Law Lecture Hall: Protection Of Costume Design In China'S Current Intellectual Property Law And Related Civil Law

< p > with the development of the times, the function of < a target= "_blank" href= "//www.sjfzxm.com/" > clothing < /a > has not only covered the body against the cold, but also is a consumer's choice of beauty and fashion.

Nowadays, consumers are buying clothes first by looking at the style design and then seeing the costumes and prices, so clothing manufacturers will invest huge cost in garment design, making clothing design an important part of the value of clothing itself.

Therefore, with the rapid development of the garment industry, the protection of the intellectual property rights of clothing design has become an unavoidable problem.

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< p > < strong > the legal protection mode of Chinese costume design < /strong > < /p >.

< p > clothing design is the styling art of clothing designers embodying their personal style and design level through the combination of color and pattern and their tailoring style through complex spirit and practical activities. The clothing design discussed here does not include functional clothing designed for special activities, such as fishing clothes, photographic clothes, etc.

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< p > < < a target= > _blank > href= > //www.sjfzxm.com/ > textile > /a > product design as a kind of intellectual achievement to protect it is the first system in modern intellectual property system.

The twenty-fifth clause and second paragraph of the TRIPS agreement stipulates: "members shall ensure that their requirements for the protection of textile designs, especially the requirements for cost, inspection or publication, do not cause unreasonable damage to the opportunity for protection, and members have the freedom to choose the industrial product design method or the copyright law to perform this obligation."

China's domestic laws also provide corresponding protection.

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< p > < strong > China's current intellectual property law and related civil law's protection of clothing design < /strong > /p >

< p > first, the patent law of China protects the appearance design of clothing.

The patent law stipulates that appearance design refers to the new design, which is beautiful and suitable for industrial application, in terms of the shape, pattern, color or combination of the product.

The design of clothing is in conformity with this definition.

When a fashion design is practical and innovative, it can be applied to and obtained the protection of appearance design when it is published publicly in the publications at home and abroad, or the designs used in China are not identical or similar.

The patented designer can prohibit others from making, selling and importing the same or similar clothing products without permission, and the protection period is 10 years, and they can not be renewed.

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< p > secondly, our copyright law protects < a href= "http://sjfzxm.com/pioneer/" > dress design < /a >.

First of all, costume design creates visual images by means of composition, colors, lines and so on. Therefore, the design drawings conform to the definition of fine works in China's copyright protection.

The second provision of the regulations on the implementation of the copyright law stipulates that works referred to in the copyright law refer to the intellectual creation results that are original and can be copied in a tangible form in the fields of literature, art and science.

Moreover, according to the fourth articles of the copyright law of China, the definition of fine works is that works of art, such as painting, calligraphy, sculpture and so on, are written or three-dimensional works of art with aesthetic meaning in lines, colors or other ways.

Art works, including three-dimensional works, as well as clothing design products as a beautiful three-dimensional art works, also meet the requirements of art works, can be protected by copyright law.

In addition, costume design, as a practical work of art, is a category of "literary and artistic works" protected by the copyright law according to the second article and first paragraph of the Berne Convention.

The sixth provision of the international copyright treaty, promulgated by the State Council in 1992, also provides protection for the works of foreign practical arts.

Although the copyright law of China promulgated in 1990 and the copyright law amended in 2001 have not been given a word, many mathematicians believe that although the revised copyright law and its implementing regulations do not clearly relate to the works of applied art, there is a theory in the domestic academic circles that the practical works of art can be protected by copyright law in China. See Li Shunde and Zhou Xiang: "People's Republic of China copyright law amendment guide", Intellectual Property Publishing House 2002 edition, p47., so the three-dimensional design of clothing design can also be protected by copyright as a practical art.

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< p > again, due to copying or counterfeiting other people's clothing design for mass production, often accompanied by illegal use of clothing enterprises registered trademarks and other acts of infringement of trademark rights.

Therefore, some clothing enterprises will protect the costume design by trademark law.

China's trademark law stipulates: "without the permission of the trademark registrant, no trademark shall be used on the same commodity or similar commodity on the same or similar trademark with its registered trademark."

The holder of a clothing trademark may lodge a complaint against the counterfeit on this basis.

Moreover, garment enterprises with regional characteristics and group effects can apply for registration of geographical indications and create regional brands.

However, neither trademark law nor precedent in China supports the protection of product's functionality and practicability.

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At last, P also used the anti unfair competition law to protect knowledge products.

In accordance with the anti unfair competition law, unauthorized use of the name, packaging or decoration of well-known commodities, or the use of similar names, packaging and decoration with well-known commodities, results in confusion with well-known products of others and causes buyers to mistakenly believe that they are well-known commodities, which is an act of unfair competition prohibited by law.

When patent law and copyright law can not effectively protect clothing design, the right holder can use the anti unfair competition law to protect his rights.

But one thing needs to be clear. According to the anti unfair competition law, the right to design can only be established in tort litigation.

In China, it also includes administrative investigation of infringement.

In this way, the right of the obligee is not clear in administrative investigation or before the court hearing. He can not warn the infringer or take other measures on the premise of the existence of the right.

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< p > because patent law, copyright law, anti unfair competition law and even trademark law can protect clothing design.

Therefore, the legal protection of the same costume design involves the concurrence of relevant laws and regulations.

If the right to concurrence is enjoyed by different subjects of rights, there will be a "conflict of rights". According to the fifteenth provision of the "law on the application of patent disputes" in China, the people's court adjudication of cases involving infringement of patent rights, involving the conflict of rights, should protect the legitimate rights and interests of the parties who are entitled to prior rights according to law.

The interpretation of the Supreme People's Court on Several Issues concerning the application of law in civil disputes involving intellectual property rights conflicts (Draft) also stipulates that copyright infringement litigation involves the conflict between copyright and design patent rights or the rights and interests of packaging and decoration of well-known commodities, and the conflict between the right of design patent and prior copyright is dealt with according to the copyright law.

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< p > if different laws protect the same dress from the same subject, there will be "multiple protection of rights".

When others infringe on the intellectual property rights of the designer, the designer can ask the infringer to stop the infringement and compensate the relevant loss according to the copyright law, the Patent Law (if he has obtained the patent) or even the trademark law and the anti unfair competition law, resulting in the "concurrence of claims".

For the concurrence of claims, although there is no specific provision in China's law, the provisions of the contract law stipulate the concurrence of claims for breach of contract and the right to claim damages, but the provisions can not be applied to other claims concurrence, but only a reference.

The academic circles also have different attitudes. However, according to the judicial practice in our country, the right holder can only choose a right basis that best suits his interests according to his own situation and the difficulty of obtaining evidence and obtaining compensation.

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