One Stone, Two Birds: A Special Software Case

One Stone, Two Birds: A Special Software Case

Li Dongtao

Keywords: copyright infringement, trademark infringement, software, bird

The Facts

A poet has two voices.¹

This is a case about “TWO”.

Both the plaintiff and the defendant are computer companies.

In September 2002, the plaintiff released “W”, a new operating system that became a commercial success quickly.

In January 2003, the plaintiff found a very similar operating system called V had recently appeared in the market; the developer was the defendant.

    After purchasing a copy of operating system V, the plaintiff found its trademark on the package box.

The plaintiff sued the defendant for copyright infringement and trademark infringement.

The defendant argued that copyright infringement was not established, but it couldn’t present the source code for V. It also admitted having bought the operating system W.

Analysis

The copyright infringement and trademark infringement are established. 

Copyright law doesn’t prevent independent creation.

    In this case, the defendant should have brought evidence of the existence of independent creation, but it failed to present source code for V.

It is a well-established fact in the computer world that no source code, no creation of a software. The two operating systems were so similar that the copyright infringement was easily established.

And, the defendant used the plaintiff’s trademark on the packaging of V without permission in the process of distributing V. The defendant’s motive was obvious, to create likelihood of confusion, the trademark infringement was established.

In a software case, a single illegal act may lead to both copyright infringement and trademark infringement.

This phenomenon warrants attention.

In short, a poet has two voices, one infringer may also infringe two rights simultaneously，one stone, two birds.

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