China: On The Conflict Between A Design Patent And A Prior Trademark Right

Article 23.3 of the China's Patent Law sets forth the provision on the conflict between a design patent and prior rights, including a prior trademark right. If a symbol identical or similar to other's registered trademark is adopted by the design for the same or similar goods to such an extent that the exploitation of the design patent may cause the relevant public to mistakenly believe that the goods come from the trademark holder, thereby impairing the legitimate rights of the trademark holder, there exists a conflict between the design patent and the prior trademark right. The criterion for judging such a conflict is to examine whether the exploitation of the design patent will infringe the trademark right. ¹

The infringement test provides an “all or nothing” solution to resolve the conflict of rights. Due to absence of further subdivision of the circumstances concerning conflict of rights and lack of sufficient consideration to the characteristics of an intellectual property right (IPR) different from a tangible object, the innovative contributions made by later innovation entities cannot be placed under due protection.

I. The conflict between a design patent and a prior trademark right in practice

According to the presentation of the prior trademark in the design patent and the contribution or limitation made by the prior trademark to the design patent, there are basically three types of conflict between a design patent and a prior trademark right: the prior trademark constitutes the main part of the design patent containing no other inventive elements, which is a typical situation “where a design application is submitted so as to patent the pattern or shape in other's registered trademark or copyrighted work” ²; the prior trademark constitutes an important part of the design patent, which, however, also contains the patentee's own inventive design; and the prior trademark is located in an unnoticeable position or occupies a very small portion of the design patent, or is an ordinary word trademark, and basically has no effect on the overall visual effect of the design patent.

Over a long period of time, the China National Intellectual Property Administration (CNIPA) said no to the trademarks and words appearing in design applications. At the time of fling an application for a design patent, the applicant is required to cover or strikethrough a relevant trademark or word(s) because the literal meaning of the word(s) and the trademark are not eligible for design patent protection. ³

As for the scope of protection of a design patent, the principle of “overall protection” is established on the basis of “overall observation and comprehensive judgment” in light of Article 59.2 of the Patent Law. The “overall protection” principle, however, is not mechanically applied, but will be conferred according to how much the design features affect or contribute to the overall visual effect of a product. ⁵ Generally speaking, the meaning of a word in a design patent is not taken into consideration, and the word is only treated as a pattern. ⁶ If the word has no visual effect like a pattern, consideration is only given to its position or arrangement. Under such circumstances, the word generally makes a weak contribution to the design patent. If a device trademark or a word trademark treated as a pattern occupies a small area or is located in an unnoticeable position in relation to the whole design, said trademark will have a relatively weak decorative effect and contributes little to the overall visual effect of the design patent, as well. ⁷

Since amendments to the views are generally not allowed after the grant of a design patent, typical cases in which a design patent can be partially invalidated concerns so called “multiple design” patent, which contains two or more similar designs of the same product, and a design patent of products in set. ⁸ A design is either invalid or valid, and there is no room for compromise.

If a design patent contains other's prior trademark, even though the trademark makes no or limited contributions to the design patent, it is usually possible to file a request for invalidating the design patent in light of the conflict of rights provisions, on the grounds that according to the infringement test, compared objects are confined to the trademark on the design patent, the prior trademark and the relevant products, and the judging subject is the relevant public ⁹ regarding the products, regardless of the prior trademark's contribution to the decorativeness of the design or its impact on the overall visual effect of the product. A conflict of rights occurs as long as the exploitation of the later filed design patent constitutes infringement of the prior trademark right.

II. The relationship between the infringement test and conflict of rights, and issues in the infringement test

(I) The relationship between the infringement test and conflict of rights

Conflict of rights is quite common in the civil and commercial fields. Conventionally, a conflict of rights involves two legitimate rights. Some scholars believe that the “legitimacy of rights” is one of the constituent elements of the conflict of rights. Otherwise, the two rights “do not result in a conflict, but infringement”. ¹⁰ Protecting a prior right is the basic principle for resolving a conflict of rights. ¹¹ According to law, the highest priority is not always given to the protection of a prior legitimate right, so an important task for resolving the conflict of rights is to determine the priority among the related rights. ¹² The balance of interests doctrine is a vital means to resolve a conflict of rights. ¹³

