Online celebrity’s name is frequently registered. How to deal with malicious registered ills in the Internet age？
● The problem of registered trademark has a long history, but registered online celebrity’s name is bound to constitute infringement. If it can be proved that the trademark registration violates the prior rights, it should be rejected or invalid.
● The dilemma of trademark cybersquatting mainly lies in: First, the parties’ ability to defend their rights is insufficient, which is manifested in their insufficient ability to provide evidence; Second, the infringer is more professional and makes full use of the vague areas and loopholes of the law; Third, the trademark review department is incompetent, and online celebrity’s economy is complicated, among which the problem of celebrity name right is more complicated
● The purpose of cybersquatters is very obvious, that is, to make profits through transfer or litigation. It is the key to solve this kind of problem that the profit-making purpose of cybersquatters cannot be realized. As far as cybersquatters are concerned, they should seek the guidance and help of professionals in case of trouble, and do not have the psychology of spending money to eliminate disasters; As far as the relevant departments are concerned, the economic cost of cybersquatters should be further increased and the profit space of cybersquatters should be greatly reduced.
Our reporter Zhang Wei
On August 3rd, a 6-minute video "I was told that I couldn’t use my 22-year-old name and asked me to change my name! How do I defend my rights! Published on the Internet and widely circulated.
This is the latest work of Jing Hanqing, a well-known short video blogger, but different from the past, this time it tells the real experience that is happening to him. Recently, Jing Hanqing received a notice from Zhiqiao Electronic Products Sales Department in Jinghu District, Anhui Province (hereinafter referred to as Zhiqiao Electronics), claiming that his nickname "Jing Hanqing" infringed the exclusive right to use Zhiqiao Electronic’s registered trademark and demanded "timely rectification and renaming". However, Jing Hanqing is not only his account name, but also his real name that he has used for 22 years.
With the continuous fermentation of the incident, there were many incidents in which online celebrity’s name was registered. In this regard, a number of intellectual property law experts said in an interview with the reporter of Legal Daily that cybersquatting of online celebrity’s name is just the spread of cybersquatting, which has been repeatedly banned. Its essence is no different from the previous cybersquatting of celebrities or stars. It is suggested that the economic cost of cybersquatting, especially the registration cost, holding cost and transfer cost, can be increased, the profit space of cybersquatting can be greatly reduced, and the management system for mining and utilizing the commercial value of new media online celebrity industry should be improved.
Registered companies specialize in cybersquatting.
Online celebrity’s name is favored.
Jing Hanqing has more than 4.51 million fans on Bili Bili.com (bilibili), and is known as the top 10 UP owners of this website in 2018, and can be called the anchor of online celebrity.
On July 30th, he suddenly received a letter from Zhiqiao Electronics, claiming that he was the holder of the registered trademark No.31259902 "Jing Hanqing" in China, and that the account number "Jing Hanqing" currently operated by Jing Hanqing had infringed on his exclusive right to use the registered trademark. Jing Hanqing should rectify and change its name in time, otherwise, he will entrust a lawyer to send a letter in the near future asking major video websites to seal up WeChat official account related to Jing Hanqing.
Later, when Jing Hanqing logged into the media account, he really received an infringement complaint. But what he can’t understand is that the word "Jing Hanqing" is not just his own account number, but also his real name. Is it because someone else has registered a trademark that he can’t even use his real name?
After Jing Hanqing exposed his experience on the Internet, he found that many video bloggers had the same experience. Some bloggers said that they were also asked to pay 350,000 yuan as a trademark transfer fee.
After logging in to the China National Intellectual Property Administration Trademark Office and China Trademark Network, the reporter of Legal Daily found that as of August 6, 2019, there were seven "Jing Hanqing" trademarks, which were applied by six different companies or individuals, including Zhiqiao Electronics, which defended Jing Hanqing’s rights.
According to Tianyancha information, Zhiqiao Electronics was registered on August 29, 2017, with the registered capital of only 20 yuan, and its business scope covers the wholesale and retail of electronic products. This company has made great achievements in trademark registration, and is especially fond of nicknames in online celebrity. Kai Xinbao shows that the company has 104 trademarks, and bloggers’ nicknames such as "Falling Star Commentary", "Funny Spicy Brother" and "Modatis" are all included as their trademarks.
According to the agent of Zhiqiao Electronics, Zhiqiao Electronics has made representations on the behavior of "Jing Hanqing" fans of UP, such as harassing and intimidating their staff by phone. Bilibili was requested to stop this illegal act in time, but bilibili did not respond. Zhiqiao Electronics has proposed to the Jing Hanqing team to transfer the "Jing Hanqing" trademark for free.
