Editor's Note: In the FMCG industry, various counterfeit products emerge endlessly. For example, we often see knockoffs of “Six Walnuts,” “Xiaoming Classmate,” “Lulu,” “Fruit Orange,” “Red Bull,” “Coconut Juice,” and so on. These counterfeit products are very similar to the originals. “Six Pure Walnuts” has just one extra character; “Six Ren Walnuts” and “Six He Walnuts” differ by only a stroke or two. In addition, the appearance design, packaging colors, composition, and spokesperson images are also main elements they imitate, making them hard to distinguish. Uni-President’s “Xiaoming Classmate” (小茗同学) won the hearts of many young people with its trendy, cheeky packaging and pleasant taste. However, various imitators have appeared in the market, so many that we think they could form a class. Examples include “Xiaopan Classmate,” “Xiaoming Classmate” (小酩同学), “Xiaoshu Classmate,” “Xiaoming Deskmate,” “Xiaotang Classmate,” “Xiaoliang Classmate,” “Xiaomao Classmate,” “Xiaofang Classmate”... These knockoffs are mainly produced by small companies that ride on the fame of big brands, imitating them and selling to third- and fourth-tier cities and rural markets. But who would have thought that the copied beverage giant Uni-President would also shoot itself in the foot? This time, the protagonist copying others' work is Uni-President itself. In 2015, Uni-President launched “Xiaoming” Classmate cold-brewed tea. Leveraging the massive online IP “Xiaoming Classmate” jokes and Uni-President's strong product innovation capabilities, Xiaoming Classmate caused a sensation upon its launch, seemingly on its way to becoming one of the “Five Internet Celebrities” alongside “Laoganma,” “Latiao,” “Wuling Motors,” and “Lanxiang Technical School.” However, as the saying goes, “fame brings trouble.” Soon after, Beijing Zhuomu Century Network Technology Co., Ltd. discovered that Uni-President's “Xiaoming Classmate” image was similar to their “Xiaoming Classmate” character and sued Uni-President in court. In 2016, Uni-President was ordered to pay the plaintiff, Beijing Xiaoming Culture Development Co., Ltd., 500,000 yuan in economic damages and cease the infringing activities. But this matter did not end there. The originally established infringement fact took a sharp turn in the second-instance judgment, where the plaintiff Xiaoming Culture was ruled against. After the second instance, the retrial also resulted in a loss for the plaintiff. What exactly changed during this process? Yesterday (April 26) was International Intellectual Property Day. The original creator of “Xiaoming Classmate” published an article via the “Xiaoming” public account, causing the matter to ferment again... The following is a detailed account by the original creator of Xiaoming about the entire case between Xiaoming and “Xiaoming Classmate,” with some content abridged. Everyone has drunk this beverage that was a hit in 2015: “Xiaoming Classmate,” right? When it was first launched in 2015, it looked like this. But by 2017, it looked like this. Do you know why it wore a hat? The story behind it is as follows... The Xiaoming team began creating the Xiaoming culture brand on January 1, 2012, and started creating Xiaoming cartoon images and a series of cultural products to shape Xiaoming as a national cultural brand. When we first started creating, we thought it wouldn't be difficult to create Xiaoming, but when we really put our hearts into it, we found it was extremely difficult because the name is too ordinary and too common. To make everyone see the image and feel it is the Xiaoming in their hearts is too hard—it's hard to please everyone. So, after we established a basic literary framework, we approached more than 30 artists to create based on that framework and their own mental image of Xiaoming. Over half a year, we created and revised over a hundred drafts before Xiaoming's appearance gradually became clear. Every element of Xiaoming was discussed and adjusted in detail. Video: This is the process of creating Xiaoming's image in 2015. From the video, you can see that each person drew a completely different Xiaoming; Xiaoming could be any appearance. After all, there are no two identical leaves in the world, nor can two people independently create the same image for the same topic without knowing each other. I think everyone understands this logic. The following images are different people's interpretations based on the Xiaoming concept. You can see that unless it's plagiarism, different people cannot create the same or similar images. After Xiaoming's image was finalized, we created hundreds of comics to shape Xiaoming's personality and his friends. By 2014, with the popularity of the internet meme “Xiaoming, get out,” Xiaoming's image was widely referenced, and Xiaoming became famous. However, people recognized Xiaoming's image but didn't know it was our original brand image from Xiaoming Culture or the story behind it. That year, we received many collaboration offers, one of which from an American multinational advertising agency (Leo Burnett) caught our attention. They represented a client who wanted to permanently buy out our copyright for Xiaoming in the FMCG and beverage industries. Partial screenshot of their email. We felt this must be a big company, and if we could collaborate, it would be very helpful for Xiaoming's development and commercialization. So I seriously replied to the email, introducing Xiaoming's background, culture, and our plans for Xiaoming. Partial screenshot of my reply email (this email has been notarized). But for some reason, we didn't hear back. We didn't think much of it until March 2015. One of our team members discovered Xiaoming Classmate in Shanghai. The chat record at that time was like this: (To protect the parties' privacy, names are omitted.) Subsequently, such inquiries came in endlessly: Some thought we had gotten rich: Fans greeted us: As more people asked, we gradually consulted industry insiders about whether this constituted infringement or piracy, and whether it could be a coincidence. Designers in the industry, including experts who design cartoon images for companies, all said: “If it were an independent design, it would be impossible to be so consistent. Moreover, as professionals, when they receive a project, they search online for related designs and try to avoid similarity to prevent plagiarism. They also want to ensure their originality.” For a company as large as Uni-President, with Xiaoming Classmate as their main product in 2015, and according to Uni-President's own promotional articles, the biggest feature of this beverage was the cartoon image. It would be impossible for Uni-President not to search for related information. Moreover, our Xiaoming image occupied over 90% of the first few pages in Baidu image search at that time. Notarization we did before filing the lawsuit in 2015. Uni-President could easily see that almost all results were our Xiaoming. By the time we filed the lawsuit in August 2015, our Xiaoming wallpaper downloads had exceeded 200 million, and the comics had tens of millions of reads. Subsequently, we contacted many law firms in Beijing to understand whether such cases constituted infringement and whether legal action should be taken. All lawyers felt the infringement intent was very obvious and that we should sue. Finally, we chose Lawyer Bao from Sanyou Intellectual Property Agency to jointly review and verify whether Uni-President infringed and whether the infringement intent was clear. Then we organized evidence and prepared for litigation, spending about four to five months before filing the lawsuit in August 2015. Before filing the lawsuit, an article titled “How Xiaoming Classmate Won the Hearts of the Post-95s Step by Step” suddenly made us realize the truth and strengthened our belief that Uni-President's infringement was intentional. Did you notice? Leo Burnett—yes, now we know that the company behind Leo Burnett's contact with us was Uni-President. So, Uni-President and Leo Burnett could not have been unaware of our image, since representing a client to buy out our copyright was not a trivial matter. Therefore, it goes without saying why their product packaging is so similar to ours. What further confirmed our belief in Uni-President's intentional infringement was the evidence Uni-President submitted in court. It was infuriating to see. In the first-instance evidence submitted by Uni-President, there was no creation process or source for the cartoon image (all original creators should know that creating an image involves a process), only the bottle design based on the cartoon image. The design team Uni-President hired designed four bottles; except for one with a big beard, the other three looked like this: From Uni-President's bottle designs, it is clear that Uni-President did not create an original cartoon image but modified and adjusted our Xiaoming image. Among the pirated designs, the leftmost one removed the face lines and ears and made slight adjustments; the middle one transformed Xiaoming into the bottle shape (this type of piracy is common in other Xiaoming knockoffs, like Xiaoming ice cream); the rightmost one removed the glasses and made slight adjustments. Uni-President ultimately chose the rightmost design for their product packaging. (Bottle design belongs to packaging design, while cartoon image design belongs to the field of cartoon and animation. Uni-President's submitted evidence only included the packaging design