However, some scholars call the conflict of rights, abuse of rights and infringement collectively as “conflict of rights”. The conflict of rights in a broad sense refers to “the contradictory relationship between the rights of two or more subjects caused by the ambiguity and intersection of the right boundaries, or the infringement of other's right due to the exercise of a right”. ¹⁴

In the field of IPRs, scholars tend to regard a conflict of rights as an equivalent to infringement ¹⁵, calling it “infringement-type conflict of rights” ¹⁶. The Guidelines for Patent Examination makes a similar explanation, that is, “to be in conflict means that the design patent constitutes an unauthorized use of the subject matter of a prior legitimate right, therefore the exploitation of the patent would infringe the relevant legitimate right or interest of the prior right holder”. ¹⁷ The so-called “conflict of rights” is mentioned in different contexts, sometimes from the perspective of the exercise of rights and other times from the perspective of the grant and invalidation of rights.

When revising the Patent Law in 2000, the CNIPA pointed out that “in practice, some applicants apply for design patents for the patterns or shapes in others' registered trademarks or copyrighted works, which creates certain obstacles to others' exercise of their own legitimate rights. For preventing a conflict of rights between different right holders in the field of IPRs,” the provision on a conflict of rights was first added. ¹⁸ In the third revision of the Patent Law in 2008, there was no substantial change in the interpretation of the legislative purpose of said provision. ¹⁹ In view of the practical examination in relation to design patents on the grounds of conflict of rights, it seems that the provision on the conflict between a design patent and a prior right is set forth for the following legislative purpose: the existence of the later-filed design patent hinders the exercise of the prior right, so it is necessary to remove such an “obstacle” by declaring the design patent invalid. As a result, the provision on conflict of rights in Article 23 of the Patent Law works on the assumed exploitation of the design patent, and in effect, the determination of trademark infringement is advanced into the design patent grant and invalidation proceedings. An infringement test shall be followed in the examination of conflicting rights matters ²⁰, so the route for resolving the conflict of rights is different from that in the property law.

(II) Issues in the infringement test

It cannot be derived from the above interpretation of the legislative purpose of the conflict of rights that the provision on conflict of rights and infringement test in the patent law are legitimate. If the holder of a prior trademark legally exploits its own trademark and the holder of a later-filed design patent intends to claim infringement against the prior trademark holder on the grounds of the inclusion of the prior trademark in the later design patent, such a claim will, by no means, be supported by the court on account of the principle of protection of prior rights. If there is a probability that a design patent infringes the prior trademark right, when an “unlawful act” serving as one of the constituent elements of civil infringement has not been established, is the probability sufficient to support the legislature to set forth the following provision, i.e., once a design patent contains other's trademark, which plays a role in identifying the source of the product and may cause confusion, the design patent shall be declared invalid?

The conflict between a design patent and a prior right means that the exploitation of the design patent will impair the prior legitimate right and/or interest. For instance, where a design patent holder uses other's prior trademark when manufacturing a patented product, if consumers misunderstands that the product comes from the source indicated by the trademark, the trademark holder can request for the prohibition of use of the trademark on the patented product under the trademark law or anti-unfair competition law. However, it is also likely that the prior trademark only serves as a decoration on the patented product and does not function to identify the source of the product. In this sense, the use of the prior trademark does not necessarily constitute a trademark infringing act or any act prohibited by the anti-unfair competition law.

The grant and invalidation of design patents is distinctively different from the exploitation of design patents. The latter is in a positive state, which turns the design into a product and then launches the product in the market. The acquisition and ownership of a patent is in a negative state. If the design patent holder does not manufacture the patented product, or manufactures the patented product for non-commercial purposes, or deletes the other's prior trademark while manufacturing the patented product, trademark infringement cannot be established. In other words, the acquisition and ownership of a design patent containing other's prior trademark are far from “illegal acts” that constitute infringement, not to say the satisfaction of the requirement for infringement.

The ownership of a patent does not mean that the patent can be exploited arbitrarily, and the law only confers an exclusive right to the patent holder. Whether the patent holder makes inventive contributions by its own labour is the focus of legislation. Even if it can be inferred from relevant details that the design patent holder intent to take a free ride on the reputation of other's trademark, the tort liability law aims to regulate infringing acts, rather than intention of committing infringement.

III. Other legal theories and examination standards in relation to the conflict between a design patent and a prior trademark right

In addition to the infringement test, reference can be made to other theories and corresponding examination standards for resolving the conflict between a design patent and a prior trademark right.

