Retro Republican style decoration, exquisite shop signs, and even the clothes and hair styles of the shop's little two have been carefully designed... Nowadays, more and more restaurants and other shops pay more attention to the style and quality of the dishes while paying more attention to the decoration style of the shop. Design, incorporate various cultural elements to attract consumers. Not long ago, a hot pot restaurant in Sichuan issued a document stating that the decoration style of a hot pot restaurant in Ningbo newly opened by a celebrity was suspected of plagiarizing its hot pot restaurant, which caused social concern for a while. A few days later, the two shops reconciled. A hot pot restaurant in Sichuan stated that the management team of a hot pot restaurant in Ningbo communicated effectively with it, expressed apologies and promised to rectify related issues, and the shop accepted the apology from the other party.
The shop decoration style is highly similar to others, is it infringement? What should I do if I encounter a similar situation as a store operator? The reporter interviewed relevant experts on similar new issues.
Can anyone use it without applying for a patent?
It is understood that well-known restaurant chain brands such as "Green Tea" and "Haidilao" have encountered counterfeiting of shop signs, trademarks and decorations. Some of the imitations are relatively "concealed" and do not directly use the trademarks of the imitated shops, but Only imitating the decoration style of the shop, the decoration of the shop is very similar to the style of the napkin.
The reporter learned that the phenomenon of shop decoration being counterfeited is not only in the catering industry. Liu Li, deputy to the National People's Congress and technical director of the Liu Li Health Consultation Center in Shushan District, Hefei City, Anhui Province, encountered such an upset.
Liu Li and her friend opened a pedicure shop. In order to make the shop more distinctive and attract more customers, they specially hired a design company to design the shop. Soon after, Liu Li found that the decoration style of a nearby foot therapy shop was very similar to her own shop. "At that time, we spent 200,000 yuan on the design, but the other party only needed to take a few photos to imitate it easily." When it came to this, Liu Li's tone was helpless.
Whether it is a hot pot restaurant or a pedicure restaurant, the operators put a lot of effort into the shop at the beginning of the decoration, and also paid a lot of time and money. And when the decoration design of one's own shop is counterfeited, it seems not easy to "discuss an explanation". Liu Li told reporters that because of the high cost of time and economic costs of protecting rights, it ended up in the end.
And some businesses that have been questioned about plagiarism have responded “with confidence” in the face of doubt. According to Red Star News, a hot pot restaurant in Chengdu not long ago issued an article saying that it also encountered a business suspected of plagiarism. The decoration style to the advertising slogan were highly similar. In this regard, the business suspected of plagiarism responded: "Do you want to apply? Patented? If not, anyone can use it."
Can the decoration design of the store apply for a patent like the appearance design of ordinary products? In this regard, Li Junhui, a special researcher of the Intellectual Property Research Center of China University of Political Science and Law, believes: “The decoration design of stores is difficult to be protected by design.” Article 2 of China’s Patent Law clearly explains the design: it refers to the shape, A new design that is aesthetically pleasing and suitable for industrial applications made by the combination of patterns or their combination and the combination of colors, shapes and patterns.
If the appearance design of ordinary products such as automobiles is patented, the appearance design of the product is protected by the patent law. The overall decoration design of the store is not attached to an independent product, which is different from the product design concept.
"Design protection is to protect the design of goods." Li Junhui believes that in terms of shop decoration design, the shop itself is only a service place, not an independent product, and is not suitable for protection under the patent law.
Two protection methods are available
If only the decoration styles are similar, and neither trademark infringement nor patent infringement is involved, will the operator face the shop design that has devoted his efforts to it, can he just watch the counterfeit plagiarism by his peers? The answer is of course no.
The reporter searched for cases related to counterfeiting store decoration styles on the Chinese Judgment Documents, and found that most of the cases were related to unfair competition disputes and copyright disputes, and many well-known brand decoration styles were counterfeited cases often involving trademark infringement and unfair conduct competition. Together. Many experts and lawyers told reporters that if the shop decoration styles are similar, it is just a vague concept. To determine whether it constitutes infringement requires specific analysis. According to different situations, two ways of protection can be considered: copyright protection and anti-unfair competition, and different scholars have different views on these two ways of protection.
In April this year, the Jiangsu Provincial High Court pronounced a case involving trademark infringement and unfair competition disputes involving similar store decoration. Sichuan Renzhong Company (associated with Chengdu Xiaolongkan Company) believed that a hot pot restaurant in Zhenjiang, Jiangsu Province used the similar trademark "小龙kan" to counterfeit the decoration, and then took it to court. In the end, the court ruled that Tao (the operator of a hot pot restaurant in Zhenjiang) stopped infringing on the exclusive right of Renzhong Company's registered trademark, stopped using decorations similar to "Xiaolongkan" in his business premises, and compensated the plaintiff Renzhong Company for economic losses of 85,000. yuan.
In this case, the court held that part of the decoration design of a hot pot restaurant in Zhenjiang was similar to that of the Renzhong company involved in the case, which could easily cause misunderstanding by consumers. Therefore, the behavior of the hot pot restaurant constituted unfair competition. "If the similarity of the decoration design of the two stores is greater than a certain percentage, users will mistakenly believe that the former is another well-known store, which is suspected of constituting unfair competition." Li Junhui explained to reporters.
The court’s determination was based on the provisions of Article 6 Paragraph 1 of the Anti-Unfair Competition Law, that is, the operator shall not carry out the following confusing behaviors, leading people to mistakenly believe that it is another person’s product or have a specific connection with another person: unauthorized use has a certain impact on others Identical or similar marks such as product name, packaging, and decoration.
