What is the difference between a design patent and a trademark?

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.

The differences between a design patent and a trademark are as follows:

Clause. 1. The functions and functions of design patents and trademarks are different. The distinctiveness 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 and trademarks are protected differently by law. 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 trademarks 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 trademarks 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.

In the field of intellectual property, although both design patent applications and trademark registration applications give people visual effects, and there are some common principles for infringement of the two, we would like to remind you that there are obvious differences between them that need to be distinguished.

1. There are differences in the objects of protection

The object of protection of the appearance patent is the artistic or decorative design of the product, which can be a flat pattern or three-dimensional modeling, or both. The object of protection of a trademark is a sign or pattern that distinguishes the product, usually with words as the main body, and does not involve the shape or structure of the product itself.

2. The review process is different

Maihui.com believes that the examination form of design patents is relatively simple, and the patent office will examine the **, model or sample of the application, and it can be passed without finding any reasons for rejection during the application process. However, the examination of trademarks is relatively strict, which is divided into formal examination and substantive examination. The substantive examination is based on the formal examination, the text, graphics and meaning of the trademark are examined, and the opposition period of 3 months is required in the middle of the period, during which no one raises an objection or the opposition cannot be established, and the trademark can be registered.

3. The protection duration is endless

A design patent is valid for 10 years from the filing date and cannot be renewed. The exclusive right to use a trademark is valid for 10 years from the date of approval, and can be renewed without restriction upon expiration, and each renewal time is 10 years.

4. The standards for assessing infringement are different

Maihui.com argues that if the overall visual effect between the accused product and the design patent is similar, it constitutes infringement. If the alleged mark is likely to cause confusion among consumers compared to the trademark, it constitutes infringement.

5. The meaning of protection is different

Maihui.com proposes that in addition to being distinctive, the design should also match the practicability of the product. Trademarks, on the other hand, distinguish the same or similar goods from each other through distinctiveness and distinctiveness, so as to maximize commercial interests in commercial competition.

6. The strictness of the law is different

A design patent application does not need to go through substantive examination, but only needs to be filed with the Patent Office, and if there is no reason for rejection after preliminary examination, the Patent Office will grant the design patent certificate. The trademark must be applied for and approved for registration by the national trademark management authority, and the trademark owner can enjoy the exclusive right to use the trademark. Maihui.com believes that the examination of trademarks is stricter than that of design patents.

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.

A three-dimensional trademark design patent is a three-dimensional trademark made by means of a three-dimensional sign, the whole appearance of the goods or the whole or part of the shape, pattern or combination thereof, as well as the combination of color and shape and pattern.

[Legal basis].

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

For the purposes of this Law, the term "invention-creation" refers to inventions, utility models and designs.

Design refers to a new design that is aesthetically pleasing and suitable for industrial application made on the whole or part of the shape, pattern or combination thereof, as well as the combination of color and shape and pattern.

Article 27.

Where an application for a design patent is made, a written request, a brief description of the design, and a brief description of the design shall be submitted.

The applicant submits a request for the design of the product for which the patent protection is claimed.

Article 8 of the Trademark Law of the People's Republic of China.

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, numbers, three-dimensional signs, color combinations and sounds, as well as a combination of the above elements, can be registered as a trademark.