Design patents and trademarks are protected by patent law and trademark law respectively. There are significant legal differences between design patents and trademarks, mainly in the following aspects:
First, different ideas. Design patent is a new design with aesthetic feeling and suitable for industrial application, focusing on the shape, pattern, color or their combination of products. It emphasizes that this decorative or artistic design must be applied to specific products, and the most basic and important condition of design patent is creativity and novelty. Trademark refers to the combination of words, graphics, letters, numbers, three-dimensional signs and colors or the combination of the above elements. A trademark is a specific logo pattern that distinguishes products. It doesn't involve the shape and structure of the product itself, but it is mainly written and distinctive, which is not necessarily beautiful, but it must be that there is no prior registered trademark on the same or similar goods or services.
Second, the procedures are different. Design patents are not subject to substantive examination. If others present evidence of public use earlier than the patent at the time of patent application or after being granted the patent right, the design patent will be declared invalid or revoked. The registered trademark must pass the substantive examination, and the exclusive right and exclusive right can only be obtained after the objection period. The examination procedure is very strict.
Third, the protection period is different. The term of validity of a design patent is 10 years from the date of application and cannot be renewed. The period of validity of a registered trademark is 10 years, counting from the date of approval of registration. Where it is necessary to continue to use a registered trademark after its expiration, it shall apply for renewal of registration within 6 months before its expiration; If no application is made during this period, a grace period of six months can be given. Where an application has not been filed at the expiration of the grace period, its registered trademark shall be cancelled. The validity period of each renewal registration is 10 year.
Fourth, the scope of protection is different, and the scope of protection of design patents is narrow. The scope of protection of the design patent right is based on the design product shown in pictures or photographs. The scope of trademark protection is relatively wide, including not only the goods or services approved for use, but also the use of the same or similar trademarks on the same or similar goods.
Fifth, the conditions of legal protection are different. The patent for design does not need to be examined in substance, but it must be applied to the state patent administration authority. If no reason for rejection is found after preliminary examination, the patent office can grant the patent for design. It usually takes several months to approve an application for a patent for design. For trademarks, an application for trademark registration must be filed with the State Trademark Office, which will approve the registration. Only the trademark owner can enjoy exclusive rights.