"The'commodity decoration' here generally refers to the design and decoration on the product packaging." said Liu Xiaochun, executive director of the Internet Law Research Center of the University of Chinese Academy of Social Sciences. In 2007, the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Unfair Competition Civil Cases extended the “decoration” to the decoration of business premises, clothing of salespersons, etc., clearly stipulating that: The overall business image with a unique style formed by the styles of appliances and the clothing of the sales personnel can be regarded as the "decoration" stipulated by the Anti-Unfair Competition Law.
Liu Xiaochun believes that if the decoration style of the entire store is included in Article 6 of the Anti-Unfair Competition Law for protection, it may be controversial in practice. "Because the decoration style is more subjective, it is not easy to determine what kind of style is plagiarized." She said that in judicial practice, the decoration style as a commercial appearance protection has not yet formed a strong consensus. If the similarity of the decoration styles of the shops is very high, causing ordinary people to confuse the two shops, or think that the two shops have a specific connection, then this situation may be included in the protection scope of Article 6 of the Anti-Unfair Competition Law. The protection principle is the same as the packaging and decoration principles of protecting specific commodities.” “Of course, the decoration styles of many restaurants are similar, such as Japanese restaurants, so it is not appropriate to expand the scope of protection too much in practice.” Liu Xiaochun further added Tao.
Some people think that the first provision of Article 6 of the Anti-Unfair Competition Law has a prerequisite, that is, "has a certain impact", and what is protected is "the unique packaging and decoration of well-known goods (services)." Liu Xiaochun's explanation is: "Confusion" is an element that constitutes unfair competition. If it is an unknown store, from the perspective of identifying the source, generally speaking, it will not cause confusion by default.
From this point of view, the decoration design of an unknown store is counterfeited, and it seems "no complaint". In this regard, Li Junhui holds a different view. He told reporters that Article 6 of the Anti-Unfair Competition Law also has a "understanding clause", that is, "other confusing behaviors that can lead people to mistakenly believe that they are products of others or have specific connections with others." Li Junhui believes that according to this article, it is against The object of protection of the Unfair Competition Law is not limited to well-known brands, because "the logic and principles it develops are the principle of good faith." For restaurants, the decoration style is an element to achieve differentiated competition. If the imitator knows it will cause The possibility of confusion is also malicious plagiarism and imitation of the former decoration, which violates the principle of good faith. Even unknown brands are also protected by the Anti-Unfair Competition Law.
It is worth noting that the Anti-Unfair Competition Law is based on regulating competition behavior, not on rights protection.
Li Junhui said: “There is no clear definition of what rights the operators have in the decoration and design of their stores.”
Liu Xiaochun also held the same view, believing that to determine whether the shop decoration style is infringing or not, it is necessary to decompose the shop decoration design into different specific elements. For example, she said, for example, the design of shop signs, copywriting, and posters, etc., designed to a certain extent can constitute works of art. If such works of art are plagiarized, they may be suspected of copyright infringement.
Article 3 of the Copyright Law clarifies the scope of works referred to in this law, including graphic works and model works such as fine arts, architectural works and engineering design drawings, product design drawings, maps, and schematic diagrams. "For the hot pot restaurant, the design plan is actually the work referred to in the Copyright Law. If you borrow or fraudulently use another person's design plan for decoration, you will infringe the copyright of the design work of others." Li Junhui explained.
However, some people believe that the copy of the design plan is conceptually different from the imitation of the actual decoration style, so it is difficult for the shop decoration to be counterfeited to apply to copyright protection. In this regard, Liu Xiaochun explained that the original concept of "copying" did simply refer to the copying of design drawings, that is, the process from plane to plane. With the development of judicial practice, from design drawings to building construction, the process from plane to three-dimensional Protection is gradually being recognized. "This is actually an extension of the concept of copying. It doesn't make much sense to only protect the design drawings. The core of the real protection is the commercial innovation. Therefore, in this sense, the copy of the store decoration from flat to three-dimensional should be protected. "
Keep these evidences
Faced with counterfeiting of shop decoration designs that have devoted their efforts, how should shop operators respond? Liu Xiaochun and Yu Jicheng, a lawyer from Shanghai Hushi Law Firm, mentioned the importance of retaining evidence.
Yu Jicheng explained that if the counterfeited store claims rights from the perspective of suspected copyright infringement, if only the design style, decoration details, etc. are claimed, the counterfeited store must prove the originality of its decoration design, which is reflected in the design drawings to the final realization. The original idea of the shop. For example, stores should pay attention to retaining relevant evidence such as drafts of design drawings to prove that the decoration time of their stores is earlier than that of counterfeit stores. At the same time, you can apply for copyright registration for shop decoration, soft decoration design, product design, etc., which can better assist in proving the originality and novelty of its design and decoration.
Liu Xiaochun reminded that when shop operators are looking for a decoration company for design, they need to agree clearly on the ownership of the rights, and at the same time retain the evidence of the creative process. "If the right belongs to the design company, the design company is likely to design a store, and similar designs will be used by multiple stores of the same type at the same time."
"If you are planning to initiate an infringement lawsuit, it is best to fix the evidence by notarization or the emerging electronic notarization. Only your own photographs or videos are provided. The proof strength is relatively low and even easy to not be recognized when providing evidence." Yu Jicheng added. To protect the rights of stores from infringement, Yu Jicheng believes that not only can we start with copyright infringement and anti-unfair competition, but qualified units, especially well-known stores, can also start with trademark rights and promptly integrate their own distinctive stores. The name, LOGO, etc. are registered in the form of trademarks to better protect their legitimate rights and interests.
(Title design: Zhao Lirong)