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