Industrial design refers to the new design of the shape, pattern, color or their combination of products, which is aesthetic and suitable for industrial application.
Visible, the design patent shall meet the following requirements:
(1) must be designed for product appearance;
(2) refers to the design of shape, pattern, color or their combination;
(3) must be suitable for industrial applications:
(4) It must be aesthetic. The expression of the protection idea of copyright law. Concepts include aesthetic concepts, and the forms of expression include shapes, patterns, colors and their combinations. Therefore, when an aesthetic design consisting of patterns, shapes and colors constitutes a work, it can be protected by copyright law. Obviously, design has the characteristics of both patent right and copyright. In this way, copyright law and patent law overlap in the protection of designs. It is for this reason that Britain, Germany and other countries have formulated special design registration laws or industrial copyright laws, and adopted a protection method with the characteristics of both patent law and copyright law. Conceptually, the patent law protects the aesthetic design with industrial practicability, while the copyright law protects the works in the form of shapes, patterns and colors. The two seem to be distinguishable. However, when it comes to practical works of art, it is difficult to distinguish between designs protected by patent law and works protected by copyright law. Practical art contains two concepts. One is practical, and the other is the artistic aspect of practical. Among them, the copyright law protects the artistic aspects of practical goods, but does not protect practical goods or their inherent functions and practical functions. Regarding practical products, the definition in Article 10 1 of the US Copyright Law says: "Practical products refer to articles with intrinsic practical functions, and their intrinsic practical functions are not only to describe the appearance of articles or convey information. If an item is part of a utility, it should usually be regarded as a utility. " The artistic aspect of practical goods is the shape, pattern, color and artistic design of practical goods, which can be graphics, sculpture and sculpture. From this perspective, there is no essential difference between the design of products and the artistic aspects of practical products.
In the protection of practical works of art, American copyright law and judicial practice have been trying to draw a clear line between the artistry of practical works protected by copyright law and the design protected by patent law. As far as the object of protection is concerned, article 102 of the US Copyright Law lists graphics, sculptures and sculpture works. According to Article 10 1 of the US Copyright Law, graphic and sculpture works include two-dimensional and three-dimensional practical works of art. Regarding the protection of practical works of art, Article10/explains: "Such works should include arts and crafts, but only involve the appearance of arts and crafts, not its mechanical or practical aspects; When the graphic, sculpture or sculpture features of a practical article can be separated from the practical aspects of the article, the design of the practical article (defined in this article) can exist independently of the practical aspects of the article, and only to this extent should the design be regarded as a graphic, sculpture or sculpture. " This is the famous principle of "separation characteristics, independent existence". The design is protected by the patent law and the trademark is protected by the trademark law. There seems to be no overlap between the two. But in fact, there are some differences between design and trademark. A design consists of shapes, patterns, colors or their combinations, and a trademark consists of words, patterns, shapes or their combinations. At least, both have elements such as shapes and patterns. Since the main function of a trademark is to distinguish the goods of different producers and operators and indicate the source of the goods, and since there are similarities in the composition between design and trademark, when the design of a product is also recognizable and indicative, it should be protected by the trademark law. In American judicial practice, commodity trademarks are divided into four categories. As far as identifiability and protectability are concerned, these four types of trademarks are in order from strong to weak: arbitrary or singular trademarks; Indicative signs generally indicate the source and characteristics of goods in the form of words or a combination of words and graphics; Descriptive signs, including surnames and geographical indications, can only be protected if they are recognizable in the market, that is, they have a "second meaning"; Universal logo, unrecognizable, therefore unprotected.
In the protection of trademark rights of designs, the United States is the first country to determine whether the relevant designs are inherently identifiable. If a design is inherently recognizable, it is equivalent to the above-mentioned "arbitrariness or oneness mark", and its users can directly apply for trademark registration or request the protection of trademark rights. However, designs with internal logos are rare. If a design itself is not recognizable, it is equivalent to the "descriptive mark" mentioned above. When seeking trademark registration or trademark protection, its users must prove that the design has acquired a second meaning in the market and can show consumers the source of the goods. Because most designs are not recognizable, it is very important to prove that the relevant designs have obtained a second meaning in the market in the protection of trademark rights of designs. Although recognizable three-dimensional design is not protected by trademark law, it can be protected by unfair competition. According to Article 5 of 1993 Anti-Unfair Competition Law, it is an act of unfair competition prohibited by law to use the unique name, packaging and decoration of well-known goods without authorization, or to use the name, packaging and decoration similar to well-known goods, which causes confusion with other people's well-known goods and makes buyers mistake them for well-known goods. Among them, "commodity decoration" includes the content of commodity (product) design, including plane and three-dimensional design. This can be further explained. 1995 On July 6, the State Administration for Industry and Commerce issued "Several Provisions on Prohibiting Unfair Competition Acts such as Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities". Article 3 says: "Horizontal arrangement as mentioned in these Provisions refers to characters, patterns, colors and their arrangement and combination attached to commodities or their packages for the purpose of identifying and beautifying commodities." Patterns, colors and their arrangement and combination attached to commodities shall include plane and three-dimensional product (commodity) design. In this way, whether it is a plane or a three-dimensional design, as long as it is recognizable, it can be protected by unfair competition.
The United States also uses anti-unfair competition law to protect identifiable designs. Article 43 1 of the United States Federal Trademark Law is a very extensive clause to stop unfair competition, including prohibiting false sources and false representations of goods or services and prohibiting false advertisements. Literally, although the protection objects listed in Article 43 1 include "words, terms, surnames, symbols, designs or the combination of the above", the product design is not explicitly listed. However, since the "Truck" case of the Eighth Circuit Court in 1976, Article 43 1 of the Federal Trademark Law has been interpreted as also protecting trade dress. At first, the appearance of goods only refers to the packaging of products, but it was quickly interpreted as including the appearance and decoration of products.
The design protected by the anti-unfair competition law must be an identifiable design with the second meaning, that is, it can show consumers the source of the goods. According to Article 5 of China's Anti-Unfair Competition Law, the law protects the unique decoration (including design) of well-known commodities, and prohibits others from using the same or similar designs as those of well-known commodities, which shows that the protected designs are recognizable designs. Otherwise, others will not imitate. In the Provisions of the State Administration for Industry and Commerce on Prohibiting Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities, Article 3 also stipulates: "Unique as mentioned in these Provisions means that the name, packaging and decoration of commodities are not shared with related commodities and have obvious distinguishing features." This also shows that the protected design must have distinctive features.