Discussion On Intellectual Property Protection Of Costume Design

　 Case review

Some time ago, a topic of "asking for a refund after buying 18 clothes travel" aroused heated public opinion. What is more shocking is the consequent reversal -- 18 clothes were retreated and the store was traced to plagiarism. For a while, the three parties were involved in the discussion center. The incident involved two clothes like a picture (Mr. Lee shop was accused of plagiarism for clothes, small shop later claiming to be plagiarized), and then was traced to infringing goods.

Photo from 1818 golden eye news screenshot

Later in the interview, the shopkeeper said he would not consider the matter of compensation, but he hoped that the public attention would be paid to the phenomenon of plagiarism.

In fact, about Clothing market The plagiarism phenomenon has been very popular. In the case of a well-known brand ZARA parent company accused of "plagiarism", the court found that the infringement was established. In fact, ZARA has been accused of plagiarism many times before. In 2016, more than 20 designers issued a statement accusing ZARA of copying their works.

Whether for businesses or well-known brands, Clothing market The phenomenon of plagiarism has always been repeated. One of the important reasons for this phenomenon is the difficulty of safeguarding rights. At the legal level, the word "plagiarism" belongs to the field of intellectual property law. From the current law, we will discuss the protection of clothing's intellectual property rights.

　　 Definition of basic concepts

As a practical thing with unique artistic appreciation value, clothing has become an indispensable part of people's daily life. Clothing design It is a general concept. It belongs to the category of Arts and crafts. It is an art form combining practicality with artistry. From the dynamic point of view, clothing design refers to the conception of the style of the clothes that we want to make in the mind, and then it is displayed through the way of painting. After the gradual modification, the plan is finally determined, and then the tailoring and sewing method is used to make the product according to the pattern of the drawings, and then the design is transformed into a process of the actual product. Fashion designers can show their style and design art through this process.

　　 Two. Typical cases

Guangdong big brother Group Limited and 361 degree (China) Co., Ltd. copyright disputes, disputes over commercial bribery, unfair competition disputes (2014) Min Min Zi 680th)

　　 Brief introduction of the case:

The company found that the 361 degree company used its official website forum and micro-blog on the official website forums and micro-blog of the company to design, develop and produce the "Asian sand fair" formal dress, dress design effect diagram and related pictures of the conference show. The court of first instance dismissed the claim and the plaintiff refused to appeal. The court of second instance held that the behavior of the 361 degree company was not in line with the fair competition market order and the accepted business ethics, which damaged the legitimate rights and interests of the company and should be identified as unfair competition.

　　 The focus of controversy is:

1. does the 361 degree company's actions constitute unfair competition?

2. did the 361 degree company's actions infringe the copyright of the company?

　　 The court discussed:

One Design drawings of the dress involved Department of Technology Independent creation It embodies the requirements of the copyright law. Minimum creativity It constitutes a protected work. and The styling, color and pattern of the costumes show the unique conception and knowledge of the designers, and the ceremonial costumes designed for the sports events are not produced in large quantities. They are not the main purpose of practicality. It also conforms to the constitutive requirements of works stipulated in the copyright law and should be protected.

However, the act of the 361 degree company only used the photos of the site press conference instead of the picture of the big brother company itself, that is, it did not directly utilize the costumes and costumes of the big brother company, so the act did not belong to the use behavior regulated by the copyright law. The claim of the 361 degree company of the big brother company constitutes the appeal claim of copyright infringement, which lacks the facts and legal basis, and does not accept it.

2., in the case of misleading false propaganda prescribed in the anti unfair competition law, under normal circumstances, such unfair competition must be limited to the behavior between competitors. The identification of false propaganda acts requires not only the competitive relationship among the operators, but also the following two conditions: the relevant publicity contents are enough to cause misunderstandings among the relevant public and cause direct damage to the competitors. The misleading judgment should be identified according to the daily life experience, the general public attention, misunderstandings and the actual situation of the object being publicized, and the injured operator should bear the burden of proof.

Due to the misleading consequences of the 361 degree company's involvement, it may be possible to reduce the commercial purpose of the company, such as sponsoring the "Asian Games" and other sports events to enhance the exposure and popularity of the company and help improve the sales volume of the big brother company. The behavior of the 361 degree company does not conform to the fair competition market order and the accepted business ethics. It damages the legitimate rights and interests of the company and should be identified as unfair competition.

　 Three, protection path analysis

Copyright protection

The focus of the application is whether clothing design constitutes a work. Fashion design includes the following procedures: fashion design stage, sample production stage and mass production stage. The corresponding objects will be produced: clothing design, clothing and finished products. The reason for this distinction is that different objects are subject to different protection methods.

