Copyright is a design patent, is a design copyright a patent?

Copyright is automatically generated from the date of completion of the work, and you do not need to apply for it.

A design patent needs to be filed with the Patent Office and can only be granted after a series of procedures are approved, but in general, it is relatively easy to grant a design because it only conducts formal examination;

The difference between the two is that the former can be obtained without going through the authorization procedures, and the latter needs to pay a certain handling fee, as well as an annual patent fee to enjoy the right, but relatively, the right with a certificate of right is definitely easier to protect rights than without a certificate of rights, so it mainly depends on whether your market is big, if the market is large, earn a lot, it is more worthwhile to apply for design patent protection, if you are just doing short-term business, small business, it is not worth applying for a design, and it is ultimately up to you to decide

or the combination of colors and shapes and patterns to create new designs that are aesthetically pleasing and suitable for industrial applications. In addition, in Chapter 3 of the 2010 Patent Examination Guidelines, subparagraph (8) of "Circumstances in which a design patent shall not be granted" is defined as "works in the category of fine arts, calligraphy, and photography".

From the above provisions, it can be seen that purely works of art and calligraphy are not the object of design protection. Article 2 of the Regulations for the Implementation of the Copyright Law stipulates that the term "work" as used in the Copyright Law refers to the intellectual creation in the fields of literature, art and science that is original and can be reproduced in some tangible form.

Therefore, if a work falls within the category of works of art, it should generally be protected by the Copyright Law.

Thirdly, the "number of years" of protection granted by the two is not the same. Article 42 of Chapter 5 of the Patent Law stipulates that the term of protection of a design patent shall be 10 years, calculated from the filing date. The copyright protection period stipulated in the Copyright Law is the life of the author and 50 years after his death.

Finally, the requirements for the grant of rights are not the same. Article 23 of the Patent Law has very specific provisions on the conditions for granting a design patent: a design for which a patent right is granted shall not be an existing design; Nor has any unit or individual filed an application for the same design with the patent administration department before the filing date, and it is recorded in the patent documents published after the filing date.

The design for which a patent is granted shall be distinctly different from the prior design or a combination of features of the prior design. The design for which a patent is granted must not conflict with the legal rights of another person who have already acquired before the filing date. For the purposes of this Law, the term "existing design" refers to a design that has been known to the public at home and abroad before the filing date.

Copyright, on the other hand, arises naturally from the time of completion of the creation and is protected by law. Article 2 of the Copyright Law of the People's Republic of China stipulates that the works of Chinese citizens, legal persons or unincorporated entities, regardless of whether they are published or not, shall enjoy copyright in accordance with this Law.

It can be seen that the "principle of no formalities" applies to the acquisition of copyright in China, that is, the copyright is obtained after the author completes the creation without the need to go through registration procedures, deposit samples, handling fees or other formalities with the copyright management agency.

Copyright includes personal rights and property rights, both of which are derived from works and cover a wide range of areas.

Article 10 of the Copyright Law Copyright includes the following personal rights and property rights: the right of publication, the right of authorship, the right of modification, the right to protect the integrity of the work, the right of reproduction, the right of distribution, the right of rental, the right of exhibition, the right of performance, the right of screening, the right of broadcasting, the right of information network dissemination, the right of filming, the right of adaptation, the right of translation, the right of compilation, and other rights that shall be enjoyed by the copyright owner.

Design patents, on the other hand, are biased towards the appearance of the product.

Article 2.3 of the Patent Law A design refers to a new design that is aesthetically pleasing and suitable for industrial application made of the shape, pattern or combination thereof, as well as the combination of color and shape and pattern of a product.

It is recommended to carry out copyright registration, which is low, fast, has a long protection period, and has no follow-up maintenance costs.

Handle copyright registration procedures in a timely manner to facilitate future rights protection.

Apply for a design patent as needed.

Both are handled at the same time to expand the scope of protection.

It is more effective to do copyright first and then apply for a design application, and protect both together.

There are professional certification bodies.

The differences between design and copyright are as follows: 1. There are differences in nature, one is patent and the other is copyright; 2. There is a difference between the competent authorities, the competent authority for the design, Sun Youhao, is the patent office, and the competent authority for copyright is the copyright administrative department; 3. There is a difference in the term of protection; 4. There are differences in the scope of protection.

[Legal basis].

Article 23 of the Patent Law of the People's Republic of China stipulates that a design for which a patent right is granted shall not belong to an existing design; Nor has any unit or individual filed an application for the same design with the patent administration department before the filing date, and it is recorded in the patent documents published after the filing date. Article 27 A person who applies for a design patent shall submit a written request, a written request, a brief description of the design, and other documents. The applicant submits a request for the design of the product for which the patent protection is claimed.

Article 2 of the Copyright Law of the People's Republic of China provides that works of Chinese citizens, legal persons or other organizations, regardless of whether they are published or not, enjoy copyright in accordance with this Law. Article 7 covers the copyright administrative management department in charge of copyright management work nationwide; The copyright administrative departments of the people's governments of all provinces, autonomous regions, and municipalities directly under the Central Government are in charge of copyright management efforts in their respective administrative regions.

