A few days ago, the Shanghai Putuo District People¡¯s Court (the ¡°Court¡±) handled a dispute over pre-litigation act preservation in murder mystery games.

[Case Review]

The applicant Hunantv.com Interactive Entertainment Media Co., Ltd. (¡°Hunantv.com¡±) is the owner of the trademarks  (No. 14919320) and  (No. 19547871), the copyright owner of the series variety shows Who¡¯s the Murderer and the operator of Mango TV (mgtv.com).

The applicant found that the respondent had infringed upon its trademarks by using extensively and without permission, in the investment attraction, operation and promotion activities online and offline of the ¡°Mango Detectives¡¯ Office¡± murder mystery game service, logos and words such as ¡°Mango Detectives¡¯ Office¡± and ¡°Who¡¯s the Murderer¡± that are identical or similar to the above-mentioned registered trademarks (the ¡°trademarks involved¡±) owned by the applicant.

The respondent has also claimed in its online publicity channels such as WeChat, Sohump, and WeChat Channels and in the materials for investment attraction that its store is in ¡°strategic cooperation with Mango TV¡± and that the murder mystery games it provides are ¡°genuinely and exclusively authorized by the variety show¡±, the ¡°Live Action of Who¡¯s the Murderer¡±, etc. Such misleading and false publicity had caused huge losses to the applicant¡¯s goodwill.

Despite a warning, the respondent continued to attract more investment. A large number of infringing stores appeared within a short period. If such infringement were not prevented, the market share and customer base of the applicant¡¯s murder mystery game service would be improperly seized, and its core competitive advantages would be severely hurt.

Accordingly, the applicant filed an application for act preservation. The respondent argued that the logo of ¡°Mango Detectives¡¯ Office¡±, which was applied for registration in May 2020, is significantly different from the trademark involved, and that they are neither identical nor similar in terms of content, service channels, and audience. Therefore, it does not constitute trademark infringement.

In addition, the respondent has had business cooperation with the applicant¡¯s affiliated company for several times. With the acquiescence of the applicant, the use of the logos ¡°Mango TV¡± and ¡°Who¡¯s the Murderer¡± in publicity does not constitute false publicity. If the preservation were established, it would cause disorderly operation of the respondent¡¯s multiple offline stores, so it requested the Court to reject the application for preservation.

[Case Study]

After the hearing, the Court held that, first of all, the series program Who¡¯s the Murderer produced by the applicant has been aired exclusively on mgtv.com for a long time, and the trademarks involved are widely known and highly recognizable; in its online and offline marketing activities, the respondent has used logos such as ¡°Mango Detectives¡¯ Office¡± and ¡°Who¡¯s the Murderer¡±, and its murder mystery game service is similar to the trademarks involved in terms of service content and target; and preliminary evidence shows that the relevant public has been confused about and misidentified the source of the service, which suggests a possibility of trademark infringement.

In response to the false publicity claimed by the applicant, the Court held that, given the great similarity between the logos owned by the respondent and the trademarks involved, and the fact that the respondent¡¯s publicity is highly likely to make and has already made the relevant public believe that the ¡°Mango Detectives¡¯ Office¡± brand comes from Mango TV or that it is either a partner or licensee of the show (Who¡¯s the Murderer), there is a possibility of false publicity.

Second, according to the existing evidence, the respondent should have been aware of the applicant¡¯s brand and prior registered trademarks and expected risks for the continued use of the ¡°Mango¡± and ¡°Who¡¯s the Murderer¡± logos, yet it kept expanding its business through improper publicity. Without being stopped immediately, the respondent may cause a wider range of infringement and confusion and misidentification and damage the user training and market development of the applicant¡¯s offline murder mystery game. Therefore, pre-litigation preservation is urgent and necessary.

Third, the act preservation measures applied for by the applicant are limited to the logos of relevant stores and to online publicity. They are reasonable measures to prevent more damage to the trademarks involved and the platform of Mango TV, which may help customers identify the source of the murder mystery game service and promote the orderly operation of the respondent¡¯s franchisees and partners.

Accordingly, the Court ruled that the respondent should immediately stop its offline business activities and online publicity that have infringed the applicant¡¯s exclusive right to use the registered trademarks, immediately stop infringing the applicant¡¯s exclusive right to use the registered trademarks, and stop using the name of ¡°Mango Detectives¡¯ Office¡± to attract investment and franchising, and that all franchisees and partners of the respondent should rectify, remove, and delete relevant information and immediately stop all false publicity and unfair competition.

 As a temporary emergency remedy, pre-litigation act preservation has more convenient procedures and enforces quicker protection compared with other legal remedies. Since the preservation measures directly point to the core business of the respondent, significant changes may occur in the competition pattern in the industry market. Therefore, the court should be strict about the conditions and procedures for the application of the preservation measures, so as to protect the legitimate rights and interests of applicants in a timely and effective manner and prevent the abuse of rights from damaging the competition order. This case concerns trademark infringement in murder mystery games and pre-litigation act preservation in an unfair competition dispute, and involves multi-channel infringement online and offline and a large scale covering self-operated businesses and franchisees. Based on the preliminary evidence submitted by the applicant, the Court has considered, on the premise of strictly reviewing the factual basis and legal basis of act preservation, various factors such as the urgency and necessity of act preservation, the balance of interests of both parties, and the impact on social welfare, and ruled in accordance with the law a pre-litigation injunction, thereby striking a balance between preventing infringement and maintaining the normal operation of enterprises, and regulating the competition order of the culture and creativity market.

[Relevant Laws]

I. Civil Procedure Law of the People¡¯s Republic of China

Article 104 Under the emergency where the legitimate rights and interests of an interested party shall be irreparably damaged without immediate application for preservation, the party may, before filing a lawsuit or applying for arbitration, apply for the adoption of preservation measures at the location of the property to be preserved, the domicile of the respondent, or the people¡¯s court that has jurisdiction over the case. The applicant shall provide a guarantee, and the application shall be dismissed without a guarantee.

Upon acceptance of the application, the people¡¯s court shall decide within forty-eight hours; and the decision to take preservation measures shall be enforced immediately.

If the applicant fails to file a lawsuit or apply for arbitration within 30 days after the people¡¯s court takes preservation measures, the people¡¯s court shall lift the preservation.

Article 105 The preservation falls within the scope of the request, or is limited to the property related to the case.

II. Provisions of the Supreme People¡¯s Court on Several Issues Concerning the Application of Law in Cases Involving the Review of Act Preservation in Intellectual Property Disputes

Article 7 In reviewing an application for act preservation, the people¡¯s court shall consider:

(1) Whether the applicant¡¯s request has a factual basis and legal basis, including whether the effect of the intellectual property rights requested for protection is stable;

(2) Whether failure to take act preservation measures will cause irreparable damage to the legitimate rights and interests of the applicant or make it difficult to enforce the ruling of the case;

(3) Whether the damage caused to the applicant by not taking act preservation measures exceeds the damage caused to the respondent by taking act preservation measures;

(4) Whether the adoption of act preservation measures harms public interests;

(5) Other factors that should be considered.

(By Wang Meng and Shi Di, Shanghai Putuo District People¡¯s Court)