How to strengthen the ＂fence＂ of ＂fairy tale king＂ caught in the tug-of-war of rights protection and trademark protection？

　　Photo courtesy of vision china

　　Protecting intellectual property rights and prohibiting the abuse of intellectual property rights, just like two sides of the same coin, are both aimed at making the intellectual property system really promote social development. Only with the consciousness and concept of "strict protection" and "no abuse" can malicious cybersquatting be eradicated.

　　A few days ago, Zheng Yuanjie, the king of fairy tales, publicly announced that he would stop writing the monthly magazine "The King of Fairytales" and devote himself to the rights protection of the three trademarks "Pipiru", "Shunk" and "The King of Fairytales". Over the past 36 years, The King of Fairy Tales has published 495 issues, with a total print run of over 200 million copies, affecting millions of readers. But to Zheng Yuanjie’s annoyance, many characters in his works and the word "King of Fairy Tales" are frequently squatted. After years of efforts, there are still 672 infringing trademarks waiting for rights protection.

　　The tug-of-war of rights protection exposes imperfect trademark protection.

　　His academic performance is not good, and he is not the kind of good boy that school teachers like, but he is kind-hearted, just and brave, and has stories on him — — Zheng Yuanjie’s China boy is called Cpaing. In 1985, with the publication of The King of Fairy Tales, a large number of literary characters, such as Pipiru, Lu Xixi, Shunk and Beta, became famous with Zheng Yuanjie’s fairy tales, which influenced generations of children.

　　However, a few years later, who would have thought that all these characters were registered as trademarks: "Pipiru" became pork skin, "Shunk" became an underwear brand, and "Fairy Tale King" became the flagship store of children’s wear e-commerce. In these years, on the road of safeguarding rights, Zheng Yuanjie is almost alone in "fighting". He knew the Copyright Law and Trademark Law by heart, and even risked his life to obtain evidence to defend his rights, but his "record" was not brilliant: in 20 years, there were 672 trademarks, and only 16 successfully defended their rights. In an interview with the media, Zheng Yuanjie revealed that it would take him six years to "win" a controversial trademark on average, which cost about 90,000 yuan.

　　Among them, the "tug-of-war" for the rights protection of the three trademarks "Pipiru", "Shuk" and "Fairy Tale King" has been going on for several years. Take the protection of the trademark "Cpaing" as an example. After the lawsuit in Zheng Yuanjie, the trademark of the sued enterprise was initially ruled invalid. After that, the trademark registrant appealed to the Beijing Intellectual Property Court and sent it back for retrial. After the relevant review body ruled that the trademark could be used, Zheng Yuanjie continued to sue … … Because of the twists and turns in the process of defending rights, and without the final victory, Zheng Yuanjie was exhausted.

　　"This exposes the imperfection of trademark protection in China. Although the trademark law has provisions on the protection of prior rights, it is not perfect. " Pan Helin, executive director of the Digital Economy Research Institute of Zhongnan University of Economics and Law, said that most trademark ownership in China is still the only requirement for obtaining rights by registration, rather than "actual use" and "true intention". However, the protection of prior rights is the general trend in the world. In foreign countries, as long as the earliest user can prove his prior use, even if the trademark has been registered for many years, he can apply for cancellation.

　　Lawyer Yu Qingkai, director of the Intellectual Property Professional Committee of Guiyang Lawyers Association of Guizhou Province and senior partner of Beijing Yingke (Guiyang) Law Firm, believes that the purpose of preempting the names of people with certain influence into their own trademarks is to promote their own goods or services with the help of the influence of the names of people, which is subjectively malicious and has no legitimacy. Judging from the judicial practice, the characters with such special phrases as "Cpaing" and "Shunk" were originally created by the obligee, who should have copyright, but there is no corresponding basis for the ownership and protection of rights in the current legal system.

　　"Blacklist" may not be able to stop the malicious cybersquatting of trademarks.

　　In 2020, there are about 13.4 million trademark applications in the world, and China ranks first in the world with about 9.3 million trademark applications by category. According to preliminary statistics, by the end of the third quarter of 2021, there were 34,300,631 valid registered trademarks nationwide, an increase of 6,920,766 over the same period of the previous year, with a year-on-year increase of 25.27%.

　　But in sharp contrast, the rush to register is rampant.

　　Ding Zhen, a teenager who suddenly became popular, was robbed, and Eye of the Great Power turned into a pack of cigarettes. Even Zhong Nanshan and Olympic athletes were hot spots. In recent years, wave after wave of "hot spots" trademark news has been searched frequently.

　　This phenomenon of cybersquatting has actually been related to the trademark.

