Here is the game created by Playsaurus: http://www.clickerheroes2.com
Here is the game created by the Chinese company: http://m.7k7k.com/android/11525.html
The games look nothing alike. The dispute is about the title of the game "Clicker Heroes", specifically the Chinese translation of this title "点击英雄". A Chinese company created a game with this (rather generic) name and filed a trademark for the name.
The company was granted the trademark because they were first to file for the trademark and China trademark law works on a first-to-file basis. The same law applies in many countries (including countries in the EU). Playsaurus made a mistake not filing for the trademark in China before and was punished for that mistake.
The actual controversy here has nothing to do with Chinese law or the Chinese company. The controversy is that Apple took down the game in all regions despite them only violating the trademark in China.
Tap Titans: https://lh3.googleusercontent.com/BfZpbHHc_htTbIla-wzdj1BFtS...
This is the game that should be compared to the Chinese title: https://www.clickerheroes.com/
It's correct to say that the Chinese game is more directly a reskinned clone of Tap Titans, but Tap Titans itself began as a gameplay clone of Clicker Heroes. The visual layout is different but my understanding is the gameplay was virtually identical, at least at launch.
It makes sense that a Chinese mobile game company wanting to quickly clone and profit from the success of Clicker Heroes in 2015 would end up reskinning Tap Titans because Tap Titans was a Clicker Heroes clone that was available on mobile even while Clicker Heroes itself was still only available on PC.
It seems clear the Chinese company realized the connection between Tap Titans and Clicker Heroes, which is why they chose to steal the name Clicker Heroes for their clone of a clone.
Maybe that's irrelevant and maybe not. But I don't think you can simply dismiss it.
Edit: but the resemblance to Tap Titans is uncanny: https://lh3.googleusercontent.com/BfZpbHHc_htTbIla-wzdj1BFtS...
It looks like they cloned one game and trademarked it under the name of another.
Half of the comments here are talking about IP theft, when it just becomes a trademark dispute.
From the thread:
> It looks like we can't challenge it. After reading the comments and doing a bit more research, it appears that China's trademark/IP laws are completely different from any Western countries, and Apple just has to do what they say.
>It sucks but that's how it is. If you make a game, unless you have ridiculous resources to spend on registering properly in China in advance, you just have to accept China to be a loss. Someone there will steal it.
What also sucks is someone starting a fake pitchfork mob on reddit and ruining your business/youtube channel or getting you fired. Not saying this is the case now, but if they are successful then it just encourages more to try it and some will just exploit it.
P.S. I find it weird that you personally got ripped off by Udemy (an american company, right?) and can't fight back (other than on reddit), yet now you blame the entire China for this trademark dispute. Did you also blame the entire US and campaigned for the "industrialized world" to blacklist the US?
Is that all it costs for a lawyer who specializes in Chinese copyright law in America?
It's not even clear what is the best place to fight this. I actually think it's not in China but in the US. They already have a trademark in the US and Apple is a US company. Why did they already assume they need to fight this in China and conclude based on "comments" and "research" that it's a lost cause. It's Apple that deleted their game not China.
if the lawyer recommends suing apple in the US based on their US trademark and that they have a good chance of winning then the next question is if they can afford to get started.
i can also imagine that a stern letter from a lawyer may let apple realize that they made a mistake in removing the game outside of china.
>if you try to trademark this name in US now? //
If you try to register it now you'll find it's registered to Playsaurus, http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4803:qzv... (serial no. 86389199; int. class. 041).
1. They launched in China without registering a trademark
2. A competitor registered the trademark after 3 months of their launch
3. They continued to sell for 4 years under a name trademarked by another company, making $73,000+ yearly from that one country
Now, they complain about it on Reddit, even though China is a 'First to File' company.
The fault lies entirely with Playsaurus, nothing illegal occurred here.
