Whether the use of design patterns is infringing
Whether the use of a design pattern is infringing depends on whether the other party has registered a patent. Analyze on a case-by-case basis.
my country's copyright law implements the principle of automatic protection for works. The works of Chinese citizens, legal persons or other organizations, regardless of whether they are published or not, do not require application or registration, and all enjoy copyright in accordance with the law. Except for the special circumstances stipulated in the Copyright Law, when using other people's works, a license contract must be concluded with the copyright owner and corresponding remuneration must be paid.
Patents are granted in accordance with the provisions of the Patent Law A copyrighted design shall not conflict with the previously acquired legal rights of others. The above-mentioned "previously acquired legal rights" include copyrights protected by law. Therefore, you cannot apply for a design patent using someone else's copyrighted work without the permission of the copyright owner.
How to determine design patent infringement
Determination of design essentials
The essential part of the design is the main aesthetic part of the design patent that is uniquely created by the designer, that is, the innovative point of the design patent that is accomplished by the designer through creative labor. When comparing the designs of products accused of infringement and patented products, the currently accepted approach is to focus on the essential parts of the comparison to see whether the product accused of infringement has plagiarized or imitated the original parts of the right holder. Identity or similarity in essential parts is a necessary condition for an identical or similar design. Designs that are not identical or similar in essential parts are different or similar designs and do not constitute infringement.
In the patent application stage, most applications The person did not clearly point out the essential parts; during the granting stage of rights, the examiners only focused on the overall effect of the design; in the authorization announcement, the patent administration department of the State Council did not clearly identify the essential parts of the patent. However, the essential parts, as integral parts of the overall appearance, although scattered, can usually be represented in the views of the patent publication.
The important part of the appearance design is the most arousing part of the product. The main visual part that ordinary buyers and users observe and pay attention to. In practice, the method of confirming important parts is not consistent. Some use the method of direct statement by the right holder, and some use the method of the right holder and the alleged infringer making statements and cross-examination, and then the court determines the method. No matter which method is used, it is the basic principle to determine the key points that the right holder's design contains innovative design content that can attract consumers' attention.
Judgment of identical or similar designs
In practice, it is not difficult to identify the same design. As long as the design of the accused infringing product is compared with the design of the patented product, if the shape, pattern, color and combination of the two are If all the elements are the same, it is the same design. What is more difficult is the identification of similar designs.
Similar design means that the shape, pattern, color and combination of the alleged infringing product and the patented product are basically the same, and some of the minor differences are not enough to attract ordinary consumers. This attention makes ordinary consumers confuse the two products and mistakenly think that one is the other. When judging similar designs, the design essential comparison method is commonly used.
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