Is It Possible To Register A Trademark With A Movie Name For Infringement?

With the occurrence of property rights protection cases, such as "deity Di Ren Jie" and "Shen Di Ren Jie Jie", "Thai embarrassment" and "embarrassing road", let us once again arouse attention to the legal issues related to the titles of film and television works.

Is the title of a movie and television company intellectual property? Can a movie name be used to register a trademark? Is it possible to register a trademark with a movie name for infringement?

The title of a movie can be registered as a trademark.

As for the problem of infringement, because the film itself has copyright, but the name is a simple combination of words, can not express certain ideological content, so generally do not enjoy copyright.

Therefore, a trademark registered with a movie name does not involve infringement of copyright.

As to whether or not to infringe upon the trademark right of others, it is necessary to analyze specifically according to the specific conditions of the trademark law. It mainly depends on whether others have applied for the registered trademark with the same name before the same or similar commodity before you.

For example, when the producer of the assembly has applied for registration in a large number of film and television related categories, then you will register the "assembly number" under similar commodities.

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1. Whether the title of film and television works has intellectual property rights?

The name of the film and television work is the producer's summary of the content of a film and television works, as well as an identification of the audience's choice of film and television works.

Therefore, the name of film and television plays a very important role in a film and television work.

However, whether the title of film and television has intellectual property rights can not be generalized.

Generally speaking, intellectual property refers to the exclusive rights of a citizen or a legal person, such as a subject or a legal person, who is entitled to the intellectual products produced by intellectual creation or innovation activities, also known as "intellectual property rights" or "intangible property rights".

Intellectual property includes two parts: copyright and industrial property.

Among them, copyright is also called copyright, which refers to the exclusive rights enjoyed by authors in literary and artistic works.

Industrial property rights include patents, trademarks, service marks, name of manufacturers, name of origin, etc.

Two. Protection of intellectual property rights of film titles

The copyright protection of titles of film and television works: as long as the author's independent creation and the expression of certain ideological content can be expressed, the title of film and television works should be protected by copyright law. For example, movie names like "Infernal Affairs" and "baby in love" do not originate from general vocabulary, nor are they copied, plagiarized or tampered with others' works. They are created independently by the author and summarize the theme of the film very well, so such films should be protected by copyright law.

It also means that the title of film, like "hero", should not be protected by copyright law because it originates from general vocabulary and lacks originality.

The above is only theoretical discussion, because of China's "

"The third categories of works do not include the titles of films and television works. Therefore, whether the title of film and television works in China is protected by the copyright law seems to be a suspense. This is also an important reason why many people oppose the protection of copyright in the titles of film and television works.

However, the author believes that although the copyright law in China does not explicitly protect the copyright of titles of films and TV titles, it does not explicitly prohibit the use of the third articles in the copyright law when it enumerates the types of works, including the words "literature, art and natural sciences, social sciences, engineering and technology", which are listed in the following forms, which indicates that the article is an open listing rather than a closed list. The types of works protected by copyright law in China are not limited to the categories enumerated in the third copyright law. When the social conditions and technical conditions are ripe, the works that are not explicitly stipulated in the copyright law but accord with the elements of the works can be incorporated into the categories of works protected by copyright law in China.

Therefore, the copyright law in China does not constitute the category of works as the category of works, which is not enough to justification for its protection from copyright law in China. On the contrary, the open provisions of the third articles of copyright law provide a realistic possibility for the protection of the right to write works of film and television titles conforming to the elements of the work.

In addition, according to the tenth provisions of copyright in China, the author has the right to protect the integrity of his works.

The title of film and television works is usually a concise generalization of the core idea of the film and television works. When people see the name of a movie and television works, they often guess what themes the movie and television works belong to and the theme they want to express, such as "Lian Aizhong's baby".

If someone else uses the name of a movie and television works as a commercial mark for commercial purposes or services, such as applying the "arrogant" to the catering industry, it can not reflect the ideological connotation expressed by the "arrogant rivers and lakes". It separates the internal connection between the name and its work, thus violating the author's right to protect his works.

Secondly, the protection of the title of film and television is by trademark law.

Trademark is used to distinguish goods and services. Therefore, as long as the name of film and television works is significant, it can be used as a sign to distinguish goods and services. Without violating the prohibition of legal provisions, the name of the film and television works can be registered as a trademark, so that the name of the film and television works will be protected by trademark law as a registered trademark.

For example, the fifth article of the German trademark law stipulates that "business marks and titles of works are protected as commercial signs". "The title of the work is the name or special sign of printed matter, film and television works, sound works, stage works or other similar works."

But in practice, the most problematic thing is that others have not been authorized by the producer of the film and television works to seize the title of the movie and television works as a trademark. For such a rush act, China's trademark law provides legal relief for the rights holders of the film and television works.

The ninth article of the Trademark Law of China stipulates: "the trademark that applies for registration should have significant characteristics, which is easy to identify, and must not conflict with the legitimate rights that others obtained first."

