Substantive Elements Reviewed for an Injunction, Affirmation of Irreparable Harm in Online Game Infringement Cases and Holistic Removal of a Game and Protection of Players’ Interests
——Blizzard Entertainment Inc. et al. v. Chengdu Qiyou Technology et al.
[Syllabus]
In the case of interim injunction, the possibility that the plaintiff wins the litigation and whether the plaintiff suffers from irreparable harm should be examined.
The launch of the disputed game would inevitably squeeze and occupy the market share of the new game launched by the plaintiff. At the same time, online games are characterized by short lifecycle, fast dissemination and broad circulation, due to which it is difficult to calculate and quantify the harm suffered by the plaintiff. Any vulgar marketing method of the disputed game would also harm the reputation of the plaintiff.
All important components of the disputed game constitute infringement, and the remaining components are also likely to be found infringing, hence the disputed game needs to be holistically removed. However, during the term of the injunction, the provision for balance inquiry, refund and other services for the players of the disputed game shall not be affected.
[Case No.] Guangzhou Intellectual Property Court (2015) YZFZMCZ No. 2 and (2015) YZFSMCZ No. 2
[Cause of Action] Dispute over copyright infringement and unfair competition
[Collegial Panel Members] Gong Qitian Zhuang yi Peng Ang
[Keywords] Online game, interim injunction, irreparable harm
[Relevant Legal Provisions] Article 50 of Copyright Law of the People's Republic of China, Article 100 of Civil Procedure Law of the People's Republic of China.
[Basic Facts]
The plaintiffs, Blizzard Entertainment Inc. (hereinafter referred to as "Blizzard Entertainment") and Shanghai EaseNet Network Technology Development Co., Ltd. (hereinafter referred to as "EaseNet") filed a suit for copyright infringement and unfair competition against the respondents, Chengdu Qiyou Technology Co., Ltd. (hereinafter referred to as "Qiyou"), Beijing Fenbo Times Internet Technology Co., Ltd. (hereinafter referred to as "Fenbo Times") and Guangzhou Dongjing Computer Technology Co., Ltd. (hereinafter referred to as "Dongjing"). The plaintiff Blizzard Entertainment is the copyright owner of computer software works such as World of Warcraft (first launched in the USA on November 23rd, 2004), World of Warcraft: The Burning Crusade (first launched in the USA on January 16th, 2007), World of Warcraft: Wrath of the Lich King (first launched in the USA on November 13th, 2008) and World of Warcraft: Mists of Pandaria (first launched in the USA on September 25th, 2012).
The World of Warcraft series of games have won many important game awards in China, such as the top 10 popular online games in 2006 and 2007 at the China Game Industry Annual Conference, the top 10 popular online games at the first Chinese Game Gold Raccoon Award in 2011, and the online game of the year at the award ceremony of List of Chinese Game Heroes in 2012.
From June 2014, the plaintiff Blizzard Entertainment started promoting its game World of Warcraft: Warlords of Draenor through its official Chinese website. On November 20th, the game was officially launched in China and was operated exclusively by the plaintiff EaseNet.
The heroes in the World of Warcraft series of games include Velen, Illidan Stormrage, Garrosh Hellscream and Thrall, etc. The monsters include Aku'mai, Deviate Shambler, etc. The designs of these heroes and monsters could be seen in Blizzard Entertainment’s official Chinese website, English publication Ultimate Visual Guide of World of Warcraft and Chinese publications Art of Blizzard and World of Warcraft Thrall: Twilight of Dragon. The said websites and publications all indicated that the plaintiff Blizzard Entertainment was the copyright owner. In these two cases, the plaintiff claimed that it had copyright for fine-art works of 18 heroes and 7 monsters therein. The plaintiff also claimed that "Warcraft" and "Draenor" constituted the specific names of famous commodities, "Thrall" constituted a famous character name and that four game scenes (including title interface, login interface and role creation interface) constituted the specific decoration of famous commodities.
