The post will be published on our website for two days, and today is the first half of it. (the image is the picture of Apple Store in Lujiazui from the www.apple.com.cn)
By the report of Shanghai Daily, Apple Inc filed an application to the United State Patent and Trademark Office (USPTO) for the appearance design of its store in Lujiazui, Pudong New Area. In consideration of the fake Apple Store in Kuning, Yunan Province in south and west China, the application made this time may be the international application, and will enter into China soon to stem the flooding knock off stores. More interesting is that the journalist of the Daily interviewed our attorneys before the report, and we reserved our opinion on the application. To complete our comments on it, here’s our analysis on the issue:
I. The appearance of Apple Store is protected by Copyright Law
The architectural works is the works regulated and protected by copyright law, and with the provisions of the Regulations on the Enforcement of Copyright Law, the definition of the architectural works are works which are works in architectural building or expressed in similar format, when being viewed, impart aesthetic effect. The aesthetics is demanded when architecture could be listed as the works, that means the architecture with function only could not be protected as the works.
But, the Apple Store in Lujiazui is artistic in design and material choice. The appearance of it is quite different from the normal ones; the gleaming glass tower in special material and appears to be transparent and that is completely artistic. Therefore, the Apple Store in Lujiazui is completely complying with the definition of architecture works, enjoying the copyright from the day it’s constructed or finished, and thus no other shall copy or plagiarize it without license.
II. the similarities and differences between the protection of design and copyright
Despite the copyright of Apple Store under the protection of copyright law, Apple stills filed the design application for its store. Although the application fee costed Apple little and one more registered right will do no harm to it, we have a negative outlook on such filing for it functions less in practices, and the reasons are as follows:
1. The protective scope of design is narrower than copyright
Although the object of design is the same as that in copyright law, namely the aesthetics of the appearance rather than the inner technology, while it still bears difference to the copyright that the protection of it relies on the actual articles. For example, someone makes a model to a patented architecture, such model making infringes no design rights but the copyright for it copies the original one.
2. The design shall be granted by the administration
The design patent demands the license from the departments of the countries, and the protection produced hereby shall only limit to the boundary of the country, and even an application is made, the approval of related countries are demanded and is time consuming and shall go through various procedures.
3. The protection term of design is shorter than that of copyright
The protection term of design is only 10 years, while that of the copyright is 50 years of the works developed by individuals after his/her death, and also the protection term of unit works are also as long as 50 years, which are both longer than the design protection term.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
Author: Mr. Luo Yanjie
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.
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