　　 1. legal norms

Regulations on the implementation of copyright law

The meaning of the following works in the fourth copyright law and this regulation is:

(eight) fine arts refers to painting, calligraphy, sculpture and other lines, colors or other forms of aesthetic significance of the plane or three-dimensional works of plastic arts.

(twelve) graphic works refer to engineering drawings, product design plans for construction and production, and maps, schematic maps and other works that reflect geographical phenomena, explain the principles or structures of things.

2. copyright protection of costume design

The protection of costume design through copyright law is a widely used method. The object of protection of copyright law is mainly clothing design and sample clothes.

It is a common understanding that creative designs should be protected. As two-dimensional objects, design drawings can be protected as graphic works and artworks in theory. Among them, protecting it as a graphic work is more common, and can be classified as a sketch map for production drawing. But the design of a very special and aesthetically pleasing design can also be identified as fine art.

Sample clothing can also be protected by copyright law. Sample clothing is a sample of clothing before entering mass production, reflecting the design intent and original spirit. Like clothing has been separated from the plane as a three-dimensional object. In the sense of copyright law, sample clothing may constitute art sculpture in fine arts works, and it can be protected through this way in accordance with the conditions of originality and other works.

Clothing products can also be protected by copyright law when meeting specific conditions. Clothing products can be protected as practical works of art. Practical works of art not only contain artistic value, but also have practical functions. Unlike purely practical works, the emphasis of practical art works lies in artistry. In practice, it is usually the protection of practical works of art in the framework of art works, thus having aesthetic sense and aesthetic value in the sense of artistic works, that is, artistry, which is the prerequisite for their protection, and the proportion of art in costume design should be larger. It should be noted that the finished product is not a complete copy of the design drawings. Therefore, if the drawings are copyrights, the finished products may not necessarily have copyright, so they need to be judged according to their own characteristics.

　　 3. copyright protection path evaluation

The automatic acquisition of rights is the unique advantage of copyright protection, but there are also some shortcomings in the copyright protection of costume design. On the one hand, the majority of costume design is protected by artwork, but the identification of art works is very difficult, such as practical works of art. The identification of such works is difficult and controversial. On the other hand, although the principle of automatic protection is simple, most of the creators in China often lack evidence of legal protection and neglect evidence.

　　 [two] protection of designs in patent rights

1. legal basis

The Patent Law

Second article

Appearance design refers to the new design which is aesthetically beautiful and suitable for industrial application.

Twenty-third article

The patent design shall not belong to the existing design, nor shall any unit or individual apply to the Patent Administration Department of the State Council before the date of application for the same design, and record the patent document announced after the date of application.

Compared with the existing design or the characteristics of the existing design, the patent design granted to the patent should have obvious difference.

The patent design shall not conflict with the legitimate rights that others have obtained before the date of application.

The term "existing design" as mentioned in this Law refers to the design known to the public at home and abroad prior to the date of application.

　　 2. clothing design can apply for design patent.

The design patent is a novel original design which contains aesthetic connotation in terms of color, shape and pattern for industrial applications. The specific elements of the design include: first, the object of the design must be the external expression of the product's color, pattern or shape; secondly, it should be artistic and aesthetic; thirdly, it is suitable for industrial application; it is practical; finally, it must satisfy the new glare, which must be different from the commonly used, widely known and open appearance at home and abroad. In conformity with the above elements of the patent law, dress design can be applied as a design patent, that is, a new design which is aesthetically pleasing and applicable to industrial applications, combining the shape, pattern, or combination of colors, shapes and patterns, and applies to industrial design, shall be applied as a design patent.

In fact, clothing is included in the design. The establishment of the international classification of Los Angeles in the international classification of designs stipulates that clothing is a design. After China's accession to the agreement, the patent protection act of China also formally contains the aspect of costume design.

　　 3. design protection path evaluation

There are some shortcomings in the protection of fashion design. The application of patent is precondition. The owner of costume design must provide numerous application documents, complete the complicated application procedure, take too long, and require absolute novelty standard. In this regard, we should strengthen the protection of design patents and make corresponding adjustments in legislation. On the one hand, we can shorten the censorship period of design patents such as fashion design. On the other hand, we can draw lessons from the European Union's differentiated registration designs and non registered designs, and protect the products that are not registered but conform to the design requirements. For example, the protection period and the scope of protection are different from the registered designs, so different types of products and designs can choose more suitable protection methods.

　 [three] protection of Trademark Law

The protection of costume design through trademark law is an indirect protection with limited nature.

