A recent article on Cult of Mac, Apple pulls popular iOS game after Chinese company steals its name, is as inaccurate about China as anything I’ve seen in a long time, combining ignorance, sloppiness, and an anti-China bias.
The problem starts with the headline: “Apple pulls popular iOS game after Chinese company steals its name.” Anyone with an elementary understanding of English grammar would understand this to mean Apple removed a popular iOS game from the App Store because a Chinese company stole Apple’s name. Not true. Here, “its” actually refers to a third company called Playsaurus, which we are told “didn’t break any App Store rules or regulations. But thanks to a shady Chinese company, its [sic] game had to get the boot.”
According to the article, the Playsaurus game, Clicker Heroes, was “a hugely popular game with a ‘very positive’ rating on Steam after a whopping 47,000 reviews.” It “held a place in the App Store for almost four years, earning decent cash …. until a Chinese company called Shenzhen Lingyou Technology Co., Ltd., trademarked the Clicker Heroes name in China — then asked Apple to pull the original game.”
The article then notes how “Playsaurus holds trademarks for the name in the U.S. and Europe,” adding “you might think that’s enough to protect the game in those markets — but apparently not. Apple has booted Clicker Heroes from App Stores worldwide.” (emphasis mine)
The article goes on:
In a post on Reddit, the Playsaurus co-founder and CEO explains that their game was using the Clicker Heroes name first. There’s evidence of this on a Chinese web portal dating back to 2014.
But because Playsaurus didn’t file a trademark application locally, Shenzhen Lingyou Technology was able to come along in February 2015 — around three months after Clicker Heroes made its debut as a Flash game — and steal the name.
Guess what, folks? Shenzhen Lingyou Technology did not steal the Clicker Heroes name because it is not legally possible for Shenzhen Lingyou to have stolen something Playsaurus did not own. China, unlike the United States, is a “first to file” country for trademarks. That means whoever files first for a trademark in China gets it (there are a few exceptions to this rule but they are not worth discussing in this post).
And Shenzhen Lingyou did not even register “Clicker Heroes” as a trademark — in fact, no one has registered “Clicker Heroes” in China. What Shenzhen Lingyou actually registered was “点击英雄,” a Chinese translation of “Clicker Heroes.” They filed back in 2015 in Classes 41 and 42, and because they filed first and the trademarks did not conflict with any prior rights, they were awarded the trademarks.
Had Playsaurus wanted to register either “点击英雄” or “Clicker Heroes,” they could have done so by paying an international trademark lawyer a relatively modest fee. They then would have beaten Shenzhen Lingyou Technology to the “点击英雄” trademark and would not be having any problems with Apple.
If anyone is to blame for what has befallen Playsaurus it is Playsaurus itself. But the article instead blames China for daring to do things differently from the West:
“Despite explaining this as clear as I could to Apple and the 3rd party, Apple sided with the cloners and took my game down,” the Reddit post explains. “We don’t have the resources to fight a legal trademark battle in China so I guess that’s the end of our game.”
* * * *
“It looks like we can’t challenge it,” the creator says. “It appears that China’s trademark/IP laws are completely different from any Western countries [sic], and Apple just has to do what they say.”
“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.”
Let’s unpack this quote sentence by sentence.
First sentence. “We don’t have the resources to fight a legal trademark battle in China so I guess that’s the end of our game.” Did Playsaurus even check what it would cost to “fight a legal trademark battle in China”? Our China trademark lawyers have fought a ton of similar battles in China, most of them for $5,000 or less, so I think it’s fair for me to wonder. I will note that based on this article, Playsaurus may not have had a strong case, but that’s a problem with facts, not resources.
Second sentence. It looks like we can’t challenge it…. [because] It appears that China’s trademark/IP laws are completely different from any Western countries [sic], and Apple just has to do what they say.” Wow. Apple just has to do what “they” say? I read this to essentially say that Apple has to submit to the PRC’s will, implying that China runs the world. Is Playsaurus really saying that China controls what Apple does? And why would Cult of Mac repeat a patently uninformed statement stating that China’s IP laws are completely different from the laws of any Western country? In fact the complete opposite is true: the first to file system is the majority system worldwide. Only common law countries (basically, England and its former colonies like the United States) follow the first to use system. Under a first to use system, the first to use a brand name or a product name will usually be deemed to have superior trademark rights for that name. Both systems have advantages and disadvantages. I personally prefer a first to file system because it is easier to look at the trademark register for the relevant country to see if anyone beat you to the name, as opposed to having to conduct a comprehensive common law search to determine whether anyone is already using the name you wish to use.
Instead of acknowledging that Playsaurus went into the Chinese market without understanding China’s IP system, this article instead propagates the false idea that China is the only country in the world that would award a trademark to the applicant who filed first.
Third sentence. “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.” Again, this article reiterates a quote from Playsaurus without providing context, i.e., fact-checking. In fact, Playsaurus could have spent a modest amount to register “点击英雄” and “Clicker Heroes” as trademarks in China, and would have thereby avoided the issues and the economic losses it has suffered from not having done so. What’s “ridiculous” about that? Either Playsaurus still doesn’t understand China’s IP system, or they’ve been getting bad legal advice. Frankly, I highly doubt Playsaurus ever contacted a China trademark lawyer, which they really should have done a long time ago.
Moreover, in cases of trademark infringement, Apple doesn’t typically require an app be pulled from all App Stores worldwide, but rather just the country(ies) in which the app is infringing. Here, the app should only have been pulled from China. And when I went to look at the Reddit discussion from which this article was pulled, lo and behold: Apple had agreed to restore the app everywhere bu in China.
Bottom Line: China is a difficult country in which to protect your IP but it is quite possible to do so, but doing so does involve some work and some money, but typically not all that much of either. But if you sit around and do nothing, you should expect to have China IP problems not because it’s China, but because that’s the way things go pretty much everywhere in the world, including China.
For more on the importance of registering your product name or your brand name as a trademark in China, check out the following: