June 25, the reporter learned from the Taiyuan Intermediate Court, the court concluded the plaintiff of a sorghum wine Co., Ltd. v. the defendant of a liquor company limited, a store infringement on the design patent and unfair competition dispute.

 

On January 28, 2013, a sorghum wine limited company applied to the State Trademark Office for the "Jin X" written trademark. The registration period was from January 28, 2013 to January 27, 2023. In August 30, 2016, we applied to the State Intellectual Property Office for the design patent named "wine bottle". In February 21, 2017, we applied to the State Intellectual Property Office for the design patent named "packing box". The goods produced and sold by a certain liquor company by the defendant were all liquor without the plaintiff's permission, but they used the packaging similar to that of the plaintiff's special bottles and boxes in the liquor outer packaging of their production and sales without the plaintiff's permission.

 

The Taiyuan Intermediate Court holds that the patent for the appearance design of wine bottles and packing boxes enjoyed by the plaintiff is lawful and effective and should be protected by law. Article 59 of the Patent Law of the People's Republic of China stipulates that "the scope of protection of a patent right for a design shall be based on the design of the product marked in a picture or photograph, and a brief description shall be given of the design that can be used to explain the design of the product marked in a picture or photograph." According to the Provisions of the Supreme People's Court on the Interpretation of Several Questions Concerning the Application of Law in the Trial of Disputes Concerning Infringement of Patent Rights, when the People's Court decides whether the design is the same or similar, it shall make a comprehensive judgment on the overall visual effect of the design according to the design features of the authorized design and the infringement design of the accused.

 

Where there is no difference in the overall visual effect between the infringement design being prosecuted and the authorized design, it shall be recognized that the two are the same; if there is no substantial difference in the overall visual effect, it shall be recognized that the two are similar. The infringing products and the patent products of this case are all sorghum liquor, which belong to the same kind of products. Through the trial comparison, the main view, rear view, left view, right view, elevation view and top view of the patent involved are basically the same as the corresponding view of the accused infringement product, and the difference between the two is that the trademark and the manufacturer are different. In view of the fact that there is no substantial difference in the overall visual effect between the appearance of the product accused of infringement and the design of the patent involved, it should be recognized that the two constitute similar appearance design, and the design of the product accused of infringement falls into the scope of protection of the patent involved.

 

Article 69 of the Patent Law of the People's Republic of China stipulates that if the same product has been manufactured, the same method used, or the necessary preparations for manufacture or use have been made before the date of application for a patent, and the manufacture or use has continued only within the original scope, the patent right shall not be deemed to have been infringed. The sorghum wine produced by a liquor company submitted by the defendant was printed in the middle of the bottle with 20160721, which should be the date of production. The date of the plaintiff's patent application is August 30, 2016 and February 21, 2017, respectively. The plaintiff has no evidence to prove that a liquor company of the defendant expanded the production scale after the plaintiff applied for a patent, so the plaintiff requested confirmation. Two the court shall not support the defendant's claim for infringement of patent rights and damages.

 

With regard to the plaintiff's claim for unfair competition, the court held that the acts of the two defendants did not constitute unfair competition.

 

The court, in accordance with the law, rejected the plaintiff's lawsuit against a sorghum liquor limited company; the case fee of 8995 yuan was borne by the plaintiff's sorghum liquor limited company.

 

A judge's statement

 

Many people actually have a misunderstanding, often attach importance to inventions and light utility models and appearance design, especially the appearance of design patents do not pay attention to protection. For most of the products to be put into industrial application and marketing, the unique design should be protected as soon as possible by patent application for design. Nowadays, the competition in the commodity market is very fierce. If there is no protection of the patent right of the design for these products with fine appearance, not only the design effort will be wasted, but also the defendant may be liable for tort.