The real and false "Rabbit Lord" confronted each other in court
The Qingdao Intermediate People's Court concluded a case of object infringement
"There is no rouge on the face, but only a thin line is drawn on the mouth of the little three-petal, red and oiled, and the two slender white ears are faintly painted with a light red, so that the face of the little rabbit brings out a handsome look, as if it were the Huang Tianba among rabbits......
In Mr. Lao She's "Four Generations in the Same Hall", the description of "Rabbit Lord" is vivid.
In 2014, the "Clay Sculpture (Beijing Rabbit)" project was included in the list of representative items of national intangible cultural heritage. In recent years, "Rabbit Lord" has been protected and carried forward as a traditional folk art, and has been widely spread in the form of home decoration ornaments, tourist souvenirs, and cultural and creative products.
However, infringement issues followed. Recently, the Intermediate People's Court of Qingdao City, Shandong Province tried a "rabbit master" infringement case.
Cultural and creative products were stolen
A cultural development co., LTD. is an enterprise specializing in the "Beijing Rabbit" series of cultural and creative products, and is also the inheritor of Beijing's intangible cultural heritage "Rabbit". The company owns the copyright of the series of "Rabbit Lord" works.
In December 2022, when the company's personnel browsed an online shopping platform, they found a large number of auspicious rabbit doll gift box products that were very similar to their own art works, not only in the same style, but also in red and blue. coincides with the 2023 Chinese traditional festival Year of the Rabbit Spring Festival is approaching, and the gift box products are very popular.
Who leaked the design draft?
In addition to anger, the company entrusted a lawyer to investigate several times and found that the manufacturer of the product was actually a handicraft company that had been cooperating with it for a long time.
It turned out that in April 2021, in order to let more young people understand and like intangible cultural heritage products, a cultural development company combined with the aesthetics of contemporary people, broke through the majestic image of the traditional "rabbit master", and created a series of art works "Ruyi Rabbit".
A cultural development company sued a doll manufacturer, a handicraft company, an international trade company, and an online shopping platform merchant, demanding that the infringement be stopped immediately, that the infringing products be recalled, removed from the shelves, and destroyed, that punitive damages be borne and that economic losses be compensated.
The compositions of the works are substantially similar
In the face of the doubts of a cultural development company, a handicraft company said that the company and the cultural development company had reached a consensus in the process of cooperation, that its own company could produce products similar to that of a cultural development company, and that the expression of its company's "auspicious rabbit" series of works was completed independently, had originality and had also been registered for copyright.
During the trial, a handicraft company submitted evidence showing that almost every detail of the works of the two parties was different in terms of creative ideas, design elements, patterns, lines, colors, texts, etc., and that the works of its own company contained a deeper traditional Chinese cultural heritage, and that the works of the two parties did not constitute substantial similarity.
Are the products produced by a handicraft company infringing? If so, how to bear the liability for compensation?
Focusing on these key issues, the Qingdao Intermediate People's Court conducted a detailed review of the evidence in this case and organized all parties to exchange and debate evidence.
After trial, the court held that the work registration certificate and other evidence submitted by a cultural development company could prove that it enjoyed the copyright of the art works involved in the case, and the copyright enjoyed by the company in the art works involved in the case should be protected. Therefore, the court first judged the chronological order of the formation of the copyrights of the two substantially similar works, and the copyright formed later by an international trading company must not infringe the legitimate prior rights of a cultural development company.
At the same time, the court carefully compared the two products, applied the rule of "contact + substantial similarity", and determined "whether the allegedly infringing work infringes the right work".
The court held that the alleged infringing product was substantially similar to the copyrighted work asserted by a cultural development company, which was enough to cause confusion between the two from the perspective of ordinary consumers. In addition, a handicraft company has actually come into contact with the works of a cultural development company and produced related products for it, it can be determined that a handicraft company and a doll registered trademark holder and an international trade company authorized by the product copyright jointly produce and sell the allegedly infringing products, and this act infringes on the distribution and reproduction rights enjoyed by a cultural development company in respect of the works involved in the case, and shall bear civil liability to stop the infringement and compensate for losses. The court did not support the argument of a handicraft company and an international trading company that a cultural development company agreed to the production of similar products because the evidence submitted by them was insufficient to prove that the parties had reached such an agreement.
As to whether an online shopping platform merchant, a trading company, constituted infringement, the court held that a trading company sold the allegedly infringing products on its online store, and it could be determined that the act infringed the distribution right enjoyed by a cultural development company in respect of the works in question. However, the use of relevant product pictures by a trading limited company was an act attached to the sale for the purpose of advertising and selling infringing products, so the court did not support the right of information network dissemination claimed by a cultural development company.
The court finally ordered a handicraft company and an international trading company to jointly compensate a cultural development company for economic losses and reasonable expenses of 200,000 yuan.
A trading company has fulfilled its duty of reasonable care, and the court will not support a cultural development company's claim for compensation for economic losses. In view of the fact that a cultural development company did incur certain reasonable expenses in order to stop the infringement, it was determined that a trading company should compensate the plaintiff for reasonable expenses of 2,000 yuan.
There is a long way to go in the protection of intangible cultural heritage
The judge said after the court that this case is a typical case of judicial protection of the artistic image of the intangible cultural heritage "Rabbit Lord", which not only effectively curbs the infringement of the innovative image of the traditional culture of the mainland "Rabbit Lord", but also reminds the relevant manufacturers to respect the legitimate rights and interests of others' art works, guides the whole society to pay attention to the protection of the re-creation of the artistic image in the traditional culture, and escorts the sustainable development of the mainland's traditional handicrafts and the inheritance and promotion of the intangible cultural heritage with high-quality trials.
During the interview, Ji Xiaoxin, president of the Intellectual Property Court of Qingdao Intermediate People's Court, told the reporter of "Rule of Law Daily" that the rich and colorful intangible cultural heritage is a treasure of Chinese culture and a vivid testimony of the continuous inheritance of Chinese civilization. Courts are an important part of the protection of intangible cultural heritage. It is necessary not only to give full play to the role of adjudication functions and properly try cases related to the protection of intangible cultural heritage, but also to extend judicial functions to escort the inheritance and development of intangible cultural heritage from the source.
"The completion of individual cases is not the end, and how to use case handling as an incision to arouse the awareness of the protection of intangible cultural heritage in the whole society is the top priority. Ji Xiaoxin said that on the one hand, it is necessary to issue judicial suggestions to relevant departments and units in response to the problems of intangible cultural heritage protection exposed in the trial of individual cases, and gather joint efforts for protection; on the other hand, the courts should do a good job in popularizing the law on the protection of intangible cultural heritage, not only to approach intangible cultural heritage inheritors and intangible cultural heritage enterprises, popularize the knowledge of intellectual property protection, but also to go into all corners of campuses, communities, and villages, and rely on the strength of the whole society to protect the "root" and "soul" of these traditional cultures.