Businesses can use many methods to protect their own packaging designs. Which method to use depends on the company’s own situation. For example, by design patents to prevent packaging designs from being infringed, although with a relatively short right-to-acquisition cycle, authorization is generally performed only for formal examination, intuitive protection of colors and colors and their combinations, and the possibility of applying for serial design patents, but at the same time There are also some shortages
First, there is the instability of rights. When an enterprise finds that its own design has been infringed upon and sued, the defendant often requests the Patent Reexamination Board of the State Intellectual Property Office for the invalidation of the patent right on the ground of improper patent authorization, and requests the court to suspend the trial of the patent pending the patent right. After the validity has been confirmed, resume the trial procedure. Delaying litigation in this way can often gain time for the defendant. Even if the plaintiff wins the case in the end, the defendant wins the market during the litigation period. In this way, in the actual rights protection of enterprises, using only design patents to protect their own unique designs has certain risks and may increase the losses of the enterprises.
Second, the period of protection is limited. The period of protection for design patents is 10 years, while the average service life in China is less than 10 years. Imitations beyond the protection period will no longer be regarded as infringement. It is obviously not enough that some good designs are protected only by applying for design patents. This is also why some classical designs often take the simultaneous registration of trademarks or other protections.
Thirdly, there are many controversies regarding the determination of infringement of design, mainly focusing on the premise, criteria, and main methods of judgment. Different judges may have different judgment results. The existence of uncertain factors makes it difficult for enterprises to guarantee that they will not encounter infringement even if they apply for a design patent, and even if a lawsuit is infringed, it does not necessarily prevail.
It seems that there are some advantages to using the registered trademark at the same time. In terms of the protection period, although the design and the trademark are also 10 years old, after the design protection period expires, it is no longer protected by law and the trademark expires. You can also apply for continuation within the validity period, as long as the company needs, you can always have it. It should be noted that the current “Trademark Law†in China stipulates that the registered trademark in China adopts the principle of classified registration. Therefore, if it is to be fully protected as a registered trademark, multiple registrations are required for comprehensive protection.
The use of the “Anti-Unfair Competition Law†for protection is relatively flexible because Article 2 can be used as a cover clause, and any violation of the principle of good faith will be sanctioned. However, in the process of litigation, especially the evidence, there are some difficulties, and in many cases rely on the results of the decision of the business sector. When enterprises defend their rights, they must pay close attention to administrative regulations and departmental rules. Their protection for the parties is more specific. However, Article 5(2) of the Anti-Unfair Competition Law clearly stipulates that the name, packaging, and decoration of a well-known commodity are protected. This means that the protected company should first be a well-known company, and it is creating and growing. It has not yet become a so-called well-known company. Even if the packaging design is truly novel and unique, it may not be protected by the law. Such companies should choose other ways to protect themselves.
Different companies have different situations. In addition to raising awareness of intellectual property protection, they must choose favorable protection methods according to their own circumstances. Because they also deal with infringement and litigation targets, they may form different judgment results.
Source: Art China Network