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IPR Case Series of the PRC (I)
The following cases are examples of current IPR cases tried in the People’s Court of Haidian District, Beijing. In addition to a synopsis of the case, a short analysis is given to throw light on the background of each case and how the decision was reached.
Li Dongtao, Judge of the People’s Court of Haidian District, Beijing, Presiding Judge of the cases described below:
1. Identification of the author’s status in cyberspace: Chen Weihua v. Chengdu Computer Business Information Weekly (1999)
“3D Sesame Street” is the name of a personal homepage online, with its owner mentioned as “Wu Fang”. On May 10, 1998, an article entitled Talking about MAYA was uploaded on the personal homepage, with its author also mentioned as “Wu Fang”. On October 16, 1998, the defendant published this article (with its author mentioned as “Wu Fang”) on its Computer Business Information Weekly.
The plaintiff brought an action against the defendant on the basis of copyright infringement at the People’s Court of Haidian District, Beijing (hereinafter referred to as the Court).
The plaintiff may modify the password of the personal homepage of 3D Sesame Street, upload files or delete files.
The defendant argued that the copyright infringement was not established but admitted that the plaintiff was “Wu Fang”.
The Court held the copyright infringement was established.
Analysis:
Chinese laws stipulate that, in the absence of proof to the contrary, a person whose name is mentioned in connection with a work shall be deemed to be the author of the work.
The owner of the personal homepage of “3D Sesame Street” and the name of the author of Talking about MAYA are all mentioned as “Wu Fang”. Usually, modifications to the password of a personal homepage and the addition and deletion of its content can be done only by the register of the personal homepage. The plaintiff is capable of modifying the password of the personal homepage, uploading files and deleting files, thereby, the defendant has admitted that the plaintiff is Wu Fang”, without offering the evidence to show the existence of some special circumstances. Therefore, the plaintiff should be deemed to be “Wu Fang” and the copyright of the article Talking about MAYA belongs to him.
2. Protection of commercial credit in cyberspace: Beijing Putian New Energy Technology Development Company v. Beijing Zhongbei Gaoke Machinery and Electrical Company (1999)
The plaintiff Putian Company and the defendant Zhongbei Company are all enterprises engaged in production of active sound boxes, with their products sold in the domestic market. In June 1998, Zhongbei Company brought an action against Putian Company for the latter’s unfair competition (false advertising). Through mediation by the Court, Putian Company admitted its infringement and both parties reached an agreement and compromised. Thereafter, Zhongbei Company published information on the (home page) homepage of its website targeting Putian Company and containing derogatory terms. At the same time, Zhongbei Company made the indictment of this case and the mediation document of the Court into web pages, which were linked to the homepage for total of 83 days. The indictment contains the content that has not been identified by the Court but embodied the free will of Zhongbei Company, such as "the defendant ‘Putian Company’ obviously infringed the plaintiff (Zhongbei Company)’s trademark right".
The Court held that the unfair competition was established, and the defendant should publish a statement of apology on its homepage for 83 days.
Analysis
Commercial credit and commodity reputation are the basic guarantee for competitors to obtain the competitive advantages in the market. The defendant published information on the homepage of its website, which targeted the plaintiff and contained derogatory remarks and propagated in cyberspace the indictment and the medication document of the previous case. During the process, though the defendant did not alter the original content of the indictment and the medication document, the indictment contained some words that has not been identified by the Court but embodied the free will of Zhongbei Company, which lacks the supports of necessary evidence, thus sufficient to damage the commercial credit and commodity reputation of the plaintiff.
3. Originality of the homepage: Read Corporation v. Dongfang Information Service Co., Ltd. Located in Yibing Cuipin District (1999)
The plaintiff is a famous Chinese ISP.
The defendant is a small company also engaged in providing online services.
At the end of 1998, the plaintiff found that the homepage of the defendant was similar to that of its website as indicated by the graphs (the left is the home page of the plaintiff and the right is the homepage of the defendant).
The plaintiff brought an action against the defendant on the basis of copyright infringement.
The defendant argued that the copyright infringement was not established, but didn’t prove being the copyright owner of the homepage, he created it independently or it was in the public domain.
The plaintiff didn’t prove there were links in the defendant’s homepage.
The Court held that the copyright infringement was established.
