Inter IKEA Systems B.V. v. Taizhou Zhongtian Plastic Co., Ltd.

25/9/2017, 11*24 AM

Inter IKEA Systems B.V. v. Taizhou Zhongtian Plastic Co., Ltd.

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Civil--IPR & Competition --IPR

Type of Dispute: Legal document: Judgment
Ownership & Infringement
Judgment date: 08-22-2009 Procedural status: Trial at First Instance
Source: SPC Gazette,Issue 7,2010

Inter IKEA Systems B.V. v. Taizhou Zhongtian Plastic Co., Ltd.

(A case about copyright disputes)

[Summary of Judgment] []

China has acceded to the Berne Convention for the Protection of

Literary and Artistic Works and the Agreement on Trade-Related
Aspects of Intellectual Property Rights, and in accordance with the
Copyright Law of the People's Republic of China (hereinafter referred
to as Copyright Law) and the Provisions on the Implementation of
International Copyright Treaties issued by the State Council, foreign
works of applied art are protected by Chinese law.

In judicial practice, the people's court usually considers the copyright

protection of works of applied art from the angles of utility and artistry
respectively. Their Utility is not under the protection of the Copyright
right, but the artistry of them is protected by the Copyright Law as
works of fine art set forth in the Copyright Law. When the right holder
of a foreign work of applied art applies for copyright protection of the
work, the people's court should first examine the work in the sense of
aesthetics. If the work of applied art involved in the case fails to reach
the artistic level that a work of fine art is supposed to reach, it could not
be protected by the Copyright Law as a work of applied art even if the
alleged infringing products are similar to or basically identical with the
work of applied art involved.

BASIC FACTS

Plaintiff: Inter IKEA Systems B.V. (Inter Ikea

Systems BV)

Legal Representative: Maria Gabrielle Olsson Skalin, executive

director. (MariaGabrielle Olsson Skalin)

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Inter IKEA Systems B.V. v. Taizhou Zhongtian Plastic Co., Ltd. 25/9/2017, 11*24 AM

Defendant: Taizhou Zhongtian Plastic Co., Ltd.

Legal Representative: Chen Aihua, general manager.

The plaintiff, Inter IKEA Systems B.V. (hereinafter referred to as Inter (

IKEA), filed a lawsuit with the No.2 Intermediate People's Court of )
Shanghai against the defendant, Taizhou Zhongtian Plastic Co., Ltd. ()
(hereinafter referred to as Zhongtian Company), for disputes over
economic rights in copyrighted works.

The plaintiff, Inter IKEA, alleged that: Inter IKEA, founded in 1943, was
the largest furniture retailing company in the world, and had set up 1943
over 190 brand stores in 31 countries and regions. Its Mammut series 31190
of children furniture was created by designer Morten Kjelstrup and (Mammut)
fashion designer Allan Ostgaard on behalf of and under the
instructions of the plaintiff. The plaintiff was the copyright owner of the (Morten Kjelstrup)
Mammut series of works. Its Mammut series of products had been (Allan Ostgaard)
recorded in a number of commodity catalogues and books many years
before. In 1994, Mammut children chair won the Furniture of the Year
award of Sweden. By plagiarizing the design of the Mammut series of 1994
products, the defendant produced and sold various models of children
chairs and stools without the permit of the plaintiff, and showcased the
infringing products on its company website. Since 2004, the plaintiff
had demanded that the defendant stop its infringement through lawyer'
letters several times, whereas the defendant ignored turned a blind 2004
eye to them and even applied for design patent for its infringing
designs, which were afterwards declared invalid by the Patent
Reexamination Board of the State Intellectual Property Office of China.
The Mammut series of children chairs and stools belonged in furniture,
possessed both utility and high artistry, and therefore should be works
of applied art protected by Chinese law. The defendant's
manufacturing and selling of infringing products and online advertising
activities constituted infringement on the plaintiff's copyrights, and
caused enormous economic losses to the plaintiff. The plaintiff asked
the court to rule that: (1) the defendant should immediately desist from 1
infringing the plaintiff's copyright in the Mammut series of products; (2) 2
the defendant should immediately withdraw all infringing products that
had been put into market, destroy all infringing products in stock and
moulds and moulage for the production thereof, and destroy all 3
packages and advertising materials carrying the infringing products; (3) wwwztpccc
the defendant should immediately remove images of infringing 4
products as shown on www. ztpc. cc; (4) the defendant should 505
compensate the plaintiff for economic losses in the amount of 500,000
yuan including the plaintiff's reasonable costs and expenses; and (5)
the defendant should publish a statement on its infringement on
Xinmin Evening newspaper and Qianjiang Evening newspaper to
eliminate the adverse effects.

