Hello! Let me tell you a case about appearance patent infringement (selected from a case narrated by Ms. Jiang Ying, deputy director of the Intellectual Property Division of Beijing No. 1 Intermediate People's Court.)
Beijing Mr. Li California Beef Noodles Co., Ltd. The company (referred to as Mr. Li's company) was established in 1996 and is mainly engaged in the beef noodle business. Since 2008, several design patents for tableware products have been submitted to the State Intellectual Property Office. In September 2009, Mr. Li's company accidentally discovered that the Beijing Zhiruixiang American California Beef Noodles Restaurant Chain Co., Ltd. (Zhiruixiang Company) was also engaged in the beef noodle business, and also used the same tableware patented by Mr. Li's company in its business premises. So Mr. Li's company took Zhiruixiang Company to court for infringement of design patent rights.
Since the origin of the case is these tableware, let’s first analyze why Mr. Li’s company obtained the appearance patent right?
For design patents, it does not require advanced technology or solving major technical problems. It only requires a novel and aesthetically pleasing design of an industrial product. But this kind of industrial design must be different from the designs that have existed before. This difference does not only mean that they are not the same, but that the difference must be sufficiently differentiated that we can distinguish the two at first glance.
Mr. Li’s tableware is obviously different from the tableware we come into contact with every day. They are either designed with unique parts or shapes, which not only distinguish them from daily tableware, but also enrich the Our vision and life should be encouraged and protected by the law.
Comparing the tableware from Mr. Li's company and Zhiruixiang's company, we found that there is not much difference in shape, size, style or color, front or back, they are almost exactly the same. Although there are slight local differences, they will not affect the visual effect of plate arrangement. For consumers, they will not be able to distinguish the difference between the two just at first glance.
After receiving the complaint, Zhiruixiang Company stated that the tableware it used was not imitation and produced by itself, nor was it deliberately custom-made to have similar tableware, but purchased it from a supplier in Fujian. , and took out a copy of the "Purchase and Sales Contract" to prove that he purchased it through legal channels. At the same time, he further pointed out that even if the two sets of tableware are similar, he made an unintentional mistake. The so-called ignorant person is not guilty and should not compensate for economic losses and bear tort liability. At the same time, he further pointed out that even if the two tablewares are similar, he made an unintentional mistake and should not be compensated for economic losses and tort liability.
my country’s patent system adopts the principle of inference as to whether the defendant knows the plaintiff’s patent. In other words, as long as the infringing product enters the scope of patent protection, it is presumed that the defendant knows or should know about the plaintiff. In fact, whether he knows Regardless, this is what makes the patent system special. Once a patent application is filed, it is required to be disclosed to the public and widely informed. Anyone may or has channels to know the specific circumstances of the patent, including patent plans, design pictures, etc. Only by disclosing the technology can the patentee obtain legal exclusive protection for 10 or 20 years. Once the patent rights expire, everyone can use it freely. However, the disclosure of patent information is not a free contribution, so everyone has the responsibility to avoid causing damage to other people's patents, otherwise they will bear legal liability. Therefore, those who do not know are not guilty and cannot be applied to this patent system.
Article 11 of the Patent Law stipulates, “After a design patent right is granted, no unit or individual may exploit the patent without the permission of the patentee, nor may it manufacture or sell products for production and business purposes. Promise to sell, sell, and import its design products.” In other words, the design patent does not prohibit others from using the design patent, but is allowed to use it.
In the case of Zhiruixiang Company, it is used for production and operation. Although it is not manufacturing or importing, in fact, Zhiruixiang Company packages the tableware in the hardware equipment fee in the name of franchise fee, together with other Providing hardware equipment to franchisees is regarded as the act of selling tableware; and on the background of the website produced that year, dishes set off by various tableware are displayed, with the purpose of attracting franchisees and collecting franchise fees, so the behavior of web page display constitutes a promise to sell.
But even so, Zhiruixiang Company does not necessarily have to compensate Mr. Li’s company for its economic losses. Because according to Article 70 of the Patent Law, “If you use, offer for sale or sell for production and business purposes a patent-infringing product that is not known to have been made and sold by the patentee, and you can prove the legal origin of the product, you will not be liable for compensation. "Zhiruixiang Company believes that the copy of the "Purchase and Sales Contract" provided can prove that it purchased it through formal channels, and it does not need to bear financial compensation. If we are held accountable, we will also hold the suppliers and vendors in Fujian accountable.
The judge held that the "Purchase and Sales Contract" had three fatal flaws.
First, there is a lack of originals. Evidence that can be recognized by the court must meet the authenticity requirements. Therefore, all written evidence materials provided must be originals, and copies are easy to modify and forge. Naturally, the court It is difficult to determine its authenticity based on a copy;
Second, the time is wrong, that is, when the purchase and sale contract was signed, the company was not even established, so how could the company's official seal appear on the contract?
Third, there is no evidence of performance. The purpose of the contract is to perform. In commercial activities, the evidence that can prove the contract has been fulfilled is the invoices and receipts. However, Zhiruixiang Company also did not submit proof of the fulfillment of the contract.
The court ruled:
Taking into account the above three major factors, the court did not support Zhiruixiang Company’s claim that the tableware had a legal source, and determined that Zhiruixiang Company’s behavior constituted an infringement on Mr. Li’s company. For the infringement of the design patent, Zhiruixiang Company was ordered to stop the infringement, and after comprehensive consideration of the actual value of the tableware, the time that Zhiruixiang Company continued to sell the infringing tableware, the possible economic losses to Mr. Li’s company and other factors, the judgment was made to Zhiruixiang Company. Ruixiang Company compensated Mr. Li’s company for economic losses of 22,000 yuan.
I hope the above is helpful to you! Please adopt!