(I) The public interest doctrine
The core of the conflict of rights is the conflict of interests. The orientation of the conflict of interests decides the examination standards to the conflict of rights. The Japan's Design Act resolves the conflict of rights by regarding the public interest as the key factor in the conflict between a registered design and a prior mark right.

Article 5, item (ii) of the Japan's Design Act reads that a design which is liable to create confusion with an article, building or graphic image pertaining to another person's business shall not be registered. This provision is set forth for reasons of public interest and is only applicable to another person's well-known or famous trademark or a mark that can be mixed up therewith. ²¹ If the design is registered, any person may file a request for a trial for invalidation of design registration according to Article 48, item (2) of the Japan's Design Act. The prior trademark or mark need not to be a registered trademark. If a design patent holder manufactures or sells a product containing a prior famous mark, the holder of the prior famous mark may sue the design patent holder in the light of Article 2 of the Japan's Anti-Unfair Competition Act (2015). If confusion about the source of product occurs, infringement can be established.

From the perspective of the public interest, it may explain why the provisions on the conflict of rights in the Japan's Design Act are only applicable to well-known marks, and anyone can become the invalidation petitioner. But if the design registration application or the registered design contains a non-well-known mark, or does not result in the confusion about the source of the product, the design can be validly registered and will not be invalidated accordingly.

Article 26 of the Japan's Design Act further stipulates that where part of a registered design or part of its associated design is in conflict with another person's trademark right obtained based on an application filed prior to the date of filing of the application for the registered design or its associated design, the holder of the design right or licensee of the design right may not work such registered design or its associated design as a business. If the holder of the design right and the prior right holder reach an agreement on the licensed use of the conflicting part through negotiations, the design right can be implemented, which is beneficial to both the prior right holder and the holder of the later filed design. Thus, even without the provisions on the conflict of rights, another person's prior right will not be infringed. ²² This is conducive to the optimization of resource allocation through conscious adjustment under the premise of compliance with the market laws.

The public interest doctrine at least reminds us that where there is a conflict between a design patent and a prior trademark right, the differentiation between the public interest and the private interest is an important factor to be considered.

(2) The defensive claim doctrine

“In order to guarantee the completeness of an IPR, the right holders shall be entitled to the claim of IPR protection similar to the claim of real right in nature”, and the infringer's fault and the infringee's damage are not indispensable for the claim of IPR protection. ²³ The claim of IPR protection refers to the right of relief in the substantive law, by which the IPR holder requests the infringer or the actor with infringement intention to perform or not perform certain acts to guarantee the completeness of the IPR when the IPR is infringed or at the risk of infringement. ²⁴ The claim of IPR protection, which is a defensive claim ²⁵, has the special function to prohibit the on-going infringement or prevent infringement from occurring ²⁶ and includes the claim for injunction ²⁷.

From all the above, i.e., the interpretation of the legislative purpose of the provisions on the conflict of rights, relevant judicial cases and the definition of the conflict of rights in the Guidelines for Patent Examination, it seems that the exercise of the defensive claim, especially the claim for injunction, is the theoretical basis for the conflict between the design patent and the prior trademark right.

According to the claim for injunction, the right holder can request those who intend to infringe its right to cease, with no need of waiting for the occurrence of infringement. ²⁸ Where infringement, though not happening, is highly likely to occur, it can be deemed that the risk of infringement exists. ²⁹ The judging criteria thereof include, among other things, the rational predictability of the risk and the reality of the risk. ³⁰ Through the case law, France has extended the liabilities for tort prevention to the prevention of “risk of damage” or “imminent damage”, which even broke through the requirement of high probability of damage risk. It means where the potential damage is extremely severe, the probability of damage is not required to reach a certain extent. ³¹ The possession or administration of hazard sources can also be regarded as an act, which does not even need to be proved as illegal. ³²

“In the field of IPRs, the actor prepares such conditions as manpower, money or materials and plans to commit infringement of other's IPRs, at the time of which the infringement is still at the preparation stage and has not been committed yet. Although the preparation cannot cause actual damage to the IPR holder, it constitutes a practical obstacle or threat to the legal entitlement to the IPR and the completeness of the exercised right. The preparation for infringement is an act that puts the IPR at the risk of infringement.” ³³ For instance, counterfeiting commercial marks is highly likely to give rise to infringement, and can be determined as infringement for the sake of prevention of infringement. ³⁴

However, it seems too early to determine that the later-filed design patent is at the risk of infringement on the prior trademark right just because of its inclusion of the latter. Generally speaking, it cannot be directly derived from the act of applying for a patent that the design patent applicant or holder is going to manufacture or sell the patented product. Of course, the design patent application sometimes contains the photos of a physical product, from which it can be judged that the patent applicant or holder actually produced the patented product and the risk of infringement on the prior trademark right may be found.

