1. How to determine design patent infringement?
In practice, the determination of design patent infringement generally takes the following three steps:
1. Determine the scope of protection of the design. According to the second paragraph of Article 56 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 in the International Design Classification Table (i.e. the Locarno Treaty) is referred to. If the design patented product and the product accused of infringement are identical in function and use, it can be determined that they are the same or similar goods. If the two products are not identical in terms of functions and uses, it can be determined that they are neither the same product nor similar products, and therefore patent infringement is not established.
3. Compare the design of the patented product with the alleged infringing product to determine whether they are identical or similar. Identical design means that the shapes, patterns, colors and combinations of the products constituting the design are completely consistent; similar design means that the use of the design is likely to cause confusion and make people mistakenly believe that the product using the design is a patented product. This judgment is usually made from the perspective of an ordinary consumer, by observing the key parts of the patented design and the design of the product accused of infringement, and making an overall judgment. Determine whether it constitutes the same infringement, equivalent infringement or no infringement based on the comparison results.
To determine whether two or more are similar, you must first compare them by category. Only similar products can be compared with each other. The categories mentioned here refer to the subcategories in the "International Design Classification Table".
Second, treat them differently according to their shapes. For example, three-dimensional shapes such as tape recorders, televisions, and transportation vehicles should be based on shape, supplemented by patterns and colors; carpets, wallpapers, floral fabrics, etc. should be based on patterns and supplemented by shapes; color differences are generally not considered alone. Determine approximate conditions.
Third, when making approximate color judgments, it is necessary to observe the aesthetic effect produced by the combination of color and shape, the coordination of color and pattern, etc. on the overall product. For example, combined toys have different shapes and are not similar even if the colors are the same.
Fourthly, product size, material differences, functional differences, etc. are not the conditions for judging whether the appearance design is similar.
In short, the basic method to judge whether it is similar is: according to different products, within the subcategory of appearance design products, focusing on the shape, based on the pattern, and observing the overall product in combination with the color. Fish claw patent application answers for you.