This situation could have occurred in many other countries - the difference is probably that the competitor is content to just sell in China, under a Chinese name, whereas products sold anywhere else would need to use the English name.
Edit: Apple taking down the game worldwide is unusual though.
I would strongly hesitate to blaming the victim. You can easily make the case that they had poor business ops. But this shouldn’t have happened to them.
And all the same, I have a hard time empathizing with the anti-China rhetoric. Zynga’s Pincus has been quoted by multiple sources as saying along the lines of: “copy them until you get their results.” Gaming is pretty brutal in that regard, but no one complained when Samsung or LG copied Apple’s designs. There’s a lot of selective bias and double standards here.
Although I could fault China’s tech industry for other things, it’s really hard to stand up for the US in the broader context given the hypocrisy with which we apply our ideals.
Apple and Samsung were locked in a legal battle over this very issue and in several countries. It was massive news at the time (circa 2011-2012) and even went to the US Supreme Court.
And here is a sample of some of the discussion in the tech community.
There were a lot of people angry at Apple (and some at Samsung). A common refrain at the time was "There are only so many ways you can design a rectangle."
> I find things about both platforms that are unique and that I prefer to the other. However, when you look at what Samsung did with their UI... It's pretty pathetic to be honest. They literally copied entire app UIs wholesale (even icons).
Making variations of a rectangular device with a touchscreen was always going to be a genre. And one already long trod in fiction. People also don't worry at there being yet another quake-alike.
> “Not at this distance your honor,” said Sullivan, who stood at a podium roughly ten feet away.
(I thought you meant the lawyer couldn't identify a tablet she was holding in her own hands)
It did not have a dock connector, though the tablet did, but so did all sorts of media devices at the time.
Anytime this came up in conversation I'd hand people my Galaxy S and no one would call it a ripoff in person.
Or was it a "copy" like all media display devices follow a rectangular footprint with a frame?
Samsung doesn't do anything like that now, they've long since found their own identify for all the Galaxy devices.
Samsung are Korean, FWIW. Oh and they were successfully sued by Apple.
Sounds like a case of ex-employee leaking their business processes(or lack thereof) to companies that can exploit the issues
Having been bit by this myself once, with someone registering my trademark after I failed to do it correctly, i'm a bit unhappy about the state of the law, but at least it provides a sense of security in simplicity, and I can't feel it being predatory.
In the case of China it surely feels in a different context as they are brazenly cloning and copying everything under the sun, but that doesn't really change the merit/drawbacks of the legal basis.
My impression from the reddit thread is that Apple would face legal problems in China if Apple allows sales in countries like Taiwan, but that impression may be incorrect.
Either way I agree that they appear to be incompetent wrt legal matters.
It would be reasonable for Apple to take down all the uses of the Chinese name worldwide as a precaution. However, they should still allow the English spelling everywhere, including China. I'm sure they'll be able to work it out.
Germany is also a first-to-file country
All sources I have read about this topic come to the conclusion that the entity that uses a trademark first wins over an entity that regsiters a trademark afterwards.
"Welche Rolle spielt das Datum der Anmeldung?
Wie bereits unter „Markenrecherche“ erwähnt, gilt im Markenrecht
der Prioritätsgrundsatz. In der Regel hat die ältere Marke – das heißt
die Marke mit dem früheren Anmeldetag – die besseren Chancen,
sich im Konfliktfall durchzusetzen"
which roughly translates to:
"What role does the date of registration play?
As already mentioned under "Trademark search", the the principle of priority applies in trademark law. As a rule, the earlier trade mark - that is to say the mark with the earlier filing date - will give you the better chances to assert yourself in the event of conflict."
This doesn't sound as clear cut and is worded this softly simply because of Very Old (think 50-100 years) German companies having very legitimate claims of prior use that can't be overlooked, although the german legal system prefers the simpler and cleaner first-to-file ruling.
That means in effect for startups first-to-file is the guideline you should look into. I've paid expensive lawyers to learn this lesson.
