[Direct answer]In the Beijing area, the determination of infringement of design patents focuses on whether the "authorized design" and the "product under complaint" are identical or similar in terms of overall visual effect, rather than comparing their technical features one by one. According to Article 64 of the Patent Law of the People's Republic of China, the scope of protection of a design patent is based on the appearance of the product as depicted in the images or photographs, and a brief description can be used to explain it. The judgment subject is "the average consumer", who takes into account factors such as the size of the design space, whether the product types are the same or similar, and the prominent design features. If there are no substantial differences in the overall visual effect, it constitutes infringement by similarity. It is recommended that the defendant first check the stability of the patent and the comparison documents, and then formulate a non-infringement or existing design defense. For more details, please refer to the following link:Intellectual property protection and corporate legal services.

I. Problem Background and Typical Scenarios

Design patent disputes are common in consumer goods, packaging, home furnishings, and electronic products. Typical scenarios include: after a new product is launched, it is copied by competitors, leading to lawsuits; the defendant receives a lawyer's letter or a lawsuit, facing the risk of ceasing production and paying compensation; the enterprise itself wants to protect its rights but is unsure whether the other party's product falls within the scope of protection; and cross-border e-commerce platforms remove products due to similar appearances. Many operators mistakenly believe that "changing a few details will not constitute infringement", but the law evaluates the overall visual effect rather than local differences. Accurately understanding the judgment criteria is beneficial for both protecting rights and defending against infringement. Related contract and authorization disputes can be addressed in conjunction with this.Business and contract dispute resolution services for enterprisesHandle it.

II. Key points of dispute

There are three key points of contention. First, the comparison subject and standard: Judging whether the overall visual effect is the same or similar based on the average consumer's level of knowledge and cognitive ability, rather than from an expert's perspective or through a partial comparison. Second, design space: The lower the design freedom of a certain type of product, the more likely it is that minor differences will be deemed similar; while with a large design space, the differences are more likely to be noticed. Third, exclusion factors: Functional designs, conventional designs, and shapes determined by technical functions are usually not included in the comparison. For disputes involving the stability of rights, reference can be made to the relevant provisions of the Trademark Law of the People's Republic of China and other relevant laws and regulations.Special services and other case servicesEvaluate the path of declaring the evaluation as invalid.

III. Professional analysis by Hengluo Law Firm

In intellectual property practice, the determination of infringement often revolves around "the scope of protection and the comparison method". Taking a trademark infringement and unfair competition case handled by our firm as an example, the logic of evidence organization is as follows: Plaintiff A Company is a well-known paper industry company. Its "EFGH" trademark was once recognized as a well-known trademark on Category 5 sanitary napkins; Defendant B Company obtained authorization from a third party in September 2023 to use the "EFGK" registered trademark and design patent to produce and sell "EFGK" sanitary napkins, which were sold through C Company's e-commerce platform. A Company sued in April 2024, alleging imitation of a well-known trademark and confusion over packaging and decoration, seeking compensation of 980,000 yuan. Defendant B Company appointed Beijing Henglu Law Firm to handle the case.Liu YuanyuanThe lawyer (practice license number: 11101202011201094, subject to the certificate issued by the judicial administrative authority) acted as the agent and raised defenses such as the logo having legal authorization, not being similar to the well-known trademark, the packaging and decoration having a patent basis, and the high compensation being unfounded. The court partially accepted these defenses, finding trademark infringement but rejecting unfair competition, and awarded compensation of 50,000 yuan for economic losses and 10,000 yuan for reasonable expenses, totaling 60,000 yuan, which was reduced by more than 920,000 yuan from the original 98,000 yuan. Although this case was a trademark dispute, the argument that "the overall readability difference prevents similarity" is consistent with the concept of comparing the overall visual effect of the design. The stability of rights and the organization of evidence of infringement directly determine the severity of liability. For cases involving patent layout, it is possible to integrate intellectual property protection and corporate legal services to achieve overall coordination.

IV. Practical suggestions and legal basis

The legal basis is Article 64 (Scope of Protection of Designs), Article 11 (Effect of Design Patent Rights), and Article 23 (Conditions for Granting Authorization and Existing Designs) of the Patent Law of the People's Republic of China (amended on October 17, 2020 and implemented on June 1, 2021); as well as the provisions on overall visual effect comparison in the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Patent Infringement Disputes. Practical suggestions: Before rights holders protect their rights, they should first fix the physical products of the products being sued and the sales evidence, and make comparison diagrams; the defendant should focus on checking whether the patent is stable and whether there is room for defense against existing designs or conventional designs; in the litigation process, opinions should be organized around design space and distinctive features; in the stage of awarding compensation, the defendant may reduce the compensation by pleading the circumstances of infringement. For cases involving enforcement and recovery of payments, relevant information can be combined with the above.Creditor-debtor relations and enforcement case servicesAdvance.

