The criterion for determining whether it constitutes infringement of a design patent is whether the design of the alleged infringing product is the same as or similar to the patented design that has been applied for. The sameness or similarity mentioned here should mainly refer to the sameness or similarity in visual and aesthetic sense.
Whether the design of the product is identical or similar to the design of the allegedly infringing product, the two should be compared:
(1) If the shape or pattern of the two If the main design parts (essential parts) are the same, the two shall be considered to be the same design;
(2) If the main design parts (essential parts) of the constituent elements are the same or similar, the minor If the parts are not the same, they should be considered to be similar designs;
(3) If the main design parts (essential parts) of the two are not the same or similar, they should be considered to be different or similar. They are not similar in appearance design.