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The plaintiff, Inter IKEA, submitted the following evidence in the trial at
first instance:

1. A notarized Statement concerning the Ownership of Intellectual 1

Property signed between the plaintiff and Ikea of Sweden Aktiebolag
which was not a party to this case, and a notarized Statement
concerning the Copyright in Mammut Works issued by Morten Mammut
Kjelstrup and Allan Ostgaard, in order to prove that the relevant 1
copyrights in Mammut works had been assigned to Inter IKEA on Feb. 199228
8, 1992.

2. A copy of Artistic Family magazine (1994) and a copy of Popular 2(1994)

Design magazine (1995), in order to prove that the Mammut series of (1995)1
products had been recorded in commodity catalogue and many books
many years before.

3. A notarization certificate (No. 7549 [2006], Shanghai) produced by 3(2006)

the Notary Office of Shanghai and a notarization certificate (No. 2664 7549
[2008], Beijing Chang'an, Domestic, Economic) produced by Beijing (2008)2664
Chang'an Notary Office, in order to prove that the defendant had 1
committed infringement.

4. The inquiry results from the website of State Intellectual Property 4

Office and a Decision on an Application for Declaration of Invalid 20068
Patent, the main content of which was that: on Aug. 30, 2006, the 30
Patent Reexamination Board of the State Intellectual Property Office of 200430019946X
China declared that the No. 200430019946.X design patent was null
and void, in order to prove that the defendant did not have any design
patent on the aforesaid design.

The defendant, Zhongtian Company, pleaded that: (1) the plaintiff was 1
not eligible as a party to this action; (2) in the design of the Mammut 2
series of products, more consideration was given to the utility functions
of furniture, and these products lacked such characteristics of a work
of applied art such as originality and artistry; therefore, they were
applied industrial products without any difference from other chairs at
home and abroad, rather than works of applied art; and (3) the 3
products of the defendant were finished independently by the
defendant's own designers, so the defendant did not infringe the
copyright of anyone else. In addition, before the completion of the
product design involved in this case, a furniture design which was
basically the same with the product design involved in this case had
emerged in cartoons. In conclusion, the claims of the plaintiff should be
rejected.

The defendant, Zhongtian Company, did not submit any evidence in

the trial at first instance.

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Through trial at first instance, the No.2 Intermediate People's Court of

Shanghai found that:

The plaintiff, Inter IKEA, was founded on Oct. 31, 1983 in Netherlands. 198310 31
The creation of the Mammut children chairs and stools involved in the (Mammut)
case were accomplished by two designers: Morten Kjelstrup and Allan (Morten
Ostgaard, on Feb. 6, 1991, and were formally delivered to Ikea of Kjelstrup)(Allan Ostgaard)
Sweden Aktiebolag which was not a party to this case in January 199126
1992. On Feb. 8, 1992, Ikea of Sweden Aktiebolag assigned the 19921
copyright in the Mammut series of works to Inter IKEA. A few journals (Ikea of Sweden Aktiebolag)
and books, such as Artistic Family and Popular Design once, 199228
introduced Mammut Children chairs and stools. (Mammut)

A Mammut children chair consisted of chair back, cushion and legs.

The chair back was made up of three rectangular battens and a piece
of trapezoidal solid wood which took up about half of the space of the
whole chair back. Chair cushion had the basic structure of ordinary
chairs. Chair legs were four upright cones which were narrow on the
top and broad at the bottom. A Mammut children stool consisted of
stool surface and legs. The stool surface was a round solid surface
with equal top and bottom sides, and its shape was not different from
that of ordinary children stools. The legs of the stool were four spindle-
like rods.