The disputed game, originally named as Tribal Chief Thrall: Crusade of Warcraft, was developed by the respondent Qiyou. The defendant Fenbo Times was a shareholder of respondent Qiyou and also the exclusive operator of the disputed game. On August 25th and September 19th 2014, respondent Fenbo Times launched the open beta iOS version and Android version respectively of the disputed game on its official website (www.rekoo.com), and on December 19th, it renamed the game as Everyone Warcraft: War of Draenor. Respondent Dongjing, with the authorization of respondent Fenbo Times, provided the Android version of the game to the public for download, in its official website (www.9game.cn).
The designs of relevant heroes and monsters of the disputed game were substantially similar with those claimed by the plaintiff, upon comparison.
With respect to the publicity and introduction of the disputed game, the official website of respondent Fenbo Times contained the following statements: “In order to recreate the World of Warcraft more perfectly, Tribal Chief Thrall…… whether it is the players controlling the heroes or the monsters in the game instance, and whether it is the map design or special skills, the designs of World of Warcraft are almost 100% recreated…… Panda Lin, top player of Warcraft, will accept the final challenge of ‘beanty calls at your home’ .”
“Everyone Warcraft is a card game with the background of World of Warcraft, which presents many contents of World of Warcraft perfectly, it ignites the passion of the fans with its plots, heroes and scenes instantly.”
In the official blog of the respondent Fenbo Times, some players commented: “I love the challenge of Warcraft so much ……Let’s play World of Warcraft together.”
The plaintiff believes that the disputed game copied the designs of heroes and monsters from the plaintiff’s game and used the name and decoration similar to those used in the plaintiff’s game. The respondent Fenbo Times repeatedly claimed in its publicity that the disputed game was the mobile version of Warcraft. The behavior of the three respondents jointly infringed the copyright of the plaintiff and constituted unfair competition. Further infringement would cause irreparable harm to the plaintiff. Therefore, the plaintiff instituted proceedings at the Guangzhou Intellectual Property Court and applied for an interim injunction, requesting that the disputed game be holistically removed. The plaintiff was willing to post a cash bond of RMB10 million. The three respondents contended that the disputed game software is registered under the name of a third party, the plaintiff could not prove that it was the copyright owner of the designs of the heroes and monsters involved in the case, the respondents constituted copyright infringement and unfair competition, or it suffered from irreparable harm, and that the issue of an injunction would seriously harm the interests of the respondents and game players. Therefore, the respondents requested that the plaintiff’s application for injunction be rejected.
Holding
The Guangzhou Intellectual Property Court issued an interim injunction on March 9th, 2015: 1. The respondent Qiyou was prohibited from reproducing, distributing and disseminating online the game Everyone Warcraft: War of Draenor (originally named as Tribal Chief Thrall: Crusade of Warcraft) for a term expiring upon the effective date of the judgments of the present two cases; 2. The respondent Fenbo Times was prohibited from reproducing, distributing and disseminating online the game Everyone Warcraft: War of Draenor (originally named as Tribal Chief Thrall: Crusade of Warcraft), and engaging in the alleged unfair competition for a term expiring upon the effective date of the judgments of the present two cases, provided that during the term of the injunction, the provision of balance inquiry, refund and other services for the game players would not be affected; 3. The respondent Dongjing was prohibited from disseminating the game Everyone Warcraft: War of Draenor (originally named as Tribal Chief Thrall: Crusade of Warcraft) through its official website (www.9game.cn) for a term expiring upon the effective date of the judgments of the present two case, provided during the injunction, the provision of balance inquiry, refund and other services for the game players shall not be affected; 4. The other injunction applications of the plaintiff Blizzard Entertainment and plaintiff EaseNet were dismissed.
[Reasoning]
Guangzhou Intellectual Property Court opined that:
With respect to the substantive review requirements for an injunction, according to Article 100 of the Civil Procedure Law of the People's Republic of China, whereas the conducts of one party may make the judgment hard to enforce or cause the parties other harms, the people's court may, at the request of the counterparty, prohibit it from conducting certain actions. Thus, while determining whether to issue an injunction, the court shall first review the plaintiff’s possibility to win the case. According to Article 101 of Civil Procedure Law of the People's Republic of China, a rightholder may apply for a pre-litigation injunction in the case of urgency where the failure to immediately issue an injunction would cause such rightholder irreparable harm. As the plaintiff applied for injunction while instituting proceedings and claimed that the situation was urgent, it is also necessary to review whether the alleged infringement would cause the plaintiff irreparable harm.
