Above, we talked about how companies can protect their own packaging designs in many ways. Which method to use depends on the company’s own situation. For example, through design patents to prevent packaging designs from being infringed, although it has the advantages of a relatively short period of rights acquisition, general form-only review when authorized, intuitive protection of colors and colors and combinations, and the ability to apply for a series of design patents, etc., but also There are some drawbacks:
First, there is the instability of rights. When an enterprise finds that its own design has been infringed upon and sued, the defendant frequently makes a request for invalidation of the patent right to the Patent Reexamination Board of the State Intellectual Property Office on the ground that the patent is improperly authorized, and requests the court to suspend the trial of the patent pending the patent right. After the validity has been confirmed, resume the trial procedure. Delaying litigation time in this way can often win time for the defendant. Even if the plaintiff wins the case, the defendant wins the market during the litigation period. This makes it possible to use the design patent to protect the unique design of the company in actual rights protection. Risk, and may increase business losses.
Second, the period of protection is limited. The protection period for design patents is 10 years, while the average service life in China is less than 10 years. Imitations that exceed the protection period will no longer be regarded as infringements. Some good designs will only be protected by the way they apply for design patents. Not enough, this is why some classical designs often adopt the simultaneous registration of trademarks or other protections.
Thirdly, there are many controversies regarding the determination of infringement of design, mainly focusing on the premise, criteria, and main methods of judgment. Different judges may have different judgment results. The existence of uncertain factors makes it difficult for enterprises to guarantee that they will not encounter infringement even if they apply for a design patent, and even if a lawsuit is infringed, it does not necessarily prevail.
In this case, there are some advantages to using a registered trademark at the same time. In terms of the term of protection, although the design and the trademark have the same duration of 10 years, after the expiration of the protection of the design, it is no longer protected by law and the trademark expires. You can also apply for renewal within the validity period, and you can always have it as long as the company needs it. It should be noted that the current “Trademark Law†in China stipulates that the registered trademark in China adopts the principle of classified registration. Therefore, in order to obtain comprehensive protection as a registered trademark, multiple registrations are required for comprehensive protection.
The use of the “Anti-Unfair Competition Law†protection will be relatively flexible because Article 2 can be used as a cover clause, as long as the violation of the principle of good faith seems to be subject to sanctions. However, in the process of litigation, especially the evidence, there are some difficulties, and in many cases rely on the results of the decision of the business sector. When enterprises defend their rights, they must pay close attention to administrative regulations and departmental rules. Their protection for the parties is more specific. However, Article 5 Item 2 clearly stipulates that the protection of the unique names, packaging and decoration of well-known goods means that the protected company should first be a well-known enterprise, and it is not yet a so-called well-known enterprise for its creation and growth, even if it is packaged. Indeed, novelty and uniqueness may not be protected by this law. Such companies should choose other ways to protect themselves.
Different companies have different situations. In order to increase awareness of intellectual property protection, they must choose favorable protection methods according to their own circumstances. Because they also deal with infringements, different litigation targets may produce different results.
Legal awareness in the packaging design industry
If you think about your rights and interests in the packaging design process and use legal weapons to prevent them, it is a reflection of the self-protection awareness of the company. To avoid the infringement of the rights of others by the designed packaging, it should also be a question that companies should consider.
Most of the infringements in the packaging industry are general infringements, that is, the behaviors that the perpetrator gives subjective faults. Faults are subjective or faulty subjective mental states of the actor. Whether it is based on intentional or negligent infringement, it must bear legal responsibility. Intent to intentionally infringe in the design process is not a problem that we want to discuss. How to prevent infringement arising from negligence is indeed a business must pay attention to.
First of all, relevant documents must be consulted in the design process, for example, whether the packaging to be designed through the patent office and the Trademark Office will inspect whether the previous patent and trademark rights will infringe upon others. Earlier we mentioned that enterprises can protect their own packaging designs by applying for design patents. Then, in the design process, we must also consider whether our own designs will infringe the designs of others, as well as registered trademarks. For patents and trademark rights, refer to patent documents and trademark announcements, and make appropriate modifications to the design of possible infringements.
Secondly, the protection of the unique names, packaging, and decoration of famous products is based on the premise that they are used first. There may not be ready-made literature to search for information materials in this area. This requires companies to pay more attention to observation and accumulation in the ordinary course of time. Companies that are necessary may establish a database for easy access.
Give full play to the role of industry associations
Industry associations are part of the market economy, and they are the indispensable operating mechanism for the market. They are created to reduce the cost of the enterprise and serve the enterprise. For example, the problem of establishing a database mentioned just now, there are indeed many companies have the strength to be able to set up their own database, but such companies need to consume a lot of resources, and if more than one company is formed, it is a kind of repeated construction and waste of resources for the entire industry. . It is entirely possible to take advantage of industry associations, and to do so in the spirit of resource sharing and service for enterprises. The Association provides public services, regulates the market, and conducts industry self-discipline.
