Struggle For The Name "Secure TVXQ"

SM, Fights for the Trademark a little too late
This is an updated and more detailed article on this case.....


SM Entertainment has once again applied for the trademark rights for Dong Bang Shin Ki.

It is known that SM Entertainment had gone to apply for continuation of trademark rights for the name ‘Dong Bang Shin Ki’ at the Korea Industrial Property Rights Information Service (KIPRIS) on 5th August together with 3 other names


SM Entertainment is now attempting to secure TVXQ's name, a little too late. On the 5th of this month, SM sent an application for the exclusive rights to the name 'TVXQ' four times to the Korean License Information Center. Amidst the dispute SM has with some of the members of TVXQ, this application for the trademark is bound to cause controversy. Many will want to know, is SM's bid to be the sole owner of the name 'TVXQ' to 'secure' their rights for their business, or to 'shackle' the group?

On the day before, SM also applied for the exclusive rights to 60 other names such as 'Girls' Generation', 'Soshi', 'Sonyuhshidae', '小女時代', 'Super Junior' 'Suju'. The agency has applied for the rights of 64 names in a short span of only two days. In these 64 names, hundreds of calendars, cosmetics, glasses, lenses, furniture, bags, and beds have been included in the sub categories.

The application for a trademark is to stop third parties from getting money by unlawfully using the names of certain products. It also gives the person with the exclusive rights the ability to make supplementary businesses using the name. Therefore, the act of a group asking for the exclusive rights is usually seen in a positive right for the group would be asking for the rights to themselves. However, when an entertainment agency asks for the rights completely disregarding the celebrity in question, it can be seen as an act to shackle the celebrity from performing in the future.

Hwang Sukpil, a lawyer who specializes in the entertainment business, said, "Applying for the rights to a trademark is to protect the rights of that celebrity," and "But there is always a chance that this application can turn into a struggle to secure that name. It can be used to corner the agency's celebrity so that they can't do anything. Most of the time, agencies get the exclusive rights to celebrities without the celebrity even knowing about it."

Of course, just because one applies for the rights, does not mean they get them 100% of the time. Regarding 'Dong Bang Shin Ki', SM's application was rejected in 2004. Nonetheless, it seems SM is trying to get the rights again because of the dispute between them and TVXQ. We have investigated the reasons behind agencies' attempts to get the exclusive rights. What is waiting to be uncovered?


Agencies' Applications for Trademarks

To a star, their name is like brand that distinguishes them. This applies to when they use pseudonyms as well as when they use their own names. This is because when the public hears a celebrity's name, the image and the popularity of that celebrity comes to their minds. This occurs more amongst idol groups where many members form one team. Because the group's name is the image that represents all the members, there have been many instances of agencies applying for the exclusive rights.

In the case of singers, the application applies to their songs and performances. Since most of their income comes from album sales and concerts, these areas must obviously be protected by the law. For instance, if Seotaiji applied for the exclusive rights for their albums and concerts, they have protected themselves from having any third parties putting out albums or giving concerts under the name 'Seotaiji'.

Many of the applications for the exclusive rights for singers applies to albums and concerts. However, there have been instances where the singer or the agency applies for other areas. On the 4th, SM Entertainment filed an application for Girls' Generation and Super Junior regarding, not their albums and concerts, but bags, wallets, beds, etc that have nothing to do with the singers' activities.


The Meaning of A Trademark Application

It can be said that the application for exclusive rights to names is not simply to protect the rights of the celebrities from third parties. It can be also seen as an act of the agency to protect the rights to other businesses regarding the names in the future. It can be as an act of saving the name so the agency can put it on cameras or cosmetics which they would sell to the fans later.

Attorney Hwang Sungpil said, "The rights to a trademark is the right to expand the name's products. For example, if the exclusive rights for drama or movie titles were taken, the person who has those rights would be able to earn a lot of money from products related to the drama or movie titles." Therefore, an agency's application for rights can be seen as preparation to branch out their image later using that celebrity's name.

The majority of applications for singers is done by the agencies. There are times when the agency asks for joint-rights with the singers, but if they ask for exclusive rights, they open themselves up to more financial opportunities. Most of these opportunities have nothing to do with the skills and talents of the celebrity.


What are the Real Motives Behind the Agency's Application?

Of course there have been many instances where the applications for the rights to celebrities' names have been rejected. According to the Trademark Law Clause 7.1.6, "Brands that already include a part of an already famous name or nic-name cannot be given exclusive rights. However, the application can be accepted only if the person applying has received permission from the already famous person."

For instance, 'Dong Bang Shin Ki' can be seen as an already famous name. Therefore, without the permission of each individual members, it will be close to impossible for SM to receive exclusive rights to the name. In fact, SM applied for the rights for the Chinese character version of 'TVXQ' (東方神起) in 2004 but was rejected. Nonetheless, SM has applied for the rights once more.

One agency's representative said, "When one gets the rights to a name, the income one can get off that name is massive. The reason they are trying again, even though they've been rejected before, is because they know this," and "An agency's attempts to broaden the business markets other than music of a singer can be seen as the agency's attempt to reap in supplementary benefits from the singer even after the contract has ended as they already have the rights to the singer's name."


"Protecting Rights and Abusing Power, What is the Solution?"

The application for exclusive rights to a name goes by a 'first come, first serve' system. The first person to apply will get the rights even with they are not the ones who's name is being applied for. If the agency gets the rights to a group's music and concerts before they debut and become famous, this can cause problems regarding the team's name when the contract ends and moves agencies.

Therefore, it can be said that the agency has the upper hand in such a situation. If the group wants to continue working under their group name, they have no choice but to work under the agency that holds the rights. In reference to such an unfortunate situation, Attorney Hwang Sungpil advised, "To stop disputes regarding rights in the future, it would be wise for singers and agencies to have joint-rights to names."

Other than the Chinese character version of the members names and 'Tong Vfang Xien Qi HERO MAX Xiah U-Know Micky', no other forms of TVXQ's names have been passed through the application course. Therefore, if the members leave SM, they will still be able to perform under the name 'Dong Bang Shin Ki'. This also applies to each of the members' individual names.

However, if the application SM handed in the 5th is approved, the story changes entirely. Attorney Hwang Sungpil said, "Depending on how someone uses the exclusive rights, they can be a helper or a hindrance. Therefore, celebrities must always be very cautious when it comes to their rights."



Credits:
Source: [sports seoul + DBSKnights]
Translation credits: jeeelim5@iscreamshinki.net
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