The 35 U.S.C. specifically stipulates that where a drug or a drug use is subject to patent protection, if the purpose of the submission of an abbreviated new drug application (ANDA) with the U.S. Food and Drug Administration (FDA) is to obtain approval under such Act to engage in the commercial manufacture, use, or sale of a drug, an action for infringement may be brought for such submission. ³⁵ In a case in Japan, the defendant sold an infringing device, asserting that the infringing device was manufactured at the other's request for trial, and will not be produced and sold in the future. The court supported the plaintiff's claim for infringement prevention in consideration of the defendant's business operations, production capacity and manufacture and sale of one infringing device. ³⁶ These are more supportive to the determination of the infringement on the prior right in comparison with the provision on the conflict between a design patent and a prior trademark right in the China's patent law.

(III) The ownership theory

It is only stipulated in the Paris Convention for the Protection of Industrial Property that “trademarks may be neither denied registration nor invalidated except when they are of such a nature as to infringe rights acquired by third parties in the country where protection is claimed”. No similar provisions are found for inventions, utility models or designs. Patents confer protection on innovative achievements resulting from technological or design improvement, and cannot be completely analogized to trademarks which are identifying marks for indicating the sources of products (realizing the value of products through use). ³⁷ According to the infringement test, design patents later filed by holders can hardly obtain protection “matchable to” their contributions. This is inconsistent with the provisions on blocking patents in the patent law, and also in contradiction with the negative attitude towards trademarks contained in designs in the grant and invalidation proceedings.

According to the ownership theory, consideration shall be given to the contributions of both the patent holder and the prior right holder for the sake of balance of interests. The principle of proportionality and that of fairness play a more important role in the ownership theory. In the real conflict of rights, both rights are justifiable, and the legal way to resolve the conflict should not be to eliminate one of the rights or prove its non-existence. ³⁸

Of course, in the context of the conflict between the design patent and the prior trademark right, the patentee usually knows the existence of the prior trademark right. It is hard to say that the design patent is totally flawless; however, the balance of interests must be taken into account when deciding whether the flaw can definitely deny the contributions made by the later-filed design patent. The co-existence of rights merely involves the issue of right ownership or allocation. ³⁹ For instance, in a dispute over the “Red Can” unique packaging and decoration, the Supreme People's Court confirmed that both the licensor and the licensee played a positive role in the formation and development of the rights and interests, as well as the goodwill buildup, of the packaging and decoration in suit, and the awarding of the rights and interests to one party is clearly unconscionable and may impair the public interest. Hence, the rights and interests of the unique packaging and decoration of the well-known product in suit are jointly owned by Guangzhou Pharmaceutical Holdings Limited and JDB Group under the principle of good faith and under the premise of respecting consumers' cognition and protecting others' legitimate rights and interests. ⁴⁰

Unlike two co-existing trademarks having substantially overlapping rights and functions, the conflicting design patent and trademark right are greatly different in terms of the subject matter, scope, and function of a right. When claiming the patent against others, the design patent holder relies on the scope of protection delimited by the design features, other than the prior trademark, contained in the patent. The co-existence of the two rights generally does not affect the public interest. Of course, a conflict may occur during the exploitation of the two rights, just like the case with the blocking patents.

As a matter of fact, almost every design patent contains a designer's inventive effort, as well as a prior-art part. But no one will deny the validity of the design patent, and the design patent will not necessarily be declared invalid on the grounds that the inclusion of the prior-art design leads to its conflict with the public interest. ⁴¹ What's more, a design may be considered as inventive even if every individual design feature belongs to the prior art as long as the combination thereof in its entirety possesses an inventive step. The presence of the later-filed design patent right will never obstacle the entitlement to and exercise of the prior trademark right. Such a conflict is not in a “either/or” format, but can be resolved by restricting the right or making concessions on the part of the subject of right.