But what does that have to do with the quesion here?
The question is if an entity that started using a trademark earlier would win in court over an entity that registered the trademark later.
For all I know the answer is yes.
> The registration of a trade mark may be cancelled if another person has acquired rights to a trade mark prior to the date that is relevant for the seniority of the registered trade mark within the meaning of section 4 no. 2 or to a commercial designation within the meaning of section 5 and these entitle him to prohibit the use of the registered trade mark in the entire territory of the Federal Republic of Germany.
Where the cited section 4 no. 2 is
> The following shall give rise to trade mark protection: [...] the use of a sign in trade in so far as the sign has acquired public recognition as a trade mark within the affected trade circles
You might try to go this route via a court-case, while the chances in our case with prior use and trade show appearance was evident were rated as very bad by our lawyers, but again, this is usually out of scope for the resource options of a startup/small business.
1. The mark has to be used in a commercial setting
2. The mark has to enjoy a reputation within that sector of the market
3. The mark has to have distinctive character
Problematic is usually the second one. It is interpreted by the Federal Supreme Court that (bearing exceptional circumstances) at least 50% of participants in the market have to recognize the mark. The more generic the mark is, the higher the threshold.
Don't want the risks that come with expanding globally? Stay in your home country. It'd be like someone trying to expand into Europe without knowing anything about GDPR. You need to know foreign laws well to protect yourself from foreign risks. Or don't go expand globally.
For example, they ought to have the upper hand in the U.S. as long as the Chinese name more commonly refers to their game than the copycat's (since U.S. is not first-to-file), but it sounds like Apple is nevertheless prohibited from including their game under Chinese name in the U.S. (for Chinese-speaking U.S. players) due to PRC law.
No country use first-to-invent anymore.
It's a slim but important distinction, but it's not like copyright works. You don't get to register someone else's trademark because you wrote it down somewhere and kept it in the safe for 20y.
Though with unregistered marks you may not be able to stop someone else from using a mark they adopted independently after your first use. Trademarks are territorial, and classification based (registered marks are registered for a particular class of business; not relevant in the OP, but worth mentioning).
This would be the logical solution.
(I am sure some people will harp on about "You cannot prove bad faith" but this is what a court of law should be able to determine. You don't create a copy of another game and use their trademark in any other way apart from coincidence which is highly unlikely in this case)
Genuine question is it not their IP not regardless of whether a patent was failed - atleast meaning ripping of assets / code would be illegal
You mean US standards for intellectual property... which are really Disney standards for intellectual property.
I'm not a US citizen and think that "US standards for intellectual property" are absolutely disgusting. A US company with no connection whatsoever to my country or its indigenous people has trademarked our word for hello/greetings/life/health.
Life plus 70yrs for copyright? WTF?
How about this for "sane standards of intellectual property": https://news.ycombinator.com/item?id=19997848
What's the word? Curious.
Sounds like a repeat offender to me.
> The trademark does not mean that the company owns the phrase, or that it can ban anyone from using it. Disney filed the trademark upon the release of the original movie for clothing or footwear it sells in the United States, as a way to protect itself against other companies that might try to exploit the Disney brand.
These "trademark experts" have contradicted themselves there. The trademark prevents an African man from the race and culture that created the phrase, from selling clothing and footwear bearing that phrase. And I SMH at the claim that Hakuna Matata is a "Disney brand".
OTOH, maybe it's better to have a small conflict early rather than a large one later.
Having said that, with the amount of Chinese wealth overseas I think there is a vested interest in keeping the status quo
Say US companies are having PCBs manufactured in China because that's currently the cheapest option. You cut off that option and US companies are forced use more expensive domestic options. The effects of that can ripple through US companies that directly or indirectly depend on PCBs, and the jobs lost throughout the economy could be greater than the jobs gained from the new automated factories.
