On April 11, 2022, China’s Supreme People’s Court (SPC) released the Typical civil cases of judicial protection of personality rights after the promulgation of the Civil Code (民法典颁布后人格权司法保护典型民事案例). Although China is not a common law jurisdiction, the SPC often releases typical or guiding cases to assist trial courts in rendering decisions. The typical cases list 9, of which 3 may be of interest to foreign IP practitioners. Breach of personality rights, like unfair competition, can be a useful cause of action when a trademark has not been filed in China (or in addition to trademark infringement).
Using competitor names to set search keywords for commercial promotion constitutes infringement of name rights
——The case of infringement of name right by online bidding ranking
’A Tiger’ is a search engine operator, which owns a search advertising business. Company A purchased the above-mentioned services for the purpose of promoting the enterprise, and used the name of “Company B” in the same industry as a key word for commercial promotion of Company A for 3 years. Searching for the keywords of Company B through the search engine involved in the case, the first two entries on the result page both point to Company A, while the entries on Company B’s official website are relatively low in the results. Company B believed that Company A used Company B’s name without authorization to attract customers using online marketing, infringing its name right. A Tiger Company knew that the above behavior constituted infringement and still offered assistance, so Company B sued and asked Company A and A Tiger Company to stop infringement, apologize, eliminate the impact and jointly and severally compensate for the loss of 300,000 RMB.
The Guangzhou Internet Court held that, in accordance with the provisions of Articles 1013 and 1014 of the Civil Code, legal persons and unincorporated organizations have the right to the name, and no organization or individual may infringe that right via interference, appropriation, or counterfeiting. Company B, as a well-known enterprise, has a certain economic value in its name. Company A’s unauthorized use of Company B’s name for marketing will inevitably cause economic losses to it and has violated its name right. A Tiger Company, as the operator of the search engine involved in the case, carried out paid advertising business, its obligation to review Company A’s keyword settings should be higher than that of ordinary network service providers. Because the search operator failed to properly perform its review obligations, it objectively provided assistance to the infringement involved in the case, which constituted a joint infringement. Then it was ordered that Company A and a Tiger Company apologize in writing, clarify the facts, eliminate the impact, and jointly and severally compensate 65,000 RMB.
The right of name is an important identifying right of an enterprise to engage in commercial activities, which has gradually become the core asset of the enterprise. This case, based on the development of a new racing track for the digital economy, clarifies that the legally registered enterprise names of others are protected in the field of bidding advertisements, and no one may infringe upon the right to enterprise names of others by playing on famous brands or any other means. Meanwhile, this case also determined the examination obligation of network service providers, and urged them to use their technical advantages to conduct substantive examination on the ownership of the keywords when bidding for ranking of search results, which played a positive role in restricting trademark infringement and unfair competition acts, regulating the competition order in the industry, and building a healthy brand economy.
Artificial intelligence software uses the image of a natural person to create virtual characters without authorization, which constitutes infringement
——The case of “AI companion” software infringing on personality rights
Zhongjia Travel Agency operated certain intelligent mobile phone bookkeeping software, in which users could create or add “AI companion” by themselves, and set the name, facial portrait, relationship with users, mutual address, etc. of “AI companion”, and set up the contents of interaction between “AI companion” and users through the functions of the system, which was called “education mediation” by the system. He, the plaintiff in this case, was a public figure. Without the consent of the plaintiff, “AI companion” identified by the plaintiff’s name and portrait appeared in the software. Meanwhile, the defendant opened the role to many users through an algorithm application, allowing users to upload a large number of “expression packages” of the plaintiff and create graphic and text interactive contents to realize the function of “teaching” the “AI companion.” Believing that the defendant has infringed upon the plaintiff’s rights to name, portrait and general personality, the plaintiff sued , demanding an apology, compensation for economic losses and damages for emotional distress.
