Viewpoint... Hot spots are risky! -- Eastern Selection Event Risk Alert
Published:
2024-01-09
According to the "New Evening News" report, some people have set up a "Western Selection" studio on the tremolo platform. The tremolo platform has banned the "Western Selection" studio in the name of "suspected counterfeiting and improper popularity. For this matter, the author believes that there are two points need to be analyzed. First, whether the "Western selection" constitutes an infringement of the "Eastern selection. Second, whether such behavior constitutes "counterfeiting, improper hot" that is, unfair competition.
Recently, the Eastern selection event has become a hot spot on the Internet, and there have been many "new things" related to this hot spot ". According to the "New Evening News" report, some people have set up a "Western Selection" studio on the tremolo platform. Its anchor is close to Dong Yuhui's "Eastern Selection" in appearance. The video release also imitates Dong Yuhui's "If he is in the same snow, he will have a white head in this life" and other related contents.
At present, the tremolo platform has banned the "Western Selection" live broadcast room in the name of "suspected counterfeiting and improper hot.
The person in charge of "Western Selection" said in the studio that the account number was reported offline by "Eastern Selection". Although the report claimed that there was a risk of infringement, he inquired that the trademark of "Western Selection" had not been registered and he did not think it had caused infringement. At present, it has applied for the "Western Selection" account trademark and is expected to come down tomorrow. Three days after the start of the broadcast, the anchor was found temporarily, because the anchor looked very much like (Dong Yuhui) and came up with the idea temporarily. (Attached: "New Evening News" reported link https://baijiahao.baidu.com/s?id=1785617997539007520&wfr=spider&for=pc)
For this matter, the author believes that there are two points need to be analyzed. First, whether the "Western selection" constitutes an infringement of the "Eastern selection. Second, whether such behavior constitutes "counterfeiting, improper hot" that is, unfair competition.
Question 1: Does "Western selection" constitute an infringement of "Eastern selection?
In normal work, people often consult such questions, thinking that no one has the same self-use, and there will be no legal risks. For example, the person in charge of the "Western Selection" in the news report thinks that he has inquired about the "Western Selection" trademark and has not been registered, and he does not think it has caused infringement. What needs to be made clear here is that this view is wrong or inaccurate. For this problem, from a professional point of view, the following aspects need to be discussed:
Is 1. "Oriental Selection" a trademark and does it have trademark rights?
2. does "Western selection" and "Eastern selection" constitute an approximation in trademark law?
Does the use of "Western Election" in the live broadcast of "Western Election" in 3. constitute an infringement?
Is 1. "Oriental Selection" a trademark and does it have trademark rights?
The "Oriental Selection" live broadcast room carries out live delivery on the tremolo platform, and its service belongs to "commercial information and suggestions on selling for others and providing goods and services for consumers" and should be divided into category 35 services in the "Similar Services and Differentiation Table.
According to Article 8 of the Trademark Law, "any sign that can distinguish the goods of natural persons, legal persons or other organizations from the goods of others, including words, graphics, letters, numbers, three-dimensional signs, color combinations and sounds, as well as the combination of the above elements, can be applied for registration as a trademark." As a combination of words, "Oriental selection" plays a role in distinguishing one's own live broadcast from that of others, so it is a trademark in the sense of trademark law. Similarly, "Western selection" is also a trademark.
According to the first paragraph of Article 3 of the Trademark Law, "trademarks approved and registered by the Trademark Office are registered trademarks, including commodity trademarks, service trademarks, collective trademarks and certification trademarks; trademark registrants enjoy the exclusive right to use trademarks and are protected by law."
It can be seen from this article that the prerequisite for trademark protection in accordance with the law is to apply for trademark registration. A trademark approved and registered by the Trademark Office is a registered trademark, and the trademark registrant has the right to exclusive use of the trademark and is protected by law. Therefore, whether it is "Eastern Selection" or "Western Selection", the prerequisite for a trademark to be protected by law is to apply for trademark registration and be approved for registration in accordance with the law.
After the author's preliminary search, Beijing New Oriental Xuncheng Network Technology Co., Ltd. has applied for 4 "Oriental Selection" trademarks in Category 35, but they are all in the application status and have not been approved and registered by the State Intellectual Property Office. The registration information of "Western Selection" has not been found. From the perspective of trademark protection, "Oriental selection" does not have trademark rights.
2. does "Western selection" and "Eastern selection" constitute an approximation in trademark law?
The author believes that "Western Selection" and "Eastern Selection" constitute similar signs in terms of text composition, call, font and meaning. The following is a detailed discussion of these two marks from these four aspects, with emphasis on the approximate type of text composition.
