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The Shanghai Intellectual Property Court recently made a final judgment on the case of trademark infringement and unfair competition dispute between the appellant Sichuan Tiandi Publishing Co., Ltd. and the respondent Shanghai Children's Publishing Co., Ltd.: it rejected the appeal and upheld the original judgment.
The court held that Tiandi Publishing House's use of "100000 whys" in the titles, book covers, sales pictures and descriptions of 14 books constituted trademark infringement and unfair competition in using the unique names of well-known commodities without authorization. The use of "100000 whys" in the books was a classic reading that affected several generations... This book was an upgraded version of 100000 whys "and other expressions constituted unfair competition in false publicity, It shall bear civil liabilities such as stopping the infringement, publishing a statement to eliminate the impact and compensating for the losses.
Feng Jie, President of children's publishing house, said, "the first case of '100000 whys' trademark rights protection won the final trial. This is a powerful declaration of our ownership of' 100000 whys' intellectual property rights, and also a major event in the history of '100000 whys' brand development."
Is the book titled "100000 whys" the classic popular science book "100000 whys"? The trial of this case mainly focused on three disputes: whether it constituted trademark infringement; Whether it constitutes unfair competition by using the unique names of other well-known commodities without authorization; Whether it constitutes unfair competition of false propaganda.
微信图片_20220818231653.jpgCopyright infringement books of Tiandi Publishing House
The Shanghai Intellectual Property Court held that "100000 whys" itself has an inherent meaning, but having an inherent meaning is not equivalent to the common name of relevant goods. Question and answer popular science books include the series of "100000 whys" involved in the case, but "100000 whys" cannot be equal to question and answer popular science books.
The prominent use of "100000 whys" by Tiandi publishing house on the cover of relevant books does not belong to the proper use for explaining the contents of books, but constitutes the use of trademarks to identify the source of books, objectively playing the function and role of identifying the source of books, which easily leads to confusion and misunderstanding of the source of books or the relationship between Tiandi publishing house and children's publishing house.
Nine of the 14 books involved in the case of Tiandi publishing house were first published before June 2017 (Note: the time when children's Publishing House obtained the right trademark registration). However, at this time, the "100000 whys" series of books of children's Publishing House enjoyed high popularity and reputation in the field of children's general books after long-term use and publicity. They were widely known by the relevant public and had the attribute characteristics of identifying the source of the series of books. Therefore, the court of first instance held that it was not improper to protect the unique name of a well-known commodity.
The Shanghai Intellectual Property Court also held that Tiandi publishing house used the expression "100000 whys are classic books that affect several generations... This book is an upgraded version of 100000 whys" without justifiable reasons, which easily caused readers to misunderstand that Tiandi publishing house is an upgraded version of children's Publishing House's "100000 whys" series books, and constituted misleading false propaganda.
Dong Wentao, the agent of children's publishing house, believes that the significance of this case lies not only in the fact that "100000 whys" are not the common name of popular science books confirmed by the judicial judgment, but also in protecting the gold lettered signboard of national popular science after 60 years of accumulation. More importantly, "one case is better than a dozen documents". This case will give play to the function and role of the judicial judgment as a standard guide and evaluation guide.
In November last year, the State Intellectual Property Office listed the registered trademark of "100000 whys" as a classic case in the national guidelines for trademark examination and adjudication, and confirmed the ownership of "100000 whys" in multiple decisions and rulings on invalidity, objection and reexamination of "100000 whys". At the beginning of 2022, the "100000 whys" trademark was listed in the Shanghai Key trademark protection list.
Children's Publishing House has sent lawyer letters to dozens of publishing houses, asking them to immediately remove the fake books from the shelves. After receiving the lawyer's letter, many publishers expressed their respect for well-known book brands and their willingness to actively cooperate with the off shelf counterfeit books through written replies, phone calls, SMS, wechat and other means, and signed the "100000 whys" brand intellectual property settlement agreement with children's publishing house.
Dong Wentao said: "After receiving the lawyer's letter from us, many publishing houses have a positive and sincere attitude, indicating that they are willing to be removed from the shelves and reconcile. They even put forward similar puzzles to me: the well-known books that they have carefully created and focused on publicity are often 'rubbed' by the traffic, 'hitchhiked' and 'near famous brands'. Some booksellers' scissors and paste' and 'copy and paste' methods are familiar, and they can produce a large number of books with the same name or similar names in a short period of time And seizing the market of well-known and high-quality books has led to the expulsion of bad money from good money, and has also dazzled readers and repeatedly been victimized. "
In this regard, Dong Wentao further proposed that, at the legal level, books are also a kind of commodity. The book name is the "key word" for consumers to find books and has the attribute characteristics of identifying the source of books. If a book has a high social popularity, the book name can be used as a "commodity name with certain influence" to obtain the protection of the anti unfair competition law.
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