It belongs to the difference with copyright in the following ways: (1) the object of protection is different, appearance patent: the object of protection is the design of industrial products, that is, the color, pattern and shape design of industrial products.

It is composed of property rights, mainly including the right to implement, the right to license others to implement, and the right to transfer. Copyright: It consists of two parts: personal rights and property rights.

The moral rights section is also known as the moral rights of authors. The property rights mainly include the right to use, the right to license use, the right to transfer, the right to receive remuneration, etc. (3) The premise of obtaining the right is different, and the appearance patent:

Requires unique initiatives. Copyright: As long as it is an original work, regardless of whether it is similar to a published work, it can obtain independent copyright.

4) Different ways to obtain evidence, appearance patent: apply to the State Patent Office, and authorize the issuance of the "Design Patent Certificate" after passing the examination procedures. Copyright:

Copyright: Copyrights registered in China enjoy national protection in 172 contracting countries. (6) The term of protection is different, and the appearance patent:

Protection for ten years from the date of filing. Copyright: The term of protection of copyright is the lifetime of the author plus 50 years after his death.

There is no need to pay an annual fee after obtaining the work registration certificate.

1. The scope of protection of the design patent.

There is a clear difference between the scope of protection of a design patent and an invention or utility model patent, the former is a visual aesthetic appearance, and the latter is a technical idea or technical solution that conforms to patentability. The scope of protection of the design patent right shall be subject to the ** or ** of the design patent product submitted by the design patentee to the Patent Office when applying for a design patent, including the main view, top view, side view, etc. The main view is the most important as it best reflects the aesthetics of the design.

When determining the scope of protection of a design patent, care should also be taken to identify the elements that reflect the aesthetics of the design from these views.

2. Copyright, design and patent rights.

In China, the craft of jujube can apply for design patents, such as bracelets, earrings, necklaces, rings, decorative glass products, decorative baskets, decorative porcelain, art pottery, vases, figurines, mosaics, artificial flowers, artificial fruits, artificial shrubs rolling branches, etc., these arts and crafts belong to the scope of the patent law, not protected by copyright.

Paintings, calligraphy, photography, film and television, graphics and other works used for industrial designs for the first time are protected by copyright; If the work is used again on the same kind of product, it shall be adjusted by the Patent Law and shall not be protected by the Copyright Law.

Legal Analysis: The object of protection of rights is different. A design patent is an industrial product that has an aesthetic sense as a result of the shape, pattern, or combination of shape, pattern and color of the product. Copyright protects original works in the fields of literature, art, and science.

Legal Basis: Article 11 of the Patent Law of the People's Republic of China After the patent right for invention and utility model is granted, except for this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, use, offer to sell, sell or import its patented products for production and business purposes, or use its patented process, or use, offer to sell, sell or import products directly obtained in accordance with the patented process. After the design patent right is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, offer to sell, sell or import its design patented products for the purpose of production and operation.

There are different ways to acquire design patents and copyrights. The design patent right shall be applied for by the right holder to the State Intellectual Property Office, and shall be published by the State Intellectual Property Office. The copyright is created from the date of completion of the creation, and the copyright registration submitted to the National Copyright Office can be used as a preliminary proof of copyright ownership.

However, the difference is that copyright registration is not visible to the public, and copyright registration does not directly prove the originality of the work.

For the purpose of "term of protection", the term of a design patent right is 10 years from the filing date. In the case of a legal person's work, the copyright is December 31, 50 years after its first publication. The term of protection of copyright is significantly longer than that of design patent rights.

As far as the "scope of protection" is concerned, the scope of protection of the design is subject to ** or ** in the authorized text of the design, and the protected product must be of the same or similar type as the patented design product. However, copyright does not impose any restrictions on the infringing products involved in the lawsuit, as long as the infringing products plagiarize the expression of the work, which can constitute infringement. Copyright emphasizes expression and does not involve specific products, and the scope of protection is greater than that of design patents.

However, in terms of "difficulty in rights protection", copyright protection is more difficult. In the determination of infringement of design products, the right holder has strong exclusivity to the patented product, and infringement can be constituted regardless of whether the accused infringer has contact with or independently developed it. Copyright requires the right holder to prove that the infringement is "substantially similar", that is, to prove that the accused infringer has been in contact with or may have come into contact with the work, and then achieves substantial similarity through comparison.

Because copyright recognizes the independent creation of the same or similar works by different entities, if the accused infringer can prove that the alleged infringing product was created independently, it will not constitute infringement. In addition, when determining a design patent right, it is directly based on the patent certificate or evaluation report to determine whether there is infringement. When determining the copyright, even if the right holder provides the copyright registration certificate, the court needs to reconfirm whether the work involved in the case is a work within the meaning of the Copyright Law and whether it has originality.

Therefore, in terms of the difficulty of rights protection, the burden of proof borne by the copyright right holder is heavier.