The 2022 Beijing Winter Olympic Games have ended with the Olympic Broadcasting Services announcing they had surpassed all previous winter games in viewership – and officially became the most-watched Winter Olympics ever. The popularity of Olympics-related market also led to much commercial speculation, arousing frequent debate on IP protection, with lively public discussion.
This year’s Winter Olympics mascot, Bing Dwen Dwen, famously captured the hearts of viewers worldwide with its charming image; and huge demand for mascot-themed products sparked extensive discussion on whether they constituted copyright infringement without authorisation.
Even during the Games, a case of producing and selling pirated Winter Olympics mascots was swiftly investigated and heard in Beijing, becoming the first criminal case in China involving copyright infringement of the mascot. The infringer’s production and sale of their own mascots constituted duplicating and using Olympic symbols and Olympic-related works without authorisation, falling under suspicion for violating, among others, the Copyright Law and the Trademark Law.
China’s dedicated legislative protection of Olympic symbols began with formulation of the Regulations on the Protection of Olympic Symbols in 2002, which were revised in 2018. In view of the popularity of the mascot, the Beijing Winter Olympics organising committee further issued relevant rules on non-commercial use.
According to these rules, determining the legality of production or sale of mascots primarily needed to determine whether it was for commercial purpose. If the Olympic symbols were used for profit, such as selling coffee or cakes decorated with their image, it may constitute infringing the exclusive rights, copyrights, trademark rights, design patents and other IP rights of the Olympic symbols. If the symbols were used for non-commercial purposes, such as making Bing Dwen Dwen-themed snowmen and food, or when the athlete Wu Dajing announced an auction of the awarded golden mascot for public welfare, such acts usually do not constitute infringement.
However, there are exceptions in non-commercial use, where determination of copyright infringement is not based on whether relevant acts were for the purpose of profit-making. Derivative creation of the Bing Dwen Dwen image and adapting its image with accompanying text to create memes or other artworks that are then shared on the internet may lead to risks of copyright infringement, even if no profit is generated.
In addition to mascot Bing Dwen Dwen, popular, online traffic-generating Olympic athletes also became the focus of public attention. It was reported that within four days of freestyle skier Gu Ailing announcing her participation, as many as 29 applications for registering the trademark of Gu Ailing were filed, just as at the Tokyo Summer Olympics last year, when the names of athletes such as Quan Hongchan were also submitted for trademark registration. If these applicants had no permission, such applications may be determined as malicious trademark squatting.
In practice, in the absence of any reasonable or constant correlation between the applicant and the trademark intended to be registered, or any legitimate reason for its use, and the content or elements of the trademark involved other person’s well-known names or images, or identifiers of others with certain influence, the applicant is usually determined to have the motive and purpose of obtaining illegitimate benefits – in other words, subjective malice.
According to the law, if an applicant maliciously squats a trademark or files an infringement action for a squatted trademark, the trademark application should not be accepted, or, if registered, the trademark should be invalidated. The applicant may also face administrative penalties such as warnings and fines.
Some businesses carried out implicit marketing activities by “freeriding” the Olympics, which may come under suspicion of unfair competition. Among the Top Ten Model Cases of Intellectual Property Law Enforcement in 2020 announced by the Beijing administration for market regulation was the case of “Shuangao Ice and Snow (Beijing) Technology infringing the exclusive rights of the Olympic symbols”. The company published promotional videos containing the graphic logo of the Winter Olympics emblem on its own website without permission, infringing the exclusive rights of the emblem.
According to the Regulations, using Olympic-related elements to carry out any activity is sufficient to cause misconception that a special relationship exists between the activity and the rights owner of the Olympic symbols – constituting unfair competition.
The misuser will be penalised in accordance with the Anti-Unfair Competition Law. In particular, the operator will be determined to have conducted false marketing to deceive and mislead consumers. For example, the use of photos or patterns of the Winter Olympics venue “Ice Cube” in the advertising of sports equipment can easily mislead consumers to believe there is a connection or a special relationship between the product and the Winter Olympics. If such connection or relationship did not exist, the act may constitute false marketing. If it caused damage to others, the operator will bear civil liabilities, such as ceasing unfair competition and compensating for losses.
It is worth mentioning that in addition to the above infringements outside Winter Olympics venues, there were similarly IP infringements on the inside. US figure skating silver medalists Alexa Knierim and Brandon Frazier were sued by an American music composer group, Heavy Young Heathens, for allegedly using their arrangement of the music track The House of the Rising Sun during the Winter Olympics, infringing their copyright.
Compared with the active right-protection awareness in developed Western countries, China’s intellectual property protection has a long way to go.
As lawyers, we are pleased to see the concept of intellectual property and its value taking root in China’s public consciousness, with more people realising their significance. The Winter Olympics provided an opportunity for China to demonstrate its determination to protect intellectual property rights to the world, as more domestic achievements in this area are being logged every day.
Zhang Yubo is an associate at Tiantai Law Firm
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