Who is the latest "top stream"? Bing Dwen Dwen, the mascot of the Beijing Winter Olympics, is well deserved. Moreover, as "one trick is hard to find", netizens began to make "Bing Dwen Dwen Pier" to express their love for "Bing Dwen Dwen" and support for the Beijing Winter Olympics. However, does the self-made "Bing Dwen Dwen" infringe the rights? Does the use of self-made "Bing Dwen Dwen" for various tricks infringe the rights? Some issues are not that simple.

 

1、 "Bing Dwen Dwen" is protected by multiple intellectual property rights

 

The Organizing Committee for the 2022 Beijing Winter Olympic Games and Winter Paralympic Games (hereinafter referred to as "BOCOG"), in accordance with China's Copyright Law, the Regulations on the Protection of Olympic Symbols, the Olympic Host City Contract and other relevant provisions, has the exclusive right to use the "Bing Dwen Dwen" and has the right to prohibit others from using it without permission. According to the author's online inquiry, "Bing Dwen Dwen" has carried out a number of intellectual property protection.

 

(1) Copyright protection

 

The image of "Bing Dwen Dwen" constitutes an art work in the sense of China's Copyright Law. Since its creation, it has been protected by China's Copyright Law.

 

(2) Trademark protection

 

As early as September 16, 2019, BOCOG had filed a number of trademark registration applications with the Trademark Office of the State Administration for Industry and Commerce for the image and name of "Bing Dwen Dwen". After the image of "Bing Dwen Dwen" was approved as a registered trademark, it was protected by China's Trademark Law.

 

(3)Appearance design protection

 

BOCOG applied to the China National Intellectual Property Administration for design patents for the image of "Bing Dwen Dwen", which includes labels, signs, graphical user interfaces and other categories of design patents. After the image of "Bing Dwen Dwen" was approved as a design patent, it was protected by China's Patent Law.

 

(4)Protection of Olympic Symbols

 

At the same time, as the mascot of the 2022 Beijing Winter Olympic Games, "Bing Dwen Dwen" is an Olympic symbol and protected by the Regulations on the Protection of Olympic Symbols. Article 4 of the Regulations on the Protection of the Olympic Symbols stipulates: "The right holders of the Olympic Symbols shall enjoy exclusive rights to the Olympic Symbols in accordance with these Regulations. Without the permission of the right holders of the Olympic Symbols, no one shall use the Olympic Symbols for commercial purposes."

 

2、 Is the self-made "Bing Dwen Dwen" infringing?

 

"Using a published work of another person for personal learning, research, or appreciation is a fair use under Article 24 of the Copyright Law, and is not an infringement.". Therefore, it is not for commercial purposes, but for personal study, research or appreciation, to make "Bing Dwen Dwen" toys, "Bing Dwen Dwen" cakes, "Bing Dwen Dwen" manicures for oneself, and "Bing Dwen Dwen" hairstyle for one's son are not infringement.

 

On the contrary, if the self-made "Bing Dwen Dwen" toys are rented or sold to others, the cake shop makes "Bing Dwen Dwen" cakes for sale, the nail salon makes "Bing Dwen Dwen" manicures for customers, and the barber cuts a "Bing Dwen Dwen" hairstyle for customers, it involves commercial purposes, and it is an infringement without the authorization and permission of the Beijing Winter Olympic Organizing Committee, It not only violates the Copyright Law, but may also violate the Patent Law or the Regulations on the Protection of the Olympic Symbols

 

Article 24 of the Copyright Law stipulates: "Under the following circumstances, a work may be used without the permission of the copyright owner and without payment of remuneration, but the name of the author or the name of the work shall be specified, and the normal use of the work shall not be affected, and the legitimate rights and interests of the copyright owner shall not be reasonably prejudiced: (1) To use a published work of another person for personal study, research, or appreciation;"

3、 Does the self-made "Bing Dwen Dwen" facial expression package send to relatives and friends for infringement, not for commercial purposes?

 

Making use of the image of "Bing Dwen Dwen" to make expression packs and sending them to relatives and friends through the Internet is also a tort.

 

1. If the image of "Bing Dwen Dwen" is processed, other elements are added, and the expression bag is made by ourselves, it is a secondary creation of "Bing Dwen Dwen". The expression bag created is an adaptation work. According to the relevant provisions of Articles 10 and 52 of the Copyright Law, the adaptation work of others needs the permission of the copyright owner, otherwise the copyright owner's adaptation right is infringed. If the way of spoofing and vilifying is adopted in the process of making the "Bing Dwen Dwen" facial expression package, which leads to the public's lower evaluation of the image of "Bing Dwen Dwen", then the re creation of the facial expression package has distorted and tampered with the original work, and also infringed the copyright owner's right to protect the integrity of the work.

 

Article 10 of the Copyright Law stipulates that "Copyright includes the following personal and property rights:... (4) the right to protect the integrity of a work, that is, the right to protect the work from distortion and tampering;... (14) the right to adapt, that is, the right to change the work and create a new work with originality..."

 

Article 52 of the Copyright Law stipulates: "Anyone who commits any of the following acts of infringement shall bear civil liabilities such as stopping the infringement, eliminating the impact, making an apology, and compensating for losses, depending on the circumstances:... (4) distorting or tampering with the works of others;... (6) "Unless otherwise provided for in this Law, anyone who, without the permission of the copyright owner, uses a work by means of exhibition or filming of an audio-visual work, or by means of adaptation, translation, annotation, etc..."

 

2. If the image of "Bing Dwen Dwen" is not processed and is directly made into a facial expression package, the act of sending it to relatives and friends through the Internet is an act of spreading the works of "Bing Dwen Dwen" to the public through the information network. According to Article 53 of the Copyright Law, it is also an act of infringement.

 

Article 53 of the Copyright Law stipulates: "Anyone who commits any of the following acts of infringement shall bear the civil liability specified in Article 52 of this Law according to the circumstances... (1) Copying, distributing, performing, showing, broadcasting, compiling, or disseminating his work to the public through information networks without the permission of the copyright owner, unless otherwise provided for in this Law..."

 

4、 Do you send a short video of the process of self-made "Bing Dwen Dwen" for infringement?

 

The author believes that this problem needs specific analysis. If a netizen only sends his self-made short video of "Bing Dwen Dwen" to his personal account, just for himself or his friends to share and enjoy, and does not involve commercial value, the act usually does not involve infringement. However, some short videos of "Bing Dwen Dwen" made by We Media or online Redpost are intended to gain popularity and attract traffic. In order to achieve commercialization in the future, advertising or live broadcast with goods, it is likely that "Bing Dwen Dwen" is used for commercial purposes, which constitutes infringement.

 

Finally, the author reminds you that you should respect the intellectual property rights while liking the "Bing Dwen Dwen"! Grasping the legal boundary and reasonably making "Bing Dwen Dwen" will not infringe.