According to the World Intellectual Property Organization (IPR), the so-called "legal rights to obtain first" mainly include the right of trade name, the right of industrial design, copyright, the protection of the name of the original place of origin, the right of name and the right of portrait.

Therefore, if the name of the film and television works constitutes the "prior legal right to obtain" in the trademark law, the producer of the film and television works can prevent others from taking advantage of the name of the movie or television, or apply for cancellation of the improper registration or malicious registration of the name of the film and television.

For example, as mentioned above, because the film name "Infernal Affairs" can be protected by the copyright law, the producer of the film can infringe on the "legitimate right to get the first priority" to prevent others from taking advantage of the movie.

Therefore, the producers of film and television works in order to avoid the names of their films and TV productions are being grabbed by others, and try to use the original titles of films and TV programs, and try to avoid using the general vocabulary as the title of the film and television works, so that even if the producers of the film and television works do not apply for the registration of the title of the film and television title, he is not afraid of others to rush the name of the film and television works, because he can still prevent others from taking advantage of the relevant provisions of the trademark law to seize the name of the film and television, or to revoke the improper or malicious registration of others.

In addition, when the name of the film and television works reaches or has the degree of well-known trademark, it can enjoy cross class protection on non similar commodities.

The thirteenth article of the Trademark Law of China stipulates that "trademark that applies for registration on different or similar commodities is a copy, imitation or plation of a well-known trademark which has been registered in China, misleading the public, resulting in damage to the interests of the registered trademark of the well-known trademark, and no registration and prohibition of use."

In other words, once the name and trademark of a film and television work is recognized as a "well-known trademark", its protected range is not limited to registration of such services or goods, and can be extended to all categories.

It is necessary to point out that although the names of some films and TV plays are significant, they do not necessarily constitute the "legitimate right to get first", which makes it difficult to prevent others from taking advantage of the titles of the films and TV titles.

Therefore, when the name of a movie and television works does not constitute the "legitimate right to get first" and the producer of the film and television does not want others to seize the title of the movie and television works by others, the producer of the film and television works should prepare for the rainy day. Before the publication of the film and television works, the trademark application work of the film and television works should be done well.

Third, the law against unfair competition can also be used as a weapon to seek legal protection for titles of films and television.

The right to counter unfair competition refers to the right to stop others from violating the honest competition in industrial and commercial activities.

Most of the names of movie and television works have distinctive characteristics, and they can indicate the work to the public. Therefore, if others steal the names of others' films and television works, especially the names of some well-known films and TV shows, it will easily cause confusion among the public.

Therefore, according to the laws of most countries in the world, the relevant rights holders can seek the protection of the law against unfair competition.

This is also true in our country, according to our country.

The fifth item (two) stipulates that an operator shall not engage in market pactions with the following improper means and damage his competitors: unauthorized use of the names, packaging or decoration of well-known commodities, or the use of similar names, packages and decorations with well-known commodities, resulting in confusion with the well-known commodities of other people, so that the buyer is mistaken for the well-known commodity.

Therefore, in the protection of China's film and television titles, the following conditions must be met:

(1) the film and television work is known as a well-known commodity; (two) the name of the film and television works is unique to the film and television works; (three) other people unauthorized use of the film and television works in the name of commodities mislead the public.

Taking the movie Infernal Affairs as an example, the movie Infernal Affairs is a commodity and a highly known commodity (it has almost swept the entire Chinese language world for some time, and won the Hongkong Film Awards this year). The name of the movie is "Infernal Affairs" which is also unique to the film. Therefore, Infernal Affairs constitute the unique name of well-known commodities, so if others use "Infernal Affairs" arbitrarily in commodities like books, audio and video products, it is likely that consumers will mistaken the book or audio recording products for the content of the movie "Infernal Affairs" or the recording and video recording.

If this happens, the producer of "Infernal Affairs" can stop others from using "Infernal Affairs" without authorization in goods or services in the relevant provisions of the anti competition law, or even cancel the trademark registration of other people on the grounds of infringing "the prior legitimate rights" - anti unfair competition rights.

However, the right holders of film and television works also have certain restrictions on using the anti unfair competition law to protect the titles of film and television works.

The unique name of the works can not be protected by the anti unfair competition law for those whose influence is relatively low in the public and the lack of popularity. Secondly, because the anti unfair competition law only regulates the unfair competition between the operators with competitive relations, so if others use the name of the movie and TV works to be used in goods that are not competitive with the film and television works, the film and television works will not be protected by the anti unfair competition law, for example, the "Infernal Affairs" will be used in the catering industry. Because the restaurant industry and the movie "Infernal Affairs" do not constitute a competition relationship, the rights of the film owner will be difficult to protect the title of the film through the Anti Unfair Competition Act. First of all, China's anti unfair competition law only protects well-known films and TV programs.

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