The bear dolls sold in the online store were very similar to those whose copyrights had been registered, and the plaintiff sued the people's court, claiming that the defendant had infringed his copyright. The Songjiang District People's Court heard the copyright infringement dispute case, and the plaintiff's claim was not supported because the plaintiff lacked the "originality" of the work and did not constitute a work within the meaning of the Copyright Law.
The sale of pendants in online stores is suspected of infringement
The plaintiff is a trading company that produces and deals in craft gifts and automobile gifts. In 2021, the company passed the application and obtained the "Work Registration Certificate" with the names of the works "Ornament - White Racing Bear Doll" and "Ornament - Gray Bear Doll", and the creation completion date was September 5, 2020. The defendant company operated an online store that sold keychains, pendants and other accessories.
On September 20, 2022, the plaintiff discovered that the keychain sold by the defendant was very similar to the image of the two bear dolls for copyright registration, so he purchased two bear doll keychain pendants from the online store operated by the defendant. After comparison, the plaintiff found that the appearance of the keychain pendant was basically the same as that of his own ornaments, and he was the copyright owner of the two bear dolls in the art works, so he sued the people's court, claiming that the defendant had infringed his copyright, and requesting that the defendant be ordered to stop the infringement and compensate for economic losses and reasonable expenses.
The defendant did not recognize the plaintiff's copyright in the two bear dolls and provided relevant information. On August 16, 2017 and November 10, 2018, in the attached pictures posted by different netizens on Weibo, there were one plush bear wearing gray overalls and a gray hat and a navy blue hat wearing white overalls and a red brim, all of which were highly similar to the two bear dolls in the plaintiff's "Work Registration Certificate". At the same time, the defendant claimed that the two works of art registered by the plaintiff were imitations of the design expression of BMW's plush bear dolls.
"This means that the plaintiff had a similar prior design before creating the work, which will affect the determination of the originality of the plaintiff's work, and the plaintiff will be considered to have borrowed from the previous work of others." Judge Yang Qiuyue of the Commercial Trial Court explained.
Whether the work is original or not is the key to copyright determination
After hearing, the District Court held that the work referred to in the Copyright Law refers to intellectual achievements in the fields of literature, art and science that are original and can be reproduced in some tangible form. Therefore, in order to be a work protected by copyright law, it must be original and capable of being reproduced in some form. In this case, it is necessary to determine whether the right work claimed by the plaintiff meets the requirements of originality of an art work, in which "originality" requires that the work meet both the conditions of "originality" and "creation".
The plaintiff admitted that it had been engaged in the production and sale of car gifts since the establishment of the company in 2012, and that it had known about the existence of BMW's plush bear dolls before designing the two bear dolls in question. Therefore, the court held that the plaintiff had the possibility of coming into contact with the physical BMW bear. Secondly, comparing the two bear dolls claimed by the plaintiff and the two bear keychain pendants actually sold by the defendant with the BMW bears, except for the slight differences in the hat and collar, the shape and proportion of the bear's head, facial features, limbs, and the color matching of the clothing and the details of the clothing design are highly similar.
Therefore, the judge held that although the plaintiff had obtained the "Work Registration Certificates" of the two bear dolls, the work registration system in mainland China was voluntary, and the registration authority did not conduct a substantive examination, so the "Work Registration Certificate" could not be used as a basis for the separate identification of art works. "The two bear dolls claimed by the plaintiff in this case were recreated on the basis of BMW bears, but the recreations did not reach the level of distinguishability and substantial changes, and there was no substantial difference between them and BMW bears, and the two bear dolls did not meet the requirements of originality of the works and did not constitute works within the meaning of the Copyright Law. On this basis, the plaintiff's claim that the defendant's sale of the allegedly infringing products infringed the distribution right of its works, and demanded that the defendant stop the infringement and compensate for economic losses and reasonable expenses, was not supported. Yang Qiuyue said.
It is understood that after the judgment of the case was pronounced, the plaintiff was dissatisfied and appealed to the Shanghai Intellectual Property Court which was rejected and the original judgment was upheld. The case is now in force.
Text: Chen Feiqian
Image: Network diagram
Editor: Zhou Jiayao