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Comment by phren0logy | Hacker News Reader

The game in question is Clicker Heroes (a pretty popular idle/incremental game), and the post is by the CEO of Playsaurus.

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.

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WTO TRIPS and current political environment offer some options.

It is the same with all other Brand Name and Trademark, from Muji [1], ICHIRAN, New Balance, Nike. There are thousands of similar case. May be China's trademark / Brand Name dispute is something new in the tech world, but it has been going on for many many years.

[1] https://asia.nikkei.com/Business/Company-in-focus/Muji-Japan...

after reading comments (reddit?) and researching they conclude it can't be challenged? how about hire lawyers? I wouldn't be surprised if they can fight this from US or wherever non-China country they are based in. for example, what happens if you try to trademark this name in US now?

It could equally well be "it looks like they didn't infringe on us; or that they have more rights to the mark than us", so a climb down without losing face?? I'm not saying it is, but there's probably little way for most of us to know, you need to know IP law and Chinese, and the Chinese legal system.

>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).

If you were talking 200-300/day revenue would you hire lawyers? It's in that zone where you have to seriously consider

maybe not, maybe yes. $200 for 1 hour session where the lawyer explains me the options isn't too far fetched. that is the world we live in. you need money to sue. what I wouldn't do is post on reddit and try to start a pitchfork mob by telling only part of the story and screaming "China bad".

> $200 for 1 hour session where the lawyer explains me the options

Is that all it costs for a lawyer who specializes in Chinese copyright law in America?

He doesn't need a specialist lawyer from the start. He might need one if he actually sues. But just for advice you can get some general trademark lawyer.

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.

Wait, so the advice is to start a legal fight with Apple on the cheap?

the advice is to talk to a lawyer and find out what to do, if they should sue, and if so, if this is a case they can win. then based on that response they can decide what steps to take next.

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.

There isn't a lawyer in the world that can reliably answer that question in 1 hour that would only charge $200 for that hour.

A good IP / trademark lawyer will cost $1,000/hr BUT no lawyer will meet you for an hour. They don't have any answer, need to do some research that is why they will ask for a $50K retainer. And at the end you will be $50K poorer. Sure they will send a "scary letter" to the offending party, blabla, but don't fall in that trap. You will get nothing.

I had a company rip off my work last year (Udemy) and sell it to 12,000 students and I didn't see a dime of the 2.4 million they supposedly sold it full price for. Even though I know they didn't make that type of money, I had a legitimate claim for damages. Even still, attorneys will not talk to you for free. I was the number one story on Reddit when this happened and still, attorneys cost money and it's much easier to get what you want via the pitchfork mob to be honest, that's how my viewers took it to Udemy and they immediately took action. In this case, nobody in the industrialized world should be okay with the way China deals with trademarks.

Yes you can't battle it out with a gov or a big company that steals your work. That is the real problem. There should be a pitchfork mob to fix that.

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?

The United States legal system is a mess and companies such as Udemy are protected by the DMCA unless you can really prove systemic copyright violation (by design as in Megaupload) ect...

You need to read the details more carefully. Playsaurus messed up:

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.

https://www.trademarknow.com/blog/first-to-file-versus-first...

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.

The issue is China's predatory trademark system forced them to abandon the Chinese name of the game worldwide, which affects their sales in other Chinese-speaking markets like the sovereign countries of Taiwan (ROC), Malaysia, etc.

Germany is also a first-to-file country, although a court case can soften this when overwhelming evidence is presented, which happens very rarely.

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.

The difference would be whether that only impacts sales in Germany, or impacts sales everywhere (under the name trademarked by the copycat in Germany).

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.

That seems to lie entirely at Apple's discretion. The trade marked name in China is using the Chinese characters only.

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

Citation needed.

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.

Example:

https://www.markenservice.net/marke-vs-domain.html

You can check this document from the german trademark registry:

https://www.dpma.de/docs/dpma/veroeffentlichungen/broschuere...

German Quote: "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.

Of course an earlier trademark filing is better then a later one.

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 answer is indeed yes. Just have a look at the relevant law, § 12, § 4 Abs. 2 MarkenG, which is conviently available in some English translation:

> 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

https://www.gesetze-im-internet.de/englisch_markeng/englisch...

This is indeed the law, but how the courts interpret it is irrelevant for most startups, as "public recognition within the affected trade circles" is a very hard to pinpoint term and usually reserved for industry/category leading products such as "Tempo" or "Haribo Goldbären".

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.

Courts indeed interpret it strictly. They use two criteria:

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.

in germany it would've been in favor of clicker heroes. basically clicker heroes has a trademark in two countries. another company registered a trademark in their country and COPIED the game. this is basically extremly problematic. germany takes both copyright and trademark extremly serious and usually you can't register a trademark if it is also internationally recognized.

