The design patent mainly aims at the design of industrial products, and mainly protects the color, pattern and shape design of industrial products. On the other hand, copyright tends to protect the original and reproducible intellectual achievements in the fields of literature, art and science. Both of them are reproducible intellectual achievements, and the product packaging or appearance overlaps with copyright to some extent because it involves the creation of aesthetic feeling (especially the design and conception of patterns).
2. Differences in the content of rights
Appearance patent is mainly composed of property rights, including the right to exploit, the right to license others to exploit and the right to transfer, which is relatively simple. Copyright consists of personal rights and property rights. The author's personal rights (moral rights) include the right to publish, the right to sign, the right to modify and the right to protect the integrity of the work. These rights are non-transferable and permanent. Different from patents, the property rights of copyright include the right to use, the right to license, the right to transfer and the right to receive remuneration. Because works have the characteristics of communication, copyright has the right to copy, distribute, rent, exhibit, show, play, network communication, film production, adaptation, translation and assembly.
3, the premise difference of protecting rights
According to the patent law, the patent right must have the characteristics of "not belonging to the existing design, but obviously different from the existing design or the combination of existing design features". Therefore, the product design patent must be unique and original. Copyright is automatically generated after the work is completed. As long as the work is original (whether published or not, or whether it is similar to the published work), the corresponding copyright can be obtained.
4. The right to protection is obtained in different ways.
If the product design wants to be protected, it must apply to the State Patent Office, and after a certain examination procedure, it can obtain the corresponding patent certificate. After the work is completed, the copyright is automatically obtained without corresponding review. It should be noted that copyright and copyright certificate are completely different. In order to obtain the actual purpose of safeguarding rights, it is still necessary to apply to the National Copyright Center and obtain a work registration certificate.
5, the difference between protected areas
Patents follow the principle of regional protection. The appearance patent applied in China can only be protected in Chinese mainland (excluding Hong Kong, Macao and Taiwan and foreign countries). If you want to get protection from Hong Kong, Macao and Taiwan and abroad, you must apply in the corresponding areas. After the completion of the work, the copyright is automatically obtained, and the protection of the corresponding area can be obtained without going through the corresponding procedures. In addition, China has acceded to the Berne Convention for the Protection of Literary and Artistic Works, so China's copyright can be protected in all signatory countries of the Convention.
6, the protection period is different
The protection period of China appearance patent is 10 year from the date of filing. Copyright is much longer, and the term is the author's life, plus 50 years after his death; The term of partial protection of copyright property rights of legal person works and job works is 50 years.
Copyright Law Article 1 This Law is formulated in accordance with the Constitution for the purpose of protecting the copyright of authors of literary, artistic and scientific works and their rights and interests related to copyright, encouraging the creation and dissemination of works beneficial to the construction of socialist spiritual civilization and material civilization, and promoting the development and prosperity of socialist culture and science.
Article 2 Works of China citizens, legal persons or other organizations, whether published or not, shall enjoy copyright in accordance with this Law.
The copyright enjoyed by the works of foreigners and stateless persons in accordance with the agreement signed between the country to which the author belongs or the country of habitual residence and China or the international treaties to which * * * is a party shall be protected by this Law.
Works of foreigners and stateless persons first published in China shall enjoy copyright in accordance with this Law.
The works of authors and stateless persons from countries that have not signed agreements with China or participated in international treaties are first published in the member countries of international treaties to which China is a party, or published in both member countries and non-member countries at the same time, and are protected by this Law.
Patent Law Article 1 This Law is formulated for the purpose of protecting the legitimate rights and interests of patentees, encouraging inventions and creations, promoting the application of inventions and creations, enhancing innovation ability, and promoting scientific and technological progress and economic and social development.
Article 2 Inventions and creations mentioned in this Law refer to inventions, utility models and designs.
Invention refers to a new technical scheme proposed for a product, method or its improvement.
Utility model refers to a new practical technical scheme for the shape, structure or combination of products.
Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application, which is made on the shape, pattern or their combination of products and all or part of the combination of colors, shapes and patterns.
Article 3 The patent administrative department of the State Council is responsible for the management of patent work throughout the country; Accept and examine patent applications in a unified manner and grant patent rights according to law.
The departments for patent administration under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for patent administration within their respective administrative areas.