News & Cases from China: November 2019
CN NEWS 11
Jaguar Land Rover succeeds in long-running dispute over ‘Jiebao’ (Jaguar) trademark
After Juedui Niu Company transferred the ‘Jiebao’ trademark (approved for registration in relation to Class 32 products such as beer and water) to Hunan Jiebao Company, Jaguar Land Rover company filed a request with the Trademark Review and Adjudication Board (TRAB) for invalidation of the disputed trademark, claiming that Juedui Niu Company’s application was the result of intentional squatting of a well-known trademark. Use of the mark was likely to lead to confusion among relevant consumers and unfair competition. The TRAB held that the disputed trademark was invalid.
Hunan Jiebao Company then filed an administrative lawsuit with the Beijing Intellectual Property Court against TRAB’s decision. The Court rejected Hunan Jiebao’s claim. It found that the assignor and the assignee of the trademark were associated; that the disputed trademark was deliberately very similar to the ‘Jaguar JIEBAO’ trademark owned by Jaguar Land Rover; and that it had been registered by improper means..
Hunan Jiebao then appealed to the Beijing Higher People's Court, which upheld the first instance decision.
Battle between e-commerce giants – JD.com sues Alibaba and Tmall for abuse of market power
JD.com is claiming 1 billion Yuan (approx. US$ 142 million) in an action against Tmall and its parent company, Alibaba, for abuse of market dominance. Two other major e-commerce companies, Vipshop and Pinduoduo, sought to join the lawsuit as third parties.
JD.com alleges that, since 2013, Tmall has required merchants opening stores in Tmall to sign exclusive agreements that preclude them from participating in the ‘618’ and ‘Double 11’ shopping events on JD.com.
Judgment is awaited.
This case is the first anti-monopoly case in the E-commerce industry. The result is likely to have a significant impact on the sustainable and healthy development of the industry in China.
Blizzard Entertainment Wins Compensation of 3.5 Million Yuan (approx. US$ 500,000) in Game Copyright Infringement Action against 4399 Network Co.
Blizzard Entertainment Co., Ltd. and Shanghai Netease Network Technology Development Co., Ltd. are owners of the copyright in the game ‘Overwatch’. They claim that 4399 Network Co’s two games, ‘Hero Shootout’ and ‘Frontline Shootout’, reproduce the essential elements of the ‘Overwatch’ game and infringe copyright. They sought Orders that 4399 Network Co., stop the infringement, take steps to reduce its impact, and pay compensation of more than 3.97 million yuan (approx. US$ 567,000).
The Shanghai Pudong People's Court held that Plaintiffs’ ‘Overwatch’ game is the result of significant skill and labor and qualifies as an original work pursuant to the Copyright Law. The movement of heroes in the game, and the process of using weapons to release skills, involves continuous dynamic pictures using methods similar to film making. The Court ruled that the two games of the 4399 company reproduced a substantial part of the ‘Overwatch’ game.
Xuanting Sued IQIYI for Unfair Competition and Won the Second Trial
Zhang Muye, the author of the novel ‘Candle in the Tomb’ transferred all his rights in the novel, except moral rights, to Shanghai Xuanting Co. LTD (Xuanting company). He granted a licence to to Uppicture and online video platform iQiyi to make a series based on another of his novels: ‘Mu Ye Huiu Shi’. Because the ‘Mu Ye Gui Shi’ series included a representation of the ‘Candle in the Tomb’ logo, Xuanting Company brought an action for unfair competition against Uppicture, iQiyi and Zhang Muye.
The Xuzhou Intermediate People's Court initially held that the ‘Candle in the Tomb’ novel had achieved a high level of popularity and, as a result, constituted a well-known commodity for the purposes of the Anti-Unfair Competition Law. Use of the ‘Candle in the Tomb’ title and logo in relation to the ‘Mu Ye Gui Shi’ series amounted to unfair competition. Further, iQiyi ‘s promotion of the series, using promotional expressions such as ‘probably the most authentic Candle in the Tomb series,’ constituted false propaganda.
The Court ordered the three Defendants to cease the unfair competition and iQiyi to compensate Xuanting Company for economic loss in the sum of 1.5 million yuan (approx. US$ 214,000). Uppicture and Zhang Muye were held jointly liable for compensation amounting to 1.1 million yuan (approx. US$ 157,000). On appeal, the Jiangsu Higher People’s Court upheld the initial verdict of the Xuzhou Intermediate People’s Court.