If you're using a Chinese name in Chinese characters and heavily targeting China, I have no sympathy for you if you're going to try to play chess without knowing the rules. Creationer is on point.

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.

I agree that they are incompetent for not trademarking it in China, but I still find it odd that this would affect their ability to sell in Taiwan, Malaysia, etc.

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.

Apple has also prevented them from distributing their game under the English name in the U.S.

U.S. changed to first-to-file in 2013.

No country use first-to-invent anymore.

For patents, but not trademarks. Trademarks are still first-to-use.

Trademarks generally, in my admittedly limited experience (UK, USA, EU), are "first to use the mark for trade".

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).

I wasn't presenting it as fact, I was just trying to save some people a click to know what was going on.

A Google search seems to reveal that they were targeted by a patent troll in 2018 as well. Seems this company can’t get any slack from life.

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.

>no one complained when Samsung or LG copied Apple’s designs.

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.

For a time, Samsung did a lot more than just make a rectangular device with touchscreen. They made eerily similar packing material, including the artwork, nearly identical power brick, etc. Hell, as I recall they even had their own version of the dock connector. It was all too blatant to be anything but deliberate.

Yep, also don't forget this 132 page document where Samsung emails showed they were copying iOS features on left with their own UI on right comparing them to add those features to their own UI:

https://www.theverge.com/2012/8/8/3227289/samsung-apple-ux-u...

I voluntarily owned the original iPhone 3g followed by the original Galaxy S. The similarities were very shallow in practice.

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.

IIRC it was mostly the tablet that was a copy, not the phones.

So they used the same chipset, same battery, etc..

Or was it a "copy" like all media display devices follow a rectangular footprint with a frame?

It was a design copy. More than just having a similar footprint, too. Going from memory, it was the same size, screen, bezels, home button, dock connector, charger, and came in a box that looked just like the iPad box, was advertised with pictures that were nearly identical (technically different, but same gender, same colors, same pose, etc). It was actually pretty hilarious at the time because it was so over-the-top mimicking all the way down to details that you'd think nobody would bother with. At one point there was a great web site that just put them side-by-side and showed all the detailed copying. But it's been enough years that that seems to be lost to the dustbin of history, or at least my google fu is not strong enough to easily find it.

Samsung doesn't do anything like that now, they've long since found their own identify for all the Galaxy devices.

Famously, the judge in the IP case asked Samsung's attorney to ID which of the two tablets she was holding was the Samsung tablet and which was the Apple iPad and Samsung's attorney couldn't tell the difference between them...

https://www.reuters.com/article/us-apple-samsung-lawsuit/app...

To clarify: the judge was holding the devices, the lawyer was 10ft away:

> “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)

Lawyers of HN, can the judge ask questions to a lawyer that can furnish evidence against their own client?

> no one complained when Samsung or LG copied Apple’s designs

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.

https://en.wikipedia.org/wiki/Apple_Inc._v._Samsung_Electron....

And here is a sample of some of the discussion in the tech community.

https://apple.slashdot.org/story/11/04/18/2053241/apple-sues...

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 tend to see "there were a lot of people angry at Apple" and "there are only so many ways you can design a rectangle" as supporting the idea that no one complained when Samsung or LG copied Apple's designs.

From the linked thread: https://apple.slashdot.org/comments.pl?sid=2089310&cid=35860...

> 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).

>A Google search seems to reveal that they were targeted by a patent troll in 2018 as well. Seems this company can’t get any slack from life.

Sounds like a case of ex-employee leaking their business processes(or lack thereof) to companies that can exploit the issues

> I have a hard time empathizing with the anti-China rhetoric... no one complained when Samsung or LG copied Apple’s designs.

Samsung are Korean, FWIW. Oh and they were successfully sued by Apple.

I don't think this is a thing of illegal or not, but just moral. People I think find it immoral that someone can copy a game, name it the same, and if they know the rules of the system better, even get the legal trademark and then appear to be the true original.

This is an insightful comment; had this happened in a western country (which it easily could) people would have gone "hey - that's how the world works". But since it happened in China with the current sentiment it is a different story ...

If they can prove that they were first to market with the game and trademark AND that the other company cloned the game and registed the trademark in bad faith then the trademark should be revoked from the new company and assigned to them.

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)

It should be yes, but in China that's not what happens in practice.

What court cases are you referring to?

What is the bet that China would do just that if it happens that a Chinese company is the victim of a non-Chinese company?

You forgot to mention who stole the game. Maybe for some people it's not so important and stealing is just how they used to do things?

Nothing illegal happened?

Genuine question is it not their IP not regardless of whether a patent was failed - atleast meaning ripping of assets / code would be illegal

I didn't read anything about them stealing IP from the game, but if that had happened, that'd obviously be illegal, yes.

First to file is for duplicate but independent work, it doesn't excuse theft. The patent law has first to file principle too, but doesn't allow to patent prior work.

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