On March 19, the second instance of the case between Guangzhou NetEase Computer Systems Co., Ltd. and Jewel Music Co., Ltd. will begin. According to relevant sources close to NetEase's "Tianxia 3", the first instance of the case ruled in favor of the defendant "Tianxia 3", and the court rejected all litigation claims including Jewell's 2.05 million yuan claim. The court found that the mode of forwarding the lottery is a common publicity method on Weibo. The "Tianxia 3" Weibo distributed Jay Chou's digital album at its own expense and other player welfare activities were not profitable in nature, and it was difficult for the public to associate Jay Chou as a spokesperson, and it did not violate commercial practices. Morally, it was determined that the defendant did not constitute unfair competition.
Jewell is suing for NT$2.05 million in compensation
In July 2022, Jay Chou released a new album "The Greatest Work" after 6 years, triggering a wave of digital album giveaways across the Internet, and many game products such as "Tianxia 3" spontaneously Organize Weibo lottery activities to give back to users. On July 11, Jewel announced that it would take legal measures against "World 3" for privately giving away Jay Chou's new album and concert tickets. After the announcement, "Tianxia 3" immediately deleted the relevant activities and issued a clarification announcement, indicating that the lottery was only to give back to old users. On April 17, 2023, Jewel sued three main companies related to "Tianxia 3" on the grounds of unfair competition, and the first-instance public trial was held in the Hangzhou Binjiang District People's Court.
It is reported that the court analyzed and judged the focus of the case one by one on whether the defendant's behavior constituted unfair competition, and finally determined that all the defendant's alleged behaviors in "Tianxia 3" did not constitute unfair competition.
responded to Jewell’s claim that the event held by “Tianxia 3” in July 2023 to give away Jay Chou’s new album to players was without official authorization and was an act of unfair competition. The court determined that the lottery reposted on Weibo was a common activity, and a large number of social media The account holds activities to repost Jay Chou's albums or concert tickets, so the public will not easily misunderstand that the lottery party has a specific relationship with Jay Chou such as endorsement.
At the same time, the court also rejected Jewell's claim that "Tianxia 3" used elements from Jay Chou's new album in the game to make them into game props for sale. The court found that the "game props" were only "vouchers" for album redemption, and the event was only open to experienced players above level 20 of the game. It did not have the nature of attracting new traffic or making profits, and did not constitute unfair competition.
Jewell also proposed in the lawsuit that the use of Jay Chou's musical works in the WeChat public account article published by "Tianxia 3" on March 6, 2022 also constitutes infringement. In this regard, the court pointed out that the mention of "Blue and White Porcelain" by the WeChat public account was weakly related to other behaviors involved in the case and was an independent act. The two plaintiffs of clearly gave up their claim of copyright infringement in this case and requested protection under the Anti-Unfair Competition Law. However, even if evaluated according to the Anti-Unfair Competition Law, the song is played by gamers and the lyrics and music are well known, making it difficult to identify This behavior undermines the order of fair competition and therefore does not constitute unfair competition.
In addition, the court determined that from the perspective of the purpose of the behavior, the use of Jay Chou's name in the lottery Weibo by "Tianxia 3" was a fair use, as it was indicating that the prize was Jay Chou's new album. In addition, from the perspective of the results of the behavior, the plaintiff did not prove damage. The judgment of the relevant public can distinguish these activities as interactive behaviors between merchants and consumers, so the above activities do not constitute unfair competition.
Experts say should be wary of the abuse of unfair competition laws.
The lawsuit between Jewell and NetEase's "Tianxia 3" has also triggered many legal experts and scholars to discuss how to identify unfair competition and how to avoid excessive use of the "Anti-Unfair Competition" "Law" to safeguard rights, thus causing concern and discussion on issues such as waste of judicial resources.
"With the continuous development of legislation and judicial practice, the subjects of unfair competition are no longer limited to operators in the same industry, but this has also resulted in the current situation of "very busy anti-law"." Intellectual Property Department of Guangdong Zhuojian Law Firm, Gao Jiyuan, secretary-general of the professional committee and member of the legal committee of the Shenzhen E-sports Industry Association, said that under such circumstances, the determination of unfair competition requires a comprehensive and prudent assessment from multiple aspects. Unfair competition and "popularity" cannot be simply combined. "Just draw the equal sign.It is necessary to evaluate whether the behavior itself is unfair, whether it violates recognized business ethics and principles of good faith, and whether it misleads consumers into thinking that there is a specific relationship between the two parties such as endorsement and cooperation. It is also necessary to look at the results of the behavior to see whether it damages the Whether the fair competition order in the market harms the actual interests of other operators and consumers.
At the same time, Gao Jiyuan reminded that more caution is needed when applying the Anti-Unfair Competition Law. “Anti-law should become the lubricant of the commercial society and the glue for the laws of various departments of intellectual property, rather than a universal card for export.” He believes that if a business behavior is covered by legal frameworks such as the Copyright Law and the Trademark Law, It does not constitute an infringement, and it does not violate the specific provisions of the Anti-Unfair Competition Law. There is no need to forcibly expand the application of principle provisions, resulting in a waste of judicial resources. If the market can adjust itself, it should be left to the market to resolve. It is more conducive to healthy competition and economic development.
Written by: Nandu·Wancaishe reporter Chen Peijun
