11 Patent Copy Protect

Patent and Copyright Protections for Industrial Designs: 

Patent and Copyright Protections for Industrial Designs President of the Copyright Society of China Shen Rengan

Double Identifies of the Works of Applied Art : 

Double Identifies of the Works of Applied Art Aesop’s Fables : a bat faced a weasel The bat implored that he was a rat The bat explained that he was a bird Double identifies of the works of applied art the protection object of designs the protection object of copyright The scope of the works of applied art clothes, decorations for clothing, furniture, toys, clocks and watches, artistic appliances, decorations, book covers and so on

Patent of Designs: 

Patent of Designs The protection object of designs any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application The requirements of patentability: not identical with or similar to any design not conflict with the legal prior rights of others Grant of patent right: application and approval Protection period: ten years

Conventions of Copyright Protection: 

Conventions of Copyright Protection The Chinese Copyright Law before the amendment of October 27, 2001, which was took effect on June 1, 1991： excluded protection for most of the designs under the Copyright Law Article 7: those of the scientific and technical works that should be protected by the patent law, the technology contract law and other laws apply to the stipulations in these laws Article 52: the industrial product that is engineered or manufactured according to engineering designs, product drawings and instructions thereof does not belong to the reproduction indicated in this law

Slide5: 

On September 25, 1992, China became a member of "Berne Convention“ On October 15, 1992, the Regulations on Implementation of International Copyright Conventions was promulgated giving copyright protection to a part of designs of foreigners - the works of applied art, which are protected under Berne Convention and the Regulations, protection period: 25 years

The current Chinese Copyright Law, amended in 2001 : 

The current Chinese Copyright Law, amended in 2001 canceled Article 7 of the law passed on September 7, 1990 made a definition to the right of reproduction: the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic wok, or by other means not related to the transformation of a work from the 3-dimensional to the two-dimensional, or vice versa

Slide7: 

The principle of “automatic protection for copyright” is in line with Berne Convention and Universal Copyright Convention Copyright owners are encouraged to register their works The Regulations on Computer Software Protection, published on January 1, 2002, provides: software authors may apply for registration with the software registration organizations approved by the copyright management department of the State Council The Supreme Court’s Interpretation, published on December 12, 2002, provides: the copyright registration certificate and proofs issued by the registration organizations, which are submitted by the parties concerned, can be used as evidence

Slide8: 

December 31, 1994, the State Copyright Administration had issued the Trial Measures for Voluntary Registration of Works, provides: the Copyright Administrations at the level of provinces, autonomous regions and municipalities directly under the central government are in charge of registration of works of local authors or other copyright owners. China Copyright Protection Center is responsible for registration of works of foreign and Taiwan, Hong Kong and Macao authors and other copyright owners as well as in charge of registration of computer software, regardless of domestic or foreign copyright owners

Case 1 on protection of foreign works of applied art : 

Case 1 on protection of foreign works of applied art The Switzerland INTERLEGO AG(“INTERLEGO”) vs.  COKO (Tianjin) Toy Co., Ltd.(“COKO”) on copyright infringement of the toy elements of the LEGO

Slide10: 

Parties: plaintiff： INTERLEGO AG defendant： COKO (Tianjin) Toy Co., Ltd. Facts： In 1998 INTERLEGO AG obtained the intellectual property rights including the copyright of COKO products In January, 1999, INTERLEGO discovered suspected infringing goods in the markets of Beijing In September 1999 INTERLEGO sued the manufacturer COKO (Tianjin) Toy Co., Ltd.

Judgment: : 

Judgment: In 2001 the First Intermediate People’s Court of Beijing made a judgment: defendant must cease infringement destroy its molds for manufacturing elements that infringes INTERLEGO’s copyrights as well as the infringing toy elements in stock make public apologize pay damages On December 18, 2002, the High People’s Court of Beijing made the final judgment that the decision of the first instance is upheld

Case 2 on protection of foreign works of applied art : 

Case 2 on protection of foreign works of applied art The French fashion designer Jean Paul Gaultier vs. Shantou Jiarou Refined Chemicals Co., Ltd. of Guangdong Province (“Jiarou”) on copyright infringement to perfume bottles Parties: plaintiff： Beaute Prestige International defendant： Shantou Jiarou Refined Chemicals Co., Ltd. of Guangdong Province

Slide13: 

Facts： Jean Paul Gaultier （Beaute Prestige International） In 1992 designed a female figure bottle for the “Le Classique” perfume In 1994 designed a female figure bottle for the “Le Male” perfume and the cylinder-shaped packaging boxes In 2004 discovered that Jiarou was selling perfume products contained in almost same human figure bottles and packaging boxes as those for its Le Classique and Le Male perfumes In 2005 Beaute Prestige International sued Jiarou

Judgment:: 

Judgment: In June and December 2006 Beijing Second Intermediate Court and the Higher Court made decisions respectively: Jiarou must cease infringement apologize in newspapers pay damages

Comment：: 

Comment： The related objects——the toy bricks and the perfume bottles, for which design patents were obtained in China, and the cases were won on the grounds of copyright infringement Based on：the Chinese Copyright Law prescribes definitely: the works of applied art of Berne Convention members are protected by the Copyright Law

Case 1 on the voluntary registration of works that promote the development of copyright industry : 

Case 1 on the voluntary registration of works that promote the development of copyright industry Nantong of Jiangshu Province carried out copyright registration policies to protect their printed cloth Twenty years ago：a village product fair At present：it takes 1.5 million square meters and holds over 3,000 shops, and the volume of business last year reached 30 billion yuan The local copyright administration’s registration policy for the designs of printed cloth or the whole product as works of applied art, and the key protection measures given to the registered works

Case 2 on the voluntary registration of works that promote the development of copyright industry: 

Case 2 on the voluntary registration of works that promote the development of copyright industry Dehua of Fujian Province—the Capital of Classical Ceramics of China A small mountainous county of less than 310 thousand people，in 1991, the whole output value of ceramics in the county was just over 100 million yuan, and infringement and piracy activities were flagrant The copyright registration system for industrial art ceramic works and part of the ceramic products of applied uses, as well as the strict copyright management measures In 1999, the ceramic income reached 2.55 billion yuan In 2006, the ceramic income reached 4.3 billion yuan，accounting for 65% of the Gross Industrial Output of the county and 43 % of the revenue

Conceit of Industrial Copyright Law: 

Conceit of Industrial Copyright Law How to efficiently protect industrial designs computer software semiconductor chips printing types Either a copyright law or an industrial property law has its shortcomings in protection The best solution: formulate an industrial copyright law

Slide19: 

Thanks a lot!