Trademark

Recent Trademark News in China

Jin Ahuan, a Wenzhou trademark applicant, whom everyone may be familiar with, with his own trademark “非诚勿扰”, forced the popular TV program “非诚勿扰” (If You Are the One) on Zhejiang Satellite TV to change its name to “缘来非诚勿扰”.

Now it seems that he is a little bit like shooting himself in the foot.

This incident is still about his trademark “非诚勿扰”.

On January 29, 2021, the Beijing Higher People’s Court made a ruling (2020) Jingminshen No. 5203, stating that after the movie “非诚勿扰” was released, Jin Ahuan applied for the registration of “非诚勿扰” as a trademark without permission, and that Jin Ahuan and the “非诚勿扰” marriage agency used the disputed “非诚勿扰” on the “非诚勿扰” dating site operated by them without permission, which constitutes an infringement of the copyright enjoyed by Huayi Brothers. So far, the case went through the first instance, second instance, and retrial, and finally the dust settled.

Cause of the case:

The movie “非诚勿扰” was released on December 24, 2008. The poster for this movie is shown in the picture below, wherein four words “非诚勿扰” were designed in font, glyph and structure. On February 16, 2009, Jin Ahuan filed the trademark registration of the 45th category of marriage agency services, and the application pattern is the same as the font in the movie poster.

Has “非诚勿扰” been registered as a trademark?

The focus of this case:

  1. Whether the four words “非诚勿扰” are original;
  2. Does Huayi Brothers enjoy copyright;
  3. Whether Jin Ahuan and its “非诚勿扰” marriage agency’s use of “非诚勿扰” involved in the case belongs to fair use.

The court alleged that:

  1. “非誠勿擾” is composed of the traditional characters “誠擾” and the simplified characters “非勿”. They are different in font size and arranged in two lines. The lower part of the word “非” uses a pink heart-shaped pattern to connect with the first word “誠” in the second line, with the strokes of “,” in the radical “言” of the word “誠” replaced with the pink heart-shaped pattern. The “非誠勿擾” involved in this case was designed to reflect the author’s unique choices and arrangements in the overall appearance, which has aesthetic significance and originality, and hence constitutes a work of art.
  2. The movie “非誠勿擾” is a film work, and the characters “非誠勿擾” included in this movie poster is a work of art. The two relate to a relationship between the movie work and the work that can be used alone in the movie work. According to the statement issued by Feng Xiaogang and Shi Haiying and the “Agreement” signed on January 16, 2016, it can be determined that Huayi Brothers commissioned Feng Xiaogang and Shi Haiying to create the characters “非誠勿擾” involved in this case. At the same time, it was agreed that the copyright of the work belongs to Huayi Brothers. Therefore, based on the entrusted contract for creation, Huayi Brothers enjoys the copyright of the “非誠勿擾” art work involved in this case.
  3. After the movie “非誠勿擾” was released, Jin Ahuan applied for the “非誠勿擾” to be registered as a trademark without permission, and Jin Ahuan and the “非誠勿擾” marriage agency used the “非誠勿擾” on the “非誠勿擾” dating website operated by them without permission. This behavior does not comply with the reasonable use conditions stipulated by the Copyright Law, and constitutes an infringement of the copyright enjoyed by Huayi Brothers.

 

Regardless of the outcome of the trial, when Jin Ahuan used the art work, he knew that the work was created by another person, but still used it without permission of others, and registered it as a trademark, so there was subjective fault. In real life, there are indeed many people who lack this awareness. They directly download patterns from websites to apply for trademarks, and thus infringe on the copyrights of others without knowing it.

Case after case of disputes between copyright and trademark rights have repeatedly sounded the alarm for us: while attaching importance to the trademarks and brands, we must respect the originality (copyright), and do not embezzle pictures from the website to apply for a trademark at will, so as not to cause unnecessary trouble and loss to ourselves.

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