company's contract and the bottle packaging design, not the cartoon image design drafts. After two and a half years, Uni-President still cannot provide evidence of their own design process.) Designing an image is similar to creating a person; there is a growth process, and that process is where the joy, hardship, and effort of the creator lie. All this evidence made our belief in Uni-President's intentional infringement and our determination to defend our rights clear. But as everyone knows, Uni-President and Leo Burnett are big companies; Uni-President is a listed company with a market value of over 100 billion yuan, while we are just a small original team with dreams. The feeling of helplessness after a small ant struggles against an elephant's trampling was what we felt. When the court session began, we felt like dying. It was like someone telling lies in broad daylight, and you had no way to refute it. During the session, the judge seemed to side with the other party, being very strict with us but lenient with Uni-President's lawyers. Combined with the indescribable feeling and various rumors behind the scenes—you know, the powerful and wealthy—we felt we would be unjustly condemned. After the hearing, there was only a long, anxious wait. About a year later, in September 2016, our lawyer called to say we needed to pick up the judgment. By then, we felt we would be unjustly condemned, but we had to face it. And then... then my lawyer and I hugged each other with tears in our voices: we had won! We won! We won! From preparing the lawsuit to receiving the judgment, we endured a year and a half of torment. We felt justice had finally been served. After a year and a half, the sun had returned to the world. Since then, we have been very grateful for the conscientious judgment of Judge Lu in the first instance. Although we knew nothing and felt something indescribable, we could sense that making a conscientious decision was under great pressure. The judgment found infringement based on the substantial similarity of the two images and the contact between Uni-President, Leo Burnett, and us. We won. But Uni-President did not give up; there was a second instance and a retrial waiting for us. Moreover, from the product launch to our lawsuit five months later, Uni-President sold 500 million yuan worth of infringing products, but the judgment only awarded 500,000 yuan. Also, to have some initiative in the second instance, we also appealed simultaneously. (At the time, we thought if we only waited for Uni-President's appeal, we would be very passive in the second instance and could only respond. Now I think even if we appealed, we were still very passive.) Things took a sharp turn from here. Now let me fill in a few gaps:
1. The article mentioned that Xiaoming Classmate wore a hat in 2017; here's the answer.
Because the August 2016 judgment ruled against Uni-President in the first instance, they changed all products to a Xiaoming with a hat in early 2017 to avoid infringement. This way, the prominent watermelon head was gone, and there was no legal infringement. Do you think Uni-President was upgrading the product? Well, you can keep thinking that.
2. Litigation amount: In the second-instance hearing, we proposed increasing the royalty rate from 1% to 4%. Why was it 1% in the first instance?
Why else? One word: poor. We couldn't afford the higher litigation fees. Uni-President sold 500 million yuan, and we calculated at a 1% licensing fee, so the litigation amount was 5 million yuan, which also meant lower court fees. Second, we hoped the lawsuit could turn conflict into cooperation, so we set the amount low as a gesture. In the domestic animation brand licensing industry, rates typically range from 4% to 10% of product sales or ex-factory prices (some foreign rates exceed this). Rates vary based on industry, product, image influence, and other factors.
3. “Uni-President pirated you? Why don't you fly to the sun and touch shoulders?”
Well, starting in 2014, pirated versions of our Xiaoming hit us like snowflakes. Pirated products included ice cream, beverages, lactic acid bacteria drinks, jujubes, etc. Offline, there were seafood BBQ restaurants, skewer chains, shaomai shops, and pancake stalls. Online media was countless, including public accounts, JD.com, Taobao, etc. We've always been told: “Always pirated, never surpassed.”
It's just that Uni-President was the biggest one. Note that the pirated versions I mentioned all used our Xiaoming image. Also, the company was originally called Zhuomu Century, later renamed Xiaoming Culture, because someone used the name “Xiaoming Animation” to raise funds, which should be fraud. So we decided to rename the company to Xiaoming Culture.
Several infringement cases.
