News & Cases from China: March 2020
在庭审中，法院围绕《王者荣耀》整体画面是否构成作品、原告是否有权主张涉案游戏整体画面的著作财产权等多个焦点问题进行了审理。广州互联网法院经审理认为，根据《保护文学和艺术作品伯尔尼公约》第二条第 1 项对“类电作品”的规定，以类似电影的方法表现的作品，强调的是表现形式而非创作方法。《王者荣耀》游戏的整体画面宜认定为“类电作品”。在游戏整体画面的著作权是否应当归属于游戏用户问题上，广州互联网法院认为，《王者荣耀》作为一款多人在线竞技类手机游戏，情节复杂、游戏互动性较强、游戏用户有巨大的发挥空间，但用户操作《王者荣耀》游戏时没有创作意图，并非有目的地创造出各种连续画面。游戏用户通过游戏引擎调动游戏资源库中的游戏元素，是在游戏创作者设定的整个逻辑框架内进行，其作用仅是使得游戏内含的虚拟不可感知的连续活动画面变成了视觉可以感知的连续活动画面，本质上是将某些游戏画面由不可视到可视的再现。在这个再现过程中，游戏用户虽存在一定主动性，但主动性不等于独创性，无论游戏用户再现出多少种连续活动画面，具有独创性的游戏引擎与游戏资源库相结合的《王者荣耀》游戏始终具有同一性，游戏用户既未创作出任何具有独创性的新游戏元素，也未创作出可以单独从《王者荣耀》游戏中分离的任何具有独创性的新的连续活动画面，因此游戏用户不管是对内在的游戏引擎和游戏资源库，还是对外在体现游戏内容的可以视听的连续活动画面，都未付出著作权法意义上的独创性劳动，其对《王者荣耀》游戏的整体画面不享有著作权。
Tencent succeeds at first instance in copyright infringement action relating to its popular ‘Kings of Glory’ video game.
The Guangzhou Internet Court has upheld Tencent’s claim for infringement of copyright in its popular video game Kings of Glory in a first-instance judgment. Shenzhen Tencent Computer System Co., Ltd. (‘Tencent’) sued a cultural company and a network company for infringement of its right of communication and for Unfair Competition.
The Court found that the ‘Kings of Glory’ video game screens constituted a cinematographic work for the purposes of copyright law, being a work expressed by a process analagous to cinematography. The cultural company's act of distributing the game without authorization constituted copyright infringement. The Court ordered it to cease the infringement and compensate Tencent for economic loss and reasonable costs in the sum of CNY 4.96 million (approx. US$ 699,438). This is the first time a Chinese court has held that the continuous game screen of a work in the Multiplayer Online Battle Arena (MOBA), a subgenre of strategy video games, constitutes a “work similar to cinematography” and is, therefore, a work capable of copyright protection. As the defendant network company had merely provided network services in relation to the cultural company’s platform via an app store, it had not infringed the Plaintiff’s copyright.
During the trial, the Court focused on whether the overall game screens constituted a copyright work, and, if so, whether the Plaintiff had the right to such copyright. The Guangzhou Internet Court referred to Article 2 (1) of the Berne Convention, which provides that ‘literary and artistic works’ shall include “cinematographic works to which are assimilated works expressed by a process analogous to cinematography”. In considering the work in question it emphasized the ‘expression’ rather than the method of creation and held that the game screens in their entirety should be regarded as a ‘work similar to cinematography’ and that they, therefore, constituted a work capable of copyright protection. As to whether such copyright should belong to Tencent or the game user, the Court held that MOBA games have a complicated plot, strong game interactivity, and a huge play space occupied by game users, but that the users are not creating continuous game screens when operating the game. They are mobilising elements of the game engine’s resource library within the entire logical framework set by the game creator. They are merely making visually perceptible, the virtual imperceptible continuous activity screens contained in the game. This process is, in effect, the transformation of some game screens from invisible to visible. Game users are exercising some initiative, but initiative does not constitute originality. No matter how many continuous activity screens the game user reproduces, the original game engine and the game resource library are always the same: the user has neither created any original new game elements nor any new original continuous activity screens that can be separated from the internal game engine and game resource library.
Without the Plaintiff's permission, the cultural company Defendant had displayed the game screens on an open, unspecified video platform that anyone could browse: members of the public could have access to game screens involved at a time and place of their choosing. This constituted an infringement of the Plaintiff's Right of Communication through an Information Network. After comprehensively taking into account factors such as the popularity of the game involved and the seriousness of the infringement, the Court fully supported the Plaintiff ’s claim of CNY 4.8 million (approx. US$ 677,669) for economic loss and CNY 160,000 (approx. US$ 22,588) costs.
