Page 132 - 2019 White Paper on the Business Environment in China
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9 White Paper on the Business Environment in China
as infringement of replication of others’ unregistered Auction”) and Zhang Hui regarding copyright ownership
famous trademarks. The words, patterns, colors, and and copyright infringement dispute [(2017) Jiangsu 01
their arrangement and combination embodied in the Civil Final Hearing No. 8048 Civil Judgment issued by
packaging and decoration of Xinhua Dictionary (11th Nanjing Intermediate People’s Court of Jiangsu Province].
Edition) is identification of the origin of the product
and has uniqueness. Use of a similar decoration design Case Summary: In 1958, Mr. Mao Dun contributed
by Sinolingua on the dictionaries it published would an article named Reviews on Recent Short Stories,
cause confusion and misunderstanding to the public handwritten with brush pen, to a magazine publishing
regarding the origin of the product, and it is thus company, which was published in the No.6 volume of
considered unfair competition as provided in Article the People’s Literature in 1958. The original manuscript
5.2 of Anti-Unfair Competition Law. As such, the Court of was held by Zhang Hui. On November 13, 2013, Zhang
First Hearing ordered Sinolingua to immediately cease Hui authorized Classic Auction to auction various items,
its infringement on the trademark, eliminate negative including the manuscript involved in this case. On
influence, and compensate the Commercial Press for December 30, 2013, the manuscript was uploaded in
its financial losses in the amount of 3 million yuan and high-digital pictures taken by Classic Auction with digital
reasonable expenditures for the proceedings in the cameras, and introduced on the Classic Auction website
amount of 270,000 yuan. and Weibo account in the form of text and photographs.
People may view the whole manuscript when browsing
Significance: This case is a typical case regarding the the website, and may observe the details of each page
protection of an unregistered famous trademark, and of the manuscript through the zoom function on the
complex issues such as recognition of facts, application website. During the preview exhibition, Classic Auction
of laws and balance of interests. This case established displayed the original copy of the manuscript, and
the judgment criteria to determine whether the name “新 provided visitors with brochures on which the auction
华字典”, as a mix of product name and brand name, has items were printed. On January 5, 2014, the manuscript
distinctive features of a trademark. Considering public was auctioned at the 2013 Fall Auction of Chinese
knowledge, time of consistent use, amount of sales, Paintings Special Section held by Classic Auction, and
scope of publicity, protected records and other factors, was bid by a person not involved in this case in the
“新华字典” of the Plaintiff, Commerce Press, was held amount of 10.5 million yuan. However, the auction
to be an unregistered famous trademark. While “新华字 was not completed as the said bidder failed to make
典” is protected as an unregistered famous trademark, it payment; thus the original copy of the manuscript
is also important to balance its relationship with normal was still held by Zhang Hui. After the auction, Classic
business and management order in the publication Auction still continued to display the manuscript on the
industry, as well as, transmission of knowledge and internet and did not remove it until June, 2017. As the
culture. The said judgment specified that right of legal heirs of Mr. Mao Dun, Shen Weining, Shen Danyan
exclusive use of trademarks under the Trademark Law and Shen Maiheng, claimed that the actions by Zhang
protects the trademark itself, as opposed to the product Hui and Classic Auction infringed on the copyright
to which the trademark is attached. The Commercial of the manuscript, and therefore filed a lawsuit. The
Press was granted the right to exclusively use the “新 Court of the First Hearing ordered Classic Auction to
华字典” trademark, rather than the right of exclusive cease the infringement on the right of communication
possession only for its dictionaries. Thus, it will not cause through information network for the manuscript,
a monopoly in the dictionary industry. By granting and compensate Shen Weining, Shen Danyan and
trademark protection, the trademark rights holders may Shen Maiheng for economic losses in the amount of
better perform their legal obligations to guarantee the 100,000 yuan. Shen Weining, Shen Danyan and Shen
quality of its product and their social responsibilities of Maiheng disagreed with the said judgment and filed
transmission of knowledge. Due to this, the publication an appeal. The Court of the Second Hearing held that
industry can be better organized. the manuscript was both a literary work and a work of
art. Since its legal owner, Zhang Hui, had the right to
“Mao Dun Manuscript” Copyright Dispute dispose of his legal property through auction, Zhang
Hui’s action did not infringe on the copyright of the
Shen Weining, Shen Danyan and Shen Maiheng vs. manuscript. However, Classic Auction infringed on the
Nanjing Classic Auction Co., Ltd. (hereinafter, “Classic rights of publication, replication, and communication
132
as infringement of replication of others’ unregistered Auction”) and Zhang Hui regarding copyright ownership
famous trademarks. The words, patterns, colors, and and copyright infringement dispute [(2017) Jiangsu 01
their arrangement and combination embodied in the Civil Final Hearing No. 8048 Civil Judgment issued by
packaging and decoration of Xinhua Dictionary (11th Nanjing Intermediate People’s Court of Jiangsu Province].
