design refers to the design of industrial products, that is, the style of industrial products. It is completely different from the invention or utility model, that is, the design is not a technical solution. Article 2 of China's Patent Law stipulates: "Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application, based on the shape, pattern or their combination of products and the combination of color, shape and pattern.

Industrial Design refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or their combination of products.

It can be seen that the design patent should meet the following requirements:

(1) It must be designed for the appearance of the product;

(2) refers to the design of shape, pattern, color or their combination;

(3) It must be suitable for industrial application;

(4) It must be aesthetic. The expression of the idea of copyright law protection. The ideas include aesthetic ideas, and the expressions include shapes, patterns, colors and their combinations. Therefore, when an aesthetic design composed of patterns, shapes and colors constitutes a work, it can be protected by copyright law. Obviously, design has the characteristics of both patent right and copyright. In this way, copyright law and patent law overlap in the protection of designs. It is precisely because of this reason that countries such as Britain and Germany have formulated special design registration laws or industrial copyright laws, and adopted a protection method with both patent law and copyright law characteristics for designs. Conceptually speaking, patent law protects aesthetic designs with industrial practicability, while copyright law protects works in the form of shapes, patterns and colors. It seems that the two can be distinguished. However, when it comes to practical works of art, it is difficult to distinguish between designs protected by patent law and works protected by copyright law. Practical art involves two concepts. One is practical goods, and the other is the artistic aspect of practical goods. Among them, copyright law protects the artistic aspects of practical goods, but does not protect practical goods or their inherent functions and practical functions. With regard to practical goods, the definition in Article 11 of the US Copyright Law says: "Practical goods refer to articles with intrinsic practical functions, and their intrinsic practical functions are not only to describe the appearance of articles or convey information. If an item is part of a utility, it should usually be regarded as a utility. " The artistic aspect of practical goods is the shape, pattern, color and artistic design of practical goods, which can be graphics, sculpture and sculpture. From this point of view, there is no essential difference between the design of products and the artistic aspects of practical products.

regarding the protection of practical works of art, American copyright law and judicial practice have been trying to draw a line between the artistic aspects of practical works protected by copyright law and the designs protected by patent law. As far as protected objects are concerned, Article 12 of the United States Copyright Law lists graphics, carvings and sculpture works. According to Article 11 of the American Copyright Law, graphic and sculpture works include two-dimensional and three-dimensional practical works of art.. Regarding the protection of practical works of art, Article 11 explains: "This kind of works should include arts and crafts, but it only involves the appearance of arts and crafts, not its mechanical or practical aspects; The appearance design of a practical article (defined in this article) can exist independently of the practical aspects of the article when its graphic, sculpture or sculpture features can be separated from the practical aspects of the article, and only to this extent should the appearance design be regarded as a graphic, sculpture or sculpture. " This is the famous principle of "separation characteristics and independent existence". The design is protected by the patent law and the trademark is protected by the trademark law. It seems that there should be no overlap between them. But in fact, there are some differences between design and trademark. A design is made up of shapes, patterns, colors or their combination, and a trademark is made up of words, patterns, shapes or their combination. At least, both of them have elements such as shapes and patterns. Since the main function of a trademark is to distinguish the goods of different producers and operators and indicate the source of the goods, and since there are similarities in the composition of a design and a trademark, when the design of a product is also recognizable and indicative, it should be protected by the trademark law. In American judicial practice, commodity marks are divided into four categories. In terms of identifiability and protectability, these four types of marks are, from strong to weak: arbitrary or singular marks; Indicative marks generally indicate the source and characteristics of goods by words or the combination of words and graphics; Descriptive marks, including surnames and geographical marks, can only be protected when they are recognizable in the market, that is, when they acquire the "second meaning"; Universal mark, which is not recognizable and therefore not protected.

in the protection of trademark rights of designs, the United States is the first country to determine whether the relevant designs are inherently recognizable. If a design is inherently recognizable, it is equivalent to the above-mentioned "arbitrariness or singularity mark", and its users can directly apply for trademark registration or request the protection of trademark rights. However, the design with internal identification is rare. If a design is not inherently recognizable, it is equivalent to the above-mentioned "descriptive mark". When seeking trademark registration or trademark protection, its users must prove that the design has acquired a second meaning in the market and can indicate the source of the goods to consumers. Because most designs are not inherently recognizable, it is very important to prove that the relevant designs have acquired a second meaning in the market in the protection of trademark rights of designs. Although the recognizable three-dimensional design is not protected by trademark law, it can be protected against unfair competition. According to Article 5 of the Anti-Unfair Competition Law of 1993, unauthorized use of the unique name, packaging and decoration of well-known goods, or the use of names, packaging and decoration similar to well-known goods, which causes confusion with other people's well-known goods and makes buyers mistake them for well-known goods, is an act of unfair competition prohibited by law. Among them, "commodity decoration" contains the content of commodity (product) design, including plane and three-dimensional design. This can be further explained. On July 6, 1995, the State Administration for Industry and Commerce issued "Several Provisions on Prohibiting the Unfair Competition of Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities". Among them, Article 3 says: "The horizontal arrangement mentioned in these Provisions refers to the characters, patterns, colors and their arrangement and combination attached to commodities or their packages for the purpose of identifying and beautifying commodities." Attaching patterns, colors and their arrangements and combinations to commodities shall include flat and three-dimensional product (commodity) designs. In this way, whether it is a plane or a three-dimensional design, as long as it is recognizable, it can be protected against unfair competition.

The United States also protects recognizable designs with anti-unfair competition laws. Paragraph 1 of Article 43 of the United States Federal Trademark Law is a very extensive clause to stop unfair competition, including prohibiting false sources and false representations of goods or services, as well as prohibiting false advertising. Literally, although the protected objects listed in Article 43, paragraph 1, include "words, terms, surnames, symbols, designs or the combination of the above", they do not explicitly list the product appearance design. However, since the "truck" case of the Eighth Circuit Court in 1976, the first paragraph of Article 43 of the Federal Trademark Law has been interpreted as also protecting Trade Dress. At first, the appearance of goods only refers to the packaging of products, but it was soon interpreted as including the appearance and decoration of products.

a design protected by the anti-unfair competition law must be an identifiable design with a second meaning, that is, it can indicate the source of goods to consumers. According to Article 5 of China's Anti-Unfair Competition Law, the law protects the unique decoration (including design) of well-known goods, and prohibits others from using the same or similar design as the design of well-known goods, which shows that the protected design is an identifiable design. Otherwise, others will not imitate. In the Provisions of the State Administration for Industry and Commerce on Prohibiting Unfair Competition in Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities, Article 3 also states: "Unique as mentioned in these Provisions means that the name, packaging and decoration of the commodities are not common to the related commodities, and have obvious distinguishing features." This also shows that the protected design must have distinctive features.