I. Case Background and Factual Summary
A recent legal dispute between a well-known international anime statue brand (hereinafter referred to as the "Brand Owner") and its Chinese original equipment manufacturer (hereinafter referred to as the "OEM") triggers a deep legal discussion on whether the inclusion of infringing replicas as promotional gifts in a "buy A get B free" marketing model constitutes intellectual property infringement. After terminating their cooperation in early 2026, the OEM publicly auctioned the retained production molds for the S Anime statue—one of the collectible anime statues they have been producing for the Brand Owner—on a second-hand trading platform. The successful bidder for the molds (hereinafter referred to as the "Buyer") and the OEM launched a marketing campaign titled "Buy the Caliburn, Get an S Anime statue for Free," circulating the S Anime statue as a promotional gift accompanying the primary product. Combining current legal provisions and judicial practice, this article aims to conduct an in-depth analysis of the core legal issues involved in this commercial model.
II. The Principle of Intellectual Property Reservation: Transfer of Tangible Carriers Does Not Equal Transfer of Intangible Rights
The first core legal issue in this case is whether the acquisition of the molds implies the acquisition of the right to use or transfer the intellectual property embedded in the molds.
According to Article 600 of the Civil Code of the People's Republic of China, where a subject matter containing intellectual property is sold, unless otherwise provided by law or agreed by the parties, the intellectual property of the subject matter does not belong to the buyer. This provision establishes the "principle of intellectual property reservation," meaning the transfer of ownership of movable property (such as molds, books, or software carriers) does not automatically result in the transfer of the intellectual property (such as copyright or patent right) embedded in that movable property.
This principle distinguishes between the physical attributes of a "thing" and the intangible attributes of "knowledge." A mold is a physical tool for casting a anime statue, whereas the anime statue's design is a work of fine art protected by copyright law. A buyer purchasing or acquiring ownership of a mold only means they have the right to possess and dispose of the mold, but it does not mean they have obtained permission to reproduce or distribute the work of fine art. The legislative purpose is to prevent intellectual property from being unintentionally or maliciously stripped away in commercial circulation and to protect the creators' intellectual achievements.
III. Determination of Intellectual Property Infringement Regarding the Giving Away of Infringing Replicas in the "Buy A Get B Free" Model
The second core legal issue in this case is whether the marketing scheme launched by the OEM and the Buyer constitutes copyright infringement against the S Anime statue as a work of fine art. The crux of this issue lies in how to determine the legal nature of the "promotional gift" behavior and whether this behavior meets the constituent elements of the "right of distribution" under copyright law.
According to the definition given by the Regulation for the Implementation of the Copyright Law of the People's Republic of China, the S Anime statue should be protected by the Copyright Law as a "work of fine art," and reproducing and distributing the anime statue without permission constitutes an infringement of the right of reproduction and the right of distribution. Although the transaction form appears as "buy one get one free," courts apply the principle of "substance over form" to explore its economic substance. If the "gift" acts as a core incentive for consumers and its cost has been internalized in the consideration for the primary product, it should be legally determined as a whole as an act of selling goods rather than a pure donation. Article 10 of the Copyright Law of the People's Republic of China clearly stipulates that the right of distribution is the right to provide the public with the original or reproductions of works by means of selling or donating. Thus, promotional gifts in commercial marketing cannot be exempted from infringement liability simply by being labeled as "gifts."
In past judicial practice, courts have established clear adjudication rules for routines such as "buy a genuine product, get a pirated/infringing product" or "buy a primary product, get an infringing product". The promotional gift behavior constitutes distribution infringement as long as it has a commercial purpose. In a copyright infringement dispute between Company Y and Company Z, the defendant gave course buyers electronic documents for which the plaintiff held the copyright. The court held that providing the work to an unspecified group of consumers via the internet without permission, regardless of whether it was sold for consideration or given away for free, infringed upon the plaintiff's copyright. [1]
Applying the law to the facts of this case, the essence of the "Buy the Caliburn, Get an S Anime statue for Free" marketing strategy is to use the infringing replica as "bait" to promote the sales of the primary product. The value of the S Anime statue has already been internalized into the pricing of the Caliburn. Therefore, this is by no means a pure donation, but a commercial promotional act with a clear profit-making purpose. After acquiring the molds through auction, the Buyer, without permission, utilized the molds to mass-produce the anime statue (infringing the right of reproduction) and delivered it as a gift along with the primary product to unspecified consumers (infringing the right of distribution). Even if labeled as a "gift," the act of providing reproduced copies to the public has been completed, meeting the constituent elements of the right of distribution.
IV. Analysis of Potential Patent Infringement Possibilities
In addition to the copyright issues discussed above, business models in which the Buyer produce anime statues from the molds and offer the replicas as "promotional gifts" may also give rise to the risk of patent infringement.
(I) Infringement Risks of Patents for Inventions and Utility Models
Patent covering the molds. If the Brand Owner holds a granted invention or utility model patent covering the molds, the Buyer's utilization of the molds to produce the anime statues without permission constitutes the "use" of a patented product, an act prohibited under Article 11 of the Patent Law. The Buyer's lawful ownership (real right) of the molds does not by itself exempt the Buyer from patent infringement liability.
Patent covering the anime statue. If the Brand Owner holds a granted invention or utility model patent covering the anime statue, the Buyer's utilization of the molds to mass-produce the anime statues constitutes the "making" of a patented product, an act prohibited under Article 11 of the Patent Law. Subsequently offering the statues to the public through a "buy A get B free" method also involves "offering to sell" and "selling" the patented product. Thus, those acts may constitute direct infringement of the invention or utility model patent.
(II) Infringement Risks of Design Patents
Design patent covering the anime statue. If the Brand Owner holds a granted design patent covering the anime statue, the Buyer's utilization of the molds to mass-produce the anime statues constitutes the "making" of a product incorporating the patented design. Subsequently offering the statues to the public through a "buy A get B free" method also involves "offering to sell" and "selling" such products, acts prohibited under Article 11 of the Patent Law. Thus, those acts may constitute direct infringement of the design patent.
V. Conclusion
In summary, according to the principle of intellectual property reservation, acquiring ownership of a mold is not equivalent to obtaining intellectual property permission for the anime statue. Furthermore, conducting a promotional gift marketing campaign using infringing anime statues produced by the molds as "gifts," although formally attempting to circumvent the characterization of a "sale," is a profit-oriented act of distribution according to the principles of copyright law and the "substance over form" principle. This constitutes an infringement of the copyright of the fine art work, and simultaneously carries a high risk of patent infringement. This case sounds an alarm for market participants: attempting to counter a breach of contract with tortious acts or relying on "free gifts" as a safe harbor will not exempt them from complex legal liabilities and substantial damages.