Yu Ge Game | The game advertisement is not properly expressed, constituting false publicity
01 Case information
Court of First Instance
Shanghai Intellectual Property Court
Case number
(2023) Hu 73 Min Zhong No.840
(2021) Hu 0115 Min Chu No.90428
party
Guangzhou Dalan Network Technology Co., LTD. (appellant: defendant in the first instance)
Shanghai Shilong Technology Co., LTD. (appellee: plaintiff in the first instance)
Beijing TikTok Technology Co., Ltd. (defendant in the first instance)
Date of judgment
29 April 2024
cause of action
Copyright infringement and unfair competition disputes
02 Case summary
As a classic 2D online game with a horizontal axis in China, "Adventures Island" has been officially operated in China since 2004. After 20 years of careful operation and brand building, "Adventures Island" IP has accumulated high visibility and reputation in the domestic market.
However, a game named "Rainbow Story" in the market has committed an infringement against "Adventure Island". In the promotional videos repeatedly promoted on TikTok, the game not only used a large number of official "Adventure Island" game visuals and materials, but also employed advertising slogans directly referencing the official "Adventure Island" game, such as "Korean original team developed" and "Adventure Island mobile game is out!"
After being tried and determined by the Shanghai Intellectual Property Court, it was determined that "Rainbow Story" infringed the copyright and unfair competition of "Adventure Island", and the infringing party was required to issue a public statement to eliminate the impact, and compensate the right holder for economic losses and reasonable expenses of rights protection of more than 1.22 million yuan.
claim
1. The two defendants shall be ordered to immediately stop infringing the plaintiffs copyright and unfair competition;
2. The two defendants shall be ordered to immediately compensate the plaintiff for economic losses of RMB 5 million;
3. The two defendants are ordered to compensate the plaintiff for reasonable expenses of 221,890 yuan (including notarization fee of 21,890 yuan and attorney fee of 200,000 yuan);
4. The two defendants shall be ordered to publish a statement on their official website in a prominent position to eliminate the impact of their infringement, and the contents of the statement shall be confirmed by the plaintiff.
Note: The plaintiff in this case did not list the litigation costs borne by the defendant as a claim.
result of judgment
I. The defendant Guangzhou Dalan Network Technology Co., Ltd. shall immediately stop infringing the copyright of the artistic works of the plaintiff Shanghai Shulong Technology Co., Ltd. and the unfair competition act of false publicity upon the effective date of this judgment.
The defendant, Guangzhou Dalian Network Technology Co., Ltd., shall publish a public statement on the official Rainbow Story game (chwy.aidalan.com) for fifteen consecutive days within ten days from the effective date of this judgment (the content of the statement must be reviewed by this court) to eliminate the adverse effects caused to the plaintiff, Shanghai Shulong Technology Co., Ltd., by its copyright infringement and unfair competition. If the defendant fails to comply, this court will publish the main content of this judgment in relevant media, with the costs borne by the defendant, Guangzhou Dalian Network Technology Co., Ltd.
3. The defendant Guangzhou Dalan Network Technology Co., Ltd. shall compensate the plaintiff Shanghai Shulong Technology Co., Ltd. for the economic losses of 1,000,000 yuan and the reasonable expenses of 221,890 yuan paid for stopping the infringement within 10 days from the effective date of this judgment, totaling 1,221,890 yuan.
4. The remaining claims of the plaintiff Shanghai Shulong Technology Co., Ltd. are rejected.
[Note] Since the infringement of audiovisual works involved in the case has stopped, there is no mention of stopping the infringement in the judgment.
[Note] The appeal was rejected and the original judgment was upheld in the second instance.
Case observations 03
Key Point 1: Elements such as game characters and scenes can be claimed for protection as artistic works. In this case, Shulong Company claimed that the characters and scenes such as "Trojan Knight", "Flower Mushroom", and "Flame Dragon" in the game "Adventure Island" were artistic works with certain originality. However, Dalan Company used the aforementioned substantially similar characters or scene elements without permission in the game "Rainbow Story" operated by it, as well as on the games official website and the involved TikTok advertisement, constituting an infringement of the right of communication through information networks.
Key Point Two: The games overall visual composition qualifies as an audiovisual work. Through player-controlled character interactions and adherence to established game rules, the game engine dynamically integrates narrative elements, visual assets, music, and interface designs to create continuous motion on the screen. While incorporating player "interactive" elements, this approach has been widely recognized as legally valid audiovisual works in practice.
Key Point 3: Comparative Analysis of Audiovisual Work Infringement: In this case, the infringement determination was based on comparing "dynamic game footage" with "advertising video content". The two materials showed substantial similarity in scene composition, visual movement patterns, and even non-player character (NPC) settings. This fundamentally constitutes a comparison of "video content" rather than a static image screenshot-based infringement assessment.
Point 4: TikTok App Video Ad Placement: In this case, Blue Company used screenshots from the game "Adventure Island" as advertising materials without authorization, infringing the copyright of the game as a work of audiovisual works and constituting an infringement of the right of communication through information networks. For example, the involved advertisement utilized dynamic game scenes from "Adventure Island" such as "Pearl Harbor", "Little Snail", "Dream Path", "Bats Graveyard", "Shooter Village", "Black Paradise", and "Abandoned City" in video format. Although the duration of these game-related dynamic scenes used in the advertisement was relatively short, they could still be perceived and identified by the relevant public.
Point 5: Improper expression of game advertisements constitutes false publicity: According to Article 8 of the Anti-Unfair Competition Law, false publicity can be divided "false commercial publicity" and "misleading commercial publicity". In this case:
(1) Blue Company advertised that "Rainbow Story" was "made by the original Korean team" and "developed by the original Korean team for adventure mobile games", but it was verified that the above propaganda content was not true, so it constituted false commercial publicity.
(2) In its promotional materials, Blue Company deliberately emphasized and used phrases such as "return," "classic," "re-launch," "continuing childhood classics," "adventures on the island," and "islanders" to imply that *Rainbow Story* is a sequel. Combined with copyright infringement allegations, these promotional elements directly targeted the game *Adventure Island*. This caused confusion and misidentification among relevant players, thereby constituting misleading commercial promotion.
