Case No 7: Copyright and unfair competition disputes between Beijing Locojoy Technology Co Ltd and Beijing Koramgame Network Technology Co Ltd

1. Background

The Beijing Locojoy Technlogy Co Ltd (Locojoy) is the copyright owner of the mobile game “Wo Jiao MT on line” (My name is MT on line), and “Wo Jiao MT 2” (My name is MT 2), which were adopted from a serial 3D animation “Wo Jiao MT” (My name is MT).

Locojoy has the exclusive right to use the names of the games, the figures in the games, and the figures’ images.

Locojoy considered that when Beijing Koramgame Network Technology Co Ltd (Koramgame) released a game “Chao Ji MT” (Super MT) using the name of “Wo Jiao MT”, and names and images of figures similar to Locojoy’s game, it had infringed upon Locojoy’s copyright, and, in using slogans related to “Wo Jiao MT” in promotions, had committed unfair competition. Locojoy therefore instituted court proceedings.

2. Ruling

Beijing IP Court ruled that Locojoy’s games and figures of the games did not enjoy copyright law protection of written works, and that the figure images in the two litigated games were not actually similar, so that the Koramgame did not infringe upon Locojoy’s copyright.

However, the court also noted that Locojoy’s games came out earlier than Koramgame’s and had gained a reputation in the market. Koramgame, a player in the same field, not only failed to avoid similarity in names and figures, but conducted promotions that would lead to confusion. The court found that Koramgame’s actions constituted unfair competition by using another’s well-known name without permission and by making false advertisements. The court ordered Koramgame to stop the behavior and compensate Locojoy with 500,000 yuan ($78,100) for economic losses plus reasonable expenses of 35,000 yuan.

3. Significance

As an emerging cultural industry, mobile gaming is a combination of culture and technology and enjoys great potential for growth and bright market prospects.

This case involves a dispute over copyright infringement of mobile games and unfair competition. The facts were complicated and impacted by many difficult issues in law. The court made a detailed analysis of various points, such as whether the names of games and figures can enjoy protection of Copyright Law as written works and adapted works; whether a mobile game’s name can be considered as a famous commodity’s unique name; and how to identify false advertisements for mobile games.

In identifying the civil liability, the court took the plaintiff’s market share in the mobile game market and the defendant’s subjective attitude into full consideration, and protected the copyright owner’s interests by punishing according to law the unjust behavior of infringing on another’s interests.

The case provides clear direction in solving disputes involving copyright protection for mobile games, and is a useful precedent for healthy development of the mobile game industry.

Case No 8: Burberry trademark right infringement dispute with Chen Kai and Lu Qiumin

1. Background

Burberry owned 25 registered clothing series trademarks. On March 20, 2012, a public security organ investigated sales of counterfeits of those trademarks by Chen Kai and Lu Qiumin and asked Burberry to help identify those fake products. The Shanghai Yangpu district people's court sentenced both defendants to imprisonment (probation) and a fine on August 24, 2012. On August 15, 2014, Burberry filed a lawsuit and asked the court to have both defendants pay one million yuan as financial compensation. Both defendants held that the litigation was beyond the prescribed period and thus invalid.

2. Rulings

In the first trial, the Yangpu court ruled that Burberry's appeal was still valid and both defendants had infringed on the company's exclusive right to use the trademarks. Therefore, they were ordered to pay 165,000 yuan for related financial loss and costs. Lu Qiumin refused to take the ruling and appealed to a higher court. The Shanghai intellectual property court dismissed the appeal and maintained the ruling.

3. Significance

The case involved discontinuance of an action because of exceeding of a limitation period. It clarified criminal prosecution procedure for people who knew their rights were violated and the consequence in civil law of assisting an investigation at the request of related departments. The case has two important conclusions: first, injured parties should appreciate the need to be aware of and calculate the prescribed period for litigation, arising from when they knew their rights were violated; second, there may be an effect on limitation periods when such people reasonably trust a criminal investigation to protect their civil rights. The court also discusses whether or not such an effect depends on an ultimate finding of criminal behavior with consequent conviction. The judgment delineates some factors arising in an application to discontinue an action based on exceeding a limitation period and safeguards the rights of the injured party.