1. Definition of plagiarism and imitation of advertising characteristics infringement

Plagiarism and imitation of advertising characteristics infringement refer to the pictures, structures, colors and other contents of other people’s advertisements that have distinctive and distinctive characteristics. Plagiarism or imitation of the arrangement, combination and overall layout of advertisements can cause consumers to confuse the advertisement and harm the interests of others, which is an act of unfair competition.

Plagiarism and imitation of advertising characteristics infringement are current new types of intellectual property cases. They mainly have the following characteristics: 1. The defendant’s plagiarism and imitation behaviors coexist. Plagiarism and imitation of the plaintiff’s advertising characteristics and use of trademarks similar to the plaintiff’s, Advertising slogans and behaviors coexist. For example, Mark was heard by Shanghai No. 2 Intermediate Court. In the unfair competition infringement case brought by Blake Display Company against Shanghai Himalaya Advertising Company, the original and defendant’s advertising slogans included “flexible and simple display racks and display systems, no tools required, random combination, portable carry, and repeated use”, etc. The plaintiff’s trademark is "Zhan Ling", the defendant uses "Zhan Jia"; 2. Most of the plaintiffs are overseas companies or sellers of overseas companies in Shanghai, dealing in foreign products, and most of the advertisements requested for protection were designed and produced overseas. It is common in practice for domestic enterprises to plagiarize and imitate each other's advertisements, but the number of domestic enterprises claiming rights is minimal; 3. The plaintiff's advertisements have distinctive features from design to production; 4. The plaintiff and the defendant carry out horizontal competition business in the same market, and the defendant Aiming to seize or exclude the product or service market of those being imitated.

Advertisements have the same copyright rights as general text, art or audio-visual works, but advertisements have completely different uses and values ??from these works. Advertising is a tool and means for operators to promote goods and services and establish corporate image. The production, design and dissemination of advertising is an important industrial and commercial activity. Specific advertising reflects specific goods, services and the corporate image of a specific operator, and has the function of improving the operator's product and business reputation, thus bringing competitive advantages to the operator. The value of advertising is not only reflected in the copyright of advertising works, but also in the promotion and utilization of unique creative advertising. Therefore, the commercial function of advertising far exceeds the copyright function of the work. However, since copyright cannot protect the "characteristics" or "style" of a work, relying solely on copyright to protect advertising space cannot prevent others from malicious imitation.

Plagiarism and imitation of competitors’ advertising features are expressions or statements that make it easy for the public to misunderstand the performance, production methods, quality and characteristics of the operator’s products. It is a dishonest market behavior. The purpose is to obtain improper benefits from the same market investment as the person being imitated. On the surface, it seems that the advertisements imitated later also have independent copyrights. In fact, they are parasitic behaviors under the status of homogeneous rights and are prohibited by law. Advertising itself has the disadvantage of being difficult to obtain strong protection such as patents. The procedure for applying for design patent protection is complicated, time-consuming, and expensive. There may be different advertisements for each type of product, the number of advertisements is large, and the advertisements change frequently. Therefore, the judicial department should increase efforts to stop plagiarism and imitation of advertising features, maintain and establish a market order of fair competition, urge domestic enterprises to increase investment in advertising costs, focus on developing and cultivating corporate intangible assets, and get out of the trap of plagiarism and imitation of foreign corporate advertising. Bizarre circle, prepare for joining the WTO.

2. Requirements for protected advertising

1. The person being imitated must be the subject with corresponding rights to the advertisement, and the imitator must be a competitor in the same industry as the person being imitated. (1) The person being imitated must be the copyright owner of the advertising work or the corresponding authorized person. If the advertisement is authorized from abroad, a notarized and certified authorization certificate with exclusive rights of use and recourse in my country must be provided. Authorized subjects with ordinary licenses or only recourse rights cannot be the parties claiming rights, because, according to international practice, trusts with simple litigation rights are not protected. (2) The advertisement should belong to the same category or major category as the product or service promoted by the imitation advertisement, but there should be no strict restrictions on whether the business scope of the enterprise is the same. Since the current state is gradually relaxing the business scope of enterprises, if the business scope of enterprises is required to be basically the same, some infringers may be able to escape.

2. The advertisement must have a certain amount of investment and publicity, and have a certain influence in the same industry. (1) The imitated advertisement has been placed or disseminated in the disputed market through various media, and the corresponding products and services have been launched.

The product or service market reflected in advertisements between competitors is horizontal competition in the same time and space or when some markets overlap. If the advertisement is only placed in foreign markets, ordinary domestic consumers will not be exposed to the advertisement and the advertised product, so there will be no confusion. Advertisements submitted by foreign businessmen that require protection must be carefully reviewed because intellectual property protection has regional characteristics. Such as the plaintiff Mark. In the unfair competition infringement case brought by Blake Display Company against the defendant Shanghai Himalaya Advertising Company, two versions of the series of advertisements requested by the plaintiff were not disseminated in the Chinese market. The court ultimately determined that plagiarism and imitation of the other three versions of advertisements constituted infringement. (2) The imitated advertisement has a certain influence on consumers in a specific market field, but it does not require that the advertisement be a well-known advertisement. Since imitating the characteristics of advertising falls within the scope of unfair competition infringement, the purpose of the Anti-Unfair Competition Law is to protect the parties’ freedom and full competition while ensuring orderly and fair competition. If the popularity of advertisements is taken as an essential factor, a large number of illegal imitations in the market will be excluded from the prohibition, which violates the purpose of competition law. But on the other hand, the advertising investment and publicity of plagiarized and imitated advertisements within the scope of their advertising radiation should also have a certain breadth and depth. Otherwise, a certain amount of intangible asset value will not be generated, and there will be no "free riding" phenomenon. Therefore, it is difficult for advertisements that are initially put on the market or are about to be put on the market to constitute plagiarism or imitation of advertising features until they have a certain scope of influence in the market.

3. It must have distinctive features that distinguish it from similar advertisements. It cannot be an advertisement commonly seen in the market. Its expression is unique and requires a certain degree of creativity. The overall layout and structure of the advertisement are different from similar advertisements. If the advertisement being imitated is a very simple and common combination and expression, even a naked imitation will not infringe. However, the creative requirements for advertisements are lower than those for fine arts or practical works of art, and they are not even required to be aesthetically pleasing, as long as they have unique characteristics and are easy to distinguish from similar advertisements. Some advertisements pursue "ugly" unconventionality, and sometimes they also contain huge intangible assets. At present, there are many cases of imitation of advertisements designed and produced overseas in China. If the advertisement is innovative compared with domestic advertisements, but may be the most common advertisement in the same industry in the foreign advertising market, it will be difficult for the court to review this aspect. , the imitator should bear the burden of proof.