When it comes to trademark infringement issues involving game names, we should start from the general rules for determining trademark infringement, combine with the characteristics of the game industry, and comprehensively consider whether it is a trademark use, cause confusion, and have other defense grounds. This article intends to focus on analyzing the two key issues of "trademark use" and "possibility of confusion" in game names.

Keywords: trademark infringement, game name, trademark similarity

Question 1: Whether it is a "trademark use"

In practice, to determine whether a trademark infringement must first be considered constitute trademark use. According to Article 48 of the Trademark Law, the use of a trademark should be "an act used to identify the source of goods." "If a trademark owner believes that the behavior of others infringes upon its trademark rights, it must prove that the behavior of others is trademark use, that is, the use of the trademark logo of the trademark owner by others should be able to distinguish the source of the goods or services. Only actions that meet this prerequisite may infringe upon the registered trademark rights of the trademark owner. "

To determine whether a game name infringes upon trademark rights, you should also first consider whether the name plays a role in distinguishing the source. It is a trademark use. Generally speaking, game names have the function of distinguishing the source of the game and are trademark uses, but there are generally two exceptions.

The first situation is that it is not used prominently as a game name and it is difficult to identify it. A typical example is that the game name only appears in the text of the game introduction, or the relevant text is mainly used to describe the game's characters, props, character names, story scenes, etc. In the "Pocket Westward Journey" case, the plaintiff claimed the rights to 24 registered trademarks including "Fairy Furong", but the defendant used the relevant words to describe the characters or props in the game, that is, as the names of the relevant characters, props, etc., and Failure to use it prominently will objectively not cause the relevant public to form a specific correspondence between the above words and the defendant, and it does not constitute trademark use.

The second situation is that although prominence is used as a game name, it is only a "descriptive use". That is, the use of relevant words is based on the meaning of the words themselves, and is used to describe the content and characteristics of the service, etc., and is not intended to indicate the specific source of one's own goods or services. A typical example is the "Monopoly" case: "Monopoly" is mainly used to refer to "a game that simulates real-life business methods based on dice points", and the relevant public is already familiar with it. When the defendant used "Monopoly", the relevant public did not recognize it as a trademark. In addition, in cases such as "Three Generations", "Bao Huang" and "Dig Keng", the Three Generations Game, Bao Huang Game and Dig Keng Game, as common names for specific poker games, have been generally known and accepted by the public. The relevant public has seen that These words cannot be recognized as trademarks, and the defendant's use of relevant game names does not constitute trademark use. The Supreme People's Court once pointed out in the (2008) Min San Ta Zi Letter No. 12 "Reply to the Case of Trademark Infringement and Unfair Competition between Yuanhang Technology Co., Ltd. and Tencent Computer Systems Co., Ltd." If the name of a poker game that is commonly used by the relevant public is not used as a trademark to distinguish the source of goods or services, but only as a game name that reflects the content and characteristics of the game, it can be deemed as fair use.

Question 2: Is there "possibility of confusion"?

The core of determining trademark infringement is "possibility of confusion". The goods/services are identical or similar, and the trademarks are identical or similar. Questions are the main deciding factor. In addition, the popularity and distinctiveness of the registered trademark itself, the subjective malice of the alleged infringement, etc. are also important considerations.

First, whether the allegedly infringing game is identical or similar to the registered trademark goods/services. The trademark registration categories involved in games are mainly products such as Class 9 "Computer Game Software" and Class 41 "Providing Online Games on Computer Networks" and other services. The former mainly includes "client games" that rely on downloading clients to operate on computers, such as "Stone Age" and "Ragnarok" since 2001.

The latter mainly include online multiplayer interactive games developed based on the network of Web browsers, namely "Web games", such as "Proud of Heaven and Earth" and "Shenxian Dao" since 2007. The currently popular "mobile games", such as "Dota Legend", "Hearthstone", etc., are closely related to the aforementioned two types of goods or services. "Mobile games" account for a large proportion of current disputes involving trademark infringement of game names. If the trademark of the alleged infringing party is registered in both categories, it is relatively easy to judge. For example, in the "CrossFire" case, the plaintiff exclusively enjoyed the right to use the registered trademark "CrossFire" in Class 9 and Class 41. However, if the party claiming rights and the party accused of infringement each have trademark rights in two categories, the problem becomes complicated and requires a comprehensive judgment based on other factors and the legitimacy of the relevant actions.

Second, the determination of whether the trademarks are identical or similar. Identical or similar is mainly distinguished from the overall name, glyph and meaning of the game name and registered trademark. In cases of trademark infringement of game names, it is more common that the core words are the same, which leads to confusion in meaning. For example, in the "Pocket Fantasy" case, the plaintiff's registered trademark was "Fantasy Westward Journey". Since the trademark was used for online game services involving the theme of "Journey to the West", the word "Fantasy" was used to determine whether the trademarks were identical or similar. focus. The trademark involved in the case "Pocket Fantasy" contains the word "Dream" and is also used in online game services involving the theme of "Journey to the West". It may easily cause the relevant public to mistakenly believe that the games involved come from the same market entity, or there may be operational, organizational or legal problems. on the association.

Third, the degree of popularity and distinctiveness of the registered trademark itself. If a registered trademark has been widely used by the right holder, the relevant public, based on their familiarity with the registered trademark, will be more likely to associate it with the prior trademark when seeing the alleged use, and the likelihood of confusion will be higher. This is the case in most trademark infringement cases involving game names. In the "CrossFire" case, the plaintiff's game "CrossFire" has been on the market for a long time and gained high market recognition. The defendant used "CrossFire 2" It is easily reminiscent of the game run by the plaintiff. Otherwise, the conclusion may be different. In the "Monopoly" case, the court held that the plaintiff's "Monopoly" trademark "has not been actually used, so its distinctiveness and popularity are extremely limited." It is unlikely that the relevant public who entered the defendant's company's website would interpret the name of the game involved as the plaintiff's. trademark.

Fourth, malicious factors. The judgment of trademark infringement does not rely on the subjective fault of the perpetrator. However, if the accused infringer has the intention of deliberately gaining popularity of a previously registered trademark, it will undoubtedly increase the possibility of confusion. In the "CrossFire" case, the plaintiff has been operating the online game "CrossFire" for several years and has a high reputation. The defendant's game was originally called "CrossFire 3" and was renamed "CrossFire 2" after several months of operation. Edition)" and there is no other reasonable reason for changing the name. Obviously, the defendant has the subjective purpose of cultivating the goodwill of the plaintiff's "Cross Fire". It deliberately uses "Cross Fire 2", which can easily make people mistakenly think that it is an upgraded version of "Cross Fire".