What is the difference between design patent and copyright Why should they be protected separately
The color of the product protected by the patent for appearance. Design and shape structure, design and conception of copyright protected art creation. Do you want to apply for copyright protection after applying for design patent?
design patent and copyright are mutually complementary forms. If the patented product is a graphic work, the creation and protection of the work in various products and publicity channels can be protected by applying for copyright. For graphic works, if they are to be used in product packaging, they can apply for design patents, and then apply for copyright protection. For graphic design works such as packaging design and product pattern, they belong to the protection of design patent and copyright. However, there are great differences between the two in various aspects:
1. Different protection objects
design patent: the protected object is the design of industrial products, that is, the color, pattern and shape design of industrial products. Copyright: the objects of protection are intellectual achievements that are original in the fields of literature, art and science and can be reproduced in some tangible form.
2. Different rights
design patent: it consists of property rights, mainly including the right to implement, the right to license others to implement and the right to transfer.
Copyright: it consists of personal rights and property rights. The part of personal rights is also called the spiritual rights of works. The part of property rights mainly includes the right to use, the right to license, the right to transfer and the right to get remuneration.
3. Different protection areas
design patent: follow the principle of regional protection. Copyright: the copyright registered in China enjoys national protection treatment in 172 contracting countries.
4. Different protection periods
design patent: ten years from the date of application. Copyright: the term of protection of copyright shall be fifty years after the author's life and death.
5. Different maintenance costs
design patent: annual patent fee shall be paid every year, increasing by stages. Failure to pay annual fee shall be deemed as waiver of right. Copyright: no annual payment is required after obtaining the work registration certificate.
6. Different rights in the premise of acquiring rights
design patent: the patent law requires that "it does not belong to the existing design, which should be significantly different from the existing design or the combination of existing design features". In short, the design patent requires "unique originality". However, it should be noted that in fact, China's design patents are only subject to formal examination, so they are usually authorized. Copyright: copyright is automatically generated after the completion of a work. As long as it is an original work, whether it is similar to a published work or not, independent copyright can be obtained.
7. Different rights protection basis
design patent: protected by patent law. As mentioned above, at present, the State Intellectual Property Office only conducts formal examination, but searches, analyzes and evaluates whether it has defects that do not meet the conditions for granting patent rights and whether it has the substantive elements of novelty and creativity. In the event of a dispute over infringement of a patent for appearance, the patentee usually needs to first request the State Intellectual Property Office to issue a patent evaluation report, with a positive evaluation Under the premise of the report, the protection of design patent is relatively strong. Copyright: protected by copyright. Copyright does not require that the work to be protected be original, but only requires that it be completed independently. Whether it is completed independently is sometimes indistinguishable and relatively easy to avoid patent.
To sum up, there are various differences between design patent and copyright, but from the perspective of intellectual property protection, they can complement each other. For example, if a patented product involves a graphic work, applying for copyright can protect the creation and protection of the work in various products and publicity channels, not limited to the product itself. For graphic works, if applied to product packaging, in addition to applying for copyright, it can also apply for design patent to obtain more powerful protection.
