Recently, reporters learned that Jay Chou and Jay Will Music Co., Ltd. sued Guangzhou NetEase Computer Systems Co., Ltd., NetEase (Hangzhou) Network Co., Ltd., and Hangzhou NetEase Leihuo Technology Co., Ltd. (the three companies are the relevant main companies of NetEase's game "Tianxia 3" (hereinafter referred to as "NetEase") unfair competition dispute case, the second instance will be heard on March 26.
On April 17 last year, Jewel took NetEase to court on the grounds of unfair competition. The reason was that when NetEase was promoting its game "Tianxia 3" in 2022, it used elements from Jay Chou's new album as game props. The official Sina Weibo account held a lottery to give away Jay Chou's new digital album and concert tickets.
(Jewell and "Tianxia 3" have issued statements one after another)
Jewilfang believes that NetEase's above-mentioned behavior is an improper use of Jay Chou's super popularity, the super popularity of the new album and the wide spread of music works. Driving traffic to the game, thereby increasing game users and ultimately realizing profits, constitutes unfair competition. NetEase is required to make a public statement and compensate for economic losses of 2 million yuan and reasonable rights protection fees of 50,000 yuan.
Jewell lost the case in the first instance, and all claims were dismissed
According to relevant sources close to NetEase's "Tianxia 3", NetEase won the case in the first instance, and the court rejected all claims including Jewell's 2.05 million yuan claim.
The source revealed that the court of first instance believed that, first of all, the mode of forwarding lottery draws is a common publicity method on Weibo. "Tianxia 3" Weibo's self-funded distribution of Jay Chou's digital album and other player welfare activities are not profitable. In the lottery Weibo, The use of Jay Chou's name in "Tian Xia 3" is also considered fair use, as it indicates that the prize is Jay Chou's new album. At the same time, the court held that the relevant public has a certain degree of judgment and can distinguish these activities as interactions between businesses and consumers. It is difficult for the public to associate Jay Chou as a spokesperson. It does not violate business ethics and NetEase does not constitute unfairness. compete.
In addition, the court held that although "Tianxia 3" used elements from Jay Chou's new album as game props in the game, the "game props" were only "vouchers" for album redemption, and the activity was only for veteran players above level 20 of the game. Openness does not have the nature of attracting new customers or making profits, nor does it 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 held that the mention of "Blue and White Porcelain" on the WeChat public account had a weak connection with other behaviors involved in the case and was an independent act. In this case, the two plaintiffs clearly gave up their claims of copyright infringement 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 widely known, so it is difficult to identify the copyright infringement. The behavior undermines the order of fair competition and does not constitute unfair competition.
Expert: If the market can adjust itself, it should be left to the market to solve the problem.
The lawsuit between Jewell and NetEase has also attracted the attention of many legal experts and scholars.
Gao Jiyuan, secretary-general of the Intellectual Property Department and Professional Committee of Guangdong Zhuojian Law Firm and member of the Legal Affairs Committee of the Shenzhen E-sports Industry Association, said that with the continuous development of legislation and judicial practice, the subjects of unfair competition are no longer limited to business operations in the same industry. This also reminds us that the determination of unfair competition requires comprehensive and prudent assessment from multiple aspects. We cannot simply equate unfair competition with "hotness" - it is necessary to evaluate whether the behavior itself is unfair. sex, whether it violates the generally recognized principles of business ethics and good faith, whether it makes consumers mistakenly believe that there is a specific relationship between the two parties such as endorsement, cooperation, etc.; it also depends on the results of the behavior, whether it destroys the order of fair competition in the market, and whether it damages other parties. The actual interests of operators and consumers.
At the same time, Gao Jiyuan believes that one must be cautious when applying the Anti-Unfair Competition Law. “The Anti-Unfair Competition Law should become the lubricant of the business society and the glue for the laws of various departments of intellectual property, rather than a universal card for exporting.“He believes that if a commercial activity does not constitute infringement within the legal framework of the Copyright Law, Trademark Law and other legal frameworks, and does not violate the specific provisions of the Anti-Unfair Competition Law, there is no need to forcibly expand the principle provisions. If it is applicable and causes a waste of judicial resources, and the market can adjust itself, it should be left to the market to solve the problem.