At 1: 06 a.m. on August 6th, bilibili published "Notes on UP Master Nicknames Being Malicious Registered as Trademarks" on his Weibo account "Billie Billie UP Master Deacon", saying that recently, a third-party company was found to have maliciously registered many UP Master Nicknames as trademarks. Due to the low cost of cybersquatting, high cost of safeguarding rights and long trial period, such cybersquatting has caused great trouble to the UP master group. "bilibili will not be maliciously registered by other institutions because of the UP Master Nicknames. At the same time, in order to better safeguard and protect the legitimate rights and interests of UP owners, they will provide corresponding legal assistance to UP owners. "
Once prior rights are violated.
Trademark registration should be rejected.
This event, which has aroused widespread concern in society, has been solved satisfactorily, and the topic of trademark cybersquatting triggered by this incident has been mentioned again.
The legal expert of intellectual property protection in the Legal Department of Alibaba Group has been fighting with intellectual property hooligans and trademark hooligans for many years. According to him, not only the names of Nobel Prize winners Tu Youyou and Mo Yan have been targeted by many "trademark hooligans", but also literary and sports stars such as Yao Ming, Ning Zetao and Jay Chou have suffered from cybersquatting many times. Even bloggers such as handmade Geng, gourmet writer Wang Gang and witty Dang Mei, who have become popular in recent years, have also experienced the distress of cybersquatting.
In this regard, Dong Binghe, a professor at Wang Jian Law School of Soochow University, believes: "Under the current economic and social conditions, online celebrity’s name has been squatted, which is only the spread of the long-standing trademark squatting in the virtual world, and can even be said to be an upgraded version."
Professor Qi Aimin, Dean of Guangxi Intellectual Property Development Research Institute of Guangxi University for Nationalities, also believes that cybersquatting of online celebrity’s name trademarks is essentially the same as that of traditional cybersquatting of celebrities and stars, but with the advent of the Internet age, malicious cybersquatters use large-flow online celebrity to cybersquatting to become a new model of "near big names". Because most online celebrity lacks the awareness of relevant intellectual property layout and rights protection, they are blackmailed by malicious cybersquatters, which will bring great damage to the name rights, reputation rights and economic interests of online celebrities.
Stealing online celebrity’s name is bound to constitute infringement. Cong Lixian, a professor at the School of Intellectual Property of East China University of Political Science and Law, said that online celebrity’s name may be a real name or a flower name. No matter whether it is a real name or a flower name, his name right is protected. "If online celebrity’s name actually becomes a celebrity’s name, then there will be a stronger prior right protected by trademark law."
In response to such incidents as Jing Hanqing, Cong Lixian believes that the provisions of the Trademark Law that trademark registration shall not infringe upon prior rights are very clear. If it can be proved that the prior rights are infringed, the trademark registration should be rejected or invalid.
How to judge the registered trademark? Cong Lixian said that the determination of cybersquatting should start with the concretization of malicious registration, which is the key regulation in the revision of the Trademark Law. It can comprehensively consider the applicant’s business scope, ability to use, trademark application history, the number of registered trademarks under his name, the originality of the applied trademarks, and the results of previous judicial decisions.
In Qi Aimin’s view, the core elements of cybersquatting are "not for the purpose of use" and "malicious". The cybersquatting of online celebrity trademarks is a typical cybersquatting behavior. Cybersquatters subjectively expect "legitimate profits" and objectively cannot provide effective evidence of trademark use.
Dong Binghe also believes that the signs protected by Article 6 of the Anti-Unfair Competition Law, including product name, packaging, decoration, enterprise name (including abbreviation, font size, etc.), social organization name (including abbreviation, etc.), name (including pen name, stage name, translated name, etc.), the main part of domain name, website name, webpage, etc., also belong to the registered objects. "This provision can be applied as long as the competent authority determines that the applicant has no purpose of use."
Platform management lacks system.
It is not easy to defend rights in online celebrity.
In Dong Binghe’s view, on the one hand, the reason lies in the profit-seeking psychology of the registered trademark, which reflects the speculative mentality prevailing in the whole society. On the other hand, the relevant measures taken by the competent authorities did not play their due role and did not accurately grasp the inherent economic laws and commercial logic of trademark squatting.
Cong Lixian believes: "Fundamentally speaking, this is a long-standing problem of social integrity in China, which is getting worse at this stage. The mercenary social trend of thought is very representative in the field of malicious trademark registration. From a realistic point of view, the unclear rules, inconsistent standards of discretion and low cost of illegal activities are the direct reasons for the repeated prohibition of malicious trademark registration. "
At the same time, the lack of legal provisions and the difficulty of defending the rights of registered people are also important reasons. Qi Aimin said: "On the one hand, due to the lack of effective evidence support, there is a lack of professional intellectual property rights defenders to deal with trademark invalidation procedures and litigation procedures. In the face of malicious cybersquatting, they are often discouraged from defending their rights because they spend huge financial and material resources; On the other hand, at present, the definition of malicious cybersquatting in China’s trademark legal system is still not very clear, the punishment is not as strong as the profit, and cybersquatters are still unscrupulous. "
"This incident of Jing Hanqing, which has aroused public concern, also reflects that the domestic new media operation platform lacks a corresponding system for the development and management of the commercial value of online celebrity celebrities. online celebrity celebrities themselves lack the awareness of layout and rights protection, and it is unpredictable or difficult to take into account trademark squatting." Qi Aimin said.
