The domestic sci-fi film "Wandering Earth 2", which caught fire during the Spring Festival, not only achieved excellent box office results, but also led to the surrounding craze of the film.
However, when the film IP derivatives sold well, like many popular films, "Wandering Earth 2" also had risks in the trademark layout.
According to the official website of the Trademark Office, as early as 2020 and 2021, Republic Culture Media (Beijing) Co., Ltd., the affiliated company of Wandering Earth 2, has applied for the relevant trademarks of Wandering Earth 2 on categories 16 and 41, such as "Wandering Earth 2 A FRANTWO FILM THE WANDERING EART II", "Monthly Plan", "Space Elevator", "Mountain Moving Plan", "Door Frame Robot" and other IP-related trademarks.
Its trademark layout is not too early, but it only applies for registration in category 16 and category 41, which only involves the promotion and distribution of films, without the early layout and protection of IP derivatives that may be involved in films.
Correspondingly, in the trademark protection of the first "Wandering Earth", China Film Corporation applied for the registration of the "Wandering Earth The Wandering Earth" trademark in 29 categories, covering most of the hot commodities.
If the film and television works do not have the trademark layout in advance, they are easy to be preempted and counterfeited by others, and they also appear to be inadequate in the protection of rights. See the following cases.
① "Black Adam" is an image of DC Comics.
In the ruling on the invalidation of the "Black Adam" trademark No. 39442804:... One of the applicable requirements of Article 32 of the Trademark Law for the protection of the prior use of the trademark is that the trademark has been used on the same or similar goods as the goods used in the disputed trademark before the registration application date of the disputed trademark, and is known to the relevant public within a certain range.
In this case, the documentary evidence submitted by the applicant is not sufficient to prove that the applicant used the "Black Adam" trademark first and made certain impact on the same or similar goods approved for use with the disputed trademark before the date of application for registration of the disputed trademark.
Therefore, the registration of the disputed trademark does not violate the provisions of Article 32 of the Trademark Law, "preempting the registration of a trademark that has been used by others and has certain influence by improper means".
② "Nine and three quarters platform" is the place in the famous Harry Potter series.
In the ruling on the request for invalidation of the trademark of "9 3/4 Platform" (No. 25503020):... The evidence on the record submitted by the applicant can prove that the "Harry Potter" films of the applicant have a certain popularity among the relevant public in China, but "PLATFORM 9 3/4", as the virtual location name in the video works, has a low degree of correlation with the cosmetics, soap and other commodities approved for use of the disputed trademark, The registration of the disputed trademark is not easy to cause confusion or misunderstanding among the relevant public, which may damage the interests of the applicant.
③ The Number One Player is a sci-fi adventure film directed by Steven Spielberg in 2018.
In the decision on the approval of the registration of the trademark "No. 1 player" No. 30087008:... The name of the film and television works cannot be protected independently of the film and television works because it cannot reflect the complete content of the literary and artistic works.
In addition, the right of commercialization is only a theoretical concept and has no basis in law.
The scope of protection for well-known film and television works does not necessarily extend to all categories of goods and services. The services designated for use by the objectionable trademark are not closely related to the audience group of the objectionable film and television works, and should not cause consumers to confuse and misunderstand the source of services.
According to the above cases, it can be seen that no matter the name of the film and television works or the characters and locations inside the film and television, they can not have a close relationship with various commodities without corresponding IP derivatives.
Therefore, in the absence of sufficient evidence to prove the malicious nature of the preemptive registration or counterfeiting of others, when the film and television works use the prior rights other than trademarks as the basis to crack down on the preemptive registration or counterfeiting of trademarks, they often cannot obtain the support of the Trademark Office.
However, if the film and television related IP is placed on the popular goods and services in advance, and the prior trademark is taken as the right basis, it can not only avoid the preemptive registration of others, but also effectively combat the counterfeit trademark, the film and television IP trademark layout is particularly important.
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