IV. Conclusion

The examination and resolution of the conflict between a design patent and a prior trademark right by means of the infringement test, on the one hand, do not comply with the internal requirements for the determination of the validity of the right in the grant and invalidation proceedings, i.e., the static right relationship, and on the other hand, totally deny the contributions made by the holder of the later-filed design patent and violate the principle of proportionality and the principle of fairness, thereby not complying with the purpose of the patent law for encouraging and protecting innovative designs. The problem with the infringement test is, in essence, to resolve the static right relationship by a dynamic claim of right.

The ownership theory conforms to the definition of conflict of rights in the civil and commercial law, conduces to balance the interests of prior and subsequent right holders in the light of the principle of proportionality and the principle of fairness, and avoid excessively rigid application of the infringement test. If the prior trademark merely constitutes a part of the later-filed design patent or has little impact on the overall visual effect of the design patent and the patent holder has made substantive contributions to the design, the inventive effort of the patent holder is still encouraged by legislative policies, and the achievements shall be subject to protection. The design patent should not be declared invalid due to the other's prior trademark. Under such circumstances, a patent applicant or holder shall be allowed to submit a disclaimer or amend the entire design as a partial design so as to overcome the defect of the conflict of rights.

Footnotes

1 An administrative dispute over a design patent between the Patent Reexamination Board and White Elephant Food Co., Ltd. and Chen Zhaohui (a third party in the first instance). See the Administrative Ruling No. Zhixingzi 4/2014.

2 The Department of Treaty and Law, CNIPA (2000). Reading Guidance on Second Amendments to the Patent Law (p. 50). Intellectual Property Publishing House.

3 Design Examination Department of the Patent Office, CNIPA (2015). Design Patent Application and Protection (p. 134). Intellectual Property Publishing House.

Liu Guirong (1998). Guidance on Examination of Design Patent Applications (pp. 116-117). Patent Documentation Publishing House. “Non-decorative and non-functional words in the application documents shall be deleted”, and “the trademark should be deleted from the design drawing, but the outline of the trademark and its position in the overall layout should be preserved”.

4 The China's Patent Law which took effect in 2009.

5 Part IV, Chapter Five, Section 5.2.4 of the Guidelines for Patent Examination (2010).

Article 11.1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Patent Infringement enacted in 2009.

6 Part I, Chapter Three, Section 7.4 of the Guidelines for Patent Examination (2010). “The pronunciations or meanings of the words and numerals shall not be the contents of design protection”.

7 See Article 11.1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Patent Infringement enacted in 2009.

8 Chapter Three, Section 5, and Chapter Five, Section 5.2.1 of Part IV of the Guidelines for Patent Examination (2010).

Design Examination Department of the Patent Office, CNIPA (2015). Design Patent Application and Protection (p. 118). Intellectual Property Publishing House.

9 See, e.g., the CNIPA's Invalidation Decision No. 15726. The Administrative Ruling No. Gaoxingzhongzi 1266/2011 upheld the First-Instance Judgment and the Invalidation Decision.

10 Wang Jinsong. On the conflict of intellectual property rights. In Tan Xiaoqing (editor-in-chief) (2004), Study on Theories and Judgments Concerning Conflict of Intellectual Property Rights (p.4). Suzhou University Press.

11 See, e.g., Article 15 of Several Provisions of the Supreme People's Court on Issues Concerning Application of Law on Adjudication of Patent Disputes (2015).

12 For instance, Article 43.3 of the Trademark Law (2019) reads “a trademark license, if not recorded, cannot be used against a third party acting in good faith”. Generally speaking, a patent license has a similar effect. In addition, the relationship between a previously used trademark and a later registered trademark actually falls into the circumstances where the subsequent right takes priority over the prior right.

Feng Shujie (2019). Limiting rights of registered trademark: The way-out for reforming the prior used trademark system. Intellectual Property, 8.

13 The Guiding Opinions on Effectively Regulating the Exercise of Discretionary Power in Trial and Enforcement and Guaranteeing the Uniform Application of Law issued by the Supreme People's Court on 28 February 2012 (No. Fa fa 7/2012).