China Packaging Technology Association is one of the first industrial associations approved by the State Council to promote the development of the packaging industry. With the in-depth development of the market economy, the demand for industry associations is growing stronger. Progressive development plays a greater role.
1. Build a service platform for enterprises
Collect information about the packaging design of the entire industry, organize the database, save the company's costs, and avoid duplication of efforts. There are many successful experiences in foreign countries that can be used for reference.
California is the largest agricultural state in the United States. It has more than 3 million acres of orchards grown in California and is the world’s largest almond production base. In 2002, the production of almonds in California was as high as 490,000 tons, which accounted for 80% of the world's production, and about 53,000 tons of almonds produced in California 50 years ago. 70% of the almonds produced in California have been exported to more than 80 countries and regions in the world. Europe and Japan are the main export regions of the United States. The success shown by all these statistics is inseparable from the continuous efforts of the California Almond Industry Association over the years. The California Almond Association was established in 1950 and is affiliated with the U.S. Department of Agriculture. It is a semi-official, non-profit industry association that implements federal market development policies, is responsible for formulating industry policies, formulates budgets for operational projects, and verifies project effectiveness. With the highest quality almond products and the mission of improving global almond consumption, when people don’t know about American almonds, the Almond Association conducts publicity and popularization through various promotion and introduction activities through its representative offices in major cities in Asia, Europe, and the Americas. Develop domestic and international markets and expand people's understanding of and needs for almonds; when people accepted almonds, the association began to research and develop the nutritional value and health functions of almonds, further cultivate the market, and spend millions of dollars each year for this purpose. Funding, cooperation with universities such as the University of California, Toronto University of Canada, and Beijing Medical University. It can be said that the achievements made by American Almond today are inseparable from the efforts of the Almond Association.
The above cases analyze the effectiveness of industry associations in building enterprise service platforms and broadening the space for government’s rights protection. Industry associations should make full use of this platform to register the intellectual property rights of enterprises in the entire industry, collect statistics on the status of protection, and form databases, so that they can keep abreast of the accurate data and information of intellectual property protection in the industry and facilitate enterprise inquiries. Provide more professional and efficient services; also provide a reliable basis for formulating relevant industrial policies within the industry, formulating industry norms, strengthening industry management, reporting to the government, and conducting horizontal economic coordination.
2. Play a special function of the Association
Industry associations can openly protect the enterprises of this industry under the WTO rules. When the transition period of China's accession to the WTO is about to end, the unique features of the industry associations will become more prominent. Due to the continuous increase in trade frictions, it is difficult for individual companies to face and bear high costs, and industry associations can play a special role that the government cannot play.
In 2003, the United States imposed restrictions on Chinese textiles. Once the news broke out, the China Cotton Association immediately responded and expressed its strong opposition as an industry association. The United States attached great importance and immediately sent special envoys to negotiate. This is what the government can't do under the WTO mechanism. There is good reason for industry associations to come forward, and industry associations and governments can achieve effective division of labor. And as an association, it makes the response more flexible. In terms of intellectual property protection, industry associations can give full play to the advantages of clustering within the industry. In the increasingly fierce international competition, many single companies are solved by their own difficulties that cannot be solved, and they are helpful to assist member companies in developing domestic and foreign markets. Overall competitiveness and participation in international competition.
For the packaging industry, there will be more and more intellectual property disputes after China's accession to the WTO. How to allow domestic companies to avoid unnecessary disputes and suffer major losses in the global competition, and to play the functional advantages of the industry association will be Packaging Association’s historical responsibility.
3. Improve the intellectual property protection and management system in the industry and strive to create a level playing field
Give full play to the effectiveness of the association's communication and coordination, and coordinate and handle intellectual property disputes in the industry on the basis of communication, to contain and eliminate fake and shoddy products in the industry, and ensure the healthy and upward development of the industry. Effectively safeguard the interests of the industry, create an orderly and fair environment for competition, and promote the development of the industry.
Through the establishment of an industry-wide intellectual property protection management system to integrate intangible assets and promote industrial restructuring and optimization, and gradually establish and improve the industrial associations' intellectual property management mechanisms, and strengthen the joint intellectual property protection strategies of enterprises, to avoid the consumption of domestic enterprises and their own consumption. Infringement in the industry. Create a legal environment for enterprises to protect intellectual property rights.
Strengthen the industry self-discipline mechanism, in the context of fair competition, the association can also assist enterprises to create well-known brands, well-known trademarks.
Give full play to the functions of industry associations in organizing technical exchanges and trainings, carry out propaganda and popularization of intellectual property rights, and promotion activities of industry products, so that enterprises can recognize the position and role of intellectual property rights in the market economy and give full play to intellectual property rights in the market competition. The company should bring its own benefits; help companies understand the intellectual property policies in the international trade rules and improve their international competitiveness; and create an atmosphere of intellectual property protection in the industry.
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Protecting Intellectual Property in Packaging Design (II)
Choose the right protection