Analysis
For the homepage of the plaintiff, though the color, characters and part of the logo used (such as the logo "new" that may be found in the online graph library) are in public domain, the color, characters and logo on the homepage have been specifically combined in digital form, thus showing a sense of aesthetics and not simply listed as objective facts in objective rule, which shall be deemed as the embodiment of a unique concept that constitutes the core of originality.
4. False advertising in cyberspace: Beijing Heming Rixin Market Development Service Co., Ltd. V. Beijing Xunhe Technology Co., Ltd. 1999
The plaintiff and the defendant are the .com companies that provide the same online service: introducing Chinese law firms and lawyers. The plaintiff provided this service earlier than the defendant.
On its website, the plaintiff published the advertisement that stated its website as “The first website for full and concentrated promotion on Internet of Chinese law firms and lawyers around the country”.
Likewise on its website, the defendant conducted propagation of the same content and emphasized that its website was “the most authoritative comprehensive website of legal information at home”.
The plaintiff brought an action against the defendant on the basis of unfair competition (false advertising).
The defendant argued that the unfair competition was not established but without providing evidence to show there was any other website that provided such service earlier than the plaintiff.
The Court held that the unfair competition was established.
Analysis
Prohibition of false advertisement is designated to protect not only the interests of the competitors but also the interests of the consumers, and the same is true in cyberspace. Without any factual basis, the defendant used the meaningful terms of “the first” and “the most authoritative” on its web pages, which alluded to the service qualities of other websites with provision of such services, including the plaintiff, thus misleading the public and infringing the rights to competition of others.
5. Passing off conducts in cyberspace: Beijing Golden Human Co., Ltd. V. Beijing Hope of Science & Technology Co., Ltd. (2000)
The plaintiff and the defendant are all providers of stock software.
In 1999, the plaintiff developed and completed its main product of Stock God software mainly used for stock management. With high performance of the products, the plaintiff has also conducted advertisement and propagation in the country, and thus, the products quickly entered into the top ten sales upon being put into the market.
The two Chinese characters of "Stock God " is also the registered trademark (in the 9th class) of the plaintiff, which is used with computer hardware.
From the beginning of 2000, the defendant started to sell its own software Stock Classics in the name of Stock God 2000. The defendant placed the "Stock God 2000" on the package of its products and used it as the linking logo for online propagation of its Stock Classics.
The content of the two types of software is not identical and the font of the two types of "Stock God " is also different, while the pronunciation is the same.
The Court held that the unfair competition (passing off) was established.
Analysis
The Stock God software of the plaintiff has become famous brand commodities. The two characters of Stock God used by the defendant and those used by the plaintiff are different in font, without any difference in pronunciation, and the defendant changed the name of its software Stock Classics into Stock God 2000 thus reference and comparison have been established between the two professional software commodities, misleading the consumers, and reducing the commodity reputation of Stock God software of the plaintiff and the capability of the registered trademark of Stock God for identifying the commodities upon entry into the market.
6. Use of search engine: Copyright Dispute---Ye Yanbing v. Beijing Stone Rich Sight Information Tech. Co., Ltd. (2001)
In January 2000, Tianjin Xinlei Press published the book Feeling on the Road with author mentioned as Ye Yanbing, the plaintiff of the case.
Thereafter, the plaintiff, through the search engine of the defendant’s website, specified the key words of "Feeling on the Road Ye Yanbing", thus finding the same works on the website of the third party.
On January 3, 2001, the plaintiff wrote a letter to the defendant requesting the latter to stop such conduct of uploading his work on the website without his consent, which has been rejected by the defendant.
The plaintiff brought an action against the defendant on the basis of copyright infringement.
The defendant argued that the copyright infringement was not established.
The Court held that the copyright infringement was not established.
Analysis
Provision of search engine services with key words is similar to casting of fish net, and the information being searched is the fish in the net. Before finding whether the fish in the net is poisonous (the infringed copies), we cannot break the fish net first. In other words, for this case, the search services are not equivalent to the use of the works, and provided that the plaintiff fails to clarify the legal nature for other websites to upload his works, the plaintiff shall not request the defendant to undertake the responsibility by claiming that the conducts of the defendant have constituted the infringement.
【Links】
· 中国知识产权典型案例（1）
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