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Trademark the Dragon

China's thriving industry of unlicensed Bruce Lee products

09·21·2016

Trademark the Dragon

China's thriving industry of unlicensed Bruce Lee products

09·21·2016

If it strikes a pose like Bruce Lee, wears a yellow suit like Bruce Lee, it still hasn’t been sued for copyright violation yet under Chinese law.

This past summer, Guangdong-based “Chinese-style fast food” restaurant chain Zhen Gong Fu held a press conference where they unveiled the company’s new marketing scheme. This included a redesigned logo that set netizens snickering at how (to give Lee his Chinese screen name) “Li Xiaolong got slim.” To the surprise of many eager hashtaggers of this phrase, it was soon pointed out by other netizens that the restaurant always officially maintained that the canary-clad, iconically coiffed warrior gracing storefronts in 30 provinces and regions of China is in no way related to the 60s and 70s Hong Kong-American screen legend, but is a representation of a generic kung fu guy.

real-bruce-lee-2

Bruce Lee [allaboutleon.com]

logo-bruce-lee

Generic Kung Fu Guy [SSG]

…Sure it is.

Strictly speaking, the rights to the image of deceased kung fu icon are held by his immediate family, who purchased them back from Universal Studios in 2008. Their Los Angeles-based company, Bruce Lee Enterprises, licenses Lee’s name and likeness to third parties for commercial use. It has done so for products ranging far and wide as sports merchandise, mobile phone commercials, and Broadway musicals. The company also spends a substantial amount of its time making legal challenges to unapproved and unlicensed uses of Lee’s persona—for instance, bringing lawsuits back against Target and Urban Outfitters in 2011 for making t-shirts featuring some of Lee’s most iconic images.

It is difficult to overstate the global influence of Lee’s persona. As one of the first Asians in Hollywood to achieve super-stardom, he is credited with shattering stereotypes and breaking the barriers of entry for future generations of Asians in entertainment. To the public in mainland China, whose exposure to Lee’s movies were limited during the height of his stardom, Lee has also come to represent values such as patriotism, strength, and dignity at a time when national pride and identity are major talking points. His so-called “most famous kick,” with which he destroys a wooden sign saying “No Dogs or Chinese Allowed” in Japanese-occupied Shanghai in Fists of Fury, was awesomely cathartic for a country still recovering from a century of struggle against colonialism (and gave rise to decades of debate on whether such a sign actually existed); according to film critic Craig Reid, the film got “a standing ovation at every showing” from Chinese audiences when it was first released.

Therefore, it comes as no surprise that there is money in China for slapping Lee’s face on everything under the sun. It is centered mostly around the city of Shunde (now a district of Foshan), Guangdong, which was the ancestral seat of Lee’s family though he never personally resided there. In 2010, the district inaugurated the world’s tallest statue of Lee, posed in his iconic fighting stance. It is the centerpiece of a 2000-square kilometers theme park called Bruce Lee Paradise that also comprises a memorial hall, performance venues, a spa, and a natural scenic area. While the park was created with approval from some of Lee’s relatives, the local government had not received official permission from Lee’s estate to register trademarks with Lee’s name. This led them to agree to cancel more than 30 trademarks and logos following talks with Lee’s daughter, Shannon, in 2014, though the park itself was allowed to continue using the name as it contains a museum and is located in Lee’s ancestral town of Jun’an, which seemed to count as a project of public service rather than commercial interest.

In 2014, Guangzhou Daily reported that there were eight categories of goods and services that showed more than 100 trademarks of Lee on the website of the Trademark Office of the Chinese State Administration of Industry and Commerce. Most of those had also been cancelled by the time of the report. One woman in Foshan registered 14 Bruce Lee trademarks for a range of products including coffee, dumplings, sugar, herbal jelly, instant noodles, toothpaste, and electronics.

According to the South China Morning Post, Shannon Lee, who is the head of Bruce Lee Enterprises, took her well-publicized fight for the rights to her father’s persona to China in 2010. Her goal was reportedly to ask individuals and companies who have registered trademarks in Bruce Lee’s name, including Bruce Lee Paradise in Shunde, to hand over the trademarks to Bruce Lee Enterprises without fees. At the time, Kung Fu Restaurant was reported in Chinese media as one of the enterprises at risk for legal action from Bruce Lee’s estate. As of the writing of this article, however, the blow has yet to fall. Registered as a trademark in 2010, according to the Trademark Office website, the restaurant’s kung fu guy logo is not labelled under the name of Bruce Lee. The name also never appears on any of the restaurant’s promotional materials.

