Resemblance To A Slim Lady

[Judge Dongtao Li]

The Facts

The plaintiff is Beijing Founder Electronics Co., Ltd., a well-known IT enterprise in China.

The first defendant is Procter & Gamble (Guangzhou) Ltd.

The second defendant is Carrefour Commercial Co., Ltd. (Beijing), a subsidiary of a French grocery chain。

On April 22, 2008, the plaintiff registered its entire set of the “Qian body” font face at the China Copyright Protection Center as a work of fine art (Date of Creation: July 7, 2000; Time of First Publication: August 31, 2000).

Qian,” in Chinese, means slim due to its resemblance to a slim lady.

P&G has contracted a design company, which has purchased a legitimate license to use the entire set of font type face, to create the “Rejoice” branded products using the “Qian body” font,.

According to the license agreement, the design company is not allowed to copy the entire or part of the work or republish it.

On May 12, 2008, the plaintiff bought some Shampoo and soaps produced by the first defendant with the Qian“飘柔(Rejoice)” as the trade dress at a branch store of the second defendant.

The whole process was notarized.

In the eyes of the plaintiff, there is no problem for the above design company to buy the plaintiff’s software and use it to design the trade dress for the first defendant.

But the copyright infringement is established when the first defendant printed the designs above on its products but it is the act of copying and publishing the Qian body font.

The plaintiff sued two defendants for copyright infringement (both of entire set of the “Qian body” font face and two individual font characters“飘柔” ) and sought damages from the latter: to

(1) Stop the infringement[1];

(2) Apologize to the plaintiff publicly;

(3) Compensate RMB 500,000 yuan; and

(4)Pay reasonablefees RMB 119,082 yuan.

The first defendant argued that an individual Qian character is not the work of fine art and once the design company has legally obtained the “Qian body” font from plaintiff, P&G has the right to apply the font to create any characters without infringing plaintiff’s copyrights on the individual font character

The second defendant argued that it is innocent because it imported the “飘柔(Rejoice)” products legally.

Opinion

The first instance court held for P&G and ruled that a collection of Qian body fonts has a certain originality for they have some aesthetic significance and are protected under the Chinese copyright law. But individual character created based on the “Qian body” font is not a copyrightable work for insufficient originality.

According to Article4(8) of Implementing Regulations of the Copyright Law of the People's Republic of China[2], the first instance court held that the pleadings of the plaintiff shall be rejected。

After verdict, the plaintiff appealed, but was rejected by the second instance court.

Note

The second instance court held for P&G again (the final decision), but at the different basis.

The second instance court held that the R&G has obtained an implied license to use the “Qian body” font to create any characters because P&G’s design company has legally purchased the license to use the set of “Qian body” font type face from Founder. 

As such, Founder has no more copyrightable claim to the characters “Rejoice” when P&G places them on its products.



[1] The first defendant should stop using and destroying its products with “飘柔”as the trade dress, the second defendant should stop selling the products above.

[2] Article 4. The works as mentioned in the Copyright Law and these Regulations shall mean the following: (8) works of fine art are two-dimensional or three-dimensional works created in lines, colors or other media which, when being viewed, impart aesthetic effect, such as works of painting, calligraphy and sculpture;