1. Multiple-choice questions

1. Panda Company is an Internet company. In 1998, it created the "MM Panda" series of art works and used them as the trademark of the website, but it was not registered. . In December 2008, Youwei Company applied for a design patent for the speaker (mini panda type) to the State Intellectual Property Office and was authorized. In March 2011, Panda Company discovered that there were MM mini speakers sold for the company. Which of the following statements is correct:

A. Youwei Company is the owner of the design patent, and its manufacturing and sales of MM mini speakers do not infringe the rights

B. Youwei Company can based on The authorized design patent rights prohibit Panda Company from continuing to use the unregistered trademark

C. Panda Company should file a lawsuit with the court to declare the invalidation of the company's design patent

D. Panda Company can request the National Patent Reexamination Board to declare Youwei Company’s design invalid

Reference answers

1. Test points Design patents cannot infringe prior rights; invalidation of patents Declaration

Difficulty★

Answer D

Analysis: Paragraphs 1 to 3 of Article 23 of the "Patent Law" stipulate that? The appearance for which patent rights are granted The design shall not belong to the existing design; no unit or individual has applied for the same design to the patent administration department of the State Council before the filing date, and it shall be recorded in the patent documents published after the filing date. The design for which patent rights are granted should be significantly different from existing designs or combinations of existing design features. The design for which patent rights are granted must not conflict with the legal rights that others have acquired before the filing date. Youwei Company applied for its design in December 2008. Panda Company already owned the copyright of the panda image in 1998. Therefore, the design patent should not be granted. Youwei Company’s actions infringed on Panda Company’s copyright. Since Panda Company has not registered a trademark and is not a well-known trademark, it does not enjoy trademark rights. In summary, Youwei Company has infringed upon Panda Company’s copyright, and it has no right to prohibit Panda Company from using the trademark. Two items A and B are wrong, so you will not be elected.

Article 45 of the "Patent Law" stipulates that, starting from the date when the patent administration department of the State Council announces the grant of a patent right, any unit or individual believes that the grant of the patent right does not comply with the relevant provisions of this Law. Can you request the Patent Reexamination Board to declare the patent invalid? Accordingly, the invalidation of the patent should be submitted to the Patent Reexamination Board. Item C is wrong and cannot be selected. Item D is correct and elected.