Universiade mascot; deer; infringing registered trademark; white deer;?

One is a trademark registered by a cultural company, and the other is the mascot of the 14th Universiade of Zhejiang Province. Two things that were originally unrelated, have become closely related. Because both of them use cartoon deers as graphics, the trademark name of the former is ‘White Deer Baby’, and the latter’s name is ‘Deer Baby’. The trademark registration unit of "Bailuwa" believes that this constitutes infringement. In this regard, the designer said that the design creativity came from his own imagination and did not refer to other works.

Cultural company:

It constitutes an infringement against us

Mr. Ma, the person in charge of a cultural media company in the urban area, said that the 14th Zhejiang Provincial Conference issued by Wenzhou University The Universiade, both in appearance and name, is very similar to the trademark "White Deer Baby" previously registered by his company, so he believes that the other party has infringed their trademark rights.

Accordingly, Mr. Ma produced two trademark registration certificates: one registration certificate contained a cartoon character named 'White Deer Baby', and the registration validity period is from April 7, 2014 to 2024. On April 6, 2014, the approved goods (Category 28) include toy balloons, toys, toy baby clothes, etc.; the registration validity period of the other registration certificate is from January 21, 2014 to January 20, 2024, and it was approved Service items (Category 41) include education, organization of educational or entertainment competitions, etc., and other contents are basically the same as the former.

The reporter compared the two cartoon patterns and found that the images were both based on a deer with antlers. The appearance was similar, but carefully observed the antlers, head decoration, eyes, arms, body shape and running The posture and so on are different. In this regard, Mr. Ma said that although some details are different, the overall similarity reaches 90%, and even the meaning of the image interpretation is basically the same, which has constituted infringement.

Mr. Ma believes that the Zhejiang Provincial University Games falls within the service items specified in the registration certificate: organizing educational or entertainment competitions. Although the University Games itself is not profitable, when the mascots of the Games are made into toys and sold externally, profit-making behavior will occur and it will also constitute infringement.

Wenzhou University:

If the other party thinks it is infringing, you can contact the school.

The designer is Teacher Shen from the School of Art and Design of Wenzhou University. He said that the design The idea comes from the story of a white deer carrying flowers when Wenzhou was building a city. The entire graphic is based on a running deer, which not only symbolizes Wenzhou as the pioneer area of ??China's private economy and the forefront of reform and opening up, but also reflects the hard work and youthful vitality of college students.

'The little deer is as cute as a child, named "Deer Baby"'. Teacher Shen said that these are all his own imagination. He has not referred to other works, let alone "White Deer". Baby' such a trademark.

In this regard, the relevant person in charge of the Propaganda Department of Wenzhou University said that the Zhejiang Provincial University Games will be held at Wenzhou University this time. To this end, the school is soliciting emblems, anthems and mascots from the society, and thousands of applications have been submitted. The works were selected from the works, and the mascot was finally determined to be the 'Deer Baby' designed by Teacher Shen.

The person in charge said that they did not believe that there was an infringement on the 'White Deer Baby'. 'First of all, the story of the white deer holding the flower is the cultural wealth of Wenzhou citizens. We cannot name the mascot "Deer Baby" just because the other party's registered trademark is called "White Deer Baby"; secondly, after careful comparison, we found that the two The patterns are different in many details. We cannot design based on the deer because the other party’s design graphic is a deer. ’

The person in charge believed that the cultural media company was suspected of hype. If the other party believes that it constitutes infringement, it can report it to the school according to normal procedures, and the school will communicate with it and handle the issue properly.

Experts tell you

Visiting professor Yang Wenguo of Wenzhou Intellectual Property College

Consisting a similar trademark

Whether infringement depends on the specific circumstances

From the pattern point of view, the overall concept and pattern characteristics are very similar to the registered trademark 'White Deer Baby', forming a similar trademark; from the point of view of the goods and services used by the trademark, the mascot toys and 'White Deer Baby' have been approved for use The goods in Class 28 are the same. If the mascot is used in the entertainment competition of the Universiade, it is the same as the service in Class 41 approved for use by 'White Deer Baby', and it also constitutes a similar trademark on similar goods.

If Wenzhou University distributes "Deer Baby" toys for free only to promote and publicize the sports games, this behavior is not a commercial use within the meaning of the "Trademark Law", and therefore does not constitute a violation of the "Trademark Law" Trademark infringement under Article 57; however, if the 'Deer Baby' toy is sold beyond the scope of promoting and publicizing the sports games, it will constitute an infringement of the cultural company's exclusive right to use the Class 28 'White Deer Baby' trademark. There is some controversy as to whether the 'Deer' mascot infringes upon the cultural company's exclusive rights in the Class 41 trademark.

From the perspective of copyright, if Mr. Shen from Wenzhou University can submit evidence that the creation of the work 'Luwa' was earlier than the time of trademark application for 'White Deer Baby', he can apply for the trademark under the Trademark Law Article 32 of "Application for trademark registration shall not damage the existing prior rights of others", the cultural company's trademark was declared invalid. Similarly, the cultural company can also claim whether Mr. Shen has infringed upon his copyright based on the creation order of his works.