The Defendant has filed an appeal.
Bulgari Awarded CNY 3.1 Million (Approx. US$ 437,149) in Trade Mark Infringement and Unfair Competition Action
Bulgari discovered that from 2013 to 2014, Hunan Taskin Investment Co., Ltd., Shenzhen Taskin Consulting Co., Ltd., and Shenzhen Taskin Industrial Co., Ltd had been using “宝格丽Bulgari”, “Baogene”, “宝格丽Bulgari Apartment” and other logos on the outer walls, building signs, brochures and other materials connected with their real estate business in Changsha city, and that they had placed hundreds of Bulgari perfumes at a sale event.
Bulgari brought an action for trade mark infringement and unfair competition, seeking orders that the Defendants cease the infringement immediately and pay compensation of CNY 20.5 million (approx. US$ 2,894,948). The court of first instance held that the Defendants had engaged in trade mark infringement and unfair competition, and ordered them to pay compensation of CNY 1 million (approx. US$ 141,217). Bulgari appealed to the Higher People's Court of Guangdong Province.
The Higher People's Court of Guangdong Province has now handed down a final judgment ordering the Defendants to cease using names such as ‘Bulgari”’ in relation to their real estate operations, destroy all infringing signs and promotional materials, issue a statement of apology, and compensate Bulgari for economic loss and reasonable expenses in the sum of CNY 3.1 million (approx. US$ 437,149).
Hangzhou's First IP Case to Award Punitive Damages following 2019 revision of the Trade Mark Law. Operators of Tik Tok App Awarded CNY 2 Million (approx. US$ 282,031)
In December 2018, a Hangzhou company selling products via the Tik Tok App, started the ‘Ten Thousands of ‘Seller on Tik Tok’ Alliance Start Conference’. In the course of its promotional activity, the company made extensive use of the registered trade mark of Beijing ByteDance Technology Co., Ltd. (ByteDance) , one of Tik Tok’s operators. A technology company made unauthorized use of graphic work belonging to Tik Tok developer and operator, Beijing Microlive Vision Technology Co. Ltd. (Mecrolive Vision). ByteDance and Microlive Vision sued the Hangzhou ‘Seller on Tik Tok’ company, a Hangzhou Tik Tok user company, a technology company, and an individual, Yang, in the Hangzhou Internet Court for trade mark infringement, unfair competition, and copyright infringement.
The Hangzhou Internet Court stated that the Trade mark Law makes provision for punitive damages both to compensate the right holder, and penalize the intentional infringer. Having fully considered the facts in this case, the Court decided an award of punitive damages was appropriate. The Hangzhou ‘Seller on Tik Tok’ company, the technology company, and the individual, Yang, had engaged in trade mark infringement and false propaganda on multiple platforms such as the ‘Seller on Tik Tok’ Conference, WeChat subscription accounts, Personal Weibo account, QQ account, etc. The infringement was repeated, malicious and of long duration. The Court ordered the three defendants to jointly compensate ByteDance in the sum of .CNY 1.5 million (approx. US$ 211,771) for trade mark infringement and both ByteDance and Microlive Vision in the sum of CNY 500,000 (approx. US$ 70,570) for unfair competition. In addition, the technology company, which had reproduced and distributed Microlive Vision’s copyright works without permission, was ordered to compensate Microlive Vision in the sum of CNY 100,000 (approx. US$ 14,118).
This is the first time a Hangzhou court has awarded punitive damages in a trade mark case since the fourth revision of the trade mark Law.
3M Company Wins Trade Mark Administrative Case at Second Instance – Defendant’s registrations held to be Invalid
In 2017, 3M Company applied unsuccessfully to the Trade mark Review and Adjudication Board of the SAIC (hereinafter referred to as TRAB), for invalidation of four trade mark registrations. The registrations were for the ‘3LM’ mark and marks similar to it in overall appearance, constituent elements, pronunciation, meaning, etc. 3M Company subsequently filed an administrative lawsuit in the Beijing Intellectual Property Court. The Court upheld TRAB’s decision.
3M Company then appealed to the Beijing Higher People's Court, alleging that the disputed trade marks were similar to its trade marks and being used on identical or similar goods.
The Beijing Higher People ’s Court held that the disputed trade marks and the 3M Company’s mark were highly similar in word composition, arrangement, pronunciation and appearance, and registered in relation to the same or similar goods. As a result, there was likely to be confusion among members of the public as to the source of the Defendant’s goods
The Beijing Higher People's Court set aside the judgments of first instance and the decision of TRAB, and ordered the National Intellectual Property Administration (which replaced TRAB in 2019) to make a new decision on 3M Company’s application for invalidation of the trade marks.