Text/Noelson Game Method, Zhu Junchao, Chen Jie

01

claimed 2.02 million yuan, and Paperfold sued a company

Improper use of game elements constitutes infringement

Recently, the unfair competition dispute case involving the game "Love and the Producer" was selected as a typical case of intellectual property protection by the Pudong Court.

All the game characters of "Love and the Producer" are preset as "contacts" in a certain accounting software, providing a similar immersive and companionship experience. At the same time, the software sets up and uses functions such as sending character-related photos and upgrading VIPs to induce users to pay or watch advertisements to achieve profitability.

Papergames, the operator of "Love and the Producer", argued that the software's use of character pictures infringed its copyright, the use of character names infringed its exclusive right to use a registered trademark, and that the imitation of the immersive dialogue and love interaction scene of "Love and the Producer" constituted unfair competition, and requested that the defendant be ordered to immediately stop the infringement and compensate the plaintiff for economic losses and reasonable expenses of 2.02 million yuan.

After trial, the Pudong Court held that:

First, the alleged infringing software's act of storing, editing, and interactively providing infringing images infringed upon the plaintiff's right to disseminate information on the network.

Second, the use of character names by the allegedly infringing software does not constitute trademark use, so it does not constitute trademark infringement.

Third, the plaintiff enjoyed certain economic interests in the character image, character setting, character lines, game scenes and other elements of its game "Love and the Producer". The alleged infringing software contains game character images to chat and interact with users and use them to attract traffic, which is a comprehensive imitation and plagiarism of the plaintiff's game elements. The defendant's conduct constituted unfair competition.

Accordingly, the court ordered the defendant to cease the copyright infringement and unfair competition involved in the case, and at its discretion to compensate the plaintiff for economic losses and reasonable expenses of RMB 118,500.

Noelson Comments:

In a similar "free-rider" infringement case, there may be the following obstacles when protecting the rights of game character elements:

1. If the use of a character name registered as a trademark by another person is not for the purpose of identifying the source of the goods, such use does not constitute trademark infringement, but the right holder may consider other infringement circumstances and sue for the cause of unfair competition.

2. If the elements of the game that are copied are in the public domain, such as the names of historical figures, even if the game uses the name for a new character image, it cannot claim monopoly rights and interests in this regard.

02

"Phantom Beast Palu" case: the plaintiff published 3 patents,

The claim was more than RMB 470,000

Pocket Pair, the creator of Palu, released an announcement on November 8, revealing some details of the lawsuit being sued by Nintendo and The Pokémon Company. The plaintiffs and the two companies believed that "Phantom Beast Palu" infringed their three patents, so they demanded that "Phantom Beast Palu" be removed from the shelves, and claimed 5 million yen and late fees each, totaling at least 10 million yen (about 470,000 yuan).

The announcement also discloses three specific patents claimed by the plaintiff, including:

1. Patent No. 7545191: Regarding the dual gameplay when encountering Pokémon in the wild, you can not only directly throw empty Poké Balls to capture, but also throw Pokémon Poké Balls for battle.

[Patent application date: July 30, 2024]

[Issue date: August 27, 2024]

2. Patent No. 7493117: About the aiming mechanism in the process of throwing Poké Balls.

[Date of application of the patent application: February 26, 2024]

[Issue date: May 22, 2024]

3. Patent No. 7528390: Regarding the riding system, when the player passes through four different environments of water, land, air, and cliff while riding, the mount will automatically switch accordingly, so as to smoothly move between different terrains.

[Date of filing of the patent application: March 5, 2024]

[Issue date: July 26, 2024]

Noelson Comments:

According to the official announcement of "Phantom Beast Palu", the patent application dates filed by Nintendo are all after "Phantom Beast Palu" was put on the shelves. Some netizens questioned whether it was possible to claim infringement based on a patent filed later, but in fact, Nintendo took the route of "divisional application".

Although these three patents are filed in 2024, the parent patent has been registered in the United States in December 2021, and the divisional patent can claim patent rights based on the filing date of the parent patent.

In this way, Nintendo can claim patent infringement for "Phantom Beast Palu", which went on sale in January this year. However, the premise of this operation is that the divisional application does not exceed the scope of the original application (parent case), otherwise not only will the excess part not be able to claim the patent rights based on the earliest filing date, but it may also lead to the entire divisional patent being declared invalid.

03

Selling game plug-ins was banned,

The owner claimed 2,000 yuan from the game company

The plaintiff, Xiao Zhao, advertised the game "assistance" in a private chat with the player, and the player reported it to the game platform Company A on the grounds of using a plug-in, and then Company A banned Xiao Zhao's account.

Image source network

Xiao Zhao believes that although he said the word "assist" in the private chat, he did not mention "plug-in", and the "assist" in his statement was not a game plug-in, and Company A should not block its game account on this basis.

As a result, Xiao Zhao sued Company A in court, demanding that Company A unblock his game account, and if he did not unblock the game account, he would compensate for economic losses of 2,000 yuan.

After the trial, the court held that the rights and obligations between Xiao Zhao, as a player of the game, and Company A should be adjusted in accordance with the rules formulated by the operator and agreed to by the actor when registering the game account, as well as the rules for the suspension process.

In this case, Xiao Zhao explicitly sold "double-open permanent assistance" to other players at a price of 300 yuan in the game, which was in line with the publicity "plug-in" designed in the detailed rules for account suspension.

Although Xiao Zhao said that he did not sell plug-ins and only purchased legal auxiliary tools on the official platform, the evidence he submitted showed that there was a large price difference between the price advertised by him and the price of the platform, and he did not provide evidence to prove the fact that he purchased them on the platform.

In summary, Company A's suspension of Xiao Zhao's game account was in line with the agreement between the two parties, and Xiao Zhao's litigation claim had no factual and legal basis, and accordingly, Xiao Zhao's litigation claim was dismissed in accordance with the law.

Noelson Comments:

Game cheats undermine a level playing field and increase the risk to users' accounts. Game companies and players should work together to resist the use of cheats for bad game behaviors.

In this case, in order to avoid such litigation or even losing the lawsuit, the game company recommends the following:

1. Clearly describe the prohibited behaviors and corresponding penalties in the user agreement, so as to serve as the basis for the game company to exercise the agreed regulatory authority.

2. Punishment measures that have a significant impact on the rights and interests of users, such as account bans, should be highlighted in the user agreement in advance to show that a reasonable reminder obligation has been fulfilled.

3. Leave traces of the monitored prohibited behaviors in a timely manner, so that in case of litigation disputes in the future, the reasonableness and legitimacy of the punishment measures taken by the game company can be proved.

This article is from Xinzhi self-media and does not represent the views and positions of Business Xinzhi.If there is any suspicion of infringement, please contact the administrator of the Business News Platform.Contact: system@shangyexinzhi.com