CASE 4 :

“NBA” TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

◆ First instance: (2015) YueZhiFaShangMinChu No. 64

◆ Second instance: (2015) YueMinZhong No. 1395

Guangdong Province

[Headnotes]

Commercialized operation itself is a kind of transformation, and the cartoonization treatment does not affect the certainty of commercializing the relevant image and logo. Based on the retention and use of many corresponding recognition elements and features, such as character image, action characteristics, nicknames, etc., the cartoonization process does not prevent the relevant public from easily identifying and connecting the recognized element to an NBA collective. The behavior of the defendant is classified as full imitation and improper use of the NBA recognition element set.

[Synopsis]

Plaintiff (in the trial of first instance): NBA Properties, Inc. (referred to as NBA), Shanghai Wapu Network Technology Co., Ltd. (referred to as Wapu Co., Ltd)

Defendant (in the trial of first instance): Chengdu Lanfei Mutual Entertainment Technology Co., Ltd. (referred to as Lanfei Co., Ltd), Qingdao Zero Line Interactive Network Technology Co., Ltd. (referred to as Zero Line Co., Ltd), Guangzhou Changyue Network Technology Co., Ltd

NBA is the operator of the American professional basketball league, which authorized the Wapu Co., Ltd to use the contents of the NBA feature recognition database in mobile card games in Mainland China. The NBA and Wapu Co., Ltd filed a lawsuit against the use of the NBA feature recognition database, registration of the trademark , and the use of the relevant domain name in the sued game, which constituted trademark  and unfair competition. Zero Line Co., Ltd was ordered to suspend the unfair competition behavior and compensate for economic losses.

The court held that the NBA feature recognition database advocated by the NBA and the Wapu Co., Ltd in this case is essentially a commercialized interest of the NBA collective image, which is composed of many individual images, characteristic elements and logos. Moreover, unlike the general commercialization rights, this case involves not an individual image, but a collective one. The set of NBA identification elements involved has objectively formed an identifiable and stable orientation to the NBA collectively in China. The accused game applies many NBA recognition elements to the whole game, far beyond the necessary scope for reasonable and proper use, and is enough of a comprehensive imitation to cause market confusion and misunderstanding, which is obviously contrary to the principle of good faith and business ethics and thus constitutes unfair competition.

[Judge's Comment]

This case involves the protection of commercial rights and interests of the world-renowned basketball tournament NBA league and its identification elements. The case has received much attention from the society because of the popularity of the parties and the novelty of the legal issues involved.

Unlike the general cases, this case involves not only the individual image or specific trademark of a certain player, but also the whole image rights of the NBA. This case explores the theoretical basis and conditions for the protection of such unidentified competition elements in this set of identification feature elements and suppresses the behavior of the alleged game’s comprehensive imitation and improper use of relevant identification features, highlighting the advocacy in market competition. Adhering to the principle of honesty and obeying the ethical attitude of IPRs protection, it not only demonstrates how to prudently apply the principled clauses of the Anti-Unfair Competition Law and reasonably protects the commoditization rights of collective image, but also conducts honestly and regulates online game operators, competition playing a good guiding role.

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