In practice, the identification of design patent infringement generally requires the following three steps:
1, to determine the protection scope of the design. According to the second paragraph of Article 56 of the Patent Law, the scope of protection shall be subject to the patented product of design shown in pictures or photographs.
2. Determine whether the patented product of design and the infringing product belong to the same or similar products. It is usually based on the function and use of the product, and at the same time, it refers to the commodity classification in the International Classification of Designs (namely the Locarno Treaty). Where a patented product of design has the same function and use as the product accused of infringement, it can be identified as the same or similar commodity. If they are different in function and use, it can be concluded that they are neither the same commodity nor similar commodities, so patent infringement will not be established.
3. Compare the design of the patented product with the design of the accused infringing product to determine whether they are the same or similar. The same design means that the shapes, patterns, colors and their combinations of the products constituting the design are completely consistent; Similarity in design means that the use of the design may cause confusion and make people mistakenly think that the product using the design is a patented product. This judgment is usually based on the eyes of ordinary consumers, observing and judging the design of patented products and the design of accused infringing products as a whole. According to the comparison results, determine whether it constitutes the same infringement, equivalent infringement or non-infringement.
To judge whether two or more are similar, we must first compare them from the category. Only similar products can be compared with each other. The category mentioned here refers to the subcategory in the international design classification.
Second, treat it differently according to different shapes. Such as tape recorders, televisions, vehicles and other three-dimensional modeling should be based on modeling, supplemented by patterns and colors; Carpet, wallpaper, printed fabric, etc. Should be based on patterns, supplemented by modeling; Generally speaking, the difference in color is not a separate condition for judging approximation.
Thirdly, when judging the color similarity, we should observe the aesthetic effect of the combination of color and modeling and the coordination of color and pattern on the whole product. For example, combination toys are different in shape, even if the color is the same, they are not similar.
Fourth, the differences in size, material and function of products are not the conditions for judging whether the designs are similar or not.
In a word, the basic method to judge whether it is similar is to observe the whole product based on different products in the design product category, on the basis of modeling and pattern, and combined with color. Fish claw patent application for your answer.