　　To run counter to the meaning. With the increasing number of trademark registration behaviors of "rubbing hot spots", one registered trademark after another is ridiculous.

　　Those registered trademarks, whether hoarded or sold, are often behind unimaginable high transfer fees and usage fees, which may even promote malicious registered trademarks to become a gray industrial chain — — The registration fee is only a few hundred yuan, but if the registered trademark is a famous person, it may involve subsequent transfer, and you can get hundreds or even tens of thousands of times of income.

　　Fortunately, China National Intellectual Property Administration and the relevant administrative law enforcement agencies usually use batch rejection to solve the hot events and malicious cybersquatting of characters. For example, after the Chinese Olympic Committee shouted to stop "malicious cybersquatting", China National Intellectual Property Administration official website issued a notice rejecting 109 trademark registration applications such as Yang Qian, Chen Meng and Quanhongchan.

　　The Measures for the Administration of the List of Serious Violations of Law and Trust in Market Supervision and Management, which was officially implemented on September 1 last year, clearly stipulates that those who submit malicious trademark registration applications that harm the public interests will be included in the list of serious violations of law and trust.

　　Can this move stop this vicious rush to register trademarks? In this regard, Pan Helin said that according to the trademark law, malicious cybersquatting belongs to the category of infringement, not administrative punishment.

　　The list of serious dishonesty has a certain deterrent effect on trademark cybersquatting, but there is still a problem of malicious cybersquatting. In judicial practice, there are no clear provisions on the elements of the determination of preemptive registration, such as prior rights and improper means, and the determination of subjective malice is also controversial. Therefore, it is only a reference model to be included in the list of dishonesty. The key is to clarify the legal boundary of malicious trademark squatting and increase the punishment for malicious trademark squatting.

　　Let the rule of law become the "fence" of trademark protection

　　Last year, China National Intellectual Property Administration issued a special notice, announcing that it would take special actions to crack down on malicious cybersquatting. Among them, malicious squatting on the names of major scientific and technological projects has caused great adverse social impact, and malicious squatting on well-known works or role names has all been included in the crackdown targets.

　　China National Intellectual Property Administration stated that it will strengthen overall coordination, expose typical cases, illegal individuals, enterprises and agencies in a timely manner, and hand over those in bad conditions to local law enforcement departments for punishment in time, so as to create a good legal environment, market environment and social environment for all kinds of market players to compete fairly, innovate and consciously resist malicious cybersquatting.

　　Outline of Building a Powerful Intellectual Property Country (2021— In 2035), it is proposed that by 2035, China’s comprehensive intellectual property competitiveness will rank among the top in the world, and it will basically become a world-class intellectual property power with China characteristics. In the future, with the increasing protection of intellectual property rights in China, the high-pressure situation against malicious cybersquatting will become a new normal.

　　However, in recent years, an act under the banner of intellectual property protection is worthy of vigilance. From the recent Sichuan restaurant being sued for infringement for using the word "green pepper" in its dish name to the previous rights protection incident of "Tongguan Chinese hamburger" and "Xiaoyao Town Hulatang", the limits and protection scope of trademark rights protection have aroused heated public discussion. In the eyes of some people in the industry, protecting intellectual property rights and prohibiting the abuse of intellectual property rights are like two sides of the same coin, both of which are aimed at making the intellectual property system really promote social development. Only with the consciousness and concept of "strict protection" and "prohibition of abuse" can malicious cybersquatting be eradicated.

　　It is imperative to protect "plugging" with the rule of law as a trademark. Zheng Yuanjie suggested at the Weibo that a new clause should be added to the Trademark Law: to register the names and titles of well-known literary characters created by others within the copyright protection period, the authorization of the original author is required, and the registered trademark shall not infringe the copyright of others.

　　Lawyer Yu Qingkai also suggested perfecting legislation to protect the fair use of trademarks. He said that from the perspective of trademark registration, the author did not apply for trademark registration for the role names and titles of his works in time, which would bring difficulties to the follow-up rights protection. But on the one hand, it takes time and cost to register a trademark. On the other hand, if the current trademark law is not a registration act for the purpose of use, it will be recognized by the intellectual property department as malicious hoarding of trademarks and may be subject to administrative punishment. From this perspective, the author’s application for trademark registration for the role of his work has certain legal risks. Therefore, such role names and article titles should be defined as a new type of intellectual property, or the scope of copyright protection should be expanded to include the previously used influential role names and article titles.

　　The industry believes that the "fence" of intellectual property protection can be further built. It is expected that the "plugging" of the rule of law will leave some speculators with no loopholes to drill.