Touhou Project-Linked Trademarks Upheld for Non-Creator
posted on by Ko Ransom
A board of examiners from the Japan Patent Office determined in May that a man was lawfully granted trademarks for the terms "Touhou Project" (image at right) and "Shanghai Alice Gengakudan" (image at left) — even though the man has no ties to the creator of the Touhou Project games. In upholding the trademarks that the man registered last September, the board denied a formal objection, which asserted that the terms were well-enough known to make such a registration a "free ride" used for "unfair purposes."
A Saitama man named Koji Kaneko applied for the two trademarks last March, and they were successfully registered the following September. The trademark for the use of "Shangai Alice Gengakudan," which is also the name taken by the publisher of the Touhou series of shooting games (also known in English as "Team Shanghai Alice"), was given for games, toys, clothes, published materials, and more, while the trademark for use of "Touhou Project" was given for games and clothes.
A formal objection to the granting of these trademarks was then filed by Junya Ota, the Touhou Project game creator who is also known as "ZUN." The objection argued that the trademarks were in violation of Article 4, Paragraph 1, Item 19 of Japan's Trademark Act, which states that a trademark shall not be registered if it is "identical with, or similar to, a trademark which is well known among consumers in Japan or abroad as that indicating goods or services pertaining to a business of another person, if such trademark is used for unfair purposes (referring to the purpose of gaining unfair profits, the purpose of causing damage to the other person, or any other unfair purposes)."
However, despite the use of the term Shanghai Alice Gengakudan on various works that are part of the Touhou franchise, a board of examiners from the Japan Patent Office determined this May that it was not used in a way that would grant it protection under the earlier-cited section of the Trademark Act, rejecting ZUN's objection.
Additionally, ZUN's objection to the registering of the "Touhou Project" trademark was also rejected on the grounds that while the various works that are part of the Touhou Project franchise used the term "Touhou" in them, the phrase "Touhou Project" was similarly not used in a manner that would make it well known among consumers.
On Tuesday, ZUN posted from his Twitter account that he was not highly concerned about the ruling, as he believes that it indicates that both he and fans who create derivative works of the series can continue their activities with no change in behavior, stating that because it was ruled that previous Touhou titles were not released under the Touhou Project trade name, he does not foresee any future titles being released under the name, either. He also reminded fans that holding a trademark and holding a copyright are two separate things, and that he is still free to pursue legal action as the copyright owner of the series. However, he did state that he is in negotiations with Kaneko regarding the trademark, as he dislikes the current state of the trademark situation on a "sentimental level."