This lack of explicit admission coupled with the abstractness of the image appears to be the restaurant’s biggest form of defense. Though we’ve been unable to locate even a written statement from the company confirming or denying the resemblance, the company’s stance as filtered through reports from Chinese media is that with its stylized (抽象化) features and no name, interpretation of who the image looks like will vary by viewer—that is, it could be the image of a Bruce Lee fan, a Bruce Lee impersonator, or someone else, for all we know. It was also reported that the company’s model of the image was a university student in Guangzhou, who just “happened” to look that particular way and assume that pose.

At the same time, the company certainly enjoys sailing close to the wind or, to use a Chinese expression, “playing the ‘edge ball’” (打擦边球)—a term adopted from ping pong and tennis term to describe a ball that hits the edge of the court and may or may not still be in play. The guy in the logo, while not named “Li Xiaolong” (literally, “Li Little Dragon”), is named “Gong Fu Long” (“Kung Fu Dragon”). The restaurant has refused to comment to media on issues relating to the logo’s resemblance to Bruce Lee, while neither Bruce Lee Enterprises nor its official licensee in Beijing was available for comment on this story.

We asked trademark attorney Robert Zang in Beijing to weigh in. Zang pointed out that, unlike many, many areas of Chinese law on which we have reported before, both the trademark law and civil code of the PRC are clear about the protections offered to the image of celebrities such as Lee. In the first place, Article 32 of the trademark law state that trademarks must not infringe on rights already held by others, while “the protection offered in China to an individual’s right of portrait (肖像权) can be inherited by Lee’s family after his decease, and is even clearer about protecting Lee’s image from unauthorized use,” Zang said.

In the case of Zhen Gong Fu, fans on the Li Xiaolong fan community on Baidu Forums have shared their confusion over the news of Shannon Lee’s potential challenge to the restaurant: some had thought the restaurant was officially licensed and had paid Bruce Lee’s estate for the right to use his image. One fan noted that as a child, he wanted to eat at the restaurant only because he saw Bruce Lee’s face over the door, which he said was a “natural association” given the visual cues of the logo coupled with the restaurant name.

However, Zang noted, cases of businesses all but explicitly using celebrity likenesses to sell products is “extremely common in China, and the rights holder may not have all the resources to go after every case—and even if they win, they might not benefit in any tangible way.” Last June, the highest court of the PRC rejected former American basketball star Michael Jordan’s appeal of its earlier decision to uphold the right of Fujian-based Qiaodan Sportswear to keep its company name, which is identical to the Chinese transliteration of Jordan’s name as well as the athlete’s own brand of athletic products. The court’s decision was also made on the grounds that there was insufficient evidence that the company’s marketing referred to Jordan, whose likeness and actual name were never used in the company’s advertising—“Jordan” being a common American name with “Qiaodan” as only one of many possible translations, and not one that the athlete has officially endorsed as his Chinese name. The company’s use of Jordan’s number 23 and a logo similar to the Nike “Jumpman” silhouette were not commented upon in the published court decision.

This was a drawn out legal process that took place over a period of four years, for which Jordan claimed to suffer emotional pain as well as a counter-suit from Qiaodan for tarnishing their reputation. Nevertheless, Zang is of the opinion that the visual similarity of Zhen Gong Fu’s logo to Bruce Lee, which is objectively more obvious than Jordan’s silhouette, means that we “cannot rule out the possibility that the Lee family could have grounds to bring in legal challenge under Chinese laws, if they wished to invest in it.” Based on the Qiaodan case, however, he does note that “while the laws are very clear, rights holders may still have challenges ahead due to the burden of bringing evidence that can stand up in court, even if they stand up in public opinion.”

This may be a moot point in a few years if Zhen Gong Fu’s redesign goes through. As far as the company is willing to admit, the redesign, which makes the logo less recognizably Bruce Lee-like and gives the guy a Roman nose, is not due to any issues of copyright but simply to update the restaurant with a hipper and more modern look. Perhaps the pull of nostalgia for 70s anti-colonial kung fu films is finally fading?

 

Cover image from Baidu Tieba