Intellectual Property Financing Unveiled31 October 2019
Unlike physical assets, IP financing may seem daun...
29 February 2020
A logo design contest in Dalian has raised questions about similarities between the winning Dalian logo (left) and the Walt Disney brand.
Last year, the Dalian Culture and Tourism Bureau mounted a logo design competition to promote tourism in the city of Dalian in northern China.
On December 11, 2019, the winner was announced. The winning design, by Su Zhanying of the Dalian Yinji Tourism Culture Development Company, shows a colorful lighthouse inside a partial circle with the word Dalian beside it.
However, Chinese netizens spotted something almost immediately: a similarity with the trademarked corporate logo of Disney, which opened a US$5.5 billion theme park in Shanghai in 2016. The lettering in the Disney logo was based on the signature of Walt Disney himself. Among others, similarities were seen in how the letters “D,” “i” and “A” were written.
According to Jinshan Liu, senior partner at Boss & Young in Beijing, the Dalian City logo and Walt Disney do not constitute identical or similar marks with respect to same or similar goods and services. Therefore, normal confusion of the two marks is not an issue.
“Trademarks and copyrights are protected under different laws in China and most other jurisdictions. However, in this case and many others where logo or design trademarks are related to or derived from a third party’s copyrights where the copyrights are also works of art, copyright can be used in challenging the trademarks,” he says.
Regarding the question of whether the trademark does infringe copyright, the critical issue of the so-called copyright is an eventual identification of copyright, according to Liu. In this particular case, the question is whether the fonts in the Walt Disney logo are copyrighted.
“There are actually five letters in the Dalian City logo. If only one or two letters are designed identical with or similar to those fonts in the Walt Disney logo to the extent that no confusion will be caused, it could be understood that the author ‘learnt’ from the Walt Disney logo,” he explains. “However, in this case, all the letters in the Dalian City logo look almost the same with the respective fonts in the Walt Disney logo. The only exception is the letter ‘L’ in the author’s work [and whether it] looks like the reversed letter ‘T’ in the Walt Disney logo or not.”
Thus, for Liu, it is easy to conclude that the author copied the fonts of the Walt Disney logo.
According to Xiangjing Luo, a partner and head of the copyright team at Jadong IP in Beijing, to determine whether plagiarism was committed, the analysis must cover two levels: the integrity of the logo and the specific letters.
Two questions should also be asked at each level, she says: Does the infringed logo or its letters constitute work in copyright significance? Do the two logos come to substantial similarity?
She says that at the first level, the evaluation focuses on the whole expression of the words ‘Walt Disney.’
“Composed of two deformation-designed words, the logo is different from normally written words. However, based on those implied rules from judicial precedents, the difference might not be sufficient to meet with the requirements of originality, which is the decisive factor to affirm copyrighted work,” says Luo. “Once not granted as a work in copyright, the logo of Walt Disney lost its juristic basis to be protected by copyright law.”
However, judicial precedents are not compulsory in China. Therefore, the Walt Disney logo may still be considered copyrighted work, she notes. As such, substantial similarities between the two logos should be considered. But since the Dalian logo and the Walt Disney logo are different in expression, meaning and reference, it is difficult to say that there is substantial similarity between the two and, thus, plagiarism cannot be drawn from the integrity level, explains Luo.
As for the second level, she says there is substantial similarity between the two since each letter in the Dalian logo has its counterpart in the Disney logo.
“Nevertheless, it is too early to affirm the accusation. The single specially-fonted letter cannot be considered as a copyrighted work, for the difference between the font and normal writing is not sufficient for originality. Moreover, the lines and strikes of a single letter usually are too simple to avoid the similarity of writings from different writers, and it is unreasonable to prefer one [style of] writing by granting copyright while prohibiting others. In this sense, it is predictable that a single letter in the logo of the Walt Disney logo can’t be affirmed as copyrighted work,” she explains, affirming that plagiarism may not have been committed according to Chinese copyright law and judicial precedents.
Since the Dalian City logo has neither been used nor filed for trademark registration, no copyright or trademark infringement has been committed, according to Rebecca Liu, partner and head of the trademark team at Jadong IP.
She says: “According to the current examination criteria of Chinese authorities regarding trademark similarity, we do not think that the Dalian logo would be deemed as similar to the Disney logo as the words are totally different and the two signs are different with respect to pronunciation, connotation, overall visual effect, etc., though the font of the letters in the Dalian logo are identical with that of the Disney logo.”
As of press time, the winning logo has not yet been used and competition organizers are investigating the matter. Participants of the competition were required to own the copyright to their logo entries.
While discussion of the font was raging, other alleged similarities also surfaced: some observed that the lighthouse featured in the logo is similar to the Brisbane Pathway image designed by an online artist from the Philippines known as blueii.
“We think that the chances for Dalian logo to be deemed as similar to Brisbane Pathway logo are not high either, as there are certain differences between them in design and visual effect,” says Rebecca Liu.
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