4. Why not contact the media?
Initially, we considered that Uni-President was huge; even if the media reported it, Uni-President could buy internet trolls to drown us and control public opinion, putting more pressure on the judge. But we did do some reporting. We contacted a reporter from Phoenix Net, who reported in a neutral and objective manner. What happened? The reporter was forced to stay at Uni-President's Shanghai headquarters for a week, being lobbied. Finally, I asked the reporter if she had changed her mind about Uni-President's infringement. She said no. I asked why. Her answer was simple: Uni-President never provided any evidence of their own creative process.
(Here, to avoid gossip: we did not know this reporter before!) Continuing with the main topic. During the second-instance hearing, the judge at the Beijing Intellectual Property Court spent nearly two hours discussing whether to increase the litigation amount. This is a legal professional issue, and I didn't fully understand it, so I won't elaborate. During the rest of the hearing, the only thing I could feel was that the judge frequently interrupted our statements, not allowing us to elaborate our views. Because for an image that is a slight modification of yours, from a pure bystander's perspective, some might think it's similar, some might not. So we usually explain the origin and genes of a cartoon image to show how the image is expressed, to tell the judge and everyone why we believe Uni-President's is pirated. But unfortunately, the second-instance judge did not allow us to elaborate. Even after Uni-President's statement, the judge interrupted us, saying we were too professional, and did not allow us to respond. I found it strange during the hearing. Near the end, I heard the judge say to other jurors: “Do you think they look alike? I don't think so.” And then it ended... just like that. But based on the first trial experience, the judge's attitude in court doesn't necessarily reflect the outcome, so we suppressed our anxiety and continued to wait. Our lawyer's feedback suggested the second instance should be fine, since we had won the first instance, and the infringement intent and facts were clear. The evidence of substantial similarity and contact was complete. And then! Then! Then! Just like the first instance, we got a surprise: we lost! What the hell? Why? After reading the judgment, it was even stranger. The beginning of the judgment copied the first instance, but the last few pages mainly stated two points: First, you cannot compare details of the two images; instead, you must use overall appearance and the comprehensive judgment of ordinary users to determine similarity. In other words, it's about whether bystanders think they look alike. And you cannot separate elements for comparison. Second, it said you must separate elements for comparison, because there are no glasses, different expressions, different facial features like nose and mouth, and different lighting on the hair, so they are not similar and thus not infringing. Core viewpoints of the second-instance judgment (this is the PPT we made for the retrial). Moreover, even according to the second point of the judgment, it is self-contradictory. I want to ask: Uni-President had four bottles; do these four bottles have the same expressions? Same facial features? Same lighting on the head? (Not to mention that lighting is not a fixed element of an image; it can change.) If so, Uni-President's own four bottles have different expressions, features, and lighting, so wouldn't they be four different images? Then why are they all called Xiaoming Classmate? Are you sure you're not joking?! The second-instance judgment had a core concept: as long as the judge thinks they don't look alike, all other evidence of malicious infringement, including evidence of contact and evidence of other bottle designs with glasses, is ignored, just because the judge thinks they don't look alike. Because even if there was contact, even if other designs copied you, if the judge thinks the marketed product doesn't look alike, there is no infringement. Is this still a court? When can a judge decide a case based solely on personal subjective opinion, ignoring all evidence? Before these lawsuits, the court always felt sacred, solemn, professional, and fair to me. And based on common sense, it should be more rigorous, reviewing evidence to reach a result. But the second-instance judgment, whether in terms of the judgment itself, is full of loopholes and contradictions, even completely inconsistent with the facts. It selectively avoids many factual evidence points, and in the end, it is based solely on the judge's subjective feeling that they don't look alike. How can a judgment be written based on that? I'm not just falling into a black hole; I'm trembling with fear. Hasn't the national leadership been constantly emphasizing strengthening IP protection, ruling the country by law, and judicial fairness? But how can a judgment that doesn't even meet basic common sense appear in individual cases? Moreover, it's a foreign multinational company infringing on our local image. This gave me a feeling of a