Sending You Flowers

[Judge Dongtao Li]

The Facts

The plaintiff and the defendant are .com companies that sell flowers online.

To order a bouquet of flowers from the plaintiff’s website, buyers filled out an online form that asked for information such as the buyer’s name, the receiver’s name, telephone number of the receiver, time of delivery, message to be written on the congratulatory card, etc. 

Buyers also paid online. Afterwards, an employee of the plaintiff or delivery person from the flower shop would deliver the flower. The receiver was asked to sign his/her name on a card to confirm delivery.

Both the plaintiff and the defendant had designed special webpages for their flower products and services.

Each web site included the same five digital photos of flowers; only the descriptions under the photos were different.

For example, under the same digital photo, the plaintiff’s description read “50 red carnations with some other flowers”, while the defendant’s description was “30 carnations”.

The plaintiff sued the defendant for copyright infringement and asked the latter to:

(1) Stop the infringement and apologize to the plaintiff publicly online and in the media nation-wide;

(2) Compensate RMB 50,000 yuan(including lawyer’s fees).

The defendant argued that the copyright infringement was not established because the plaintiff didn’t prove it was the copyright owner.  The defendant then went on to delete the photos.

During the court hearing, the plaintiff brought records of all flowers sold based on the disputed 5 digital photos and showed its sales of those particular arrangements began much earlier than those of the defendant.

Opinion

The court found facts in favor of the plaintiff and held that the plaintiff brought credible records of all flowers sold based on the disputed 5 digital photos and showed its sales of those particular arrangements began much earlier than those of the defendant.

In light of this evidence, the defendant had the burden of proving the existence of independent creation but failed to do so. The court concluded that the 5 disputed digital photos had indeed been taken from the plaintiff’s web site and the copyright infringement was established.

The plaintiff asked defendant to take liabilities, including compensating it economic losses, but it didn’t present corresponding evidence. Therefore, the Court would determine damages of the plaintiff according the laws based on the seriousness of the infringement, no longer support plaintiff’s claim completely.

According to the Article 45(4) and Article 46(1)of the Copyright Law of PRC (1990)[1], the court orders that:

  1. The Defendant shall stop using the Plaintiff’s disputed works upon the effective date of this Judgment;
  2. The defendant shall publish an apology on the homepage of its website for 24 hours continuously to the plaintiff within 10 days from the effective date of this Judgment;
  3. Contents of the apology shall be approved by this Court. If the defendant refuses to comply, the Court will publish an announcement at a media website. The cost and expenses occurred should be borne by the defendant.
  4. The Defendant shall pay the Plaintiff royalties and compensation of RMB 10,000 Yuan within 10 days from the effective date of this Judgment.

Other pleadings of the plaintiff shall be rejected

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

Note

  1. According to the Article4(10) of Implementing Regulations of the Copyright Law of the People's Republic of China, photographic works are artistic works created by recording images of existing things of people on light-sensitive materials or other media with the aid of devices.
  1. Because a digital photo is taken without a negative and can be modified on a computer, sometimes, even if the two same digital photos appear on two different websites, it would be difficult to decide whether copyright infringement was established without such necessary, direct evidence as encryption and watermarks.
  1. In this case, the question of copyright infringement was answered based on the parties’ different descriptions of the same digital photo. The plaintiff used “50 red carnations and some other flowers”; the defendant used only “30 red carnations”.

It’s impossible for the same photo to present different numbers of flowers.



[1] Article 45.Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances:

(4) distorting or mutilating a work created by another.

Article 46.Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances, and may, in addition, be subjected by a copyright administration department to such administrative penalties as confiscation of unlawful income from the act or imposition of a fine: (1) plagiarizing a work created by another.