If You Make a Penguin into a Game Character, Will You Be Sued?

Penguins

As everyone knows, this black-and-white bird

basically represents the image of a certain internet company in China

So, does this mean that no one else can use penguin imagery in their creations?

If they do, will they be sued?

Let’s do a simple analysis.

*This article reflects only the author’s personal views and does not constitute any legal advice or legal opinion.

---

I. The “Penguin” That May Have Become a Well-Known Trademark

Since the birth of QQ’s predecessor OICQ, the penguin image has been tied to this software:

Image source: QQ, Why a Penguin?

After so many years of operation

combined with Tencent’s presence in the gaming industry

it can be said that when “penguin” + “gaming” is mentioned in China

the vast majority of players will immediately think of Tencent.

Additionally, Tencent has indeed applied for a large number of trademarks related to the penguin image and the word “penguin”:

Penguin = Tencent

has basically become common knowledge among game players

And whether in the gaming world or from a legal perspective

the penguin image is close to being a “well-known trademark” of Tencent

Faced with the need to incorporate a penguin image into a game, many planners and artists will surely agonize

Will this get us sued by Tencent?

II. Many Games Have Already Used Penguin Images

However, experienced developers and players will notice

Penguins are not a forbidden zone for creation

Many games have already incorporated penguin images

Whether it’s NetEase’s Eggy Party and Justice Online 3, which have a love-hate relationship with Tencent:

Eggy Party

Justice Online 3

Justice Online 3

Justice Online 3

Or miHoYo’s new game Zenless Zone Zero

Zenless Zone Zero

Zenless Zone Zero

These games all openly use penguin imagery

and even directly call it “penguin”

and even add a hint of subtle “mockery” in the descriptions

Aren’t these big companies afraid of being sued?

III. There Are Techniques for Using Penguin Imagery

In reality

“Penguin” as a creature that actually exists in nature

its image cannot be fully owned by any commercial company or individual

Therefore, if it is a completely original penguin design, even if named “Penguin XX” or “XX Penguin,” it will basically not infringe Tencent’s copyright, trademark rights, etc.

Unless the created image clearly constitutes commercial defamation against Tencent.

In terms of creation, what specific aspects can be done to make the image “completely original” or reduce the risk of being sued?

Let me outline a few suggestions:

Avoid Direct Use or Modification Based on the Original Image

Directly using or modifying the original image is the most common source of infringement.

While searching for information, I came across a rather amusing trademark application record:

It truly made me “lose my composure”

This invalid trademark directly used Tencent’s original penguin image with simple adjustments

(I even suspect it was directly taken from an original image without any adjustments)

This degree of modification does not constitute any “original content”

If used commercially, it will inevitably constitute infringement of Tencent’s copyright and trademark rights.

To avoid usage risks, it is necessary to completely redraw an original penguin image

and ensure it is not similar to Tencent’s existing image.

Avoid Using the Red Scarf

The most prominent and distinctive feature of Tencent’s penguin image is the red scarf

To clearly avoid creative risks, it is recommended that the original penguin image not wear a red scarf.

For example, Zenless Zone Zero’s Penguin Bangboo

is a penguin-shaped doll without any red elements.

Wait!

Readers who have finished reading the above might still remember

Didn’t Justice Online 3 use a red scarf?

But if you look closely at the image, it is actually a “red headband” and a “red-and-white scarf”

The one with a red headband avoids the all-black head;

the one with a red-and-white scarf avoids the white belly, and also adds two red blush marks.

Considering the natural image of a penguin as an animal

this level of detail avoidance has a good chance of proving originality

and reducing the risk of being sued.

Avoid Association with “Goose Factory,” “QQ,” and Similar Terms

The penguin image and the name “penguin” belong to the public domain

QQ and Tencent are clearly known trademarks

So, if you design an original penguin image and combine it with terms like “Goose Factory” or “QQ,” is it permissible?

Of course not.

First, Tencent has also registered the trademark “Goose Factory”:

Although Tencent has not applied for the trademark “QQ,” during the “3Q War” in 2010, “QQ” was commonly referred to as “QQ” online.

Using the penguin image alone is fine

But if the penguin is combined with “Goose Factory,” “QQ,” or other well-known nicknames, pet names, or even derogatory names for Tencent, the specificity will significantly increase.

Although it may not necessarily constitute copyright or trademark infringement, there is a high likelihood of constituting unfair competition.

Avoid Association with the Actual Tencent Company

In addition to the image, the concept must not have any connection to Tencent.

For example:

It cannot be the logo of a gaming/internet company;

It cannot be a company logo with a boss surnamed Ma;

It cannot have an obvious connection to Tencent’s history or current situation.

If you want to make a meme, the degree of association needs to be carefully managed.

For example, Justice Online 3 used a joke about “money means anything,”

which carries some risk, but it is difficult to prove with evidence that it was intended as mockery.

IV. Conclusion

Through this example, I believe many readers can draw analogies

such as Tmall’s cat, JD.com’s dog, etc.

Real animals are first and foremost real animals, belonging to the public domain

Only the image created based on a real animal belongs to the creator

Using a penguin as a game character is not a forbidden zone

When creating game characters, feel free to “open your mind” and design

But also remember to “carefully avoid risks”

and implement reasonable risk control