Cong Lixian believes that the dilemma of this kind of rights protection mainly lies in: first, the parties’ rights protection ability is insufficient, which is manifested in the lack of proof ability; Second, the infringer is more professional and makes full use of the vague areas and loopholes of the law; Third, the trademark examination department is incompetent, and online celebrity’s economy is complicated, among which the problem of celebrity’s name right is more complicated.
For online celebrity’s name being registered, the rights protection of the parties is also facing special problems. Dong Binghe told the reporter of Legal Daily that online celebrity’s name is often not his real name (the name registered in the identity document), and many online celebrity’s names are not in line with the habit of naming names in China, and it is not easy for the relevant public to treat them as names. In this case, it is not easy for online celebrity to prove not only that he uses a name, pen name or stage name, but also that he is the person to whom this name, pen name or stage name refers. Although online celebrity’s activities are often commercial, the factual and legal basis for claiming that online celebrity’s name is a trademark or trade name is not sufficient and there is great uncertainty.
Improve the layout of intellectual property rights
Kill malicious cybersquatting in advance
Although it may be difficult to defend rights, Xunyang believes that "encounter ‘ Trademark rogue ’ Don’t panic, we can take up legal weapons to defend our rights. "
For the experience of Jing Hanqing and others, the tour abroad suggests that we can protect our rights from four aspects. First, seek help from the platform rights protection mechanism. Jing Hanqing and others can send letters to all platforms at the first time, stating that their previously used name rights have been maliciously registered, so as to protect their legitimate rights and interests. Second, the application for trademark is invalid. When the disputed trademark enters the preliminary examination and approval announcement, it may raise an objection. When the disputed trademark is approved for registration, it may also submit a dispute to the Trademark Review and Adjudication Board, requesting that the registered trademark be deemed invalid. Third, take the initiative to attack the court. If Jing Hanqing and others have conclusive evidence to prove that the registered party’s behavior is malicious rights protection, they can initiate a non-infringement lawsuit in court, or they can sue the other company on the grounds that the trademark infringes their own name right. Fourth, you can report extortion directly to the police.
According to Yang You, some "trademark hooligans" extort money from their victims by collecting transfer fees and authorization fees. For example, in Foshan in 2017, the first extortion case of "intellectual property hooligans" in China, the defendant extorted money from several Taobao sellers and was finally sanctioned by law.
The "2018 Alibaba Digital Economy Business Environment Report" shows that by the end of 2018, all kinds of malicious complaints about the abuse of intellectual property rights accounted for 24% of the total complaints of Alibaba’s intellectual property protection platform, and Ali has identified more than 1,500 malicious registered trademarks. With the continuous efforts of the platform, the number of goods complained maliciously decreased by 59% in 2018, and the number of businesses complained maliciously decreased by 44%.
Qi Aimin suggested that the management system for the exploitation and utilization of the commercial value of the new media industry in online celebrity should be improved, and the platform of online celebrity should build a perfect management system for the development of the commercial value of the platform online celebrity, establish the intellectual property layout plan for the platform online celebrity celebrities, and stifle the malicious cybersquatting of trademarks in the cradle; To further improve the trademark law, we should strengthen the prosecution of large-scale malicious cybersquatting for the purpose of extortion; In trademark review, we should strengthen the examination of prior rights, according to the influence and flow of celebrities in online celebrity, and reject the malicious and large-scale cybersquatting of celebrities in online celebrity.
Cong Lixian believes that not only rights holders should strengthen their rights protection, but also the legislative and administrative departments should strengthen the management of intermediary institutions, strengthen administrative law enforcement, and pay attention to the role of industry organizations. In addition, from the aspect of clarifying the rules, the trademark registration administration department and the judiciary should also issue special management regulations and judicial interpretations for malicious registration, hoarding of trademarks and improper repeated registration.
"The purpose of cybersquatters is very obvious, that is, to make profits through transfer or litigation, so that the profit-making purpose of cybersquatters cannot be realized, which is the key to solving such problems." Dong Binghe suggested that, as far as cybersquatters are concerned, they should be calm when things happen, seek guidance and help from professionals, and don’t have the psychology of spending money to eliminate disasters; As far as the relevant departments are concerned, in addition to effectively implementing the existing mechanism of trademark law, the right way is to increase the economic costs of cybersquatters, especially the registration costs, holding costs and transfer costs, and greatly reduce the profit space of cybersquatters to make them unprofitable.