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

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.

Jite Intellectual Property: What is the difference between a design patent and a trademark?

A design patent protects any new original decorative design of a work of art. Trademarks protect words used in commerce to distinguish goods or services** from another good or service**.

In other words, a design patent will protect the appearance of a unique light bulb that you intend to make available to the public** (as long as the appearance does not affect the function of the light bulb in any way). A trademark will protect the symbol or word you use to identify a light bulb, which is from your specific business. In some cases, both forms of protection may apply to a single design, providing a potential advantage to the owners of those rights.

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.

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.

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.

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.

Design patent: It is a new design that is aesthetically pleasing and suitable for industrial application of the shape, pattern or combination thereof, as well as the combination of color and shape and pattern. A new design can be a graphic design of lines, patterns, or colors, or it can be a three-dimensional shape of a product.