On Jun. 10, 2006, Huang Ye, a person who was not a party to this 2006610
case, bought 3 children stools and 2 children chairs at Suite 1508, No. 18711331508
33, Building 11, Alley 187, Qingjian Rd., Shanghai, and got one 32
invoice, one business card and one brochure after payment. The 11
invoice showed the special invoice stamp of Taizhou Zhongtian Plastic
Co., Ltd. The words, Li Wei, Shanghai Regional Manager of Taizhou
Zhongtian Plastic Co., Ltd. were printed on the business card. The
brochure contained such words as Zhongtian Plastic and ZTPC. ZTPC
Huang Ye took pictures of the shop and the children chairs and stools
purchased. The above process was monitored by Huang Xin and Ding
Zhenhua, two notaries of the Notary Office of Shanghai. As to it, the
Notary Office of Shanghai produced a notarization certificate (No. 7549 (2006)7549
[2006], Shanghai).

The plaintiff, Inter IKEA, also provided one sales invoice and one
delivery checklist for Amutong chairs and stools purchased in the
name of Shanghai Yongguan Trading Co., Ltd. The special invoice 1
stamp of Taizhou Zhongtian Plastic Co., Ltd. was affixed to the invoice.

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On Apr. 10, 2008, Li Chunjuan, an agent with Gaoluyun (Beijing) 2008410()

Intellectual Property Agency Co., Ltd., preserved evidence on the
relevant contents on www.ztpc.cc together with the notaries of Beijing 6
Chang'an Notary Office at Shouchuang Mansion situated at 6 www
Chaoyangmen North Street, Dongcheng District, Beijing. Beijing ztpccc
Chang'an Notary Office produced a notarization certificate (No. 2664 (2008)
[2008], Beijing Chang'an, Domestic, Economic). The certificate stated 2664
that the website, www.ztpc.cc, exhibited products of the defendant, wwwztpccc
Zhongtian Company, and the plaintiff, Inter IKEA, alleged that 15
models of the products shown on the website including model ZTT-326 ZTT-32615
were infringing products.

Chen Aihua, legal representative of the defendant, applied to the State

Intellectual Property Office on Feb. 10, 2004, Oct. 25, 2004 and Aug. 200421020041025
8, 2005 respectively for five design patents on Chair (Amutong), Chair 200588
(ZTY-521), Stool (ZTY-537), Stool (ZTY-536) and Chair (ZTY-538), with
patent numbers being 200430019946.X, 200430083416.1, ()(ZTY-521)(ZTY- 537)
200430083418.0, 2004300834195 and 200530114174.2 respectively. (ZTY-536)(ZTY-538)
The No. 200430019946.X design patent was declared null and void by 200430019946X
the Patent Reexamination Board of the State Intellectual Property 2004300834161 200430083418
Office of China on Aug. 30, 2006. 02004300834195200530114174
2200430019946X
2006830

By comparison, among the 15 models of products shown on wwwztpccc

www.ztpc.cc that were alleged to be infringing products, ZTY-525S, 15
ZTY-525M and ZTY-525L children stools of the defendant were (ZTY-525SZTY-525M
basically the same with Mammut children stools of the plaintiff in the ZTY-525L)
general shape; ZTY-534, ZTY-533, ZTY-537, ZTY-536, ZTY-541, ZTT-
322, ZTT-325, ZTT-326 and ZTY-542 children stools were slightly (ZTY-534ZTY-533ZTY-
different in the shape of stool surface from Mammut children stools but 537ZTY-536ZTY-541ZTT-322
were basically the same in the shape of legs with Mammut children ZTT-325ZTT-326ZTY-542)
stools, and therefore were similar in the general structure to the
plaintiff's Mammut children stools; ZTY-521, ZTY-538 and ZTY-535
children chairs were slightly different in the shape of chair back from (ZTY-
Mammut children chairs but were basically the same in the shape of 521ZTY-538ZTY-535)
chair legs with Mammut children chairs, and therefore were similar in
the general structure to the plaintiff's Mammut children chairs.

