As an architect, Zhang Yong loves to see the work of his peers and share his observations with others. He visited a number of diverse building and landscape projects across Shenzhen, Guangdong province, and took more than 10,000 photos.

Selecting about 1,000 pictures, the Shenzhen-based architect compiled his works into two books that were published by the Intellectual Property Publishing House and the Guangdong World Publishing Corporation in 2003 and 2004 respectively.

In 2006, however, Zhang was surprised to find hundreds of his photos in another book on landscape design and published by China Forestry Publishing House.

After consulting lawyers, Zhang filed a complaint in the Nanshan Court of Shenzhen against the publisher and a bookstore where the books were sold. The complaint said the publisher and the bookstore had violated Zhang's copyright by copying, editing and selling his works without authorization.

Zhang requested that the defendants stop the infringement and destroy the books in stock, apologize to the plaintiff and compensate the defendant 5,000 yuan for each picture it used.

China Forestry Publishing House argued that it got the permit from Hong Kong Rihan International Culture Co, Ltd, which published a similar book on landscape design in Hong Kong, and all photos involving in the infringement came from the HK company. So the court decided to take the Hong Kong company as the third defendant.

According to Rihan, it published the book on landscape design in Hong Kong in January 2006 with some photos selected from Zhang's books and the company reached an agreement with Zhang on the payment in April 2006.

Rihan told the court the book Zhang accused of infringement was a mainland version of what it published in Hong Kong and it had decided to publish the book on the Chinese mainland before reaching a contract with Zhang. The company insisted it had been allowed to deal with the photos given it had paid the author 30,000 yuan.

Through investigation, the court found the agreement between Zhang and Rihan just allowed Rihan to use Zhang's photos in the book published in Hong Kong rather than transferring copyrights of the photos to the Hong Kong company.

The court ruled that Rihan and China Forestry Publishing House should stop the acts of infringement and destroy the books in stock. The publishing house was also ordered to pay 312,000 yuan to Zhang in compensation. Rihan was found to bear joint compensation liabilities and the bookstore was found to be not responsible for the infringement.

'Xianggang feilipu'

The Shanghai first Intermediate People's Court on May 15 made a first instance judgment on the case in which Royal Philips Electronics sued Shanghai Feipu Switch Co Ltd and Zhejiang Phidias Electrical Apparatus Co Ltd for trademark infringement and unfair competition. The court ruled that the two defendants should immediately cease infringement and unfair competition and jointly compensate 400,000 yuan to Philips.

Royal Philips Electronics is the owner of the globally well-known trademarks "PHILIPS" and "feilipu" in Chinese.

In 2007, Philips found that the two defendants used the words "Xianggang feilipu" meaning "Hong Kong Philips" in English, on several types of products, including heaters for baths, exhaust fans and ceiling lights.

The defendants also used the Chinese characters "feilipu" in the advertisements for their products. The Netherlands-based company asked that the two defendants halt infringement and compensate for its loss.

Investigations by the court indicated that the two defendants signed a contract of association in September 2006 with "Hong Kong Feilipu Company", a company registered in Hong Kong in 2006 with an only legal representative and board member surnamed Lin.

According to the contract, the three companies jointly manufactured electrical products, including switches, sockets, bath heaters, exhaust fans and lamps. Hong Kong Feilipu provided the inner and outer packages, Zhejiang Phidias manufactured the major parts of the products, while Shanghai Feipu and Zhejiang Phidias were jointly in charge of assembling and packaging the products.

The court held that, since the two defendants used the characters "feilipu" for the brochures of the products and the advertisements, they infringed the plaintiff's exclusive right to the registered trademark "feilipu." As Philips enjoys a good reputation in the field of electrical products around the world, it was unlikely that the defendants had no knowledge of Philips' products, the court said.

According to the court, Hong Kong Feilipu was neither related to Philips nor authorized by Philips. Thus the two defendants actions had constituted unfair competition by intentionally using the infringing trademark representations and words on its products.

(China Daily 06/02/2008 page9)

2013-07-17