H.O.T., the "originator of the Korean Wave" that once dominated Asia, would never have imagined that one day the five of them would get together again and try to have their own names, and they would get into a lawsuit.

On July 2, the first round of tickets for the "2019 High-five Of Teenagers" H.O.T. 2019 joint concert was released. All 66,000 tickets were sold out within 7 minutes.

However, on the day when the tickets for the concert were issued, Korean media reported that the holder of the "H.O.T." trademark and former representative of the group's former agency SM Entertainment, Kim Kyung-wook (transliteration), would apply to the court. Ban the "2019 High-five Of Teenagers" concert.

This is not the first time that Jin Jingxu has filed this lawsuit in court. Last year, H.O.T. also launched a joint concert. At that time, it was because they failed to obtain authorization from Kim Kyung Wook that the concert was temporarily renamed "High-five Of Teenagers".

However, even so, the organizer and former H.O.T. member Jang Woo Hyuk, who was the organizer of the concert, were still sued by Kim Kyung Wook after the concert. The reason is that they used the name and logo of "H.O.T." extensively during the promotion of the concert, which violated trademark rights.

Judging from the current situation, this year’s concert will still be held as scheduled. But even with such popular results, the unspeakable three letters "H.O.T." are still an unsolvable problem around the "originator of the Korean Wave".

In South Korea, such disputes between group members and the company after the termination of the contract are never unique.

After former TVXQ members Park Yoochun, Kim Jaejoong, and Kim Junsu left SM Entertainment, they formed JYJ; BEAST members Yoon Doojoon, Yong Junhyung, Yang Yoseob, Lee Kikwang, and Son Dongwoon terminated their contracts with CUBE Entertainment and formed another group, HIGHLIGHT. CUBE Entertainment even issued an official position, deciding to reorganize BEAST with the only remaining member Jang Hyun-seung leading two newcomers, but Jang Hyun-seung himself denied it, and the reorganization was dropped.

In fact, in this case, the combination also has another option to retain its name. Professor Sun Guorui, professor at the Beihang University Law School and president of the Beijing Intellectual Property Research Association, told Music Finance (ID: musicbusiness) that spending money can solve the problem when both parties reach an agreement. Both parties can transfer trademarks through contract.

For example, after the Korean "longevity group" Shinhwa (?/Shinhwa) terminated its contract with SM Entertainment, it was the members of the group who immediately bought the trademark rights to the group name, and the group's "myth" was able to continue.

There are many such problems in China. Last year, it was revealed that the contract between S.H.E and Huayan International had expired, and the news that members might no longer be able to use the group name without the company's permission came out immediately. Many fans cannot accept that the girl group that accompanied them throughout their youth cannot continue or even disband.

In addition to domestic and foreign group members losing their group trademarks due to the termination of their contracts with their agencies, there are many cases where the artist's stage name is registered by the company, or the artist's real name is registered by unknown brands.

Last year, Deng Ziqi terminated her contract with Hummingbird Music, and the news that her stage name "Deng Ziqi" and her English name "G.E.M." were "snatched" by the company made a lot of noise. Netizens who are concerned about this matter have spoken out, saying that the agency's approach is "too inhumane". The conclusion of whether "Deng Shiying" can continue to use the stage name "Deng Ziqi" has also left a question mark in everyone's mind.

Music Finance (ID: musicbusiness) learned from information on the China Trademark Network website that "Deng Ziqi" and its English name "G.E.M." have been registered for a total of 24 times by companies including its brokerage company. trademark. The types of trademarks include fitness equipment, clothing, shoes and hats, education and entertainment, etc.

In fact, for a brokerage company, the most important purpose of registering a trademark for an artist is to effectively protect the economic benefits generated by business operations and the intellectual property rights of the company and the artist in an environment where the artist is highly exposed. .

From the perspective of the trademark registration mechanism, a registered trademark needs to be applied for by a business entity. Although individual artists can also register trademarks for their own names, there are facts that need to be weighed if you want to keep the trademark in your own hands. Lawyer Zhao Zhigong, a lawyer in the cultural and entertainment industry, explained to Music Finance (ID: musicbusiness):

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At present, almost all the trademarks of signed artists are in the hands of the company. If they are not given, The company will not be willing to promote you. This is a balance of interests relationship.

In addition, many artists now choose to open their own studios so that they can combine everything. The rights are in your own hands.

If you want to properly handle the interest relationship between artists and companies in terms of trademark rights, whether it is legal or contractual, it is a problem that the industry needs to optimize and solve together. The best way is of course for the artist and the company to sit down and coordinate.

