1. Borrowing the waves to ascend to the top, the title journey of "Western Selection".
took the initiative to attack Dong Yuhui's Oriental Selection, which changed the repertoire one after another, and a "Western Selection" that imitated the Oriental Selection from the name to the anchor casting also took advantage of the popularity of this wave of national traffic in one step, claiming that the number of zero-start premieres hit millions. With Dong Yuhui's promotion to stay in office, the hit drama in the past few days has come to an end, and the Western Reserve Selection has also been on the hot search for a long time, and it was announced by the Douyin platform that it was found to be infringing and banned.
Of course, the ups and downs of the Western Reserve are dissatisfied, and complained on Weibo that "the face looks like a crime, our team has creative ideas, don't steal, don't rob, don't cheat, it's all become a sin, there can only be the East, not the West." ”
Second, this title is not unjust
1) After the banning.
As soon as the punishment came out, not only did Western Reserve itself disagree, but it said that it had applied for the "Western Selection" trademark and could win it the next day. There are also legal scholars, including those who have grievances, and the main points are summarized as follows:
1. Rubbing heat is not the same as illegality;
2. The right to look like an anchor with Dong Yuhui, and the imitation show is not infringing;
3. Dongfang Selection should have registered all the southeast and northwest in advance, and should not refuse to be used by others if they have not done "encirclement" protection registration.
Straight to the point, I believe that none of these opinions have any legal and factual basis and are contrary to business practice. The Douyin platform's ban on "Western Selection" is justified and well-founded, which will help curb all kinds of infringing lists and prevent commercial practices from falling below the bottom line.
2) The reason for the Douyin platform.
The reason given by the Douyin platform for the ban was that the "Western Selection" account was involvedCounterfeitingImproper rubbing of heat。It is important to note that these two different reasons have their own regulatory basis. The analysis of Western Selected Titles can follow the following legal logic:
1.WhyNo trademarks
Usually, counterfeiting disputes involve trademarks, especially high-profile commercial logos such as Dongfang Selection. However, there are certain exceptions to this counterfeiting dispute, because New Oriental did not successfully register "Oriental Selection".
According to the China Trademark Network on the official website of the State Trademark Office, New Oriental has applied for a series of "Oriental Selection" words and ** combination trademarks from the No. 61240445 trademark since December 21 in the name of Beijing New Oriental Xuncheng Network Technology Co., Ltd., but these trademark applications are all inRejection of the reviewMiddle.
This may come as a bit of a surprise, but a registered trademark must be distinctive, and both "Oriental" and "Selective" are descriptive, and even if combined into a single word, they are still universal. It is very likely that New Oriental did not use generic when choosing the trademark".Selective", and the downgrading uses homophony".SelectionUnfortunately, it still has not avoided the eyes of trademark examination.
In addition to the objective restrictions on the failure of Oriental Selection to pass the trademark registration, the experts who believe that New Oriental should have selected various types of trademark registration in the southeast and northwest as "encirclement" trademarks are probably not aware of the fact that the three-way system of the revocation of China's trademark law has always restricted the defensive registration of peripheral trademarks that are not actually needed but are registered for protection. Since a trademark that has not been put into actual use for three years can be revoked, whether for defensive or other justifiable reasons, enclosed registration is not feasible.
Counterfeiting across the board
Dong Yuhui's anchor image and Dongfang Selection account name are both core commercial logos with high prominence. The fact that "Oriental Selection" has not yet obtained trademark registration does not prevent it from being protected as an unregistered trademark and anti-unfair competition as a well-known service name.
Image protection and protection of the name of a well-known service are not absolute and exclusive rights, and are subject to the legitimate use of others under certain circumstances. Due to the descriptive nature of "Oriental Selection", it is not yet possible to unconditionally exclude other people from using similar account names reasonably. The use of anchors close to Dong Yuhui's image alone may not necessarily be infringing, and other conditions are required to prove the illegality of their purpose or result. However, the all-round counterfeiting of "Oriental Selection" by "Western Selection", from the account name to the anchor image and the live broadcast style, has both the subjective intention of causing confusion and the objective result of confusion, and the determination of infringement is not unhindered.