With respect to the plaintiff’s possibility to win the case, both China and the USA are member states of the Berne Convention for the Protection of Literary and Artistic Works, and according to the Convention and Article 2 of the Copyright Law of the People's Republic of China, the works of the plaintiff Blizzard Entertainment are protected by China’s copyright law. Plaintiff Blizzard Entertainment is the copyright owner of computer software works of the World of Warcraft series games. In view of this and the copyright marks in the official website and legal publications of plaintiff Blizzard Entertainment involved in the case as introduction of heroes and monsters in the World of Warcrafts, there is sufficient proof that the plaintiff enjoys copyright for the artistic works of the designs of 18 heroes and 7 monsters claimed. The respondents' unauthorized use of the designs of these heroes and monsters in the game infringed the plaintiff's rights to reproduce, distribute and disseminate online its fine-art works. At the same time, the World of Warcraft series games of the plaintiff are very famous in the Chinese market. Therefore, the plaintiff’s game World of Warcraft: Warlords of Draenor constituted a famous game. Since the relevant public view Warcraft as an abbreviation of the World of Warcraft, "Draenor" is a fictitious name in the World of Warcraft, and has distinctive features that distinguish the source of the commodities. Thus, World of Warcraft: Warlords of Draenor constitutes a specific name of a famous game. The respondents launched a similarly named game Everyone Warcraft: War of Draenor (originally named as Tribal Chief Thrall: Crusade of Warcraft) around the time the plaintiff's game World of Warcraft: Warlords of Draenor was launched. Subjectively, there was an intention to take a free ride on the popularity of the plaintiff's game. Objectively, it was likely to cause confusion among the relevant public. It thereby constituted unfair competition of unauthorized use of specific names of famous commodities of others. In addition, the respondent Fenbo Times repeatedly mentioned World of Warcraft when promoting the disputed game. This is false publicity that is likely to cause the relevant public to believe that the game is a mobile version developed or authorized by the plaintiff. The respondent Qiyou was the developer of the disputed game, respondent Fenbo Times was the exclusive operator and shareholder of respondent Qiyou and respondent Dongjing provided the download services for the disputed game to the public, with authorization by the respondent Fenbo Times; hence, there was sufficient evidence to establish the plaintiff’s claim that the three respondents constituted joint infringement. With the plaintiff being likely to win, it was obviously unconvincing for the respondents to claim that the interim injunction would cause great harm to themselves and their players if the plaintiff loses the litigation. In addition, the three respondents jointly conducted infringement. Therefore, whether or not the disputed game software is registered under the name of a third party does not affect whether to issue the injunction in this case.
With respect to whether the plaintiff would suffer from irreparable harm, the disputed game was launched around the time the plaintiff's game World of Warcraft: Warlords of Draenor was launched. Although the two are mobile and PC games, respectively, both are online games that have similar names, similarly designed and named heroes and monsters, similar game interfaces and similar model of heroes fighting monsters. Therefore, the two are products with a strong competitive relation. The launch of the disputed game will inevitably squeeze and occupy the market share of the newly launched game of the plaintiff. Furthermore, online games are characterized by short lifecycle, fast dissemination and broad circulation, making the plaintiff’s harm hard to calculate and quantify. Moreover, the respondent Fenbo Times marketed the disputed game with vulgar approach. When confused about the disputed game and the plaintiff’s game, the relevant public will make negative evaluation about the plaintiff, which will harm the plaintiff’s reputation.
With respect to the holistic removal of the disputed game and the protection of players' interests, although the respondents proposed that the designs of relevant heroes and monsters could be modified, the modification proposal submitted after the hearing was still substantially similar to the content claimed by the plaintiff. In addition, according to the facts that the name, designs of relevant heroes and monsters and other important components of the disputed game are all infringing, and that the disputed game is promoted as 100% recreating the designs of World of Warcraft, the designs of the remaining heroes or monsters of that game are likely to be found infringing, too. Thus, the plaintiff’s request to holistically remove the disputed game is sufficiently proven and shall be supported. However, the provision of services such as balance inquiry and refund to players of the disputed game shall not be affected during the term of the injunction.
