Previous：The first case of box for packing gifts blind box piracy infringement case concluded, how to protect creative packaging?

1. box for packing gifts blind box Introduction.

box for packing gifts blind box, originally originated in Japan in the form of a lucky bag, which is usually filled with anime, film and television works around, or box for packing gifts designer separately designed dolls. As consumers are unable to understand the contents of their purchases through box for packing gifts box packaging at the time of purchase, stimulated by the uncertainty, buying box for packing gifts blind boxes has become one of the current trends in youth culture. According to the "Post-95 Player Chopping Power List" released by Tmall at ChinaJoy in August 2019, nearly 200,000 consumers spend more than 20,000 yuan a year on Tmall to collect box for packing gifts blind boxes. This shows that, as a symbol of trendy culture, box for packing gifts blind boxes have a huge market space. As the box for packing gifts blind box economy continues to rise, the importance of intellectual property protection for this emerging industry has become increasingly evident as infringement disputes arise in conjunction with frequent transactions. Recently, the court of Chongqing Liangjiang New Area (Free Trade Zone) concluded the first case of copyright infringement disputes involving box for packing gifts blind boxes in the country, finding that the design of the defendant's product box for packing gifts packaging infringed on the plaintiff's copyright, and ruling that the defendant should bear the civil responsibility of stopping the sale of infringing products, destroying infringing products box for packing gifts packaging boxes and compensating for damages. Next, Uncle Insider will sort out the judgment of this case, and analyze the protection path of the creative expression of the outer packaging of goods box for packing gifts, and explore the reference significance of this case to the protection of box for packing gifts cultural and creative industry and the adjudication of similar cases.

2. box for packing gifts blind box case review

The plaintiff in this case is a cultural and creative company in Guangzhou, which opened a store in 1688 website and sold box for packing gifts blind boxes. The plaintiff applied for copyright registration of the outer box of the box for packing gifts blind box and obtained the "Work Registration Certificate". box for packing gifts blind box is yellow in color, and the design features of the box for packing gifts blind box are mainly reflected in the front and back. Among them, the front of box for packing gifts is designed with the text "Blind box" in black with white borders occupying the upper middle position, and there is a vertical line of red frame at the top right of "の" with the black "Takayama carefully made" inside the frame. The words "Takayama" are written in black. Below the above combination of words is a question mark in white on a black background tilted to the left, and the box for packing gifts blind box is surrounded by black lines in a "radial" pattern around the "question mark" symbol. "The back of the box for packing gifts blind box is designed with the text "の盲の箱" in black with white borders occupying the upper position, with a vertical red bar at the top right of "の". The box for packing gifts blind box has the words "Takayama Kaisha" in black inside the box. box for packing gifts blind box has three rows of black characters in Japanese below the text "Blind box". Below the text is a large disc with a white circle around the edge of the disc and a white circle in the middle of the disc with a white "question mark" symbol on a black background inside the circle. box for packing gifts blind box disc is divided into several equal parts by black dotted lines and each of the several equal parts has black text in the middle. box for packing gifts blind box disc has several rows of text below. There are also several rows of text.

The defendant is a self-employed business located next to an elementary school, and the box for packing gifts "blind box super deluxe set" box for packing gifts sold by the defendant is extremely similar to the work for which the plaintiff applied for copyright registration. After comparison, the drawings attached to the copyright registration certificate and the product in question are both vertical rectangular box for packing gifts packaging boxes, and the same box for packing gifts blind box text as the work in question is used on the top of the back of the front; the difference is that the product in question has the word "Happy" in the upper left corner of the front of the box for packing gifts packaging, while the work in question does not. The product information column on the side of the box for packing gifts shows the word "Magic King", the blind box for packing gifts does not. Therefore, the plaintiff sued the court on the ground that the defendant infringed the copyright of his art works.

3. box for packing gifts blind box case analysis - from the perspective of copyright protection

3.1. whether the outer packaging of the box for packing gifts in question constitutes a work protected by copyright law

China's Copyright Law does not explicitly provide for copyright protection for the outer packaging of commodity box for packing gifts, but Article 3 of the Law lists some types of works protected by the Law, including written works, art works and photographic works, etc. Articles 13 to 17 list some types of works, such as compilation works and collaborative works. Article 2 of the Regulations for the Implementation of the Copyright Law of China provides a general provision on the objects protected by the Copyright Law: "The works referred to in the Copyright Law refer to the intellectual achievements in the fields of literature, art and science that are original and can be reproduced in some tangible form". Accordingly, it can be summarized that the works protected by copyright law have the following characteristics: (1) box for packing gifts blind box are intellectual achievements in the fields of literature, art and science; (2) box for packing gifts blind box have originality; (3) box for packing gifts blind box have reproducibility. Among them, box for packing gifts blind box originality is the core, reflecting the author's unique and distinct from others expression has the value of legal protection. If the outer packaging of goods box for packing gifts constitutes an expression of originality, it can become an object protected by copyright law. At the same time, according to the provisions of Article 4 (8) of the Regulations for the Implementation of the Copyright Law, art works refer to paintings, calligraphy, sculptures and other works of plastic art with aesthetic significance composed of lines, colors or in other ways, if the outer packaging of goods box for packing gifts is the carrier of art design, which can reflect the aesthetic value orientation and choice, box for packing gifts blind boxes meet both Artistic, originality and reproducibility, can be applied to the provisions of art works and protected by copyright.

