Posted on: September 7, 2016

As the owner of the registered trademark “Tian Tian Xuan Wu” (meaning “everyday dance”) in Class 9 Computer Games & Software and Class 41 Service Provision of Online Games on Computer Networks, Tencent enjoys the exclusive right of trademark use, keeps operating on the online game “Quan Min Xuan Wu (meaning “everybody dance”), alias “Tian Tian Xuan Wu (meaning “everyday dance”)”.

Shanghai Xiangyou company also developed a game named “Tian Tian Xuan Wu”, which is published and operated by Tianjin Zhuoyue-Chenxing company, and Beijing Zhuoyue-Chenxing is the operator and publisher of the game’s official website; Tianjin Zhuoyue-Chenxing operated on the network platform provided by Beijing Qihoo. Tencent company believed that the above-mentioned companies had infringed on Tencent’s exclusive right to the registered trademark “Tian Tian Xuan Wu” and launched the lawsuit against the aforementioned parties at Beijing Chaoyang District People’s Court.

In this case, Shanghai Xiangyou company, the developer of the game involved, could not provide sufficient evidences to prove “Tian Tian Xuan Wu” is a common name for this kind of games. Instead, “Tian Tian Xuan Wu” is not a fixed phrase but a word combination out of creation and possesses distinctiveness. Shanghai Xiangyou company and the other parties, who are responsible for distributing the game involved, had specifically adopted and put emphasis on the wording of “Tian Tian Xuan Wu” in the game’s propagandas and promotions on their websites and platforms, which, therefore, had worked as the identifier of the source of the game involved and constituted trademark use. Meanwhile, as Shanghai Xiangyou company launched the game involved later than the filing date of the registered trademark, the company cannot defend themselves with prior use claim. Therefore, the act of Shanghai Xiangyou using a mark identical and similar to Tecent’s registered mark without authorization has constituted trademark infringement. Tianjin Zhuoyue-Chenxing and Beijing Zhuoyue-Chenxing as the publisher and operator of the game involved have also infringed on Tencent’s exclusive right of trademark use by promoting “Tian Tian Xuan Wu” mark for the game involved..

As the platform provider for the game involved, Beijing Qihoo company provides technical service solely, does not necessarily possess the capability of deciding whether the game involved has constituted infringement, therefore they shall not be held as joint infringement, and shall not be responsible for eliminating impacts caused by not removing the game involved from their shelves and liable for the compensation for the economic losses; however, they shall be responsible for ceasing provision of the game involved on their platform.

Beijing Chaoyang District People’s Court made a judgment on June 27, 2016 that Shanghai Xiangyou, Tianjin Zhuoyue-Chenxing, Beijing Zhuoyue-Chenxing and Beijing Qihoo shall stop using “Tian Tian Xuan Wu” trademark in the game involved immediately from the date of ruling; Shanghai Xiangyou, Tianjin Zhuoyue-Chenxing and Beijing Zhuoyue-Chenxing shall publish statements on their official social accounts (Weibo, WeChat etc.) and official websites of the game involved within 30 days from the date of the ruling to eliminate the ill effects, as well as pay an indemnity of 357,600 yuan to Tencent within 10 days from the date of ruling to compensate their economic losses and the reasonable fees.