| With the continuous development and growth of China’s economic level,the living standards of Chinese residents have improved,and people’s requirements for the quality of life have also increased.With the improvement of consumers’ requirements,consumers’ demand for aesthetic industrial products is gradually increasing,which promotes the development of design patents to a certain extent.In China’s newly revised Patent Law in 2020,many amendments have been made to the relevant articles of design patent,which not only increases the priority of design patent and the protection of partial design,but also changes the protection period of design patent from the previous 10 years to the current 15 years.All these show that design patent is getting more and more attention.Compared with invention and utility model patents,the identification of design patent infringement is relatively complex and fuzzy.Although there are a lot of in-depth studies on the cognizance of design patent infringement in academic circles and judicial practice,according to the current legal provisions,the cognizance of design patent infringement in China is still relatively principled,and there are still great differences in the cognizance of design patent infringement in academic circles.As for the difference of judgment subject,that is,whose observation ability and knowledge level are used as the standard to judge whether the appearance design is the same or similar,there are two views in the academic circles.One is that ordinary designers are the main body of judgment,and the other is that ordinary consumers should be the main body of judgment.From different perspectives,we may come to completely different conclusions.At present,the most popular point of view of supporters is to judge from the perspective of general consumers,that is,no matter whether the accused infringing design is the same or similar to the authorized patent design,as long as consumers do not have confusion or misunderstanding,it is not an infringement.Scholars who support another view think that from the perspective of ordinary designers,on the one hand,it can unify the judgment subjects of authorization and infringement;on the other hand,it can distinguish the design points that are difficult for ordinary consumers to find in front of professional designers.At the same time,in judicial practice,when judges apply ordinary consumers as the main body of tort determination,they also have the problem of unclear understanding of the connotation.There are three views on the determination of the connotation of ordinary consumers: users,buyers and general consumers.If they do not make it clear,it is not conducive to the settlement of disputes,It will also make the judgment result more controversial.There are more obvious differences on the standards of infringement,which are mainly divided into "confusion standards" and "innovation standards" in the academic circles of our country“ The core of "confusion standard" is to use confusion or not as the standard to judge whether it is the same or similar,while "innovation standard" focuses on whether the accused infringing product contains the aesthetic innovation content that ordinary consumers can see in the normal state when judging whether the design patent is infringing.Confusion standard is more conducive to judge the similarity of design,but it is weak to protect the innovation of design patent.While the innovation standard can better protect the patent,it also makes it more difficult for judges to judge the similarity of patent.Therefore,there are often differences in the application of the two views in theory and practice.Design patent is very different from trademark,invention and utility model,and its infringement judgment standard is also different from other types of patents.Through the discussion of the advantages and disadvantages of the two standards,this paper hopes to put forward more reasonable suggestions for the improvement of the standard of design patent infringement. |
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