FOOD DESIGN IN CHINA:
ACQUISITION AND
ENFORCEMENT OF IPRs
FABIO GIACOPELLO
22 giugno 2015 – Food Design: valore e tutela – Milano
"Anything that walks, swims, crawls, or flies with its
back to heaven is edible“
22 giugno 2015 – Food Design: valore e tutela – Milano
How to protect food and
its packaging in China?
-
Design Patent
Copyright
Trademark (3D)
Unfair Competition
22 giugno 2015 – Food Design: valore e tutela – Milano
More than 1,5 million patents filed in 2013
• 644,398: number of Design Patents:
• 7,816: containing “FOOD” in the abstract
• 1.21% of the total
22 giugno 2015 – Food Design: valore e tutela – Milano
Subjects as follows can be field as design patent in
China:
Food
Loc.: 01-01 (Bakers' products, biscuits, pastry, macaroni
and other cereal products, chocolates, confectionery,
ices); e.g. CN 301878893 S
Food packaging
e.g. CN 302811514 S / Loc.: 05-06 (Wrapping Paper)
e.g. CN 302807561 S / Loc.: 09-05 (Containers)
22 giugno 2015 – Food Design: valore e tutela – Milano
Food (Loc.: 01-01) CN 301878893
22 giugno 2015 – Food Design: valore e tutela – Milano
CN 302807561 S / Loc.: 09-05 (Food Container)
22 giugno 2015 – Food Design: valore e tutela – Milano
CN 302811514 S / Loc.: 05-06 (Food Packaging Design –
Wrapping Paper)
22 giugno 2015 – Food Design: valore e tutela – Milano
Article 23: REQUIREMENTS
-
NEW;
SUBSTANTIALLY DIFFERENT;
NOT IN CONFLICT WITH ANY PRIOR RIGHT;
“Any design for which patent right may be granted shall not be an existing
design; nor has any entity or individual filed before the date of filing with
the patent administration department under the State Council an
application relating to the identical design, nor was it presented in the
patent documents published after the date of filing. / The design for
which a patent right may be granted shall be substantially different from a
prior design or a combination of the features of prior designs. / Any design
for which a patent right may be granted must not be in conflict with any
prior legal rights obtained by any other person before the date of filing.
The prior design referred to in this Law means any design known to the
public before the filing date of the patent application in China and abroad”
22 giugno 2015 – Food Design: valore e tutela – Milano
RULES FOR JUDGING THE INFRINGEMENT:
Doctrine of Overall Observation and Comprehensive
Judgment (整体观察、综合判断) :
• Identical or substantially identical
• from the perspective of ordinary consumer,
• in the overall visual effect, rather than considering
the content of partial design
• paying attention to both differences and similarities,
further consider the impact of each differences and
similarities on the overall effect of a design.
22 giugno 2015 – Food Design: valore e tutela – Milano
Trademark Law - Article 8 “Any sign, capable of
distinguishing the goods or services of one natural person,
legal person or any other organization from those of other
persons, including words, devices, letters, numerals, threedimensional signs, combination of colors, sounds, etc., as
well as the combination of such signs, shall be eligible for
application for registration as a trademark”
Article 12: “Where a three-dimensional sign is the subject
of an application for registration of a trademark, the
trademark shall not be registered if it consists exclusively of
the shape which results from the nature of the goods
themselves, the shape of goods which is necessary to
obtain a technical result, or the shape which gives
substantial value to the goods”
22 giugno 2015 – Food Design: valore e tutela – Milano
Trademark Law – 3D trademarks - EXAMPLES
22 giugno 2015 – Food Design: valore e tutela – Milano
Trademark Law – Chinese trademark - EXAMPLE
Mulino Bianco in Chinese
BARILLA in
Chinese
22 giugno 2015 – Food Design: valore e tutela – Milano
Cuoricini in
Chinese + brief
description
Copyright Law, Article 3: “For purposes of this Law,
the term “works” includes, among other things,
works of literature, art, natural sciences, social
sciences, engineering and technology, which are
created in any of the following forms: […] (7) graphic
works such as drawings of engineering designs and
product designs, maps and sketches, and model
works;
Recordation with Copyright Bureau is not
mandatory but highly recommended in the practice
(especially for enforcement).
22 giugno 2015 – Food Design: valore e tutela – Milano
Unfair Competition – Art. 5.2 “Peculiar name or
decoration of famous goods”
“An operator may not adopt the following unfair means to
carry to transactions in the market and cause damage to
competitors: […] (2) using, without authorization, the
name, packaging or decoration peculiar to well-known
goods or using a name, packaging or decoration similar to
that of well-known goods, so that his goods are confused
with the well-known goods of another person, causing
buyers to mistake them for the well-known goods of the
other person;
22 giugno 2015 – Food Design: valore e tutela – Milano
Unfair Competition – Art. 5.2 “Peculiar name or
decoration of famous goods”
EXAMPLE:
In the Anti-Unfair Competition
Law Case against Tresor Dore,
the shape of the chocolate
praline was recognized as
“peculiar” and “well-known”
to the public.
22 giugno 2015 – Food Design: valore e tutela – Milano
Il “Tarocco di un Tarocco”
Arance Rosse di Sicilia (IGP): Tarocco, Sanguinella e Moro
22 giugno 2015 – Food Design: valore e tutela – Milano
THANKS
FABIO GIACOPELLO
[email protected]
22 giugno 2015 – Food Design: valore e tutela – Milano