Improper rubbing of heat
The prohibition of "undue popularity" itself is more out of the requirements of the first regulatory policy, and on the other hand, the basis can also be found from the Anti-Unfair Competition Law.
The main legal basis for the counterfeiting mentioned in the previous section is that Article 6 of the Anti-Unfair Competition Law stipulates that business operators shall not use the same or similar marks as the names, packaging, decorations, etc. of goods that have a certain influence on others without authorization to confuse or mistake consumers for goods**. The basic legal basis for prohibiting undue popularity should come from the Anti-Unfair Competition LawArticle 2, the principle of good faith and prohibition of disrupting the competitive order or harming the legitimate rights and interests of other operators (and consumers).
In addition to the distinction between abstract principle provisions and specific conduct provisions, the difference between Articles 2 and 6 of the Anti-Unfair Competition Law is that Article 6 of the Anti-Unfair Competition Law emphasizes that illegal acts produce specific harmful results, including competition for transaction opportunities, damage to competitive advantages, etc.;And the anti-FrenchArticle 2More flexible and inclusive, targeting actions that have not yet produced obvious and direct harm results but are likely to cause potential harm to rights holders.
For example, the dilution of trademarks, which is opposed by the theory of trademark law, and the prohibition of "diluting the distinctiveness of well-known trademarks" by reference to Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Protection of Well-known Trademarks [2009], are aimed at damages that can be logically deduced but are difficult to calculate.
In this case, when New Oriental Live was suddenly pushed to the peak of public attention by the company's civil war, Western Zhenxuan fully imitated Dongfang Selection, even for those users who did not confuse and misidentify the two live broadcasts**, the impression of Dongfang Selection will be constantly blurred in the various parties that appear again and again and in the Qin cavity square-faced anchor of a mold. Such an atypical infringement result, with reference to the anti-dilution rule and the application of the principle provisions of Article 2 of the Anti-Infringement Law, can also be used as a basis for prohibiting "improper rubbing of heat".
3. Can the imitation show be done?
I immediately guessed that the imitation of the copycat Luhan's "Luha" would be used as a legitimate reason for the Western selection, and sure enough, I was not disappointed. Lu Ha was originally a working boy, and because he looked like Lu Han, he started to live cosplay Lu Han, especially because he revealed that he earned 5 million a month, which attracted a lot of attention.
Comparing Lukha and Western Selection, there are indeed subtle but important key differences that need to be clarified.
1.The tolerability of "parody".
Parody is a rule of U.S. law that originally based on the concept of fair use, which allows the use of another person's work for the purpose of criticism, criticism, etc., without the permission of the rights holder, for the purpose of criticism and criticism (i.e., to create a work with a new meaning). The parody rules can also apply in the area of trade signs outside of copyright law.
An important premise of the application of the parody rule in the U.S. context is that one of the fundamental reasons for the legitimacy of parody comes from the freedom of speech protected by the First Amendment to the U.S. Federal Constitution. Although the parody rule is intrinsically reasonable and supported by legal principles, it is applied differently in China than in the United States. We cannot say that Western selection will be recognized as legitimate in the United States, nor can we say that Western selection can be paroded in China to prove that Western selection is legitimate.
2.Cross-industry scenarios.
Lu Han and Dongfang Selection and Dong Yuhui are not in the same industry, which will have different effects on the results of imitation.
Lu Han is a professional singer and actor, Dongfang Selection is an e-commerce live broadcast, and Dong Yuhui is the anchor. The fan base is the most huddled and emotional. But although Luha Cottage Luhan did a live broadcast and crossed over to the entertainment industry, I haven't heard how emotional Luhan's fans are**.
The Western Selection not only comprehensively copied the Eastern Selection, but also the two companies are in the live broadcast industry, and the imitation behavior may be transformed into the erosion and diversion of commercial interests at any time, and the conflict of interest is obvious.
3.Different ways of behaving.
Luha is a copycat Luhan in the case of a public parody show, and the Western selection is silent, comprehensively counterfeited and unspecified copycats, it can be said that the former behavior is more enjoyable, and the latter is really easy to cause confusion and dilution.