Fangchenggang Fairytale: How a Magic Mercedes-Benz Became A Humble Honda

Adam Smith dedicated his World Trademark Review blog about a Mercedes-Benz police car with a Honda logo. The local Fangchenggang police force (in Guanxi province) thought that they could fool taxpayers into believing that they did not spent too much money on a police car. Read here.

I think everybody understands that the police needs to have faster and better cars than the criminals. Third parties that are alterating, mutilating, distorting the three-pointed star logo of Mercedes-Benz by replacing it with the H-logo of Honda raises many kinds of questions:
- Can third party users of the Mercedes-Benz car after the purchase do whatever they want to do with the logo? In other words is the trademark exhausted after the sale?
- What claims can both Mercedes-Benz and Honda make based on a likelihood of (post-sale) confusion and likelihood of dilution and taking unfair advantage of the other trademark. Moral rights (droit d'intégrité) in regard to the copyright might also play a role.  
- An extra complication in this case is that not the competitor-copycat is the culprit, but a third party, and it is an interesting question whether it the trademark is used in or outside the course of trade.

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TGIF, But What Happened To This Author's Moral Rights On The IPR.gov.cn Site?

星期五: Friday

Thank Goodness It's Friday

I just finished a blog post on Professor Ken Shao's interesting article, see here, which ironically is about morality in copyright, and now I see his article republished on the site of Intellectual Property Protection in China ipr.gov.cn: Copyright battles shouldn't be fought for the wrong reasons. The source "Global Times" is mentioned, but not Professor Shao's name. And there is no link going to the original site, so you have to do some detective work to find the author.

I know it's almost weekend but not giving attribution to the author is not something I expect from ipr.gov.cn, nor something an author needs to accept.  

Article 22 Copyright Law: "In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:
(3) reuse or citation, for any unavoidable reason, of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events;"

Ok, it can be republished, however...

... there are moral rights in the Chinese copyright law. Here are two examples:
Article 10 Copyright Law: "The term "copyright" shall include the following personality rights and property rights: (l) the right of publication, that is, the right to decide whether to make a work available to the public;
(2) the right of authorship, that is, the right to claim authorship and to have the author's name mentioned in connection with the work;".

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After 44 Years Chinese Lovers of Literature Can Legally Buy "One Hundred Years Of Solitude"

Photo Festival Internacional de Cine en Guadalajara 

Some rights reserved

TGIF

Zhang Lei wrote a nice article for the Global Times about Thinkingdomhouse, a publisher who achieved to get a copyright license for China from Nobel Prize for Literature laureate Gabriel García Márquez to publish his masterpiece 'One hundred years of solitude' (Cien años de soledad).

"Unauthorized editions were widely available in markets as early as the 1980s, which infuriated the author, who vowed that even 150 years after his death, his works would not be authorized in China, when he visited in 1990." Well if Márquez was quoted correctly, he might be able to abstain Chinese publishers from authorised versions, but his copyright will expire 50 years after the moment he will exchange the temporary with the eternal. Then again within magic-realism, a writing style Márquez brought to great fruition, 150 years starting in the 1980s is a possibility which can not be completely excluded. It is great news that this summer an authorised version of Márquez' masterwork will be on sale in China. On the one hand it is moral rights of the author to determine whether he makes his work public or not (le droit de divulgation). On the other hand you cannot blame Chinese literature lovers that they want to read Márquez' masterpiece of which Pulitzer Prize winner William Kennedy said "the first piece of literature since the Book of Genesis that should be required reading for the entire human race."

Zhang is mentioning China's membership of the Universal Copyright Convention in 1992, as the moment the publishing industry has gradually increased awareness of copyright. According to this convention an author had to put a © on their work, his name and the year of creation in order to be protected via copyright.

Article III (1.) Universal Copyright Convention: "Any Contracting 'State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notarial certificates, payment of fees or manufacture or publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol © accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright."

Interestingly, this is in contradiction to the "no formalities" requirement of article 5 (2) Berne Convention for the Protection of Literary and Artistic Works to which China acceded in the same year. UNESCO's Universal Copyright Convention has been rather dormant lately, but it could already make a useful distinction between works in the public domain without the © and those protected by copyright. It avoids also to some extent the copyright orphan problem, because the name must be included. Creative Commons has been "ported" to China and makes clear what kind of use is allowed online, see here. 

Read the Global Times article here.    

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Sex, Lies And The Right of Integrity of the Grimm Brothers' Heirs

The (Hong Kong ) Standard has an Agence France-Press article 'Sex-crazed dwarfs get pulled' about China Friendship Publishing Company and China Media Time that copied the erotic adaption of the Grimm brothers' Fairy Tales by the Japanese duo Kiryu Misao.

Three comments to this racy story:

1. The excuse of Yuan, a China Media Time official "We couldn't find the original German edition of Grimms' Fairy Tales, so we took Japanese editions as our references and translated those" sounds like a fairy tale. The original German edition of the Fairy Tales by Jacob and Wilhelm Grimm can be found here.

2. The Kiryu Misao adaptation is a copyrighted work that was unauthorisedly copied by China Friendship Publishing Company and China Media Time. The only reason why this comes to the light is that the books were mistakenly put on the children's bookshelves in some book shop(s).

3. Although the Grimm's Fairy Tales' copyright is expired, the work's moral rights continue eternally. So the Grimm brothers' heirs could file a lawsuit on this ground. See article 10 (4) Copyright Law: "the right of integrity, that is, the right to protect one's work against distortion and mutilation".

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Trademark/Copyright Use or Abuse: Coca-Cola in Hong Kong

Do you think this use of the trademark should be allowed.

"Immoral to drink sweat and blood. Coca-Cola."

Photo taken from the wall at Franklin Centre at CUHK Campus in Shatin, Hong Kong. It is in protest against alleged bad labour conditions at the Coca-Cola plant.

One could argue that the copyright (moral right of droit au respect de l'intégrité de l'oeuvre) of the Pulitzer Prize winning photo by Eddie Adams is infringed.

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