Baozi (steamed stuffed buns) are the most common traditional staple food, and almost everyone in China has eaten it. There are many choices of stuffing for Baozi. With the development of the times, coupled with the fact that some enterprises are very intelligent, more and more stuffing and styles of Baozi have evolved, which not only looks good-looking, but also has more appetite, better taste and better nutrition. Although the price is not high, a Baozi is only two yuan, but people often buy it.
However, what is hardly realized is that the shape patterns and bag-making methods of Baozi are also patented and protected. Recently, the Fujian Provincial higher people’s Court (hereinafter referred to as the Fujian High Court) concluded a case of infringement caused by the design patent of Baozi.
Xinhua Food (Zhangzhou) Co., Ltd. (hereinafter referred to as Xinhua company) sued Shuhui Food (Suzhou) Co., Ltd. (hereinafter referred to as Shuhui company) and Zhangzhou Xingguangde Trading Co., Ltd. (hereinafter referred to as Xingguangde company) to the court and claimed economic losses. The reason Xinhua company hold is the Baozi produced and sold by these two companies are similar to their own patented products and are suspected of infringing design patents.
Baozi’ shape causes lawsuit
This patent is a design patent submitted by Xinhua Company on June 25, 2009. It is called "Baozi (I-shaped)" and was granted on May 19, 2010 (Patent No.: ZL200930172651.9).
After examination, Fuzhou Intermediate people’s Court held that the main focus of the dispute in the first instance of the case was whether the two defendants constituted patent infringement and, if so, what kind of tort liability the two defendants should bear.
On the question of whether the two defendants constitute patent infringement, combined with evidence, the Fuzhou Intermediate people’s Court held that in the patent involved, the joint of the Baozi crust is "I-shaped", and the shape of the alleged infringing product is also roughly square, and the joint of the Baozi crust is similar to the "I-shaped". In terms of the overall visual effect, there is no substantial difference between the two.
Without permission, Shuhui Company and Xingguangde Company produce and sell products of which others enjoy the patent right of design, which constitutes an infringement on the patent right of Xinhua Company.
The judgment of infringement is mainly based on the following points:
1. It is only limited to the same or similar kinds of products, and can not be compared across categories.
2. It can only be compared alone, but not in combination.
3. The judgment of product category is mainly based on the use of the products.
4. To judge whether the shape of the product is the same or similar, the ways of direct observation, separate comparison, comparison of the visual effect of the appearance of the product, overall observation and comprehensive judgment are adopted.
The Fuzhou Intermediate people’s Court of first instance ordered Shuhui Company to compensate Xinhua Company for economic losses and other 1.03 million yuan; due to Xinhua Company did not claim economic compensation from Xingguangde Company, as a seller, Xingguang Company was exempted from liability for compensation.
Second instance changes the judgment result to be non-infringement
After the first-instance judgment, Shuhui company continued to appeal to the Fujian High Court, and added a number of new evidence.
Shuhui company said in its appeal that, first of all, the court of first instance used uncertain words such as "roughly" and "close" to find that there was no substantial difference between the alleged infringing products and the patent products involved, and that the two are similar, which was a logical error. Secondly, the shape and structure of the alleged infringing products comes from the traditional Chinese folk ("BaoFuPi" shape), which is made by hand, and the product appearance shape and surface concave and convex texture are random and can not be reproduced, which is different from the patented products involved.
After examination, Fujian High Court held that the blog content of the Japanese website was published on February 10, 2006 and January 7, 2007 respectively, both of which were earlier than the application time of the patent involved, that is, June 25, 2009. And the pictures in the blog have fully shown the part of Baozi with design points.
After comparing the existing design with the product involved, the shape of the Baozi in the blog picture is similar to that of the alleged infringing product in terms of overall visual effect. So in other words, the designs used by the alleged infringing products have been made public on the Internet before the patent application involved in the case. Shuhui company does not constitute infringement.
Overseas evidence was admitted
The focus of the second-instance is mainly on the new evidence submitted by Shuhui Company-- the notarized document of the content of the blog page of an overseas website. Whether it can prove that the alleged infringing product uses the design that has been made public by outsiders as early as before the application of patent involved.
According to the judge, electronic evidence in the form of blog page content has appeared frequently in civil and commercial cases in recent years. However, because the electronic data is fragile and easy to be deleted and damaged, it is still different from other types of evidence in civil litigation in trial practice.
The judge held that because the content of the blog page submitted by Shuhui Company came from overseas websites, it was more stringent in the criteria for the examination of legality and relevance. With reference to the main practices of the court in examining such evidence, especially the cognizance standard of the Supreme people’s Court on electronic evidence in relevant cases, when the Fujian High Court examines and judges the authenticity and probative power of the release time of Internet blog pages fixed in the form of notarial certificates,
It comprehensively considers the relevant factors such as the production process of the notarial certificate, the formation process of the website page and its release time, the operation and management of the blog website and the technical means involved, and makes a comprehensive judgment combined with other evidence of the case. Based on the comprehensive consideration, the Fujian High Court accepted the new evidence and corrected the judgment of first-instance.
We also remind you that when your product is developed, you must apply for a patent to protect yourself. Secondly, if you have your own original design pattern or text on the product, you should apply for the registered copyright of the graphic. In this way, when you encounter infringement complaints, it is very beneficial to your own anti-infringement. If you encounter similar cases like the above, you must not panic, and you can start from many aspects, such as declaring the other party's patent invalid, because after the other party's patent is invalid, there will naturally be no infringement; it can also be like this case, if you have some platforms to release evidence in advance, you can also use this evidence to seek legal aid through proper channels.