1. Text composition
Both "Western Selection" and "Eastern Selection" contain the words "Selection" and "Selection" in their composition. Both "Selection" and "Selection" have the meaning of careful selection, but "Selection" pays more attention to perfection and is often used in the commercial field. "Selection" emphasizes careful selection and identification. This is a significant identifying part of the two trademarks. "West" and "East" point to different geographical or cultural directions, which belong to the non-significant identification part.
Judging from the number of words, "Western Selection" and "Eastern Selection" are both composed of four words. Among them, "West" and "East", as modifying words, respectively modified the words "selection" and "selection. Although "Western" and "Eastern" are different in meaning, they mainly play a role in modifying trademarks and do not change the significant identification of the words "Zhen Xuan" and "selection.
Therefore, in terms of text composition, there are similarities between "Western Selection" and "Eastern Selection" in both significant and non-significant recognition parts.
2. Call aspect
In terms of calls, the pronunciation of "Western Selection" and "Eastern Selection" is also similar. The pronunciation of the two trademarks is mainly "zhen xuan", but the pronunciation of the previous modifiers "West" and "East" is different. This approximate way of calling may confuse consumers when purchasing goods or services.
3. Font aspect
In terms of glyph, there may also be similarities between the glyph designs of "Western Selection" and "Eastern Selection. If the font design of two trademarks is similar, such as using similar fonts, typography or colors, then this visual approximation will also increase the possibility of consumer confusion.
4. Meanings
In terms of meaning, "Western Selection" and "Eastern Selection" both express the meaning of selection and preference, which is the core meaning of the two trademarks. Although "West" and "East" are different in geographical or cultural direction, they mainly play a role in the trademark and do not change the meaning of the word "Zhen Xuan. Therefore, from the meaning point of view, the two trademarks also have similarities.
To sum up, there are similarities between "Western Selection" and "Eastern Selection" in terms of text composition, call, font and meaning, especially in terms of text composition. This approximation conforms to the provisions on similar trademarks in the Guide to Trademark Examination and Trial. For example, as mentioned in the provision (1), "if the pronunciation of the trademark text or the text of the prominent identification part is the same or similar, and the font or overall appearance is similar, which is easy to cause the relevant public to confuse the source of goods or services, it shall be judged as an approximate trademark". Therefore, in the process of trademark registration and use, the two trademarks should be recognized as similar trademarks, which will cause confusion and misunderstanding by consumers.
Does the use of "Western Election" in the live broadcast of 3. constitute an infringement in the sense of trademark law?
As mentioned above, although "Western Selection" and "Eastern Selection" constitute similar trademarks and are used on the same service, since "Eastern Selection" has not yet obtained trademark rights, it cannot be claimed that the use of "Western Selection" in the live broadcast room of "Western Selection" constitutes infringement on the grounds of trademark infringement.
However, if "Oriental selection" can be recognized as a well-known trademark according to law, it can be in accordance with the provisions of Article 13, paragraph 2 of the Trademark Law, "the trademark applied for registration of the same or similar goods is a copy, imitation or translation of a well-known trademark not registered in China by others, which is easy to cause confusion, shall not be registered and prohibited from use.", Request protection according to law. In view of the current network popularity of "Oriental selection" and the leading sales volume of similar live broadcast rooms, it is possible to be recognized as a well-known trademark and be protected.
Question 2: Does this kind of behavior constitute "counterfeiting, improper heat", that is, unfair competition?
Even if "Oriental Selection" is not recognized as a well-known trademark and cannot be protected according to the trademark law, then in view of its ultra-high network popularity and the leading sales volume of similar live broadcast rooms, its name is very similar and it is used on the same service. During the previous "Oriental Selection" network hot spot, the use of "Western Selection" in this live broadcast room may indeed constitute "counterfeiting, improper competition. The possibility of "Eastern Selection" being protected by the application of the Anti-Unfair Competition Law still exists.
To sum up, in the head anchor's live broadcast room a day with more than 100 million yuan or even more than a dozen or billions of yuan is no longer a news market today, live webcast with goods has become an important sales channel. In this sales model, the head of the big V anchor is the core of the sales, but such as the name of the live broadcast room is increasingly becoming an important intangible asset, the need for MCN to strengthen the protection of the strength. As trademark registration currently takes about one year, it is not uncommon for the "Oriental Selection" network to explode overnight. MCN is even more required to protect the layout in advance. Otherwise, supplementary registration will be carried out after the overnight explosion, which will not only delay the protected time, but also increase the risk of being registered by others. It is undoubtedly half the effort to protect it by means of objection or even invalidation afterwards.
There are risks in hot spots. On the one hand, people who rub hot spots have the risk of infringement. On the other hand, right holders also have the risk of being rubbed but unable to protect their rights. I hope that business operators can operate in a down-to-earth manner and take every step of their own, but I also hope that the right holders have the right to be able to maintain when others rub hot spots!
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