Edition) is identification of the origin of the product
and has uniqueness. Use of a similar decoration design Case Summary: In 1958, Mr. Mao Dun contributed
by Sinolingua on the dictionaries it published would an article named Reviews on Recent Short Stories,
cause confusion and misunderstanding to the public handwritten with brush pen, to a magazine publishing
regarding the origin of the product, and it is thus company, which was published in the No.6 volume of
considered unfair competition as provided in Article the People’s Literature in 1958. The original manuscript
5.2 of Anti-Unfair Competition Law. As such, the Court of was held by Zhang Hui. On November 13, 2013, Zhang
First Hearing ordered Sinolingua to immediately cease Hui authorized Classic Auction to auction various items,
its infringement on the trademark, eliminate negative including the manuscript involved in this case. On
influence, and compensate the Commercial Press for December 30, 2013, the manuscript was uploaded in
its financial losses in the amount of 3 million yuan and high-digital pictures taken by Classic Auction with digital
reasonable expenditures for the proceedings in the cameras, and introduced on the Classic Auction website
amount of 270,000 yuan. and Weibo account in the form of text and photographs.
People may view the whole manuscript when browsing
Significance: This case is a typical case regarding the the website, and may observe the details of each page
protection of an unregistered famous trademark, and of the manuscript through the zoom function on the
complex issues such as recognition of facts, application website. During the preview exhibition, Classic Auction
of laws and balance of interests. This case established displayed the original copy of the manuscript, and
the judgment criteria to determine whether the name “新 provided visitors with brochures on which the auction
华字典”, as a mix of product name and brand name, has items were printed. On January 5, 2014, the manuscript
distinctive features of a trademark. Considering public was auctioned at the 2013 Fall Auction of Chinese
knowledge, time of consistent use, amount of sales, Paintings Special Section held by Classic Auction, and
scope of publicity, protected records and other factors, was bid by a person not involved in this case in the
“新华字典” of the Plaintiff, Commerce Press, was held amount of 10.5 million yuan. However, the auction
to be an unregistered famous trademark. While “新华字 was not completed as the said bidder failed to make
典” is protected as an unregistered famous trademark, it payment; thus the original copy of the manuscript
is also important to balance its relationship with normal was still held by Zhang Hui. After the auction, Classic
business and management order in the publication Auction still continued to display the manuscript on the
industry, as well as, transmission of knowledge and internet and did not remove it until June, 2017. As the
culture. The said judgment specified that right of legal heirs of Mr. Mao Dun, Shen Weining, Shen Danyan
exclusive use of trademarks under the Trademark Law and Shen Maiheng, claimed that the actions by Zhang
protects the trademark itself, as opposed to the product Hui and Classic Auction infringed on the copyright
to which the trademark is attached. The Commercial of the manuscript, and therefore filed a lawsuit. The
Press was granted the right to exclusively use the “新 Court of the First Hearing ordered Classic Auction to
华字典” trademark, rather than the right of exclusive cease the infringement on the right of communication
possession only for its dictionaries. Thus, it will not cause through information network for the manuscript,
a monopoly in the dictionary industry. By granting and compensate Shen Weining, Shen Danyan and
trademark protection, the trademark rights holders may Shen Maiheng for economic losses in the amount of
better perform their legal obligations to guarantee the 100,000 yuan. Shen Weining, Shen Danyan and Shen
quality of its product and their social responsibilities of Maiheng disagreed with the said judgment and filed
transmission of knowledge. Due to this, the publication an appeal. The Court of the Second Hearing held that
industry can be better organized. the manuscript was both a literary work and a work of
art. Since its legal owner, Zhang Hui, had the right to
“Mao Dun Manuscript” Copyright Dispute dispose of his legal property through auction, Zhang
Hui’s action did not infringe on the copyright of the
Shen Weining, Shen Danyan and Shen Maiheng vs. manuscript. However, Classic Auction infringed on the
Nanjing Classic Auction Co., Ltd. (hereinafter, “Classic rights of publication, replication, and communication
132
