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On November 30, 2023, Taiwan’s Intellectual Property and Commercial Court (“Court”) found apparel company Migo-mobo international LTD (”Migo”) infringing the copyrighted “I am not a fat tiger” artistic work (“Fat Tiger”), and liable for damages up to NT$ 400,000. (111-Ming-Chu-Zu No. 69)
The plaintiff is the exclusive licensee, Wyrd Media Co. Limited (“Wyrd”). According to Wyrd, in August of 2021, it came to notice that Migo, via its website “MO-BO” (https://www.mo-bo.com.tw/), was providing stickers and clothing bearing the image of “Bai-Way little Tiger” (hereafter “Little Tiger”), which was allegedly provided by another co-defendant, Mr. Wei-Ping Hsu. Upon comparison, Fat Tiger and Little Tiger are highly similar, and Wyrd decided to file a copyright infringement lawsuit against Migo, its representative Mr. Shin-Hong Liao, and Mr. Wei-Ping Hsu.
The defendants, among the others, contended the eligibility of Fat Tiger for copyright protection, questioned the credibility of the Fat Tiger’s copyright registration, and challenged the veracity of exclusive license alleged by Wyrd. Moreover, the defendants averred that Little Tiger was independently created by a contracted third party, and there is no substantial similarity between Fat Tiger and Little Tiger.
The Court sided with Wyrd on issues of eligibility for copyright protection, the Fat Tiger’s copyright registration, and the veracity of exclusive license. What is worth further noticing is that the Court considered Little Tiger a derivative work based on the Fat Tiger:
When assessing substantial similarity, the current Copyright Act does not provide clear guidance on the boundary between reproduction and derivative work. In this case, the Court’s reasoning provide some insight in this regard. More specifically, the similarity of a derivative work must be enough for others to, upon seeing such work, think of the copyrighted work. Meanwhile, in a case where defendant argues the work is independently created but the degree of substantial similarity involved is high, the supporting documents must contain sufficient information like the stages of creation, trails of modifications, and dates of authorship, for such evidence to be found credible by the Court.
With nearly five decades of expertise, Saint Island’s services encompass all facets of IP protection and technology laws in Taiwan, from prosecution to litigation, and from transaction to compliance. Please visit us at https://www.saint-island.com.tw/EN or email to [email protected] to know us more.
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