Why Don'T Many Designs Have Unique Patterns Or Patterns On Them?

According to the world clothing shoes and hats net, at present, in China's judicial practice, clothing The designer wants to protect his clothing through copyright law. Design It's very difficult.

The first thing to point out is that the "clothing design" mentioned here refers to the overall style of the garment rather than the pattern above, because if someone else merely plagiarize the pattern on the clothing, the designer can fully advocate that the pattern should constitute a fine art and prosecute, which will become the struggle for the pattern rights, rather than the overall protection of the clothing style discussed in this paper. Moreover, in fact, many of the unique designs have no complicated patterns or patterns.

Clothing overall style

Whether it constitutes a piece of work is very important.

For the overall style of clothing, some people will think that this can constitute a "practical art work" and thus be protected by law. Then, what is the "practical art work"? The existing copyright law does not specifically define it, nor has it been incorporated into the specific type of work. According to the categories of the typical practical art works listed in the Berne Convention guide, such as knack, gold and silver jewelry, furniture The author defines it as an industrial product with both practical functions and artistic beauty.

Since China has entered into international agreements such as the Berne Convention, the agreement on trade related aspects of intellectual property rights and the intellectual property rights treaty of the world intellectual property organization, it has the international obligation to implement relevant provisions of the relevant international agreements in its own country. Therefore, practical art works should also be protected in China. However, because our current copyright law follows the principle of "statutory right", in other words, the protection of any work must be based on the statutory type of the copyright law. Therefore, even for the practical work of art, it is necessary to conform to the specific types of works in the copyright law so as to be protected by copyright law.

General fashion style

Not having the conditions for artistic works.

So what is the most suitable type of works of applied art? The answer is still "fine works". According to the fourth provision of the "Regulations on the implementation of the copyright law", the so-called "fine arts works" refer to "graphic or three-dimensional works of art that are aesthetic in meaning, such as painting, calligraphy, sculpture, etc.". Then, can the overall style of clothing be used as a practical art work to constitute art works? The answer is: the general fashion style does not have the conditions to constitute art works. Why is that?

In the case of copyright disputes between Lego company and Xiao Bai Long company, the Supreme People's Court pointed out that (see the Supreme People's Court (2013) min Shen word no. 1262nd and other dismissal of retrial application order), whether it can protect artwork as an object that appreciates the value and practical value depends on the unique personality and creativity embodied in the intellectual work paid by the author in aesthetics, and the intellectual labor that does not belong to the aesthetic field has nothing to do with originality.

The "IKEA company v. Zhongtian company copyright dispute case", which was selected in the Supreme People's court communiqu, further interpreted the protection of practical art works. It is necessary to distinguish between the practical part and the artistic part, which is not protected by copyright law. Only for the artistic part, when it reaches enough artistic height, can it be protected by copyright law.

It is worth noting that in addition to the above requirements (art part has enough aesthetic sense), the practical art works must form a principle of "separation between the practical part and the art part", which means that the protected artistry must be separated from the practicality of the article, and the protected art form must be able to exist as a work of art independent of practical art. Therefore, for the three-dimensional shape and design of the garment itself, even if it constitutes a "practical art work" to form "art works", it must also require that the work itself has the aesthetic feeling independent from the function, and the clothing design is difficult to separate from the product function. For example, various buttons designed to sew on the cuffs of clothes are derived from imitation of ancient European military uniform, belonging to aesthetic design, but they still have the function of preventing cuff wear. Therefore, after eliminating the elements related to function in costume design, there are few original aesthetic parts.

Infringement of costume design

How to safeguard rights

At this point, some people may question, for most of the clothing, its own shape and design, as mentioned above, can hardly be protected by copyright law. So, if this garment is copied and copied by others, how should the costume designer protect his rights?

First of all, it is possible to apply the clothing design scheme that accords with the patent law as an application for design patent. The new design application, which is aesthetically pleasing and applicable to industrial applications, will be designed as a patent for the shape, pattern or combination of its clothing products and the combination of colors and shapes and patterns.

Secondly, it is protected by anti unfair competition law. If the design of clothing products can constitute the "unique decoration of famous commodities", the behavior of others' imitation of clothing makes the public confusion between imitation products and well-known products, and it may belong to the fifth second sections of the current anti unfair competition law, that is, "unauthorized use of the name, packaging, decoration of well-known commodities, or the use of similar names, packaging and decoration with well-known commodities, resulting in confusion with well-known products of other people, making the buyer mistaken for the well-known commodity". It is worth noting that the revised anti unfair competition law will come into effect on January 1, 2018, and the sixth amendment to the anti unfair competition law has replaced the "special decoration of famous commodities" with "a certain effect of commodity decoration". In other words, for the relevant cases after 2018, the right holder can no longer advocate "the unique decoration of famous commodities" instead of advocating "having a certain effect on the decoration of goods".

More wonderful reports, please pay attention to the world clothing shoes and hats net.