—Analysis on the law Nature of the Works of Chinese Character Word Stock
Highlight: Today and tomorrow, Bridge IP Law Commentary will introduce and analyze you the case of script copyright conflict between Founder and P&G, and also the system of word stock works behind the case. And the following is the first half—the introduction on the case and the part analysis on the nature of the works of word stock.
On the morning of 5th July, 2011, the appeal of the Founder Electronics (HKEX:0418, 0618) was rejected by the No.1 Intermediate People’s Court of Beijing in its case of the script copyright conflict against P&G (NYSE: PG), and the decision of the first hearing was supported. The final judgment maintains an ambiguous attitude towards the determination of “飘柔”, the localized name of the Rejoice brand of P&G , to be a fine art works, neither to support it or opposite it.
In 2008, Founder initiated the litigation against P&G for it considered that the word “飘柔” printed on P&G’s product is kind of unauthorized use of the fine art works of the plaintiff’s Word Stock, which has infringed its legal rights, demanding the compensation of RMB 620, 000. On the other hand, P&G stroke back that “飘柔” was completed by designing company on its paid entrustment, and it has been prudent about the using of the word, therefore it shall bear no liability.
After that, the court of the first instance made the decision that the Work Stock could constitute the works as provided in the copyright law for its originality and shall be legally protected. However, it’s poorly proved that any word in the stock could be defined as the fine arts for its originality, for this reason, P&G using of the word “飘柔” in the Stock’s script could not be judged as an infringement. After that, Founder appealed to the intermediate court.
The opinion of the second instance court was quite different from that of the first instance, and it said that P&G’s using “飘柔” was kind of tacitly approve instead of Founder’s claim of unauthorized using.
I was disappointed about the decision, and we think it might boost the similar infringement. The unauthorized using of the works of Founder Word Stock is common in the related industry, though Founder has sent many official statements on such infringement to the infringing companies. Such decision could aggravate the situation, and deteriorate the protection of IPR. For this, we make the following analysis:
I. Analysis on the nature of the Founder Word Storck
In the first instance, it’s judged that the Word Stock could be protected for its originality by law, while the single word in it could not be protected as the fine art. Such opinions were argued among the public. In our opinion, the single word in the Stock shall be the fine art works, the Stock itself shall be the composite works and the software of the Stock shall be the works of PC software.
(1) Nature of the single word in the Stock
For the single words in the Stock, the court of the first instance held that it’s demanded a unified style in the Stock which may limit the character of any single word, and this makes it quite different from those unique single words of calligraphy. Furthermore, it also said that for those simple single words, it might result in the mutual denial on the originality against other single words once a word could be determined as original. We bear a different opinion over the issue.
Unlike the alphabet in the English language, there are more than thousand Chinese characters with complicated composition. Therefore there have emerged various genres of the calligraphy.
For the words in the Stock, they are first invented by the employees of Founder and then collected, modified, beautified by the computers before the final word stored in the Stock. Either the endeavor of the employee or the Founder with the operation of the computer could be deemed as kinda intellectual property, which complies with the fine art works in the copyright law. And the court’s opinion that the single word could not be the works in the copyright law for their unified style is totally illogical. By the court’s opinion, if all the characters are written in the specific calligraphy style, then such writing could not be the fine art works for each word bears no different style with other words written down, and that is obviously ridiculous.
Author: Mr. Luo Yanjie
Attorney-at-law of DeBund Law Offices
Introduction on the Founder & Editor-in-Chief of Bridge IP Law Commentary:
Mr. You Yunting
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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