IP concern

The shanzhai syndrome on the Internet has raised concern about intellectual property protection in cyberspace. Is it OK to register a twin domain name of well-known sites? Is it OK to clone other sites' designs, logos and functions?

Justin Yu with Sam & Partners, a Beijing-based law firm, says that without an accurate definition, shanzhai is not a legal expression. He sums up the phenomenon as two problems, the registration of domain names and the content of the websites.

According to Yu, the Anti-Unfair Competition Law could be cited as a shield to protect domain names, which defines "using a similar name, package, decoration of the famous or noted commodities, which may confuse consumers distinguishing the commodities from the famous or noted commodities" as a kind of unfair competition.

And according to the Supreme People's Court's judicial interpretation regarding domain name disputes, "domain names that confuse consumers distinguishing them from the well-known trademarks, commodities and service could be judged to be revoked, halted or changed".

"In practice, there are examples where domain name dealers who rushed in to register were told to revoke or change their domain names," said Yu. "We can say with certainty that there are legal problems with the hoard of domain names that resemble noted websites."

Yu said that the social recognition level, reputation and the scale of ad input should be examined to determine whether a certain commodity, service or domain name is "well-known".

There are both differences and connections between the trademarks and the names of certain commodities and services. Well-known commodities and services are not required to own registered trademarks, but they are subjected to great subjectivity since different people may have different judgments.

Therefore, Yu said, it is suggested that well-known companies register related trademarks.

As for website content, a possible approach for protection is a copyright. According to Yu, originality is the first concern in determining if a work should be protected by the copyright law.

"Take Kaixin.com for example. Considering the mode of social networking sites didn't originate with Kaixin001.com, and its format can be traced to similar formats developed by overseas companies, we have to analyze the originality of these formats under specific condition." said Yu.

However, Yu said the copyright law only protects the specific expression of a work, not the rules and methods by which the work is created. This means if two games or operational modules share a similar mode, but differ in code, there is no copyright infringement.

"So if a website intends to protect its functions it is better to resort to a patent approach, rather than a copyright approach," Yu said.

In contrast to the scrupulousness of the IP lawyer, Wang Ran, CEO of China eCapital, a private investment bank, and a famous blogger known for his Internet business comment, expressed his contempt explicitly, "No company in the world builds its greatness on the base of hoarding noted websites' twin domain names.

"Though according to the philosophy of 'what is actual is rational', we have to admit that some shanzhai material offer its consumers more or less value. But in general, shanzhai fever is not so much the proliferation of the innovative grassroots spirit, but the relentless exposure and irony of the lack of IP awareness in China," Wang wrote in a blog post, titled "The Flood of Shanzhai Culture is a Shame".

(China Daily January 12, 2009)