Beijing Mr. Li California Beef Noodle Co., Ltd. (hereinafter referred to as Mr. Li Company) was established in 1996, mainly engaged in beef noodle business. Since 2008, a number of design patents for tableware products have been submitted to China National Intellectual Property Administration. In September 2009, Mr. Li happened to find that Beijing Zhiruixiang American California Beef Noodle Restaurant Chain Co., Ltd. (Zhiruixiang Company) was also engaged in beef noodle business, and in the business premises, he also used the same tableware for which Mr. Li applied for a patent. Therefore, Mr. Li sued Zhiruixiang Company for infringing the patent right of design.
Since the origin of the case is these tableware, let's first analyze why Mr. Li won the patent right for appearance.
As far as the design patent is concerned, there is no need to have advanced technology or solve major technical problems, as long as the industrial products have aesthetic novelty. However, this industrial design must be different from the existing design. This difference not only refers to the difference, but also has enough discrimination, so that we can distinguish the two at a glance.
Mr. Li's tableware is obviously different from the tableware we contact every day. They have designed unique parts or unique shapes, which are different from daily tableware and enrich our vision and life, and should be encouraged and protected by law.
Comparing the tableware of Mr. Li's company and Zhiruixiang's company, it is found that no matter the shape, size, style and color, no matter the front or the back, the difference is not big, almost the same. Although the local nuances are different, it will not affect the visual effect of dish arrangement. It is impossible for consumers to tell the difference at a glance.
After receiving the complaint, Zhiruixiang Company said that the tableware it used was not made by itself, nor did it deliberately customize similar tableware, but was purchased from a supplier in Fujian, and a copy of the purchase and sale contract was produced, which proved that it was purchased through legal channels. At the same time, it is further pointed out that even if the ingredients of the two tableware are similar, it is an unintentional mistake. The so-called ignorant person is innocent, so he should not compensate for economic losses and bear tort liability. At the same time, it is further pointed out that even if the ingredients of the two tableware are similar, they are unintentional losses and should not compensate for economic losses and tort liability.
China's patent system adopts the presumption principle as to whether the defendant knows the plaintiff's patent. In other words, as long as the infringing product enters the scope of patent protection, it is presumed that the defendant knows or should know the plaintiff, regardless of whether he actually knows it or not, which is the special feature of the patent system. Once a patent application is filed, it is required to be open and widely informed. Anyone may or have access to know the details of the patent, including the patent scheme, design pictures and so on. Only when the technology is made public can the patentee get the exclusive legal protection of 10 or 20 years. Once the patent right ends, everyone can use it freely. However, the disclosure of patent information is not a free contribution, and anyone has the responsibility to avoid causing damage to others' patents, otherwise they will bear legal responsibility. Therefore, the innocence of the ignorant cannot be applied to this patent system.
Article 11 of the Patent Law stipulates that "after the design patent right is granted, no unit or individual may exploit its patent without the permission of the patentee, nor may it manufacture, promise to sell, sell or import its design products for production and business purposes." In other words, the design patent does not prohibit others from using the design patent, but allows others to use it.
In the case of Zhiruixiang Company, it is used for production and operation. Although it is not manufactured or imported, in fact, Zhiruixiang company packages tableware in the cost of hardware equipment in the name of franchise fee, and provides it to franchisees together with other hardware equipment, which is regarded as the act of selling tableware; On the background of the website made in that year, in order to attract and collect the joining fee, various dishes set off by tableware were displayed, so the act of displaying the webpage constituted a promise to sell.
But even so, Zhiruixiang Company does not have to compensate Mr. Li for his economic losses. Because according to Article 70 of the Patent Law, "anyone who uses, promises to sell or sells a patented infringing product for the purpose of production and operation without knowing that the product is not produced and sold by the patentee and can prove the legal source of the product shall not be liable for compensation." Zhiruixiang Company believes that the copy of the purchase and sale contract provided can prove that it was purchased through formal channels and does not need to bear economic compensation. If the responsibility is investigated, it is also the responsibility of Fujian suppliers.
The judge believes that there are three fatal injuries in the sales contract.
First, there is a lack of originals, and the evidence that the court can identify must meet the requirements of authenticity. Therefore, all written evidence materials provided must be originals, and copies are easy to modify and forge, so it is naturally difficult for the court to identify their authenticity through copies;
Second, the time is misplaced, that is, when the purchase and sale contract is signed, the company has not even been established, so how can the company's official seal appear on the contract?
Third, there is no performance basis. The purpose of the contract is to perform. The evidence that can prove the performance of the contract in business activities is the current invoice and receipt. However, Zhiruixiang Company also failed to submit the certificate of performance of the contract.
The court ruled that:
Considering the above three factors comprehensively, the court did not support Zhiruixiang Company's claim that tableware had a legal source, and ruled that Zhiruixiang Company's behavior constituted an infringement of Mr. Li's design patent, and ruled that Zhiruixiang Company stopped the infringement. Considering the actual value of tableware, the time when Zhiruixiang Company continued to sell infringing tableware may cause economic losses to Mr. Li, and the court ruled that Zhiruixiang Company compensated Mr. Li for economic losses of 22,000 yuan.
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The harm of infringing the copyright of pictures. Copyright infringement mainly infringes on the property rights of the copyright owner, such as using or disseminating the copyright owner's works by means of distribution, reproduction, lease, exhibition, broadcast and performance without the consent of the copyright owner, or using the works without paying the copyright fee. Harm of picture copyright infringement Copyright infringement is a general civil case, and the legal and judicial interpretation of civil evidence should also be applied to the investigation and evidence collection of copyright infringement. In China's copyright law, the laws related to image copyright are very sound, and it is very easy to obtain piracy evidence. In the infringement lawsuits in recent years, almost all owners of genuine pictures have won the lawsuit. At present, some enterprises do not attach importance to the copyright of pictures, and use pirated pictures in advertising, which has the following effects: 1, and the infringement compensation is generally more than 10 times the sales price. Other compensation standards include compensation according to the benefits created by pirated pictures. In this case, the amount of compensation may be as high as several hundred thousand yuan. 2. The loss of pre-publicity expenses. Businesses spend millions of dollars on advertising. If all advertisements have to be withdrawn because of the lawsuit caused by pirated pictures, the impact will not only be the problem of picture compensation. 3. The lawsuit of corporate reputation piracy will have a great impact on the integrity brand of an enterprise. Infringement of picture copyright will cause infringement compensation, loss of early publicity expenses, corporate reputation marketing and other hazards, so the use of pirated pictures still needs to be avoided.
I am engaged in graphic design. If I collect some pictures online and insert them into my own poster, is it infringement? 1, depending on the use: if it is used for commercial purposes, it is an infringement without authorization. For example, your poster is used to promote enterprises or products in public places, which is sent to various platforms by the unit, and also to promote enterprises or products.
2, look at the picture authorization: if the picture itself is authorized and can be used for free, then it doesn't matter. However, if the picture is clearly prohibited from commercial use and has copyright, then it cannot be used.
3, look at the nature of the picture: although some pictures are not copyrighted, they cannot be used at will. You can refer to the provisions of the advertising law.