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Fast-developing internet technologies, and legal matters involving new types of intellectual property rights (IPR), sometimes outpace the development of IP laws in mainland China.
How can one protect new types of IPR under China’s current legal framework?
One important protector of new IPR in China is the Anti-Unfair Competition Law.
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The 2017 version of the Anti-Unfair Competition Law states its core principle in Article 2:
“ Businesses shall, in their production and distribution activities, adhere to the free will, equality, fairness, and good faith principles, and abide by laws and business ethics.
For the purposes of this Law, “act of unfair competition” means that in its production or distribution activities, a business disrupts the order of market competition and causes damage to the lawful rights and interests of the other businesses or consumers, in violation of this Law.
For the purposes of this Law, “business” means a natural person, a legal person, or a non-legal person organization that engages in the production or distribution of commodities or the provision of services (commodities and services are hereinafter collectively referred to as “commodities”). ”
Articles 6 through 12 enumerate the “Acts of Unfair Competition.” For instance, Article 6 states that:
“A business shall not commit the following acts of confusion to mislead a person into believing that a commodity is one of another person or has a particular connection with another person:
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- Using without permission a label identical or similar to the name, packaging or decoration, among others, of another person’s commodity with certain influence.
- Using without permission another person’s name with certain influence, such as the name (including abbreviations and trade names) of an enterprise, the name (including abbreviations) of a social organization, or the name (including pseudonyms, stage names and name translations) of an individual.
- Using without permission the principal part of a domain name, the name of a website, or a web page with certain influence, among others, of another person.
- Other acts of confusion sufficient to mislead a person into believing that a commodity is one of another person or has a particular connection with another person.”
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To better understand the Anti-Unfair Competition Law’s role in protecting new types of IPR, it helps to take a look at some previous cases. Please bear in mind that, although the doctrine of Stare Decisis is not strictly applied in China, cases promulgated by the Supreme Court or High Courts are still influential, nationally and locally, on subsequent cases.
In this article, we present two cases adjudicated by the Shanghai Pudong Court. These two cases are included in the white book <Typical Cases of the Pudong Court in the most recent 5 Years for the Purposes of Enforcing Judicial Protection over IP Rights and Serving the Free Trade Zone of Shanghai>, which was distributed at a seminar hosted by the Pudong court.
Yao Yu Co., Ltd. VS Dou Yu Co., Ltd. (2015) Hu Zhi Min Zhong Zi No. 641
DOTA2 is a famous Multiplayer Online Battle Arena (MOBA) game competition. Yao Yu, who had the exclusive broadcasting rights of DOTA2 in mainland China to a match, sued Dou Yu, who also provided live streaming of this match, with its own anchors, by using a spectating feature built into the game itself.
The court found that the rights of Yao Yu were protected by neither the Copyright Law, nor by the Regulation on Protection of Network Dissemination. Moreover, the acts of Dou Yu could not directly fall into the “Acts of Unfair Competition” as listed in the article 6 to article 12 of the Anti-Unfair Competition Law.
Nevertheless, the principles outlined in the Anti-Unfair Competition Law, namely those found in Article 2, could still be invoked to protect the rights of the Yao Yu.
Hence, the Court awarded Yao Yu one million RMB as compensation and 100 thousand RMB in reasonable costs.
Activision Publishing, Inc. VS HuaXia Film Distribution Co., Ltd. (2016) Hu 0115 Min Chu No. 29964
Activision is the publisher of the famous first person shooting game franchise CALL OF DUTY, which goes by the name “使命召唤” in China. In 2015, HuaXia released THE GUNMAN, a film starring Sean Penn. HuaXia gave the film the Chinese name “使命召唤” (identical to the Chinese name of CALL OF DUTY) when releasing it in Mainland China. Activision sued HuaXia for IPR infringement.
The Pudong court found that HuaXia used the words “使命召唤” in the posters and trailers of the movie with exactly the same calligraphy as Activision uses for its games amounted to infringement on Activision’s Information Network Transmission Right.
More importantly, the court found that although the movie and games are two different products, they share common features and can be easily adapted to each other. Since HuaXia intentionally caused confusion to the public that could damage the interests of Activision, the court ruled against HuaXia and required it to pay 300 thousand RMB to Activision as compensation and another 300 thousand RMB as reasonable costs, invoking Article 6 of the 2017 version of the Anti-Unfair Competition Law.
The Shanghai Intellectual Property Court upheld this judgment on appeal.
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As you can see, when an intellectual property dispute arises, it is necessary to keep in mind that the legislation, regulations, and their interpretation in the traditional IP law family, are not the only tools at your disposal to ensure your protection in China. We would be happy to help you protect your IPR using any and all possible and legitimate means, including those discussed above.