The court held that the object of the plaintiff's claim of copyright is the unfolding diagram of the outer box for packing gifts in a vertical rectangular body, although the colors, words and characters used in the work in question are common elements, the design of the front and back of the outer box for packing gifts constitutes an original expression through the selection and arrangement of words, graphics and colors, so the box for packing gifts claimed by the plaintiff as a whole is an original expression. Therefore, the box for packing gifts "blind box" box layout constitutes a compilation work protected by copyright law.

3.2. whether the defendant's sales act infringes the copyright of box for packing gifts blind box outer packaging

The determination of copyright infringement is crucial in the trial activities of intellectual property cases. Article 47 and Article 48 of the Copyright Law of China simply enumerate the ways of copyright infringement, and lack detailed guidance on the specific determination. The rule of "substantial similarity plus contact" was created by American jurisprudence and is an important rule for the determination of intellectual property infringement. In the relevant judicial practice in China, this rule has been gradually recognized and applied, and has become the core standard for determining copyright infringement.

The "box for packing gifts" sold by the defendant in this case is also a vertical rectangular box, and the box for packing gifts is yellow in color, with the text "盲の箱" in black and white at the top of the front and back of the box for packing gifts. The box for packing gifts box is also basically the same as the work in question in terms of other main design features such as the "question mark" symbol on a black background with a white border and the large disc pattern. Therefore, the court found that the "box for packing gifts blind box" sold by the defendant and the plaintiff's copyrighted work on the box for packing gifts blind box were highly consistent in terms of text, pattern, color selection and arrangement, which constituted substantial similarity. The design of the outer box of the box for packing gifts was not permitted by the plaintiff, which infringed the plaintiff's copyright. The defendant sold the box for packing gifts containing the above-mentioned infringing design, which infringed the plaintiff's right of distribution.

As to whether the defendant had the conditions to access the plaintiff's box for packing gifts blind box works, Uncle Insider believes that, with the rapid development of science and technology in the information age, the sales channels of box for packing gifts blind box goods and the public ways of works are becoming more and more diversified, and the ways and means for the public to access box for packing gifts blind box goods and works are also becoming more and more abundant, so for most of the box for packing gifts that enter the circulation through public sales channels The defendant needs to prove the legal source of the box for packing gifts blind box works used to defend the case. Only those box for packing gifts blind box goods that have not yet entered circulation at the time of trial need to follow the original standard for determining exposure, i.e., whether they have come into contact with the original box for packing gifts blind box work or whether they have had access to the original work. The plaintiff in this case is a long-term sales box for packing gifts blind box goods of cultural and creative companies, its use of box for packing gifts packaging is creative and design sense, after a long period of advertising and marketing, in the minds of consumers and the plaintiff has formed an inseparable fixed link, box for packing gifts blind box has a wide range of market awareness and known to the relevant public. The defendant has sufficient opportunity to obtain the plaintiff box for packing gifts blind box goods and outer packaging, it should be presumed that the defendant has contact or have access to the plaintiff box for packing gifts blind box works.

3.3. how box for packing gifts outer packaging infringers bear infringement liability

In the case of infringement of box for packing gifts packaging, China's judicial decisions usually distinguish the object of infringement liability for the goods themselves and the product box for packing gifts packaging, for the goods can be separated from the goods box for packing gifts packaging, the court will generally require the infringer to assume the destruction of infringing products box for packing gifts packaging and decoration, stop using the infringing box for packing gifts The court will generally require the infringer to take legal responsibility for destroying the box for packing gifts packaging and decoration of the infringing product, stop using the infringing box for packing gifts packaging pattern, and replace the box for packing gifts packaging. In the case of "Heathley" [(2006) Guangdong High Court Min San Final No. 10], the court held that the defendant adopted box for packing gifts packaging and decoration on the box for packing gifts boxes and bottles of similar products, which was very similar to Heathley's, constituting unfair competition, and ordered the defendant to immediately stop producing and selling the infringing products, and to destroy the packaging and decoration of the infringing products. The defendant was ordered to immediately stop the production and sale of infringing products, destroy the box for packing gifts packaging and decoration of infringing products, and compensate Heathley for the corresponding economic losses. Ltd." case [(2017)Su01MinFinal8298], the court held that the defendant's sale of goods through the network in box for packing gifts on the packaging without permission used the plaintiff's works, constituting copyright infringement, ruled that the company immediately stop using the infringing The court held that the defendant had used the plaintiff's work without permission on the outer packaging of box for packing gifts through the Internet, which constituted copyright infringement. In this case, the court took into account the special nature of box for packing gifts blind box copyright infringement cases, and ruled that the infringing defendant should bear the civil liability of stopping the sale of infringing products, destroying infringing products box for packing gifts packaging boxes and compensating for damages, and did not require the defendant to destroy the infringing goods. In traditional copyright infringement cases, such as pirated books and pirated video products, the work is inseparable from the work box for packing gifts carrier, that is, the goods, and the protection of the goods can achieve the protection of the work. However, the box for packing gifts blind box piracy is the art design of the outer packaging of goods, which does not involve the identification of the authenticity of the goods inside the box for packing gifts blind box, that is, the carrier of the pirated art design in such cases is the outer packaging of goods box for packing gifts, which is separated from the goods themselves. Therefore, when the court finds that the infringement is established and the defendant assumes responsibility for stopping the infringement, the box for packing gifts outer packaging of the infringing goods should be destroyed, rather than the infringing goods.