Clothing design itself is not the scope of trademark law protection, but in practice, most violations of clothing design often follow the illegal use of trademarks. The right to protect clothing design by trademark law is based on the premise that the infringers do not use registered trademarks without authorization. If reproduction or counterfeiting does not use registered trademarks and there are no other acts of infringing trademark rights, but only plagiarism and counterfeiting of costume designs, trademark law can not provide protection to clothing designers.

　　 [four] Anti Unfair Competition Law

　 1. legal norms

Anti Unfair Competition Law of the People's Republic of China

Second article

Operators should abide by the principles of voluntariness, equality, fairness and honesty in production and business activities, and abide by the law and business ethics.

The act of unfair competition referred to in this Law refers to the act that the operator violates the provisions of this Law in the production and operation activities, disrupts the order of market competition, and damages the legitimate rights and interests of other operators or consumers.

Sixth article

The operator shall not commit any of the following confusing acts, which may be mistaken for other commodities or have specific connections with others:

(1) unauthorized use of the same or similar logo with other names, packaging, decorations, etc. that have certain effects on others;

...

The ninth paragraph 1.

The operator shall not make use of advertising or other methods to make false and misleading publicity about the quality, composition, performance, purpose, producer, expiration date and origin of the commodity.

　　 2. anti unfair competition law is the sole protection for clothing design.

According to the above analysis, the protection of costume design has its own limitations both in copyright and in the protection of design patent. For example, because the patent application takes a certain time, the appearance design of the garment is very dangerous during this period. Many commercial espionage will take advantage of this time gap to get the information of other enterprises' clothing design so as to gain benefits. The anti unfair competition law provides the last line of defense for the protection of the intellectual property rights of costume design, providing a bottom protection for it.

The regulation of anti unfair competition law is the counterfeit problem of costume design. According to the sixth provision of the anti unfair competition law, the operator shall not implement specific confusing behavior, which is mistaken for others' goods or has a specific relationship with others, including "unauthorized use of the same or similar logo" which has certain effects on other people's products, such as name, packaging, decoration and so on. Therefore, if the design of clothing products can constitute the "unique decoration of well-known commodities" and make the public confused between imitation products and well-known products, the right holder can defend his rights and interests according to the anti unfair competition law.

　　 3. analysis of the protection path of Anti Unfair Competition Law

There are also major problems in the application of anti unfair competition law. On the one hand, the limited protection of the path is limited to well-known commodities, and often lacks protection for many ordinary products. In addition, the existing law is not clear about whether or not it constitutes a well-known commodity. Therefore, the anti unfair competition law is the sole protection, and the protection of costume design is limited.

To sum up, the protection of the intellectual property law of costume design seems to be diversified. Actually, there are deficiencies in every way. Coupled with the lack of clear provisions in the existing laws, the weak awareness of rights protection and the high cost of safeguarding rights, the road of costume design protection is still long. In addition to the promotion of legislation, some scholars put forward the proposal to establish a fast design center for the design and the rapid maintenance center for intellectual property rights, which are worthy of affirmation. (Zhang Ying, Chen Anyue, Shi Mengzhen)

　　 About the author:

Zhang Ying lawyer

Zhang Ying is currently a founding partner of Beijing Yun Ting law firm, founding partner of Beijing Shun Wei Intellectual Property Agency Co., Ltd., director of China Science and Technology Finance Law Research Association, and director of Beijing entertainment and Law Association. She has been working in the field of intellectual property since 2011. She is good at patent writing, patent search, patent invalidation analysis, PCT application and patent application, patent review and invalid administrative review procedure and litigation procedure; Madrid's application and foreign application, trademark infringement, trademark review and administrative litigation; in-depth study of film and entertainment law, especially in the field of film and television investment, financing, Performing Arts brokers, film and television works copyright, film and television contracts in the process of film and television drama creation, production, distribution and projection, focusing on providing a comprehensive solution for major cases of intellectual property rights.

Chen Anyue senior legal adviser

Chen Anyue graduated from biochemistry department of Nanjing University and obtained his master's degree in biomedical engineering from University of New South Wales (UNSW). After graduation, she worked in the State Intellectual Property Office for patent examination for many years. Her main fields of examination were medical materials, medical devices, implant prostheses, etc. she was proficient in patent writing, retrieval and analysis. She had excellent English knowledge, went to the World Intellectual Property Organization in 2014, and had rich experience in patent cases in medicine and chemistry field, and focused on providing an overall solution for major and difficult cases of intellectual property rights.

(from the global knowledge production case studies center)