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Did you request color protection in the design?

Release time:

2021-05-08 16:10

Did you request color protection in the design?

The so-called color protection is to protect the color of the product when applying for a design patent.

Recently, the author is dealing with an appearance infringement case of the rights protection center,AThrough searching, the company found that there were a large number of merchants on Taobao Tmall who copied their company's pattern patterns and made them into dinner plates for sale. But the problem comes, the company in the application for design protection is, the color of its dinner plate applied for protection, and Taobao Tmall merchants, some directly apply the company's original color, and some merchants completely changed the color, and in which added an additional pattern pattern, for the appeal of the situation whether it constitutes patent infringement:

The first kind

emphasized. In this view, the applicant's request for protection of color only emphasizes the design of the color, which can be regarded as an embodiment in the scope of design protection, and it cannot be considered that the applicant only requires protection of the design of the color, and the request for protection of color does not constitute a limitation on the scope of protection.

Second Kind

Distinguish to say. This view holds that whether the color of the request for protection has a limiting effect on the scope of protection of the design should be determined in combination with the status and function of the color in the whole design. If the element of color is removed and the design produces a unique visual effect only by shape or pattern, the color will not affect the scope of protection. Conversely, if the removal of color design does not produce a unique visual effect, the color is the limit of the scope of protection.

Third Kind

The color limit says. According to this view, as long as the applicant requests protection of color, it means that the applicant has made a color limitation on his design, and what he requires is a design with a specific color. At this time, color is equivalent to a technical feature in the claims of inventions and utility models. The protection scope of the design patent requesting protection of color is smaller than that of the unprotected color, and the requested protection of color constitutes a limitation on the protection scope.

Fourth Kind

Protection range offset said. In this view, the color of the request for protection is not to narrow, expand or maintain the same for the scope of protection of the design, but to shift the focus of the scope of protection. Only the protection shape or pattern and the protection scope of the two cases of the protection color have a large overlap, but the relationship between the two is not a full set and a subset.

For several theories of appeal, there is no final conclusion in the theoretical circle at present, and the jurisprudence made by the judges of the court in practice is also different. It is expected that the legislator can issue relevant legal provisions to fill the vacancy, formulate a unified standard, and avoid the problem of different judgments in the same case.

Color, protection, design, request, range, think, pattern, point of view, such.