powerful, hidden force behind it, much stronger than after the first hearing. After all, this is Uni-President's main product. In Uni-President's annual report, this product is ranked very high. And by the end of 2016, Uni-President's Xiaoming Classmate had sold a total of 2.5 billion yuan. This case should be the largest cartoon image infringement case since the founding of the People's Republic of China. But we are just a struggling original team. Besides feeling injustice, anger, and fear, all we can do is continue to seek retrial. (When you are powerless, you can only do what you can; that's the only way we've found in our entrepreneurial journey.) Based on the failure in the second instance, we and our lawyers reorganized the evidence, making the work more solid on the basis of the original evidence. During the retrial, we were not interrupted, and the judge in the conversation court was even amiable. Our retrial submission specifically addressed the loopholes and unreasonable points of the second-instance judgment, including more detailed element comparisons. The retrial representation, which some lawyers and friends I know read, said that if such conclusive evidence could still lose, then there was nothing more to say. (For details, see the retrial representation.) After the conversation court, we could only continue waiting. In March 2018, we received the retrial ruling. This time it was even simpler, just four pages, with content basically the same as the second instance, including the same lack of common sense. The evidence we submitted against all the errors in the second-instance judgment was completely ignored. Just like the second instance, the judges subjectively thought they didn't look alike, so they selectively ignored most of the evidence we submitted. They ruled that Uni-President did not infringe. As friends said earlier, what more can we say? Yes, what more can we say? This case lasted two and a half years, with three hearings. We exhausted our time, energy, and financial resources, only to receive an unjust judgment. It taught us that in China, even if your arm is righteous, it can't twist over the thigh. If a fake has money and power, it can defeat the real one. We have no recourse left in the judicial system. We truly reached a point where heaven and earth don't respond. This case has dealt a heavy blow to the team. Thinking back to when we were all ambitious and wanted to do great things, it's a world of difference. Many people ask me why I must win this case. Actually, we've asked ourselves this question too, and the answer is simple. First, for money. The amount involved in this case is large. If we win, we can get a lot of compensation, which would allow us to make Xiaoming better and fulfill our original vision. Of course, the team members could also live a bit more comfortably, not having to endure with me when salaries can't be paid. Some might say: “You're just in it for the money?” Well, duh. Otherwise, would you support the team? Would you support Xiaoming? We've been working on Xiaoming for six years, scrimping and saving to create nearly a thousand episodes of Xiaoming comics, with over 100 characters. Because of piracy, our income is very low. The team has families to feed; do you think we're immortals? Second, for Xiaoming's commercialization. Many manufacturers have approached us for collaboration, but once they hear that Uni-President is pirating, they all go silent. We understand. If even Uni-President pirates, who would cooperate with the legitimate version? Piracy doesn't require payment, and who would go against money? Third, for the industry in China. This is not just lip service. If this case becomes a precedent, can you imagine the result? “All original creators' images can be slightly modified by pirate manufacturers, and they won't be considered pirated. Even if you sue, with this precedent, pirate manufacturers will win.” I want to ask: How can original creators in China survive then? Who would still work hard on original creations, waiting to be infringed upon? How can China's original industry develop? We've been through the judicial process for two and a half years, and we have little hope left. The media is our last lifeline, to let more people see the injustice, and to let the country see and pay attention to this largest image infringement case since the founding of the PRC. Give some hope to Chinese original creators to persevere. Also give us a glimmer of hope to keep Xiaoming alive and thriving. So we hope to use the power of the media to spread this case and let more people see it. And today (April 26) is International Intellectual Property Day. But we will continue to persevere, no matter how hard it is, to raise and grow Xiaoming. This is our choice and our career. Is fairness and justice really so difficult in China? Can money and power really decide everything? Is the Chinese Dream really just a dream? Xiaoming, you idealistic fool. Finally, I want to thank all the friends, fans, lawyers, and conscientious judges who love Xiaoming and have helped Xiaoming. Thank you for maintaining that. Thank you. And thank you, Xiaoming. Source: Xiaoming Culture -END-