Beijing Mr. Lee California Beef Noodle Company Limited (Mr. Lee's Company), founded in 1996, is mainly engaged in beef noodle business. Since 2008, it has submitted several design patents for tableware products to the State Intellectual Property Office (SIPO), and in September 2009, Mr. Lee's company discovered that Beijing Zhiruixiang California Beef Noodle Catering Chain Company Limited (Zhiruixiang Company) was also engaged in the beef noodle business and was using the same tableware as the patented products of Mr. Lee's company in its business premises. So Mr. Li's company to infringement of the design patent will Zhiruixiang company to the court.
Since the origin of the case was these tableware, let's analyze why Mr. Li's company was granted the design patent first.
For the appearance of the design patent, does not require a high level of technology, or to solve how big technical problems, as long as the industrial products to make the aesthetic novelty design can be. But the industrial design must be different from previous designs, not just different, but different enough to be distinguishable at first glance.
Mr. Lee's tableware, which are clearly different from the tableware we come into contact with every day, have either been designed with unique parts or uniquely designed shapes, which not only distinguish them from everyday tableware, but also enrich our vision and lives, and should be encouraged and protected by law.
And comparing the tableware of Mr. Lee's company and Zhiruixiang's company, from the comparison, we found that no matter the shape, or size, no matter the style or the color, no matter the front or the back, there is little difference and it is almost exactly the same. Although the local nuances have differences, but will not affect the visual effect of the finishing of the plate, for consumers to say, will not just at first glance to distinguish between the two different.
Zhirui Xiang company after receiving the petition, said, they use tableware is not their own imitation production, and not deliberately customized and similar tableware, but in Fujian, a supplier to buy, and took out a copy of the "Purchase and Sales Contract" to prove that they are purchased through legal channels. At the same time further proposed, even if the two tableware constitutes similar, they are inadvertent mistakes, the so-called do not know the innocence, should not be compensated for the economic losses and infringement liability. At the same time further proposed, even if the two tableware constitute similar, they are also unintentional, should not compensate for economic loss and tort liability.
China's patent system on whether the defendant knows the plaintiff's patent, to take the principle of inference, in other words, as long as the infringing product into the scope of patent protection, it is presumed that the defendant knows or should know the plaintiff's, actually is not aware of in the matter, which is the special place of the patent system. Once a patent application is filed, it is required to be made public and widely known to the public, so that anyone may have the possibility or channel to know the specifics of the patent, including the patent program, the design picture and other patents. The patentee can only disclose the technology in exchange for 10 or 20 years of exclusive protection under the law. Once the patent rights have expired, everyone is free to use it. However, the disclosure of patent information is not a gratuitous dedication, so anyone has the responsibility to avoid causing damage to other people's patents, or else they will be held legally liable. So the uninformed cannot apply to this patent system.
Article 11 of the Patent Law provides that "after a design patent is granted, no unit or individual shall implement its patent without the permission of the patentee, neither shall manufacture, promise to sell, sell, or import its design products for the purpose of production and business." In other words, the design patent does not prohibit others from using the design patent, it is allowed to use.
And Zhiruixiang company's situation, is used for production and management, although non-manufacturing and importation, but in fact, Zhiruixiang company in the name of joining fee tableware packaged in the cost of hardware and equipment, together with other hardware and equipment to provide to the franchisee, considered as the sale of tableware; and in the year the production of the background of the website, displaying a variety of tableware lined with dishes, the purpose of attracting to join, and from which the franchise fee is collected, so the behavior of the web page display constitutes a promise to sell.
But even so, Zhirui Xiang company is not and must compensate Mr. Lee's company's economic loss. Because according to article 70 of the patent law, "for the purpose of production and business use, promise to sell or sell do not know is not the patentee to make and sell the patent infringing products, can prove that the legal source of the product, do not bear the responsibility for compensation." Zhiruixiang company believes that the provided copy of the "purchase and sale contract", can prove that they are purchased through formal channels, they do not need to bear the financial compensation. If the responsibility is pursued, it is also the responsibility of the supplier in Fujian.
The judge heard: the "purchase and sales contract" there are three fatal injuries.
First, the lack of originals, can be recognized by the court evidence must meet the requirements of authenticity, so all the written evidence provided by the material must be the original, and photocopies are easy to modify and forged, the court is naturally difficult to rely on the photocopies to determine the authenticity of its;
Second, the time of the misplaced, that is, the signing of the contract of purchase and sale, the company has not even been set up, then the contract how to The company's official seal can appear on the contract?
Third, the performance of no evidence, the purpose of the contract is to perform, commercial activities can prove that the contract has been fulfilled is the evidence of invoices and receipts, but Zhiruixiang also did not submit the contract has been fulfilled to prove the evidence.
The court decided:
Considering the above three factors, the court did not support the claim of Zhiruixiang Company that the tableware had a lawful source, and found that the behavior of Zhiruixiang Company constituted an infringement of Mr. Li's company's design patent, and ruled that Zhiruixiang Company should stop infringing the patent, and in consideration of the actual value of the tableware, the time Zhiruixiang Company continued to sell the infringing tableware and the economic impact it may cause to Mr. Li's company. After considering the actual value of the tableware, Zhiruixiang continuous sales of infringing tableware time, the economic loss caused by Mr. Li's company and other factors, the judgment of Zhiruixiang compensation for Mr. Li's company's economic loss of 22,000 yuan.
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