The hit TV drama “Blossom” has recently aired its finale, but its popularity in the commercial market has not faded. Consumer products with “Blossom” elements, such as “Boss Bao’s Package” and “Miss Wang’s Hairstyle”, are in high demand, but these marketing activities may trigger intellectual property disputes. On January 12, the producers and rights holders of “Blossom” issued a statement, saying that some businesses have used the name, character names, posters and other elements of the show without permission to conduct commercial marketing and promotion activities, infringing on the intellectual property rights of the rights holders and disrupting the normal market order. They demanded the businesses to stop the relevant actions and announced that they would take legal actions to protect their rights.

This incident has attracted widespread attention from the industry. In fact, similar situations have occurred in recent years, as the popularity of dramas such as “Nirvana in Fire” and “Rage” have driven related consumption trends, but the issues of intellectual property protection involved cannot be ignored.

Hidden Risks of Infringement

Shanghai Blossom Enterprise Development Co., Ltd. is the producer and rights holder of “Blossom”. In the statement, the company said that there have been intellectual property infringement and unfair competition behaviors against “Blossom” in the market recently. Some businesses, with the purpose of attaching themselves to the popularity and reputation of the show and the rights holders, have used the name, character names, dialogues, scenes, props names, posters and related design works of the show without communicating with them and obtaining authorization to conduct commercial marketing and promotion activities, causing market confusion and misleading the public to believe that they have a business cooperation with the rights holders.

In response to this situation, the company requested the relevant parties to immediately stop the infringement and unfair competition behaviors against the show and the rights holders. The rights holders have completed the evidence preservation for the existing typical infringement behaviors and initiated continuous infringement monitoring. For the infringing parties with obvious commercial intentions and serious circumstances, they will take legal measures to protect their rights. The statement did not specify the details of the infringement and unfair competition behaviors.

In fact, in the field of domestic TV dramas, similar situations are not uncommon. In 2022, a Beijing-based escape room company operated a theme escape room product named “Nirvana in Fire: The Game of Power” in its stores, which used the core story line and related plot of “Nirvana in Fire” in the product content, and used the word “Nirvana in Fire” on the product name, promotional poster, store signboard, scroll prop, etc. It was finally ruled by the court as constituting both copyright infringement and unfair competition. In 2023, a hot pot restaurant in Xi’an was sued to court for prominently using the words “Qiangsheng Group” and “Big Sister” in its promotional materials for the group-buying package, and using cartoon comics of classic characters from “Rage”.

“The main reason for this phenomenon is that the relevant TV projects have gained high popularity and attention after being broadcasted. Some businesses hope to ride on the huge traffic generated by these TV projects and promote their own brands, products and services, so they use the content or elements of the TV projects in their marketing activities.” An industry insider told the reporter of China Intellectual Property News that if this kind of use is without the permission of the TV project rights holders, it is suspected of constituting infringement or unfair competition.

Defining the Boundary of Infringement

Of course, whether the use of the businesses constitutes infringement or unfair competition depends on the specific situation. For the more common unauthorized use of TV drama names, character names, posters and other commercial marketing behaviors, what situations may constitute copyright infringement or unfair competition?

“TV drama stills or posters are protected by the Copyright Law as works, and the use of the businesses without permission constitutes copyright infringement. TV drama names or character names are difficult to constitute works protected by the Copyright Law alone, and the use of TV drama names or character names does not involve copyright infringement.” Ruan Kaixin, an associate professor at East China University of Political Science and Law, told the reporter of this newspaper that the commercial marketing behaviors of the businesses using the TV drama names, character names, posters and other elements cause public confusion and misidentification, which belong to the imitation behaviors regulated by the Anti-Unfair Competition Law.

The industry insider also said that if the businesses use the posters, stills, video clips and other content of the TV projects without permission in their promotional activities, unless there is a reasonable use situation, they usually constitute copyright infringement; some businesses do not use the copyrighted works for marketing, but use the names, character names and other related iconic elements of the popular TV projects with high popularity, and their use is enough to mislead the public to believe that there is a joint marketing, authorized cooperation and other relationship between the popular TV projects and them, such behavior is likely to constitute unfair competition.

In the Copyright Law, TV dramas are not only protected as a whole in the form of audiovisual works, but also contain many rich protected elements. “For example, drama names, character names, character images, posters, dialogues, scenes, action designs, etc., if they have originality and are not limited by being too short, they can be protected by various types of works such as literary works, photographic works, artistic works, dance works, etc.” Xiong Qi, deputy dean of the School of Law of Huazhong University of Science and Technology, told the reporter of this newspaper. He also said that in the existing judicial precedents in China, the names and character names of TV dramas, etc., if they can play a role in distinguishing the source of goods after being used by the rights holders, can be recognized as commercial signs with certain influence and protected by the Trademark Law. If the names and character names of TV dramas, etc., are confused with other TV dramas, they may also constitute unfair competition.

Exploring the Protection Path

With the increasing awareness of intellectual property protection in China, TV drama rights holders have explored various ways to protect their legitimate rights and interests.

In Xiong Qi’s view, for elements including drama names and character names, they should not be limited to the copyright protection approach, but also fully consider the trademark and anti-unfair competition protection. He introduced that the producers of “Blossom” have applied for multiple registered trademarks for the name of the drama, and the producers of “Rage” have also protected the character names and other elements in the drama by registering trademarks. “If only from the copyright perspective, when designing the relevant names in the production process, they should consider the requirements of originality judgment and prepare for the inclusion in the scope of copyright protection in the future.”

Protecting TV drama copyrights and effectively safeguarding rights require multiple efforts. The industry insider introduced that first of all, the project party itself should have a legal, definite and stable identity as the rights holder. Whether it is for the TV drama itself or for the posters, stills, promotional videos, original music and other materials, they should make the agreement on the copyright ownership arrangement in advance; if they meet the conditions for copyright registration, they should register the copyright in time. Secondly, the project party itself should do a good job in the project business development and joint marketing planning, and arrange what kind of name, mode and scope of cooperation with different categories of brands. This not only helps to achieve the full and reasonable use of high-quality IP, but also provides a reference for the claim standard of the same type of business infringement when safeguarding rights. Thirdly, the project party should do a good job in infringement monitoring and timely evidence collection after discovering infringement behaviors. For the infringing parties with relatively minor nature, they can request them to stop the infringement behavior through infringement warning notices; for the infringing parties with obvious commercial intentions and serious circumstances, they can sue for rights protection. In addition, if the infringement behavior occurs in a large scale in a short period of time, they can issue a public warning statement.

Of course, safeguarding rights is only a means, expanding authorized cooperation, can fully develop the value of excellent works. The rights holders of “Blossom” also said that while stopping the infringement behavior, they also said that if any business is interested in obtaining the related authorization cooperation of “Blossom”, they can contact the designated person to communicate.