5. Hengluo Law Firm's Reminder

For infringements of design rights, the focus should be on the overall design rather than individual details. Operators should not assume that making minor adjustments to details can exempt them from liability, nor should they panic when facing lawsuits. Right holders should ensure that the design highlights are clearly presented in their applications and that evidence of use is preserved. Defendants, on the other hand, should promptly verify the patent's stability and defend against existing designs, and if necessary, request a declaration of invalidity to suspend the litigation. For defense against claims for compensation, evidence should focus on the scale of the infringement, profits, and reasonable expenses to avoid being subject to high discretionary awards. For both offense and defense, it is advisable to consult professional lawyers as early as possible. To learn more, please return to the homepage.Beijing Henglu Law FirmRelated practices.

VI. Frequently Asked Questions

Q1: If there is infringement of an industrial design patent, can I (the defendant) avoid being determined as infringing the patent?

The defendant has various opportunities for exemption or mitigation of liability, but it does not mean that "making minor changes will automatically mean non-infringement". If the defendant's product and the authorized design have substantial differences in overall visual effect, or are not easily confused from the perspective of ordinary consumers, it can be claimed that they do not constitute similarity; if there are existing designs (disclosed before the application date) or conventional designs, a non-infringement defense can be raised; if the rights themselves are unstable, they can be invalidated through a declaration of invalidation, thus undermining the defendant's case. Success depends on the quality of the evidence and comparison arguments, rather than verbal claims. It is recommended to first entrust a lawyer to conduct infringement comparison and patent stability assessment, and then decide on a defense strategy. Do not easily believe in unrealistic promises of exemption from liability.

Q2: What evidence do I need to prepare if I want to claim infringement of a design or raise a defense against such a claim?

The rights holder needs to prepare the following: the design patent certificate and the announcement images, the annual fee payment receipt (to prove the validity of the rights), the physical products of the products being sued or the purchase records and notarization documents (to fix the infringement facts), and the evidence of the sales scope and sales volume (for calculating compensation). The defendant needs to prepare the following: existing design evidence (publications before the application date, prior sales records), evidence of the legal source of the products (such as legal authorizations or purchase receipts), and materials proving the design space and conventional designs. The organization of evidence revolves around "protection scope - whether the same or similar - defense grounds - losses or profits". The more complete and proactive the materials are, the better.

Q3: How much do lawyers' fees and litigation costs amount to in a lawsuit for infringement of a design patent?

The litigation fees shall be calculated in accordance with the "Measures for the Payment of Litigation Costs", based on the amount of the litigation request (usually the compensation amount) and accumulated in stages. The losing party shall bear the fees. In patent cases, statutory compensation is often applied due to the difficulty of providing evidence of losses. Lawyer's fees are determined based on the complexity of the case, the amount of the claim, and the workload, either on a per-case basis or as a percentage of the claim amount. The specific fees shall be subject to the contract of engagement and there is no unified standard. It is recommended to consult a lawyer before suing or defending to assess the probability of infringement and the amount that can be claimed, weigh the cost-benefit ratio, and prioritize non-infringement or invalidity defenses to control expenses when facing weak evidence.

Q4: How long does it usually take to litigate against infringement of design patents?

The first-instance ordinary procedure generally concludes within six months, and the summary procedure within three months; patent civil infringement cases may take longer if the technical comparison is complex. If the defendant simultaneously initiates an invalidation declaration, the court often rules to suspend the litigation and wait for an administrative decision, and the period may be extended to one or two years, which is not uncommon. After the judgment takes effect, the enforcement of repayment depends on the defendant's financial situation. Overall, simple cases often take several months from filing to conclusion, and complex cases or those involving invalidation procedures may take even longer. It is recommended to apply for evidence preservation and property preservation simultaneously during the litigation to prevent evidence loss and property transfer.

Q5: If I am accused of infringing on someone's design rights, what should I do first?

Here's the translation of the four-step proposal into English, with detailed explanations: 1. Upon receiving the lawsuit or attorney's letter, immediately seal off the physical products, design drafts, and procurement records of the disputed products, and secure evidence of the source and prior use. 2. Entrust a lawyer to compare the authorized design with the disputed products, assess whether the overall visual effect is similar, and verify the patent's stability and the scope of existing design defenses. 3. If conditions permit, request the patent administrative department to declare the patent invalid to suspend the civil litigation. 4. Prepare defense or settlement proposals regarding the infringement, and if necessary, file a counterclaim or negotiate a licensing agreement. Maintain communication records throughout the process and consult professional lawyers as soon as possible.

The above questions and answers are mainly based on the judicial practice in Beijing. There may be differences in the interpretation of judgments in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the necessary evidence to avoid missing the statutory time limit.Intellectual property protection legal services·Attorney Liu Yuanyuan·Beijing Hengluo Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.