Page 140 - 2017 White Paper
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7 White Paper on the Business Environment in China
dispute over the determination of validity of the panel which was almost similar to said design feature. The
concerned patent right during the trial, and therefore, sued infringed design was quite similar to the concerned
the litigation lasted twelve years. The judgement of this granted appearance design with respects of the overall
case clarifies that the dispute over determination of non- outline, the nozzle, and the length proportion of the
infringement and the dispute over damage compensation handle, and therefore, both designs were approximate.
belong to two different legal aspects, and based on the Said Court accordingly ordered Jianlong Company to
ascertained facts during the trial, tried the facts of both stop its infringement, destroy the inventory of infringed
the dispute over determination of non-infringement and products and compensate economic losses in the amount
the dispute over damage compensation in the original of 100,000 yuan. The Jianlong Company was dissatisfied
court, changed the cause of action of this case to dispute and applied to the Supreme People’s Court for retrial. The
over determination of non-infringement and damage Supreme People’s Court tried this case directly on August
compensation on the basis of ensuring the rights of the 11th 2015, revoked the judgement of the second instance
parties. The judgement of this case clarified that it was a and sustained the judgement of the first instance.
way for the patentee to execute its civil rights by sending
demand letters to protect its legitimate rights and 2. Comment
interests, but executing its rights should not go beyond
a reasonable scope. The criterion for whether an obligee’s This case involves the design features and functional
way of protecting his or her rights is proper or not should features that are very controversial in judicial practice.
be whether this way of right’s protection is just, whether The Supreme People’s Court held that the design
it violates fair competition, and whether it intends to hit features of the granted appearance design reflected its
rivals rather than dispose of the matter. creativeness which distinguished it from the existing
design and also reflected the innovative contribution
GROHE AG v. Zhejiang Jianlong Sanitary made by the designer. If the sued infringed design
Ware Co., Ltd. did not include all the design features of the granted
design that distinguished it from the existing design,
1. Case Brief then it can be inferred that the sued infringed design
was not approximate to the granted appearance design.
In November 2012, GROHE AG initiated a lawsuit of As to determination of design features, the patentee
infringement against Zhejiang Jianlong Sanitary Ware should produce evidence for the design features he or
Co., Ltd. (Jianlong Company) on the grounds that Liya she argues and other persons are permitted to provide
Series and other sanitary ware products manufactured, counterevidence to overturn the same.The determination
sold and offered to sell had infringed upon the design of functional design features does not lie in whether
patent of its “hand shower nozzle”. Zhejiang Taizhou the design has no selectivity due to the restrictions of
Intermediate People’s Court of the first instance held functional or technological conditions, but in whether
that GROHE AG argued that the designing point of the this design is simply determined by certain functions
concerned granted appearance design was the design according to the view of the general consumers of the
of the shower panel, but this argument was not reflected products with no need to consider whether this design
in the “brief description” of the patent authorization has aesthetic feeling. The judgement elaborated on the
document. Although the design of the shower panel of meaning, proof, determination and consideration of the
the concerned granted appearance design and that of functional features of a design.
the sued infringed design were approximately equal,
there were differences with respect to the designs of the Weihai Jiayikao Household Electric
periphery of the nozzle and the handle, and therefore, Co., Ltd v. Yongkang Jinshide Industrial
the two designs were not approximate. Accordingly, and Trading Co., Ltd. and Zhejiang Tmall
said Court dismissed the GROHE AG’s claims. GROHE Network Co., Ltd.
AG, being dissatisfied, appealed. The Zhejiang Provincial
High People’s Court of the second instance held that 1. Case Brief
what distinguished the concerned granted appearance
design from the current design was the design feature Weihai Jiayikao Household Electric Co., Ltd. (“JYK
of the runway-like shower panel, whereas the sued Company”) is the patentee of the invention patent
infringed design used exactly the design of the shower named “Infrared Heating Cooking Device”, which was
140
dispute over the determination of validity of the panel which was almost similar to said design feature. The
concerned patent right during the trial, and therefore, sued infringed design was quite similar to the concerned
the litigation lasted twelve years. The judgement of this granted appearance design with respects of the overall
case clarifies that the dispute over determination of non- outline, the nozzle, and the length proportion of the
infringement and the dispute over damage compensation handle, and therefore, both designs were approximate.
belong to two different legal aspects, and based on the Said Court accordingly ordered Jianlong Company to
ascertained facts during the trial, tried the facts of both stop its infringement, destroy the inventory of infringed
the dispute over determination of non-infringement and products and compensate economic losses in the amount
the dispute over damage compensation in the original of 100,000 yuan. The Jianlong Company was dissatisfied
court, changed the cause of action of this case to dispute and applied to the Supreme People’s Court for retrial. The
over determination of non-infringement and damage Supreme People’s Court tried this case directly on August
compensation on the basis of ensuring the rights of the 11th 2015, revoked the judgement of the second instance
parties. The judgement of this case clarified that it was a and sustained the judgement of the first instance.
way for the patentee to execute its civil rights by sending
demand letters to protect its legitimate rights and 2. Comment
interests, but executing its rights should not go beyond
a reasonable scope. The criterion for whether an obligee’s This case involves the design features and functional
way of protecting his or her rights is proper or not should features that are very controversial in judicial practice.
be whether this way of right’s protection is just, whether The Supreme People’s Court held that the design
it violates fair competition, and whether it intends to hit features of the granted appearance design reflected its
rivals rather than dispose of the matter. creativeness which distinguished it from the existing
design and also reflected the innovative contribution
GROHE AG v. Zhejiang Jianlong Sanitary made by the designer. If the sued infringed design
Ware Co., Ltd. did not include all the design features of the granted
design that distinguished it from the existing design,
1. Case Brief then it can be inferred that the sued infringed design
was not approximate to the granted appearance design.
In November 2012, GROHE AG initiated a lawsuit of As to determination of design features, the patentee
infringement against Zhejiang Jianlong Sanitary Ware should produce evidence for the design features he or
Co., Ltd. (Jianlong Company) on the grounds that Liya she argues and other persons are permitted to provide
Series and other sanitary ware products manufactured, counterevidence to overturn the same.The determination
sold and offered to sell had infringed upon the design of functional design features does not lie in whether
patent of its “hand shower nozzle”. Zhejiang Taizhou the design has no selectivity due to the restrictions of
Intermediate People’s Court of the first instance held functional or technological conditions, but in whether
that GROHE AG argued that the designing point of the this design is simply determined by certain functions
concerned granted appearance design was the design according to the view of the general consumers of the
of the shower panel, but this argument was not reflected products with no need to consider whether this design
in the “brief description” of the patent authorization has aesthetic feeling. The judgement elaborated on the
document. Although the design of the shower panel of meaning, proof, determination and consideration of the
the concerned granted appearance design and that of functional features of a design.
the sued infringed design were approximately equal,
there were differences with respect to the designs of the Weihai Jiayikao Household Electric
periphery of the nozzle and the handle, and therefore, Co., Ltd v. Yongkang Jinshide Industrial
the two designs were not approximate. Accordingly, and Trading Co., Ltd. and Zhejiang Tmall
said Court dismissed the GROHE AG’s claims. GROHE Network Co., Ltd.
AG, being dissatisfied, appealed. The Zhejiang Provincial
High People’s Court of the second instance held that 1. Case Brief
what distinguished the concerned granted appearance
design from the current design was the design feature Weihai Jiayikao Household Electric Co., Ltd. (“JYK
of the runway-like shower panel, whereas the sued Company”) is the patentee of the invention patent
infringed design used exactly the design of the shower named “Infrared Heating Cooking Device”, which was
140
