Following the first instance ruling in Lego's action against a local company in China, the Beijing Higher People's Court has recently confirmed in the appellate decision that industrial designs which qualify as works of applied art are entitled to copyright protection in China, alongside the design patent protection afforded by the Patent Law.
In this landmark case, Lego instituted action against Tianjin Coko Toy Company Limited on the basis that works of applied art should be entitled to copyright protection pursuant to the Berne Convention for the Protection of Literary and Artistic Works to which China has acceded. The defendant argued that there is no basis for dual protection for works of applied art under both the copyright and patent law. The first instance court held that out of 53 kinds of Lego toy blocks in question, 50 of them qualified as works of applied art satisfying the four requirements of novelty, artistic quality, industrial application and capability of being reproduced in a physical form. Apart from the usual orders for cessation of infringing dealing and destruction of moulds and goods, the order includes publication of an apology in Beijing Daily.
The appellate court upheld the lower court's ruling and further explained that where the statutes are silent on the issue, the logical interpretation should be that there is no explicit prohibition of dual protection.
While this decision has been hailed as a significant step in China's promise to increase protection for IP rights in the country following its entry to the WTO, it should be noted with caution that such a decision is without binding effect on every court in the mainland as the principle of stare decisis does not exist in the Chinese legal system. Nevertheless, its persuasive effect is certain and anxious right holders may now use this additional weapon to combat infringement in this rapidly growing new market.
|
| Yvonne Chua |