By comparison, Amutong children chairs and stools of the defendant

which were bought by the plaintiff under notarization were basically the
same in the general shape with Mammut children chairs and stools.

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DISPUTED ISSUES

The focal dispute in this case was: whether the alleged children chairs
and stools produced by the defendant had infringed the copyright of
the plaintiff.

The No.2 Intermediate People's Court of Shanghai held that:

Article 2.2 of the Copyright Law of China provided that: The copyright (
in a work enjoyed by a foreigner or stateless person under an )
agreement signed by the country of the author or the country of the
author's permanent residence and China or under an international
treaty to which both that country and China are parties shall be
protected by this Law. China had acceded to the Berne Convention
and the Agreement on Trade-Related Aspects of Intellectual Property ()
Rights. Berne Convention protected works of applied art as included in
the literary and artistic works in the convention. Article 6 of the
Provisions on the Implementation of International Copyright Treaties
issued by the State Council provided that: The term of protection of a
foreign work of applied art shall be 25 years commencing from the
creation of the work. The preceding paragraph, however, shall not (
apply to a work of fine arts, including design of cartoon characters, )
used in industrial goods. According to these provisions, foreign works
of applied art should be protected by Chinese laws. The argument of
the defendant that the plaintiff was not eligible as a party to this action
had no legal basis, and should not be supported by this court.

Article 3 of the Copyright Law provided that: A Work' as mentioned in

this Law means a work of literature, art, natural science, social
science, engineering technology, etc. created in any of following forms:
(4) A work of fine art and work of architecture; In this provision, ()
works of applied art were not separately listed. In judicial practice, in
accordance with the international treaties that China had acceded to
and the relevant laws, the people's court considered the protection of
copyright in a work of applied art from the angles of utility and artistry
respectively. Utility of a work of applied art was not under the
protection of copyright law, whereas its artistry may be protected by
copyright law as a work of fine art. Article 4(8) of the Regulation on
the Implementation of the Copyright Law of the People's Republic of
China provided that: A work of fine art means a two- or three-
dimensional shape of work created in lines, colors or other medium,
with esthetic effects, such as a painting, calligraphy or sculpture.
When the right holder of a foreign work of applied art applied for
copyright protection, the people's court should examine whether the
work of applied art had reached the artistic level that a work of fine art
was supposed to reach. The artistic level of a work of applied art
should be analyzed in the sense of aesthetics, and generally,

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consideration should be given to whether the idea, manner of

expression, etc. of a work of applied art were original. The Mammut
children chairs involved in the case consisted of three parts: chair
back, cushion and legs. Chair back was made up of three rectangular
battens and a piece of trapezoidal solid wood which took up about half
of the space of the whole chair back. Chair cushion had the basic
structure of ordinary chairs. Chair legs were four upright cones which
were narrow on the top and broad at the bottom. The Mammut children
stools consisted of stool surface and legs. The stool surface was a
round solid surface with equal top and bottom sides, and had the same
shape of ordinary children stools. The stool legs were four spindle-like
rods. According to the above facts, in the manner of expression, the
key design of Mammut children chairs and stools was embodied in the
line modeling simple and smooth lines to embody an idea of
plainness and childhood pleasures. But this design idea could not
completely separate itself from that of other ordinary children products.
In the originality of expression, the whole appearance of Mammut
children chairs and stools was generally the same with that of the great
majority of ordinary children chairs and stools, though their upstanding
cone and spindle-like legs were slightly different from those of ordinary
chairs and stools. Generally speaking, the design of Mammut children
chairs and stools was relatively simple and did not reach the artistic
level that a work of fine art needed to reach. So, even if the alleged
children chairs and stools produced by the defendant were, in overall
structure, similar or basically identical with Mammut children chairs
and stools of the plaintiff, they did not infringe the copyright of the
plaintiff.

JUDGMENT

Accordingly, on Aug. 22, 2009, the No.2 Intermediate People's Court of 2009
Shanghai rendered a judgment as follows: 822

To dismiss the claims of the plaintiff.

Neither of the two parties appealed within the statutory time limit after
the judgment of first instance was announced, and the judgment of first
instance came into force.

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