Case 6 Dispute over unfair competition of “Lost in Thailand”
[Basic Information]
Case No.: (2013) High Civil First Instance No. 1236
(2015) Civil Third Final Instance No. 4
Plaintiff: Wuhan Huaqi Movies & TV Production Co., Ltd.
Defendant: Beijing Enlight Media Co., Ltd., Beijing Enlight Pictures Co., Ltd., Beijing Yingyitong Culture Communication Co., Ltd., Beijing Joy Leader Culture Communication Co., Ltd., Xu Zheng
[Case Brief]
Wuhan Huaqi Movies & TV Production Co., Ltd. (hereinafter referred to as “Huaqi”) owns copyrights for film, script and music of Lost on Journey as well as all intellectual property rights of Lost on Journey. After its release in 2010, Lost on Journey had been widely recognized in the industry. Thereafter, Huaqi started to prepare to make Lost on Journey II, and signed a script commission contract with Tian Yusheng, according to which it enjoyed all intellectual property rights for the script created. On September 4, 2010, Wang Zixuan, personnel of Huaqi, sent the outline of Lost on Journey II to Xu Zheng by e-mail. In May 2011, Lost on Journey II reported by Huaqi got approved and obtained the permit for movie production. In December 2012, the film Lost on Journey Again: Lost in Thailand invested by Beijing Enlight Media Co., Ltd. was released to the public; this film was produced by Beijing Enlight Pictures Co., Ltd., Beijing Yingyitong Culture Communication Co., Ltd., Beijing Joy Leader Culture Communication Co., Ltd. and Huang Bo Studio, while Xu Zheng worked as the director and screenwriter of the film. Huaqi believed that “Lost on Journey” is a special name belonging to well-known goods; by changing the name of film from “Lost in Thailand” and “Lost on Journey Again” into “Lost on Journey Again: Lost in Thailand”, the five defendants constituted the act of using names identical with or similar to the special name of “Lost on Journey”; their act may easily cause confusion or mistake of relevant public, hence constituted counterfeiting. During promotion of the film, Enlight Media and Xu Zheng changed the name of the film from “Lost in Thailand” and “Lost on Journey Again” into “Lost on Journey Again: Lost in Thailand”, and expressed and implied on various occasions that the film was the sequel, “upgrade version”, “all-round upgrade”, “extension of the brand” and “extension of the group” of Lost on Journey, hence constituted false advertising. Enlight Pictures and Xu Zheng implied and even expressed in the promotion of the film Lost on Journey Again: Lost in Thailand that the film was the “upgrade version” of Lost on Journey, their act derogated the reputation of Huaqi and Lost on Journey and constituted business discrediting. Business success of Huaqi’s film Lost on Journey came not only from the interesting new approach and the special name, but also from the uniqueness of content planning and the story line; Enlight Media and Xu Zheng, clearly knowing that Huaqi was preparing to make Lost on Journey II, counterfeited the film name of Huaqi and conducted false advertising and business discrediting, and selected the same actors and film elements to make Lost on Journey Again: Lost in Thailand; they directly appropriated achievements of Lost on Journey, unfairly occupied the market advantage and business opportunity of Huaqi, violated the stipulation of paragraph 2, Article 2 of the Anti-Unfair Competition Law on the principle of fairness and good faith and generally accepted commercial moral, and constituted the act of unfair competition of free riding. In conclusion, Huaqi believed that the five defendants constituted joint infringement, and requested the court to order the five defendants to cease infringement, eliminate effects and offer an apology to Huaqi, and pay a joint compensation of RMB 100 million for economic loss and reasonable expenditure of litigation. The court of first instance held that Lost on Journey had a certain awareness previously. The five defendants were not at fault by selecting the same actors to make a same type of film, nevertheless, they still changed the film name from Lost in Thailand to Lost on Journey Again: Lost in Thailand when clearly knowing that Huaqi prepared to make Lost on Journey II, showing obvious subjective intention of clinging to the existing reputation of Lost on Journey; at the same time, they repeatedly expressed in public opinions such as Lost on Journey Again: Lost in Thailand was the “upgrade version” of Lost on Journey, causing confusion and mistake of the relevant public to the two films. In conclusion, the five defendants misused the reputation that Huaqi’s film Lost on Journey had obtained previously, impaired the competing interests of Huaqi for the success of Lost on Journey, violated paragraph 1, Article 2 and Article 5.2 of the Anti-Unfair Competition Law, constituted unfair competition and shall bear corresponding civil liabilities. Accordingly, the court of first instance made a judgment to order the five defendants to cease the act of unfair competition, openly eliminate effects and compensate RMB 5 million yuan for economic loss. The five defendants were dissatisfied with the first-instance judgement and appealed to the Supreme People’s Court. The Supreme People’s Court made the second-instance judgment in 2018 to reject the appeal and affirm the original judgment.
photo from: sohu.com
