The difference between trademark and design in China Short answer

1.In the form of legal protection, there are trademark protection methods; means of copyright protection; limited patent protection;

2.From the perspective of effectiveness, the protection effect of trademarks is higher than that of copyright, and this difference is mainly reflected in: 1) the way of obtaining rights is different, and trademark rights are to be registered; Copyright is automatic; 2) copyright registration only has the effect of preliminary evidence, while the effect of trademark registration is certain;

3.A simple ** cannot be protected by patent, and it is impossible to protect by design patent, which can be denied from the concept of design patent. Because the design itself is required to be a product, it is an aesthetic design that is suitable for industrial application made by the shape, pattern or combination thereof, as well as the combination of color and shape and pattern; If your ** reflects a certain design scheme, such as a design drawing or something, then the design scheme embodied in it can be protected by patents.

As far as you say**, I don't think so.

4.You only need to apply for a trademark to get better protection.

In addition, design patents and trademarks are both industrial property rights, which are protected by the Patent Law and the Trademark Law, respectively. The difference between the two is -

1 The concept is different. A design is a product decoration, while a trademark is a distinguishing sign.

2 Procedures are different. A design patent is not subject to substantive examination, and if another person submits evidence of public use earlier than the patent at the time of patent application or after the patent right has been granted, the patent will be declared invalid or revoked. Registered trademarks must pass the substantive examination, and only after the opposition period can they obtain exclusive rights and exclusive rights, and the examination procedures are stricter.

Phase 3 is different. A design patent is valid for 10 years from the filing date and cannot be renewed. The validity period of a registered trademark is 10 years, calculated from the date of approval of registration.

If the validity period of the registered trademark expires and it is necessary to continue to use it, it shall apply for renewal of registration within 6 months before the expiration; If the application is not filed within this period, a grace period of 6 months may be granted, and if the application is not filed after the expiration of the grace period, the registered trademark shall be cancelled. Each renewed registration is valid for 10 years.

What's the problem?

They all belong to creative design, and they are all the same for designers with good ability.

The similarities between a trademark and a design are:

1. It is a combination of shapes, patterns and colors;

2. All are closely related to the quality of specific commodities;

3. All belong to the scope of intellectual property rights.

The differences are:

1. The constituent elements are different;

2. Different functions;

3. The term of protection is different.

[Legal basis].Article 2 of the Patent Law of the People's Republic of China, which came into effect on June 1, 2021.

Design refers to the new design of the whole or part of the product, the shape, pattern or its combination, and the combination of color, shape and pattern, which is aesthetically pleasing and suitable for industrial application.

Article 4 of the Trademark Law of the People's Republic of China.

If a natural person, legal person or other organization needs to obtain the exclusive right to use a trademark for its goods or services in the course of production and business activities, it shall apply to the Trademark Office for trademark registration. If the application for registration of a trademark in bad faith is not for the purpose of use, the search shall be rejected in the celebration register.

Article 8. Any sign that can distinguish the goods of a natural person, legal person or other organization from the goods of others, including words, graphics, letters, numerals, three-dimensional signs, color combinations and sounds, as well as a combination of the above elements, can be registered as a trademark.

The provisions of this Law relating to commodity trademarks shall apply to service trademarks.

1 The two concepts are different.

A design patent refers to a new design that is aesthetically pleasing and suitable for industrial applications about the shape, pattern, color or combination of products, which is based on the product and takes aesthetics as the core, and can be copied in large quantities. The design should be inventive, novel and practical, where inventiveness is only the design that does not copy or imitate others, and the practicality refers to the sense of beauty.

A trademark is a combination of words, graphics, letters, numbers, three-dimensional signs and colors. In the signs used by producers and operators to distinguish different goods or services, the trademark should be distinctive, which means that it has a signifying function and does not necessarily have to be aesthetically pleasing, but there must be no prior registered trademark in the same or similar goods or services. In short, a design is a decoration of a product, while a trademark is a distinguishing sign.

2 The functions and roles of the two are different.

Trademarks are mainly used to distinguish the difference of the same or similar goods or services through their distinctiveness and distinctiveness, so as to achieve fair competition and survival of the fittest between enterprises. Therefore, the distinctive character of the trademark is extremely distinct.

Although the design has a certain identification, it also extends in terms of practical characteristics, so it can be said that the design not only increases the beauty of the commodity, but also combines it with the function of the commodity, improves the convenience of using the commodity, and the design can encourage continuous innovation of enterprises through its strong novelty.

3 The two are not protected by law in the same way.

In terms of the scope of protection, the scope of protection of design patents is relatively narrow. For example, the second paragraph of Article 56 of the Patent Law stipulates that the scope of protection of a design patent right shall be subject to the design product expressed in ** or **. Unlike invention patents or utility model patents, which use text descriptions.

The scope of protection of a trademark is broader, covering not only approved goods or services, but also the use of a trademark identical or similar to its registered trademark on the same or similar goods. In terms of the term of protection, Article 42 of the Patent Law stipulates that the term of a design patent right shall be 10 years, calculated from the filing date.

Articles 37 and 38 of the Trademark Law stipulate that a registered trademark shall be valid for 10 years from the date of approval of registration, and that upon the expiration of the validity period of the registered trademark, if it is necessary to continue to use it, the validity period of each renewed registration shall be 10 years. In this way, the term of protection of a design patent right is only 10 years, while the term of protection of a trademark right is indefinite.