The following is an exclusive interview conducted by Music Business (ID: musicbusiness) with Sun Guorui, professor at Beihang University Law School and president of Beijing Intellectual Property Research Association, and Zhao Zhigong, a lawyer in the cultural and entertainment industry:

Music Finance (ID: musicbusiness): Why do such cases of name and trademark registrations occur one after another?

Sun Guorui: Although natural persons can also register, the Trademark Office now requires a business entity to register a trademark according to the departmental regulations of the State Administration for Industry and Commerce. If the company registers with a name that is obviously the name of a natural person, it does not require personal presence. Regardless of whether it is a person's name or not, according to the application documents, as long as it does not conflict with existing trademarks on similar goods. Legally there is no obstacle.

The names of many famous sports and entertainment stars in China, such as Yao Ming and Yi Jianlian, have been registered. The most famous case is Jordan's case two years ago, which went all the way to the Supreme Court. The Supreme Court's decision did not fully support Jordan's claims, but only partially supported them. If it happens to be registered and used in sporting goods in China, it is obviously benefiting from celebrities, which is a "free-riding" behavior.

Zhao Zhigong: First of all, there are two legal systems. One is the intellectual property law system where trademark rights and trademark law are located; the other is the civil legal system where name rights are located. These are two completely separate and parallel legal systems.

This situation is common in China, not just for artists, but also for all walks of life. Many of these preemptive registration companies exist in certain coastal cities in my country, and to some extent they have formed an industry.

Although it is called squatting, it does not mean that they are necessarily malicious and wrong. In fact, they are engaged in what they are doing under the provisions of the law, using their understanding of the law and relying on their own business predictions. A business that has a certain speculative nature.

In music companies, there is a situation where artists use their real names as stage names to perform. At this time, the artist's name rights and trademarks overlap, and the brokerage company has the right to register the artist's name as a trademark from the perspective of commercial cooperation.

Artists are the company's "assets", and the company must ensure that the artist's name is a unique, proprietary product and a trademark that cannot be infringed or counterfeited by others.

The commercial cooperation between the artist and the brokerage company will sign a specific artist brokerage agreement. In this case, the brokerage company needs to register the trademark, and the Trademark Office has a high chance of approving it, because there is a strong relationship between them. If there is a stake, it does not constitute squatting. Cybersquatting is when a person who has no relationship with the artist registers the artist's name as a trademark. Of course, if he can prove that he has a certain connection with the name and does not receive any objections during the preliminary announcement stage, he can still register it.

Take Deng Ziqi as an example. Her previous agency spent a lot of energy on packaging and promoting her. The name "Deng Ziqi" has become popular. The company must protect the name from being stolen, otherwise the company's rights will certainly There will be losses. Therefore, the company must ensure that it is the only right holder to use the trademark.

Music Finance (ID: musicbusiness): Can an artist register the trademark of his stage name without going through a company?

Sun Guorui: As long as I prove the existence of a business entity. When registering, the Trademark Office will check whether you have any business activities or business entities. If you have no business activities and just want to register a trademark, the Trademark Office will not approve it based on specific observations.

Zhao Zhigong: Artists can completely register their names as trademarks. If you have a studio, I fully recommend that artists register their names as trademarks. But if he is a contracted artist of the company, the company will help him complete this matter. Even if he registers his name, the company will require him to transfer it to the company's name for the purpose of brokerage and business cooperation. At present, almost all the trademarks of signed artists are in the hands of the company. If you don't give it to the company, the company won't be willing to promote you. This is a relationship of balanced interests.

Music Finance (ID: musicbusiness): So for celebrities, should they take precautions before they happen and choose to actively register their names and trademarks?

Sun Guorui: This is a way. At least it proves that the artist has a strong awareness of intellectual property rights. He has become famous on his own and has a certain influence in society. Everyone will directly connect him with his name. This corresponding relationship has been established. At this time, artists have certain rights. Name is not only a personal right, but also an attribute of property right.

Music Finance (ID: musicbusiness): If a name and trademark is registered, can the rights be effectively protected?

Sun Guorui: An artist can exercise his right to his name and sue someone else’s trademark for infringement of his prior rights. This is no problem from a legal perspective. Including the stage name is also included in the name rights. Normally, after an artist becomes famous, everyone knows him better by his stage name. The stage name has overshadowed his officially registered name and has formed a close correspondence with this person.

But if he does not claim the rights, the company has registered his name as a trademark. Normally, trademark rights and name rights do not conflict.

