Determination of appearance infringement:
1. Where a design identical with or similar to an authorized design is used on a product identical with or similar to the design, it shall be deemed that the alleged infringing design belongs to the protection scope of the design patent.
2. When judging the design infringement, the pictures or photos indicating the design in the authorization announcement should be compared with those of the accused infringing design or the accused infringing design, instead of comparing the patented product of the design submitted by the patentee with the accused infringing design. However, the physical object of the patented product is completely consistent with the design product shown in the pictures or photographs in the patent announcement documents, or is completely consistent with the samples or models submitted by the patentee at the request of the patent administrative department of the State Council for a clearer understanding of the contents of the pictures or photographs in the patent application procedure, unless all parties have no objection.
3. When judging the infringement of design, we should observe and compare it directly through the vision of ordinary consumers, not through magnifying glasses, microscopes and other tools. However, if the product design shown in the picture or photo is enlarged when applying for a patent, the accused infringing product should also be enlarged and compared in the infringement comparison.
4. To judge the design infringement, we should first examine whether the accused infringing product and the design product belong to the same or similar products.
5. Whether the product types are the same or similar should be determined according to the purpose (use purpose and use state) of the designed product.
When determining the use of a product, it can be comprehensively determined by referring to relevant factors in the following order: brief description of design, international design classification table, product function, product sales, actual use and other factors.
If the purpose (purpose and use status) of the design product and the accused infringing design product are different, the design product and the accused infringing product do not belong to the same or similar products.
6, to determine whether the infringement of the patent right of design, should be based on whether it is the same as or similar to the standard, rather than whether it constitutes a general consumer confusion, mistaken for the standard.
7. Whether the designs are the same or similar should be judged by the knowledge level and cognitive ability of ordinary consumers on the patented products of design, rather than by the observation ability of ordinary designers on the technical fields to which the patents of design belong.
8. The average consumer is a hypothetical "person" and should be defined from two aspects: knowledge level and cognitive ability.
The knowledge level of ordinary consumers means that they usually have a common sense understanding of the design of the same or similar products and their common design technology before the application date of the design patent.
The cognitive ability of the average consumer means that he usually has a certain resolution on the differences in shape, pattern and color of the designed products, but he will not notice the subtle changes in shape, pattern and color of the products.
When defining the knowledge level and cognitive ability of general consumers of design products, we should consider the design and development process of the design products before the application date for specific design products.
9. When judging whether the designs are the same or similar, the designer's subjective view should not be taken as the standard, but the visual effect of ordinary consumers should be taken as the standard.
10. The principle of judging whether the designs are the same or similar is overall observation and comprehensive judgment, that is, all the design features of the authorized design and the visual part of the accused infringing design should be observed, and all factors that can affect the overall visual effect of the product design should be comprehensively considered before making a judgment.