In addition, much of the gain will accrue to a smaller number of business owners, while the losses will be spread across the wider public.
Inevitably, those in control will manipulate the situation to their own advantage.
All Chinese information technology companies should be banned from operating within the United States. Tick toc, weibo, baidu, etc. Also ban trading with their hardware companies.
Either a deal will be made or the existing relationship between the United States and China is finished.
This is impossible, even if someone wanted to do this (which is like saying you want to commit suicide) they couldn't.
Maybe US and China should adopt Russian standards of IP?
Look at ugg boots, considered generic in Australia and New Zealand, but aggressively trademarked by Dekkers elsewhere in the world, including the USA. Producers from Australia can't use the name when exporting.
Sort of like this exact case...
Maybe should be named uggstralian boots from now on.
Because "ugg boots" is now a trademark, therefore unavailable for everybody else, whereas "hamburger" is not.
Can you provide a better name?
Thank fuck he does, quite frankly. We all dodged a bullet there.
There could've been a targeted dispute over IP. But instead what has happened is that a range of tariffs are involved which has resulted in Trump just giving $16 billion to farmers. Some of whom are now planting crops with no intention to sell but purely to get money from the US government.
So American farmers are losing export sales due to Chinese tariffs, the sting of which Trump is trying to reduce by paying the farmers. Those payments probably aren't funded by tariff revenue collected by the US. So they'll probably be paid for through borrowing. Which may mean borrowing from China.
But yeah, your point is still a good one.
I'm sadly going to have to pick something else next time around.
> It is overdue but it's being prosecuted under a flawed understanding of almost all aspects of the situation and inane and unfocused policy.
What is the understanding, who understands it, and why is their understanding flawed? What is the policy? Why is the policy inane and unfocused? What is the correct understanding and what would be the substantive and focused policy?
> You tackle China first while building an economic coalition of interests with shared goals.
Which aspect of China should be tackled--just IP or something else? Who should be part of the coalition? Or do you mean with other nations? Which goals are shared? Why are those the goals? How are those goals different from the goals held by those who have a flawed understanding, or do they share the same goals?
> A sane and competent person would focus on one task at a time and not undercut the strategic interests required to achieve that task, achieving perhaps effectively nothing.
Who is insane and incompetent person to which you seek to draw a contrast? What is it about their position that leads to the evaluation they are mentally deranged or incompetent? What are the multiple tasks they are focused on? Which one particular task should they focus on? Why is it necessary to focus on one task? Are they the correct tasks? What are the strategic interests? Who holds those strategic interests? Are they they the correct strategic interests? Why are they undercutting those strategic interests? How do those strategy-level issues affect the implementation-level tasks? What would be achieved if their tasks and strategies were aligned?
Answering all of your posed questions would take quite a bit of typing and is probably better suited to a blog post, of which I'm sure there are many you could Google.
I'm not sure why you bothered to respond?
1. It is way easier to steal something and resell it convincingly, than it is to prove original ownership convincingly. This tilts the market in favor of thieves, as they need to do none of the investment and still reap maybe half or more of the total potential income.
2. Apple pulling something from a store should affect only a fraction of a normal market; instead, it affects literally everyone.
3. Gatekeepers such as Apple win regardless of who sells an app. If a developer complains and Apple has millions of alternative developers/apps, why would they even listen? The motivation is simply nonexistent.
These problems would all be nullified by abolishing the concept of a single gatekeeper store.
If you can easily steal something but there is no easy place to publish it to get stolen revenue from “nearly everyone”, the value of the theft is reduced. (Imagine if you had to find a way to propagate your stolen app to 100 stores. Would it be worth it?)
If you can convince one storefront to accept your stolen app as legitimate but you still have to convince a bunch of other stores, the value of the theft is again reduced.
If each store has a relatively smaller chunk of the total market, none of them would want to become known as that store where crappy apps make it into the list so they would be more motivated to curate a decent catalog.