In addition to theoretically satisfying aesthetics, a design must also meet the requirement of novelty, i.e., the same or similar design that has never been used in the past, while a trademark does not require to be a new mark or a trademark that has never been used before, as long as it satisfies the distinctiveness requirement. The term of protection of a design patent is 10 years, after which it will enter the public domain, while the exclusive term of a registered trademark is 10 years, but it can be renewed without a limit on the number of renewals. Trademarks (including three-dimensional trademarks) are not allowed to directly represent the function, raw materials, quality and other characteristics of goods, while design (including three-dimensional) patents are not subject to this restriction.

1. The difference between trademark and work judgment.

The function of the trademark group is different from that of the work, the trademark is a distinguishing mark and has a distinctiveness requirement, while the work is created for the enjoyment or appreciation of art or words, and self-creation is a necessary condition, and there are no other requirements. Works and trademarks are regulated by the Copyright Act and the Trademark Act, respectively. Since the creation of a work is completed, it is usually automatically protected by the Copyright Act in accordance with the law, and there is no need to perform other legal formalities compulsorily.

Trademarks, on the other hand, must go through the registration process before they can be protected by the Trademark Law. The exclusive term of trademark registration is 10 years, and it can be renewed at the expiration of the term, and there is no limit to the number of renewals, therefore, it can theoretically be indefinite. The term of copyright protection of a work is usually 50 years after the death of the author, after which it will enter the public domain.

2. The connection between the trademark and the work.

The relationship between the word mark and the work. The literary works in the works, especially the poetic works, especially the short poems and phrases with very few words, can become the object of the trademark under certain conditions. For example, phrase advertisements that have been used on air-conditioning equipment across winter and summer, and directly through spring and autumn, may be used as trademarks or allowed to be registered if other conditions for trademark registration are met.

Another example is the calligraphy work in the art work, which can also be used as a form of word trademark. A word mark with a certain degree of creativity can constitute a literary work if it meets the conditions of poetry, but a word trademark composed of 3 or 5 words may be difficult to constitute a poetic work. A word trademark embodied in the form of calligraphy and painting can be used as a calligraphy work in a work of art.

The relationship between a figurative mark and a work. Paintings, including flat and three-dimensional shapes, in works of art, may become trademarks or registered trademarks, including three-dimensional trademarks or three-dimensional trademarks, if they meet the other conditions of a trademark or a registered trademark. Under certain conditions, a graphic (flat or three-dimensional) trademark can constitute a painting or a work of art.

A photographic work can also be used as a trademark, and similarly, a work can also be constituted if ** is used as a trademark.

The differences between a design patent and a three-dimensional sign are as follows:

Clause. 1. The functions and functions of design patents and three-dimensional signs are different. The identification of trademarks is extremely distinct, and although design patents have a certain degree of identification, they are also manifested in terms of practical characteristics.

Clause. 2. Design patents are not protected by law from repetition or three-dimensional signs. In terms of the scope of protection, the scope of protection of trademarks is relatively broad, while the scope of protection of design patents is relatively narrow.

Clause. 3. Design patents and three-dimensional signs are subject to different legal protection conditions. Comparatively speaking, the acquisition of trademark rights is more complicated than the acquisition of design patent rights.

Both design patents and three-dimensional signs have their own unique advantages. Design patents are more time-sensitive, while three-dimensional trademarks are clearer and more explicit in the expression of three-dimensional shapes. Therefore, enterprises can choose between two forms of protection, three-dimensional trademark and design patent, according to the appearance of their goods.

View Answer Analysis [Correct Answer] The design referred to in the Patent Law refers to the design of the shape, pattern or combination of the old and the old of the product, as well as the combination of color and shape and pattern, which is aesthetically pleasing and suitable for industrial application. （p126）

Answer analysis] The knowledge points of this object are bright: appearance design, wide hood.

1.The subject matter of a trademark and a patent is different: a patent protects the technical content, including inventions, models of use, and designs.

Patents are protected for a limited period of 20 years for inventions and 10 years for new models and designs, which cannot be renewed upon expiration. Trademarks are protected for 10 years, but can be renewed upon expiration, so as long as they are renewed every 10 years, they can have the exclusive right to use the trademark indefinitely. 3.

The content of protection of trademarks and patents is different: patent protection does not allow the manufacture, use, offer for sale, sale, or import of products that are identical or similar to the patent. Trademark protection may not register the same trademark on the same type of goods, and if the protected is a well-known trademark, others cannot mark the well-known trademark even if it is a different type of goods.

4.The application procedure for trademarks and patents is different: patents are applied to the Patent Office of the State Intellectual Property Office, and after preliminary examination (new models and appearances) and substantive examination (inventions), the patent is finally granted.

The trademark is applied to the Trademark Office of the State Administration for Industry and Commerce, and the registration is approved after preliminary examination and no objection is announced.

Answer]: Manuscript letter B

Consumer confusion is an important factor to consider when determining whether the exclusive right to use a registered trademark is infringed or whether the design patent right is infringed. Note: The term of protection of trademark and design patent rights is 10 years.