How to determine appearance patent infringement? What are the determination methods?
A design patent refers to a new design of a product’s shape, pattern, color or their combination that is aesthetically pleasing and suitable for industrial application. So what should we do when we encounter appearance patent infringement? First of all, we need to understand how to determine appearance patent infringement? What are the determination methods? Let’s introduce it to you below. How to determine design patent infringement? What are the determination methods? Determination method one: Judgment with the naked eye whether the accused infringing product is the same or similar to the design patent product. The judgment should be based on whether ordinary consumers will be confused when observing with the naked eye. Parts that cannot be observed visually cannot be analyzed and compared with the help of instruments or chemical means. When observing, the similarities and differences in easily visible parts of the product should be used as the basis for judgment. Judgment method two: direct comparison. When making a specific judgment, the design patent product and the accused infringing product should first be placed separately, and there must be a certain interval in time and space during observation. This method of isolated observation can make the trial People have an intuitive feeling about the two products, which is the first impression. Secondly, the two products are placed together, and the judges conduct a direct comparative analysis of the appearance designs of the two products to describe the similarities and differences between the two products, elevate the perceptual understanding to rational understanding, and finally conclude whether the two products are the same or not. Similar conclusions. Judgment method three: overall observation and comprehensive judgment. Make a comprehensive judgment on the main components and innovation points of the appearance designs of the two products. The comparison method is similar to the trademark similarity judgment method. Currently, the more accepted approach is to focus on the essential parts of the comparison to see whether the alleged infringing product has plagiarized or imitated the original part of the right holder. For the alleged infringing product to constitute infringement, two conditions must be met: First, the alleged infringing product contains the original part of the design patent (i.e., the innovation point). Second, the alleged infringing product is generally the same as or similar to the design patented product. How to determine appearance patent infringement? What are the determination methods? We have answered this question for you here. If you have more questions about patents, you can continue to pay attention to Bajie Intellectual Property, or contact us by phone. How to check whether a picture is infringing?
Picture infringement generally involves the copyright of the picture, the graphic registration of the trademark, and the application for a design patent.
To check whether a picture is infringing, you need to check whether the copyright of the graphic itself has been registered. Copyright is automatically generated at the beginning of the design and is not announced to the public. It is difficult to check, even if the original author does not register the copyright. It is also difficult to prove the source when registering. From another perspective, you can imagine it yourself.
But trademarks are announced to the public, and this can be checked. As far as trademarks are concerned, it is easy to judge whether they infringe on the rights of others.
As for the search for appearance patents, only the patent number can be found.
Extended information:
Specific compensation standards for image infringement:
In the event of image infringement, the compensation standards should be determined in the order of the following factors.
1. The actual loss of the picture right holder or the actual amount of infringement by the picture infringer;
Picture infringement should first consider the actual loss, that is, the actual loss of the picture right holder or the picture infringer Actual losses caused to the right holder due to infringement.
2. Illegal profits of the infringer of the picture;
If the actual loss of the right holder cannot be estimated, the compensation standard can also be estimated based on the illegal profits of the infringer of the picture. .
3. When none of the above can be determined, the court will make a decision based on the specific details.
When neither the actual loss of the right holder nor the illegal profit of the infringer can be estimated, the court will analyze the specific situation based on the evidence submitted by both parties, and finally determine the amount of compensation based on the actual situation.
Reference materials:
-How to determine appearance patent infringement
Legal analysis: 1. To determine design infringement, the authorization announcement should be used to indicate the Compare the pictures or photos of the design with the alleged infringing design, or the pictures or photos that reflect the alleged infringing design.
Legal basis: Article 56 of the "Patent Law of the People's Republic of China" In practice, the determination of design patent infringement generally takes the following three steps: 1. Determine the design patent right scope of protection.
According to the provisions of Article 56, Paragraph 2 of the Patent Law, the scope of protection shall be based on the patented design product shown in pictures or photos. 2. Determine whether the design patent product and the infringing product are the same or similar products. Usually, the function and use of the product are used as the standard, and the classification of relevant goods is referred to the International Design Classification Table. If the design patented product is different in function and use from the product accused of infringement, it can be determined that the two are neither the same goods nor similar goods, and therefore the patent infringement is not established.