On Monday, Beijing High People's Court revoked a previous
trademark infringement verdict on New Oriental Education Group, but
its guilt of copyright violation was upheld. Compensation was
reduced accordingly by 3.6 million yuan (US$435,000).
New Oriental, a leading Beijing-based private English training
institution, was ordered to pay 6.4 million yuan (US$774,000) in
compensation to two US-based plaintiffs: the Educational Testing
Service (ETS) and the Graduate Management Admission Council (GMAC).
The judgment is the second and final verdict in the closely
watched case.
New Oriental admits several instances of intellectual property
right violations, and says they have stopped copying materials
owned by ETS and GMAC.
The lengthy lawsuit began in January 2002 when the US companies
claimed New Oriental had copied a mass of exam papers for the Test
of English as a Foreign Language (TOEFL), Graduate Record
Examination (GRE) and Graduate Management Admission Test
(GMAT).
The three exams are widely regarded by Chinese students as a
stepping-stone to enrolment in American universities. Thousands of
students come to New Oriental for special training every year,
mainly because they can get exam papers that are hard to find
elsewhere.
Beijing's No.1 Intermediate People's Court ordered New Oriental to
pay 10 million yuan (US$1.2 million) in compensation for both
copyright and trademark infringements last September after a
two-year long trial.
But the High People's Court ruled that they had not violated
trademarks because they used TOEFL, GRE and GMAT only as the names
of the tests and not as business brands.
Zhou Qiang, a lawyer representing ETS and GMAC, told China
Daily that the ruling ordered New Oriental to hand in all
illegal copies of their materials. Officials at New Oriental must
also publish a public apology to the plaintiffs in the Chinese
newspaper Legal Daily.
Two days later another IPR case concluded, this time against the
international sportswear label Nike. Its advertisement featuring a
stickman was charged with copying an original idea and design from
a 28-year-old flash animator.
In October 2003, Nike launched a TV campaign in Beijing, in
which the stickman was used. In July this year, Zhu Zhiqiang filed
a lawsuit against Nike claiming compensation for their alleged
plagiarization of an animation of his that had been widely
circulated on the internet.
Wednesday's verdict by a Beijing court ordered Nike to pay Zhu
300,000 yuan (US$36,000) compensation.
Zhang Zaiping, a Nike representative, told China Daily
yesterday that Nike disagrees with the court's decision. "We will
most probably appeal to a higher court," he said.
Meanwhile, Zhu said he is satisfied with the judgment although
the compensation is less than the 2 million yuan (US$242,000) he
had requested.
"I got what I wanted -- confirmation of my copyright over my
stickman," he said yesterday.
But Zhang said, "Zhu's stickman figure is within the public
domain and lacks originality. Such figures are also used at
pedestrian crossings. It should not be protected by copyright law
at all."
According to Nike's representative, they had paid advertising
company Wieden and Kennedy 25 million yuan (US$3 million) for the
ad's design.
But according to the court, "Prior to the completion of Zhu's
cartoon character in 2000, there were no such artistic works in
China. So the character was original and should be protected by
Chinese laws."
The court decided that the characteristics of the stickman used
in the advertisement by Nike were nearly the same as Zhu's
stickman.
The court also required Nike to stop such infringements and to
issue a public apology to Zhu.
(China Daily December 30, 2004)