The same obstacle would also apply to all legitimate app developers…
Someone buys their products from a factory in China, sells on e.g. Amazon US with their own brand, trademarked and everything. Then some Chinese entity trademarks it in China. The clincher is that since they have a Chinese trademark, they can put an export block on anything bearing that trademark, and so the US buyer can't ship their goods out of China anymore.
Because of this, people are being advised to register in China even if they never plan to sell anything there.
In practice, especially when you consider regional trade barriers and the lack of perfect and instantaneous wealth redistribution, many people care about factors such as, “will my friends and family still have economic opportunity if this factory is offshored?”
This concern may at first seem like nationalism or nativism, but through a bit of moral algebra we’ll reveal it as that blessed market motive of rational self-interest. Put simply, factory workers in foreign countries won’t help raise your children, watch over you in times of ill health, or take care of you in old age. In the United States, such aid is also unlikely to come from the anonymous shareholders and C-level executives who’ll reap the main economic benefits of any offshoring.
At the national level, sure, there's an argument for protectionism. But, not at the individual level as whenchamenia suggested.
Perhaps if they had trademarked the Chinese name in the US (assuming this is possible) they could fight this. Or maybe they would have to fight it in every sovereign country, e.g. Taiwan (ROC), Malaysia, etc.
This is a post from the developer which doesn't make sense if it's impossible:
> We can re-name it in China, yeah. With a ton of effort changing all of the artwork we created with the old name. But renaming "Clicker Heroes" (which we already trademarked) in the U.S. and EU would be senseless
Okay, Google's privacy's suck. I'm definitely unhappy about it. But let's not forget Apple's lock down sucks just as hard. I'd even go as far as saying that this exclusive store thing should be forbidden. People should have root rights over their phone, and Apple should be forbidden to prevent them. Instead, people can get in legal trouble from sharing information about jailbreaking.
If I do banking on my mobile device, then yes, I value security. I also value security, when the device contains a non-negligible amount of personal information that tends to be valuable in certain scenarios.
It's not some ephemeral boogeyman threat management you seem to make it out to be. For me, this IS freedom (from Google's invasive practices and questionable business decisions). I choose Apple because due to their business model they at least have far less motivation to sell my data to the Chinese or other entities. Of course we cannot know the true behind-the-scenes.
> Apple's lock down sucks just as hard
Does it for the vast majority of users who don't need to ssh into their phone for (at best) tinkering reasons? How many people are seriously feeling the negative impact here? I'd argue that the majority of non-tech-savvy users are better of this way.
Even as a developer, I am not missing anything in the App Store. Questionable decisions by Apple have so far not collided with my interests but that is too selfish of an argument to make, I suppose. Although I do assume that it holds true for a very high percentage of users. I am open for opposing points.
That's a hard question. Probably, I'd guess. See, what happens with tinkerers has influence over the other users. Stuff happens in an open platform that just doesn't, in a closed one. Though the biggest effects tend to be seen 10 years down the line, when tinkerers turn professionals (or not, if they didn't get to tinker at all).
> I'd argue that the majority of non-tech-savvy users are better of this way.
Non-tech-savvyness ought to be wiped off the surface of this planet. For the tech illiterate's own sake. Yes, it means less time to do some other stuff. No that other stuff is not more important. Even when you are busy saving lives, tech is too pervasive to ignore. I'm not asking for much. If people just stopped treating their computers like sentient beings that should be pleased with voodoo magic, if they just understand that bugs come from human errors somewhere up the production chain, that viruses can only go in through such errors (or the user themselves), that would be a huge step forward.
I know the market doesn't work that way. It's more efficient at capturing attention than it is at educating people (which is probably why the best school systems tend to be public). If the people were properly educated, many shady practices would simply not have flown. Malware would be much less of a problem.
Oh I agree, although I wouldn't formulate it this way. An ecosystem like Apple's still has a place in an ideal tech-savvy world because it takes away a lot of micromanagement here and there.
