Tip: If the patent for design has passed the protection period, and there is evidence to prove that it has constituted a well-known packaging and decoration, or it cannot be proved that it is a counterfeit patent for design, but "the operator uses the unique name, packaging and decoration of a well-known commodity without authorization, or uses a name, packaging and decoration similar to that of a well-known commodity, causing confusion with other well-known commodities, so that the buyer mistakenly thinks it is the well-known commodity" damages the application of the anti-unfair competition law.
People's Republic of China (PRC)'s Law on Unfair Competition (1993 12 1) Article 5 An operator shall not engage in market transactions by the following improper means, thus harming competitors: (2) Using the unique name, packaging and decoration of well-known commodities without authorization, or using the name, packaging and decoration similar to those of well-known commodities, so that well-known commodities are comparable to others.
Article 59 of the Patent Law of People's Republic of China (PRC) (2008) shall be subject to the design of the product shown in the picture or photograph, and the design of the product shown in the picture or photograph may be explained by a brief description.
Article 61 Where a patent infringement dispute involves a patent for utility model or a patent for design, the people's court or the administrative department for patent affairs may require the patentee or interested party to issue a patent evaluation report made by the patent administrative department of the State Council after searching, analyzing and evaluating the relevant utility model or design as evidence for hearing and handling the patent infringement dispute.
Article 62 In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it does not constitute patent infringement.
Article 63 Anyone who counterfeits a patent shall bear civil liability according to law, and the administrative department for patent affairs shall order him to make corrections and make a public announcement, confiscate his illegal income, and may concurrently impose a fine of less than four times his illegal income; If there is no illegal income, a fine of less than 200,000 yuan may be imposed; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 64 When the administrative department for patent affairs investigates and deals with the suspected patent counterfeiting according to the obtained evidence, it may request the relevant parties to investigate the situation related to the suspected illegal act; On-site inspection of the places where the parties are suspected of illegal acts; Consult and copy contracts, invoices, account books and other relevant materials related to suspected illegal acts; Inspect products related to suspected illegal acts, and seal up or detain products that are proved to be counterfeit patents.
When the patent administration department exercises the functions and powers prescribed in the preceding paragraph according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct.
Article 65 The amount of compensation for patent infringement shall be determined according to the actual losses suffered by the obligee due to the infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine the compensation of more than 1 10,000 yuan and less than1100,000 yuan according to the type of patent right, the nature and circumstances of the infringement.