Upon trial, the Beijing Internet Court held that: In the software involved in this case, users created virtual characters by using the plaintiff’s name and likeness, produced interactive materials, and projected the plaintiff’s overall image, which was a combination of the plaintiff’s name, likeness and personality characteristics, onto the AI character, which formed a virtual image of the plaintiff. The defendant’s acts were the use of the overall personality image including the plaintiff’s portrait and name. At the same time, the user may set his identity relationship with the AI character, set any mutual appellation, and “educate” the character by making materials, so as to form an experience of real interaction with the plaintiff. The aforesaid functions of the defendant also involve the personal freedom and dignity of natural persons. Although the specific drawings were uploaded by the user, the product design and application of the algorithm of the defendant in fact encouraged and organized the user’s uploading acts, which directly determined the realization of the core functions of the software. The defendant was no longer just a neutral technical service provider, and should assume the tort liability as a content service provider. Therefore, the defendant used the name and portrait of the plaintiff without consent and set the systematic functions involving the personal freedom and dignity of the plaintiff, which constituted an infringement upon the plaintiff’s right of name, right of portrait and right of general personality. Therefore, the Court rendered a judgment that the defendant should apologize to the plaintiff and compensate for the losses.
With the further innovation of the Internet industry model in the post-epidemic era and the continuous development of new technologies such as virtual reality, the application of virtualized representation of natural person personality elements is increasing. This case clarifies the personality rights of natural persons and their virtual images, and at the same time conducts a useful exploration of the evaluation criteria for algorithm applications, which is of great significance to strengthening the protection of personality rights in the era of artificial intelligence.
Portrait silhouettes with obvious recognizability belong to the protection category of portrait rights
——A dispute over the right to portrait and name of famous entertainer Jia
In a commercial promotion published on its Public Account, a defendant, a biotechnology company, used a portrait silhouette formed after processing a photo of a famous entertainer, Jia. The article introduced that the company was expecting a mysterious “blue friend” and provided a number of clues with obvious points. A large number of messages in the comment area of the article all mentioned Jia’s name or his network nickname. Plaintiff A claimed that defendant had infringed upon his right of portrait and right of name. Plaintiff A then filed a lawsuit with the court requiring defendant to immediately take down and destroy relevant publicity materials, make a public apology, compensate for economic losses, etc. The defendant argued that the portrait silhouette did not reflect the facial features, could not identify gender, age, identity and other personal characteristics through it, was not recognizable, did not have the attributes of a portrait, the defendant did not infringe the plaintiff’s right to portrait, and the articles involved were not published for a very long time,, the scope of influence is small, no economic loss was caused to the plaintiff, and the tort liability should not be assumed.
The results of the referee
The People’s Court of Chengdu High-tech Zone held that after hearing, the Civil Code clearly defined portraits based on the three elements of “external image”, “carrier reflection” and “recognizability,” and especially the recognizability was the most critical factor in judging whether it is a portrait. In this case, even though the defendant processed the plaintiff’s photo and could not see the complete facial features, the facial contours (including the hairstyle) shown by the silhouette still had the plaintiff’s personal characteristics and belonged to the plaintiff’s external image and the contents of the text description of the article in question were strongly recognizable. The “accurate portrait” described by the character’s personal features greatly enhances the recognizability of the portrait silhouette. A large number of comments selected in the comments section of the article stated that the portrait silhouette is A, further confirming the recognizability of the portrait silhouette. To sum up, the portrait silhouette in the article involved in the case is clearly identifiable when combined with other content in the article, so it constitutes an infringement of the plaintiff’s portrait right, and the defendant was ordered to apologize and pay the plaintiff 100,000 RMB for economic losses.
This case is a new type of infringement of portrait rights after the implementation of the Civil Code. The defendant tried to use an ambiguous area of the law to illegally benefit from the portrait interests of well-known artists, which aroused social concern. This case was tried in accordance with the latest provisions of the Personality Right Catalog of the Civil Code, embodied the legislative spirit of substantive and complete protection of citizens’ portrait rights, helped the public to know and understand the positive changes in the protection of portrait rights, and formed an atmosphere of knowing laws and abiding by laws in strict respect of the portraits of others.