Southern Network News (Reporter/Peng Zhiqiang) In the 2022 Beijing Winter Olympics, the "ice pier" turned out to be a mascot that was hotly discussed and sought after by the public, and once there was a phenomenon of "one pier is difficult to find". Under the hot sales, many "ice piers" produced by many merchants have emerged on the Internet. Is the "birth" of these wild "ice piers" illegal? Does the "pier" without an ice shell but with a similar image constitute infringement?
In fact, in the fierce market competition environment, the "high value" of some traditional industrial products has gradually become a selling point. The February 2020 issue of the McKinsey Quarterly said that companies that specialize in design have seen revenues and shareholder returns grow almost twice as fast as their industry peers. Similar to motorcycles, electric vehicles, audio, desk lamps and other products, after a "high-value" product is listed, a large number of "wild brothers" will soon appear on the market.
So, do these businesses that copy "high value" infringe the intellectual property rights of the original product? On the eve of the 426 Intellectual Property Day, the reporter interviewed Zeng Minhui, a senior partner of Huajin Law Firm, and Zhang Shangxiao, a senior intellectual property lawyer, on issues such as industrial product design protection.
Products that "look like" may infringe intellectual property rights
With a cute and cute image, the holding of the Beijing Winter Olympics has made the mascot "Ice Pier" a new "top stream", and "pier fans" around the world have snapped up the "Ice Pier". The wild "ice piers" under the "one pier is difficult to find" also began to be brutally produced.
Behind the crystal clear ice sugar shell of the "ice pier", the Beijing Winter Olympics Organizing Committee holds the exclusive right to use its relevant image and registered trademarks in Chinese and English, image copyright and design patent rights. Therefore, enterprises or individuals that use the image or name of "ice pier" should comply with the provisions of relevant laws, regulations and regulations such as the Trademark Law, the Copyright Law, and the Patent Law.
Zeng Minhui believes that although some wild "ice piers" circulating in the market do not have a sugar shell and have certain differences in appearance from the original, there is no substantial difference in the overall shape and pattern, and under the "sharp blade" of the appearance patent right, the essence of its counterfeit "ice pier" is still invisible. That is to say, even if the counterfeit pirated "ice pier" avoids the use of ice shells or weakens the shape, because its overall image is similar to the "ice pier" and copies the main design points of the genuine "ice pier", it also constitutes an infringement of the design patent right of the ice pier.
Paragraph 4 of Article 2 of the Patent Law stipulates that a design refers to a new design that is aesthetically pleasing and suitable for industrial applications of the shape, pattern or combination thereof of the whole or part of the product, as well as the combination of color and shape and pattern. In the case of products of the same or similar kind, the adoption of the same or similar design as the authorized design is suspected of infringing.
Plagiarized "high value" and was sentenced to high infringement damages
Since 2001, WIPO has decided to designate April 26 of each year as World Intellectual Property Day. As a soil that nourishes innovation and entrepreneurship, intellectual property rights are deepening, and design patent rights are receiving more and more attention.
In real life, in addition to souvenirs like "ice piers", can the "high-value" industrial product design of other daily products be protected?
In 2014, Sanya, a well-known domestic motorcycle company, submitted a design patent application named "Motorcycle Complete Vehicle (SY110-2)", and obtained patent authorization on May 13 of the following year. After obtaining the authorization, Sanya Company launched a motorcycle product with the model of R50, which was exported to Morocco and other Belt and Road countries, which was widely recognized and welcomed by local consumers.
However, after Sanya's R50 motorcycle products gradually opened up to the Moroccan market, some domestic companies subsequently launched similar F50 motorcycle products. After comparison, the F50 motorcycle is not only suspected of constituting a name plagiarism, but its exterior design is similar to that of the R50 motorcycle of Sanya Company.
Zeng Minhui said that since the export destination of these infringing motorcycles coincides with the important overseas markets that Sanya has been operating for a long time, once the relevant infringing products flow into the market, it will bring irreparable huge losses to Sanya.
The trial site of the Sanya motorcycle case was compared
In the end, 420 infringing motorcycle products were detained by Shenzhen Customs, and the court of first instance ordered the infringing enterprises to compensate Sanya Company for economic losses of RMB 1.07 million. This case fully reflects the combination of court and customs administrative measures to protect enterprises, and has been selected as one of the top ten typical cases of service and guarantee of scientific and technological innovation in 2020 issued by the Guangzhou Intellectual Property Court.