For example, if Deng Ziqi does not claim the rights, the original brokerage company can still continue to use the trademark. After all, Deng Ziqi and the company have a contract relationship. When the trademark was originally registered, Deng Ziqi did not raise any objection, nor did he file an invalidation request with the Trademark Office. Normally, everything was fine.

Zhao Zhigong: First of all, the trademark registration process is divided into several stages: the first stage is formal examination, and the second stage is called substantive examination.

The third stage is the preliminary review announcement. If you find that your trademark has been preemptively registered during the preliminary review and announcement stage, you can file a trademark objection. If the objection is approved, the trademark cannot be registered. But if you discover it later and the trademark has already been registered, you can also apply for the trademark invalidation process, and the preemptively registered trademark will be invalidated through trademark invalidation and corresponding litigation procedures.

In addition, Deng Ziqi can use the legal system of civil law to protect his own rights and interests. If I were his lawyer, I would suggest changing his real name from Deng Shiying to Deng Ziqi as his real name, so that he can use it unlimitedly. He can go to the corresponding household registration agency to change his name to "Deng Ziqi" and continue to use this name. If you continue to use Deng Ziqi, you will not be using Deng Ziqi’s trademark, but your own name. You will go beyond the trademark law and protect your name rights from the perspective of civil law.

Of course, the above is only the most abstract situation in theory. In reality, there are many complex factors.

If you don’t want to change your name, there is another way, which is to negotiate with an economic company to obtain trademark authorization; or buy the trademark and obtain the transfer of the trademark.

Music Finance (ID: musicbusiness): Can Deng Ziqi continue to use this name after terminating the contract with the company?

Sun Guorui: The name "Deng Ziqi" has created a greater reputation for herself, won a higher reputation, and also given her a certain financial income, and the brokerage company has also achieved considerable income. . Logically speaking, the original brokerage company can continue to use Deng Ziqi's trademark, and Deng Ziqi can continue to use the name. The two should be in peace.

Music Finance (ID: musicbusiness): In the case of H.O.T., did the former agency reclaim the trademark after the executive resigned?

Sun Guorui: If both parties transfer the trademark through a contract, there is no legal problem. Brokerage companies can also buy it, and these artists can also buy it.

Zhao Zhigong: The company can just buy it back. But if the other party does not agree, there is no coercion. Trademark law is different from patent law. There are no provisions for compulsory purchase of trademarks or compulsory licensing in the trademark law. All transfers and licenses respect the subjective wishes of both parties. Companies can only negotiate with each other. If the other party does not agree, there is no choice but to change the name.

Music Finance (ID: musicbusiness): Does the agency have the right to use the artist’s stage name or group name to other newcomers?

Sun Guorui: The "Anti-Unfair Competition Law" stipulates that operators shall not engage in such confusing behavior. For example, using the name of another company or using someone else's name can make people feel that the products they sell are related to a certain person or company.

If the original agency lets another singer sing under Deng Ziqi’s name, this would be considered unfair competition by the agency according to the Anti-Unfair Competition Law. For consumers, their rights and interests have also been harmed, which is tantamount to deceiving consumers.

Zhao Zhigong: Through understanding the strong position of the brokerage company and the professional brokerage contract, I think the company has every right. The company owns the trademark rights and has the right to replace the content with any artist. But whether fans buy it or not is a matter of the market.

Music Finance (ID: musicbusiness): After the artist terminates the contract with the company, can the songs previously released under the stage name or group name still be sung?

Sun Guorui: The song also involves another issue, which is the copyright owner. This has nothing to do with the agency, unless the creation of the song is the agency. This is not a trademark issue, but a copyright issue.

Zhao Zhigong: This depends on the specific content of the management agreement and the recording agreement signed between the artist and the company. It cannot be generalized. But in many cases, including my understanding of Korean artist managers and the recording industry, the group should not be able to sing. Unless they say there will be negotiations during the termination process, this will be decided on a case-by-case basis.

The best way is for the artist and the company to sit down and coordinate. So now many artists choose to open their own studios, so that they can have all the rights in their own hands and have maximum control.

Music Finance (ID: musicbusiness): Previously, NetEase Cloud Music’s registration of the word “Song List” as a trademark was rejected. What was the reason?

Zhao Zhigong: First of all, a registered trademark must be distinctive, distinguish it from ordinary public content, and have its own uniqueness. It is difficult to say that the word "playlist" has high significance. If such non-distinctive content is registered as a trademark, it is actually a restriction on the public content, which will cause certain inconvenience from a social perspective.

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