14 Zhang Pinghua (2006). On conflict of rights. Science of Law, 6, 69.

15 Zhu Li (2018). Relative grounds for invalidation and optimization of design patent invalidation system---Centered on conflict of rights. In China Patents & Trademarks, 2, 4 and 8. “Conflict of rights is in fact an infringement dispute”, and “when judging whether conflict of rights exists, the key issue is whether the exploitation of the disputed design patent will infringe other's prior right”.

16 Feng Xiaoqing (2004). Research on Frontier Issues of Intellectual Property Law (p. 58). People's Public Security University Publishing House.

17 Part IV, Chapter Five, Section 7 of the Guidelines for Patent Examination (2010).

18 See supra note 2.

19 The Department of Treaty and Law, CNIPA (2009). Reading Guidance on Third Amendments to the Patent Law (p. 55). Intellectual Property Publishing House.

20 Part IV, Chapter Three, Section 3.2 of the Guidelines for Patent Examination (2010). The request for invalidation shall not be accepted “where a request for invalidating a design patent is submitted on the grounds that the design patent is in conflict with a legitimate right of another individual which was acquired prior to the filing date of the patent, the petitioner fails to prove himself the prior right holder or an interested party”.

21 Examination Guidelines for Design of Japan. Part III, Chapter VI “Unregistrable Design”, Sections 1 and 3.3. Retrieved from https://www.jpo.go.jp/system/laws/rule/guideline/design/shinsa_kijun/document/index/isho-shinsakijun-03-06.pdf.

22 Tang Zongshun (2002). Interpretation of Patent Law (revised edition) (pp. 170-171). Intellectual Property Publishing House.

23 Cheng Xiao (2015). Tort Liability Law (2nd edition, p. 183). Law Press·China.

24 Li Yang (2010). Basic Principles of Intellectual Property Law (pp. 83-84). China Social Sciences Press.

25 Dieter Medicus (2012). Basis for the Right of Claim (p. 150). Chen Weizuo, Tian Shiyong, Wang Hongliang and Zhang Shuanggen (translators). Law Press·China.

26 Liang Zhiwen (2008). Reflections on the theories concerning the claim of intellectual property right---Intellectual property coercion strategy and limitations on the claim of intellectual property right. Tsinghua University Law Journal, 4, 125.

27 Li Yang (2012). Application of the claim of intellectual property right and the statute of limitations. Intellectual Property, 10, 18. The claim for injunction is also called “the claim for stoppage of infringement” or “the claim for prevention of infringement”.

28 Wang Zejian (2009). Rationale under Civil Law: Basic theoretical system of the right of claim (p. 102). Peking University Press.

29 Hironaka Toshio (1989). Property Law (p. 270). Seirin Shoin.

30 Mei Xiaying and Gao Shengping (2015). Textbook of Property Law (pp. 61-62). China Renmin University Press.

Wang Limin (2016). Research on Property Law (I) (p. 211). China Renmin University Press.

31 Ye Mingyi (2013). On the Challenge of Tort Prevention Liability to Conventional Tort Law. Science of Law (Journal of Northwest University of Political Science and Law), 2, 122.

32 See supra note 31, p. 126.

33 Guan Yonghong (2013). Constituent elements of claim of intellectual property right. Intellectual Property, 1, 59.

34 Xu Jiali and Zhang Junqiang (2017). Liability for intellectual property infringement in the context of civil code. Academic Frontiers, 8, 87.

35 35 U.S.C. § 271(e)(2).

36 Du Ying (1999). Claim for injunction in Japan's intellectual property protection. Foreign Law Translation and Review, 4, 66-67.

37 AIPPI Report in Tokyo in April 1992. Cited from Zheng Chengsi (2001), Interpretation of Articles in WTO Intellectual Property Agreement (p.63). China Fangzheng Press.

38 Carl Wellman [U.S.] (2015). Real Rights (p. 411). The Commercial Press.

39 See supra note 14, p. 62.

40 A dispute between Guangdong JDB Drink&Food Co., Ltd. and Guangzhou Wang Lao Ji Great Health Industry Co., Ltd. and Guangzhou Pharmaceutical Holdings Limited for unauthorized use of a unique packaging and decoration of a well-known product. See the Civil Judgment No. Minsanzhongzi 2/2015.

41 See supra note 10, p. 9. “There is also another form of conflict of rights, that is, the conflict between the technology and knowledge grasped by the public and the resulting public right, and the existing intellectual property rights”.

42 See supra note 14, p. 62.

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