In the era of "face value", "high value" is also competitiveness
After the expiration of the design patent protection period, what kind of intellectual property protection can excellent industrial design products require? In 2016, Huiwei Audio, a Chinese audio manufacturer specializing in the manufacture of high-end speakers, also carried out patent protection for its M200 series speaker products. M200 series speaker products after nearly 20 years of sales and publicity, in the consumer enjoy a high degree of visibility and influence, although M200 series of speaker design patent 10 years of protection period has expired, but because of its unique decoration design, outstanding visual effects, different from other products, identified by the relevant public, after long-term publicity and use, has become the unique decoration of Huiwei company audio products.
However, some enterprises in the same industry have adopted a design similar to the decoration of the M200 series speakers in the speakers they manufacture and sell without the permission of Huiwei Company, which constitutes unfair competition and bears corresponding legal responsibilities.
In addition, some industrial design products that have reached a high degree of originality can also be protected through the Copyright Law of the Mainland. In 2017, Dachuan Dafeng Company independently completed the design of an "LED Bluetooth speaker ice bucket lamp" audio lamp, several design changes, practical products, extremely aesthetic, combining traditional Chinese palace lamps and European and American humanistic fashion elements, with high artistic value. After the product was launched, some companies carried out a large number of counterfeiting, and exported directly to the European distributors of Dachuan Dafeng Company at a low price. The Guangdong Provincial High Court held that the traditional palace lamp shape used in this "LED Bluetooth speaker ice bucket lamp" fully demonstrated the creator's artistic imagination and expression, with the corresponding height of artistic creation, and the relevant unauthorized counterfeiting constituted copyright.
After the birth of "high-value" industrial products, how should they be protected from the perspective of intellectual property rights? In this regard, Zhang Shangxiao gave three suggestions.
First of all, after the birth of the work, the enterprise can go to the relevant departments to complete the registration of copyright, which will also help the enterprise to provide evidence in the future and protect its own rights and interests; secondly, the craft works produced (such as ice piers) can go to the relevant departments to apply for appearance patents; secondly, large-scale official events such as the Olympic Games and the Asian Games have special signs, such as ice piers with the special symbols of the Winter Olympic Games, which can also provide protection for products to a certain extent.
How should enterprises protect "high-value" products?
Behind the explosive products is also an important embodiment of the company's ability to create and innovate. For enterprises, strengthening the protection of intellectual property rights can bring huge economic benefits to enterprises and enhance economic strength.
Zhang Shangxiao, a lawyer at Huajin Law Firm, pointed out that as the main body producing innovative "high-value" products, enterprises can protect their rights through the following four ways when the "high-value" design meets the relevant requirements.
First, companies can protect their rights through design protection. It should be noted that although the latest revision of the Patent Law stipulates that the term of protection of design patents has reached 15 years, but if you want to use it exclusively for a longer time, you can also protect the design that meets the originality requirements through copyright; secondly, for more distinctive designs, in the case of meeting the statutory conditions, you can also register in the form of three-dimensional trademarks and protect them through trademarks; moreover, you can also use them through long-term publicity and use, so that the design used by the product can establish a one-to-one correspondence with the enterprise. Form a packaging decoration with a certain influence, and achieve protection from this perspective.
In the face of the "high-value" best-selling products launched by peers in the industry, handicrafts such as ice piers, enterprises must not copy, nor can they use the image as product packaging, let alone maliciously take away and register trademarks. Once such behavior occurs, it will be punished, and Zeng Minhui also solemnly admonished that enterprises must not move such crooked thoughts.
In terms of product import and export, the intellectual property issues involved in "high-value" products often affect the export of products, coupled with the fact that enterprises are not familiar with overseas laws and regulations, the road to rights protection has also increased the difficulty.
Therefore, before the product is listed or exported, enterprises try to do a good job in intellectual property reserves, "design patents and trademarks are the same reason, can be in accordance with the laws and regulations of each country, in the corresponding countries for patent applications and trademark registration." Zhang Shangxiao stressed that product copyrights can be mutually recognized among the member states of the Berne Convention, and works completed in China can also be protected in berne convention member countries outside the country.