademark use, so it does not involve trademark infringement."
Regarding alleged copyright infringement, Tao Xinliang, Honorary Dean and Distinguished Professor of the School of Intellectual Property of Dalian University of Technology, gave the view that the name of the work registered by Hao Ping is "The Outline of the Story of "Ice and Snow Changjin Lake"", and there is nothing similar to the content of the movie. Any proof.
Moreover, from the perspective of the time of application, the suspicion of copyright and registered trademark infringement has also been ruled out.
Similar disputes frequently occur with lessons learned
In any case, this turmoil has awakened the trademark protection of the film and television industry.
For film and television producers, on the one hand, they must respect the intellectual property rights of others and perform reasonable duty of care; on the other hand, they must protect their own rights, register their trademarks at the filming or planning stage, and provide films and their derivatives. Legal protection.
Similar lessons are not many in the film and television industry.
In August 2015, after the movie "Legend of Xuanyuan Sword" was released, Daewoo Information Co., Ltd. took the producer to court, arguing that the other party had infringed on its exclusive right to use the "Xuanyuan Sword" registered trademark.
After the first instance and appeal, in October 2019, the Beijing Intellectual Property Court issued a final judgment, ordering the defendant to immediately stop the unfair competition using "Legend of Xuanyuan Sword" as the movie title, and compensate Daewoo for economic losses and reasonable expenses of 65,000 yuan. .
In 2019, Wang sued Beijing Kaixin Mahua Film Co., Ltd., the screenwriter and producer of the movie "The Richest Man in Xihong City," on the grounds that the copyright and other rights of his own creation of "Property Heirs Are Rich" were infringed. To the court.
The case lasted for two years. In the end, the court of second instance found that the infringement was not established.
In order to avoid unnecessary disputes, many producers began to allocate intellectual property rights before the movie was released, such as: "You are a young man", "Assassination of the novelist", "Hello, Li Huanying", "Chinatown Detective" and other films were released long before the release. Has been registered as a trademark.
There are even movie producers whose layout is called "crazy".
For example, after "Nezha: The Devil Boy Comes into the World" went viral, the producer Fang Guangguang Media successively submitted as many as 1,820 trademark registration applications, most of which are related to the "Nezha" movie, including the magic boy Nezha, Mrs. Yin, The names of characters in many film stories such as Ao Bing and MOTONEZHA.
The act of Light Media once caused a lot of controversy.
Proponents believe that the producer has nothing wrong with applying for registered trademarks for its products, while opponents point out that a large number of registered trademarks are suspected of hoarding in a short period of time, and Nezha itself is a well-known mythical figure in the public, and whether it is reasonable to be monopolized.
Deploy trademarks in advance to prevent cybersquatting
In a sense, this is probably also the result of the proliferation of well-known IP "squatting" in the film and television industry.
According to the "China Film Box Office" app of the National Film Specialty Office, in 2020, the total box office of movies in mainland China has reached 20.274 billion yuan.
The boom in the film market has also led to an increase in disputes over unfair competition in intellectual property rights, the most common of which are copyrights and trademarks.
Incidents of squatting the names of popular movies have occurred from time to time. Similar incidents have been encountered in "Wolf Warrior" and "Hello, Li Huanying".
The "Changjin Lake" was also the subject of cybersquatting. The reporter retrieved 28 "Changjin Lake" trademark applications on the China Trademark Network on the evening of October 12.
Among them, the producer of the movie "Changjin Lake"-Bona Pictures Group Co., Ltd. has 3 pieces, which are in 41, 28, and 16 categories, and they are applied on September 24, 2021; Beijing Jiadian Water Culture Media Co., Ltd. There are 4 items, which are categories 9 and 11 applied on December 28, 2020, and categories 41 and 35 applied on September 24, 2020.
The two overlap in 41 categories.
Dong Binghe told reporters that Beijing Jiadianshui Culture Media Co., Ltd. has been approved to register the "Changjin Lake" trademark on the 41st category of services, which constitutes the basis for Bona Pictures' registration of the "Changjinhu" trademark on the 41st category of services. Legal obstacles.
“Bona Films’ trademark application has certain difficulties, because there are prior trademarks, and in accordance with the trademark administrative review process, they may be blocked by the prior trademark in the future.” Dong Xiaomeng said.
Dong Xiaomeng suggested that the film and television industry can lay out trademarks in advance. In fact, the main purpose of the layout of trademarks is to prepare for the later launch of peripheral products, or to prevent others from rubbing the title of the film for profit in the future.
Returning to the "Changjin Lake" infringement storm, according to media reports, four days after Bona Pictures' film "Changjin Lake" was launched, other companies applied for the registration of the "Changjin Lake" trademark to grab the prior rights.
And if Bona Pictures’ trademark application is rejected because it has the same trademark in the relevant category, then it will undoubtedly be a great pity for Bona Pictures, which has invested a lot of effort in producing the film "Changjin Lake".
Other film and television production companies should learn from it.
However, we must also pay attention to avoid over-exaggerating the risk. Dong Xiaomeng reminded, "If it is only the title of the film itself, there is no absolute necessity for the layout of a trademark, the fundamental reason is that the independent film title itself does not belong to the use of trademarks."