The above-mentioned general consumers refer to those who buy and use patented products of design. In general, the meaning of "consumer" in the Consumer Protection Law is the same. However, for unusual consumer goods, such as building materials, machine parts, power tools, etc. Ordinary consumers are not their buyers and do not have the general knowledge and cognitive ability of such goods. Therefore, the subject who can make the same or similar comparison should be the specific consumer group of this kind of goods, that is, the people who sell, buy, install and use this kind of goods.
Taking ordinary consumers as the main body of infringement judgment does not require the people's court to pursue the opinions of real consumers when trying disputes over patent infringement of design, but requires the judge to put his position on the level of ordinary consumers when judging, to know and perceive the similarities and differences of comparison objects, and to judge whether the designs are the same or similar. Generally, the following methods are adopted:
1, visual observation.
To judge whether the accused infringing product is the same as or similar to the patented product of design, it is necessary to judge whether ordinary consumers will be confused when observing with the naked eye, and it is impossible to analyze and compare the parts that cannot be observed with the naked eye by instruments or chemical means. Observation should be based on the similarity and difference of the easily visible parts of the product.
2. Observe in isolation and compare directly.
When making a specific judgment, we should first separate the patented product of design from the product accused of infringement, and there should be a certain interval in time and space when observing it. This isolated observation method can make the judges have an intuitive feeling about the two products, which is the first impression. Secondly, put the two products together, and the judges will directly compare and analyze the designs of the two products, so as to describe their similarities and differences, upgrade perceptual knowledge to rational knowledge, and finally draw a conclusion whether they are the same or similar.
3. Overall observation and comprehensive judgment.
To judge whether the appearance design of the accused infringing product is the same as or similar to that of the patented product, we should not only start from the local design, or separate the various parts of the appearance design, but also start from the whole, observe all its elements as a whole, and make a comprehensive judgment on the main components and innovations of the appearance design of the two products on the basis of the overall observation.
Accused of infringing products constitute infringement must meet two conditions:
First, the accused infringing product contains originality (i.e. innovation) of the design patent; second, the accused infringing product is identical or similar to the design patent product as a whole. The key part of design is the main part of design patents created by designers, that is, the innovation of design patents completed by designers through creative labor. When comparing the design of the accused infringing product with the design of the patented product, it is more acceptable to focus on the Ministry to see if the accused infringing product plagiarizes or imitates the original part of the obligee. The same or similar design is a necessary condition to constitute the same or similar design. Different and dissimilar designs are different and dissimilar designs and do not constitute infringement.
In the application stage of patent right, most applicants did not clearly point out its main part; In the right granting stage, the examiner only pays attention to the overall effect of the design; In the authorization announcement, the patent administrative department of the State Council will not clearly distinguish which are the important parts of the patent. But as a part of the overall appearance, although scattered, it can usually be displayed in the view of patent announcement.
The important part of design is the main visual part that can attract the observation and attention of ordinary buyers and users. In practice, the practice of confirming important departments is inconsistent, some take the form of direct statement by the obligee, and some take the form of statement and cross-examination by the obligee and the accused infringer, which is confirmed by the court. No matter which method is adopted, it is the basic principle to determine that the innovative design content of the right holder can attract the attention of consumers. 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 all the elements such as shape, pattern, color and their combination are the same, it is the same design. It is more difficult to identify similar designs.
The similarity of appearance design seems to mean that the shape, pattern, color and their combination of the accused infringing product and the patented product are basically the same, and some subtle differences are not enough to attract the attention of ordinary consumers, so that ordinary consumers confuse and mistake the two products. When judging similar designs, the comparison method of design elements is widely used. According to the third paragraph of Article 2 of the Implementing Rules of the Patent Law, appearance design includes shape design, pattern design, combination of shape design and color design, combination of shape design and color design, and combination of shape design and color design.
There are three elements that make up a design, namely, the shape, pattern and color of the patented product. Among the three elements, shape and pattern are the basis, and color is attached to it. The color separated from the shape and pattern can not be used as a design scheme for patent protection of design in China's current patent law. In this sense, color protection is subordinate.
In view of this, when comparing the design of the two products, it is generally carried out in the order of shape, pattern and color. When judging whether the design composed of shapes, pictures and colors is the same or similar, we must first judge whether the shapes are the same or similar. If the shapes are different and similar, it can be concluded that the designs are different and similar, and there is no need to compare patterns and colors. If the shapes are the same or similar, but they belong to the known prior designs, it should be further judged whether the patterns are the same or similar, and whether the patterns are different, so that the appearance designs are different or not, and color comparison is not necessary; If the patterns are the same or similar, but belong to the known prior designs, it is judged whether the colors are the same or similar. If the colors are not the same or similar, they do not constitute the same or similar design, but the colors are the same or similar. Among the three elements, shape is the most important, and comparative shape should be the main one in infringement judgment. If the appearance and shape of the product are initiated by the patentee, and the accused infringing product uses the shape and adds patterns, then no matter what patterns are added to the accused infringing product, it shall be deemed as infringement. What are the ways to slow down the patent fees for service inventions and non-service inventions? What are the types of patent fee slowdown? What patent fees should be postponed? What are the procedures for holdover of patent fees?
Patent for utility model: refers to a new technical scheme suitable for practical use for the shape, structure or combination of products. The structure, shape or combination of structure and shape of any product shall apply for a patent for utility model. The protection period is 10 year.
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How to judge the practicality of an invention or utility model, how to judge the creativity of an invention or utility model, and how to judge the novel design patent of an invention or utility model: it refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or their combination of products. The emphasis here is on appearance, which is appearance. For example, handicrafts, packaging boxes, packaging bags and packaging boxes are all designs. The protection period is 10 year.
Classification table of appearance design
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