“Reflect on your faults”
“Keep both feet on the ground”
“Look up at the starry sky”
These slogans seem innocuous and hardly original, nor is it obvious that they are copyrighted or trademarked. However, the Beijing Administration for Industry and Commerce is investigating whether Vancl 凡客 can no longer use these slogans, because they have been used by Wen Jiaobao, the premier of China.
The China Daily ran a Xinhua article called T-shirts investigated for borrowing Wen’s popularity, which suggested a different kind of qualification for the prohibition of the use Wen’s slogans: “Vancl’s online advertisement is suspected of violating the Advertisement Law which stipulates an advertisement shall not involve using the names of State organs or their functionaries,” a spokesman of Beijing municipal industry and commerce bureau told Xinhua.”
But names of State organs or their functionaries were not used. Let’s look at the advertisement law.
Advertisement law
Article 7 Advertisement law states: The contents of an advertisement shall be conducive to the physical and mental health of the people, shall promote the quality of commodities and services, protect the legitimate rights and interests of consumers, be in compliance with social morality and professional ethics, and safeguard the dignity and interests of the State.
An advertisement shall not employ or do any of the following things:
1. Use the National Flag, the National Emblem or the National Anthem of the People’s Republic of China;
2. Use the names of State organs or their functionaries;
3. Use terms such as “State‑level,” the “highest‑grade” or “the best”;
4. Hinder social stability or endanger the safety of persons or property, or harm the public interest;
5. Hinder public order or violate sound social morals;
6. Contain information suggesting pornography, superstition, terror, violence or hideousness;
7. Contain information that engages in ethnic, racial, religious or sexual discrimination;
8. Hinder the protection of environment or natural resources; or
9. Other circumstances prohibited by laws or administrative rules and regulations.
To identify a slogan created by someone with the name of that person is a stretch.
Read also the Agence France-Presse article via SCMP here.
Trademark law
Can the slogan be qualified as trademark infringements? Slogans can be registered as trademarks. But this has not happened to these slogans, as far as I know.
To use article 10 Trademark Law seems overstretching the provision. Article 10 Trademark Law: The following signs shall not be used as trademarks:
(1) those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People’s Republic of China, with names of the places where the Central and State organs are located, or with the names and designs of landmark buildings;
Copyright law
Could the use of the slogans be qualified as copyright infringement and protected under the copyright law? “Look up at the starry sky“, is part of a poem of Wen and one sentence of the poem could be also protected under copyright, if it is Wen’s own and original creation. In English the phrase looks like a beaten path, depending on which characters are used, this could be different in Chinese.
Conclusion the qualification of a prohibition of the use of Wen’s slogans on a T-shirts seem problematic under advertisement, trademark and copyright law.