Back in my Android days I constantly had to micromanage and adjust everything to work the way I want it to. Widgets, changing Google app landscape, flashing some custom Cyanogenmod because the manufacturers Frankenstein Android flavor was a hot mess, reign in unwanted background processes, etc etc. Much has gotten a lot better since then on Android but I made the switch before that.
On Apple's system I get to decide less but I also get to worry less as long as I am ok with their decisions. It just feels convenient and barely anything ever gets in my way. I enjoy the mostly seamless integration of iOS and macOS.
If I wouldn't be ok then I thankfully have the OPTION to go back to Android. That's what we should be happy about, right? You can use Google products, I can use Apple products. And if we discover some issue with our choices we can always change them.
> If the people were properly educated
I often feel like many people have no interest in being educated and that is what feels truly frustrating. Anecdotally, I have setup Netflix for relatives and they had zero interest in how it was done. Actively rejected my attempts to show them the setup steps - they just want to be able to press the Netflix button on the remote and have it play something.
Since then, I had to fix simple login issues once or twice again because that step is too techy/nerdy/boring. Of course passwords were never remembered/noted/securely stored...
So everyone who is not a techie is "stupid". Are you a regular StackOverflow commenter? Because you certainly got the condescending tone.
What we need is more compitition -- this duopoly is too polaraizing and binary for something as complex as modern mobile phones.
But yeah, international filing is a lot easier now, China is a member of the Madrid System, so it's relatively streamlined.
The U.S. does more to protect a user of a mark who neglects to register. For example, there is a "Burger King" restaurant that used the mark prior to the well-known international chain. That business continues to use the mark for its restaurant and can even exclude the well-known company from a limited territory. https://en.wikipedia.org/wiki/Burger_King_(Mattoon,_Illinois...
The Chinese system, by contrast, seems very unforgiving to a prior user who neglects to register.
The Chinese system is based more on the German system where courts have less leeway and follow the laws more than interpret the laws.
The Chinese civil law is more common worldwide: https://en.wikipedia.org/wiki/Common_law
The particular complexity for U.S. trademark law arises because the federal law did not completely preempt state laws. Federal law applies generally to marks registered with the federal government through the trademark office, but there can also be rights based on state law.
the issue with these kinds of cases, is that this is internet bound, and taking it down in for example chinese websites only, wouldn't make it unavailable in china. thus such internet marketed goods are harder to be forgiving in, as it's always available everywhere or nowhere. you can't as per your burger king example, exclude such a product from a certain territory or geographic location.
it's shitty, but in the end if you are running a business internationally which is prone to such copycats, register your trademark and protect yourself. if you forget you can be certain at some point, if you are successful, someone will try to copy it.
Trademark trolling is a big problem. Making this a China specific problem doesn't help to solve it.
There are plenty of patent trolls and domain squatting all over the world but rarely people blame US patent office or domain name registrar.
In the 19th century, American entrepreneurs took the same attitude to European IP as China now does to America - if anything, IP appropriation was even more blatant than it is now.
I wonder if filing for a trademark in the US (where they could prove first use) and leaving the Chinese market would be a way to solve this.
I wonder if the original game developer was in watch mode while all these trademarks over EU, US and China was granted.
@mastazi, If you have trademarks over EU, US - why not start a petition and let community help you bring down Apple to reinstate you?
*without rooting or unjailing the device
That is, unless you use a gray market enterprise certificate, which is probably what the GP is thinking of. It has gotten significantly harder to do this in recent months, particularly after it came out that Facebook was engaging in the practice...
You can think of it like a semantic error in your code. The computer/legal system does what it was programmed to do, not 'the right thing'
Think about it in reverse. Would you accept a Chinese company ignoring US law if they were selling something to US consumers.
In many ways I would have thought web programmers and startup people were some of the best placed minds to understand it :p