Looking at the current situation of legal protection in the field of architectural design, there are few relevant laws, case judgments and theoretical studies, which are still the weakest link in intellectual property rights. Article 3 of China's Copyright Law clearly confirms the copyright of architectural works, but the Trademark Law and the Patent Law do not clearly stipulate this. In view of the fact that the protection method of architectural design works is the premise of protecting rights, it is necessary to analyze the content of rights in architectural design works in depth. At the same time, the current state vigorously advocates innovation, and improving the legal protection of architectural design works is an important guarantee to stimulate innovation, which deserves the attention of society and scholars.
First, the perspective of copyright of architectural design works
Copyright architectural design works should not only have functionality, but also have certain original aesthetic value after human labor. Professor Liu Chuntian pointed out that "although China's current copyright law lists engineering design drawings and product design drawings as protection objects, the scope of protection is limited to' drawings' and does not extend to the project and the product itself", which shows that the architectural works protected by China's judicial practice are built buildings. The practice in the world is quite different from that in China. 197 1 year, the second article of Berne convention clearly stipulates that "architectural design drawings, sketches and model works also belong to architectural works". When talking about the right of reproduction in copyright, Professor Wang Qian also pointed out that the act of building architectural works according to construction drawings is the act of copying copyright. That is, on the basis of the originality of drawings and buildings, there are two kinds of copyrights on architectural design drawings: one is the copyright of the drawings themselves; The second is the copyright of the building referred to in the design drawings.
Some scholars believe that although industrial design drawings and models, as well as buildings and physical products, have different final forms of expression, there is obviously a one-to-one isomorphic relationship between them, which enables drawings, models and physical objects to transform and express each other. They are all the intellectual achievements of industrial designers, and of course they should be equally protected. However, the above conclusion is based on the concept of stealing. In mathematical logic, because A = B and B = C, A=C is an accepted theorem, but it may not be true in legal logic. Indeed, architecture and architectural design drawings are two original expressions of the author's same thoughts and feelings, which constitute a one-to-one correspondence, but they can never be equal, because copyright protects finished works instead of creativity, and creativity and works are separated. When expressed in the form of drawings, copyright protection can only be limited to drawings, because the architectural works have not been completed.
Although the architectural design may eventually become a real architectural work, it is only possible. We can't guarantee that the construction projects built according to the architectural design drawings are exactly the same as those drawn on the drawings. Due to the influence of realistic conditions, we can't guarantee that the works on architectural drawings will be realized in practice, because it is very common to modify design drawings in practice. Secondly, if the architectural design drawings are confused with the building itself, it is easy to attach rights to the drawings for no reason, because the expression of architectural design drawings is abstract after all, and different people have different understandings, which makes the examination of the copyright of architectural design drawings a matter of different opinions, which is extremely risky for protecting the rights of the authors of architectural design drawings, and it will not be confused to examine the originality and aesthetic value of a design drawing in two aspects. In addition, from the perspective of public interest, if the author only creates architectural design drawings and publishes them, but never really uses them in construction, if we still protect them, it will form a monopoly, restrict the competition of others, and the reasonable interests will not be utilized, which is a waste of resources and a kind of damage to the whole society.
Second, architectural design works from the perspective of trademark law
200 1 China's trademark law stipulates that three-dimensional marks can be used as the visibility marks of trademarks, so is it possible to realize them in architectural design works? As a symbol of goods or services, an important function of a trademark is the recognition function. If architectural design works can be distinguished from other architectural design works, they can apply for trademark. As early as 1937, the Sixth Circuit Court pointed out in the case of WhiteTowerSystem, Inc Company (Inc) v. White Castles System of Eating Houses Corp. that it was a trademark infringement for the defendant to take advantage of the goodwill of other people's trademarks in order to get a lift from the plaintiff.
Many buildings in the United States are registered as trademarks, such as McDonald's Tower, Citigroup Tower, Rockefeller Plaza, Empire State Building and so on. , but they are all registered as service trademarks. Is it feasible to register architectural design works as commodity trademarks? According to the Trial Standards for Trademark Examination newly issued on 20 17, the salience examination of a three-dimensional trademark includes the three-dimensional shape of the commodity itself. The chocolate with "groove" produced by Cadbury company in France is the first case of taking the three-dimensional shape of the product itself as a three-dimensional trademark. China court also awarded a three-dimensional trademark to a lighter owned by Zippo Company (see figure 1). In the case of Emerson Electric Company's "Clover" three-dimensional trademark, the Beijing Higher People's Court stated that "trademarks and products completely overlap, although in principle they do not have obvious characteristics that can be registered as trademarks, except those that can be proved.
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