Dispute Over Online Forms: Online Forms May Be Deemed Copyrightable Works

By Dongtao Li, LL.M., Judge of The People’s Court of Haidian District, Beijing, China. (Posted on January 6, 2011.

This article was previously published in Judge Li's book Dongtao on Law.)

The plaintiff and the defendant are .com companies offering the same service online: remodeling and interior decorating services. The plaintiff’s website is named “Online Decorating Center”. In order to promote its business, the plaintiff designed some online forms that potential customers could fill out in order to contract the plaintiff’s services. On the form, customers are asked to indicate their choice of color and material as well as the measurements of the area on which they want work done.

Plaintiff cleverly associated colors with different geometric shapes; each of these three design elements was represented on the form by a different shape. For example, checking the triangle “∆” associated with that color made color choices; checking a circle “○” next to the name of the material made material choices, etc. Customers may also indicate the area (in square meters) of the room by checking a square“□” next to the correct measurement. Each symbol on the page was distinctive not only by its shape but also by its color. Customers indicated their final choices by checking only one symbol from each of the three rows of colored symbols. In this way, people could choose their favorite decorating style and conclude a contract with the plaintiff online.

Using this new commercial model, the plaintiff’s website quickly became popular. A month later, the plaintiff found almost the same online forms on the defendant’s web site. Believing defendant has unfairly and unjustifiably tried to gain plaintiff's market share, plaintiff sued the defendant for copyright infringement because of the defendant’s use of its copyrightable online forms.

The defendant argued that the copyright infringement was not established because the online forms were not copyrightable works.

The court held that the copyright infringement was established. For online companies, the Internet is a useful tool for selling goods and services. Designing the most efficient and attractive business model online is a more important job than advertising. In copyright theory, if a document is purely a combination of particular facts and data, then similar documents with different names or styles will inevitably exist. That means the originality of such a document is difficult to prove, even though this document is expressed in an online form. In this case, however, for online companies, different ideas, different purposes and different uses should lead to designs of online forms with different colors, words and styles.

In short, the originality of an online form lies in its design, not in the data and information on it. Thus, the plaintiff’s online forms of the Online Decoration Center were copyrightable works and the defendant was a copyright infringer.

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