CLASS 99
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THURSDAY, 21 JULY 2011
Honda succeed in China - but should they be careful what they wish for?
Some time back, we reported on Honda's appeal in the Chinese Supreme Court against a refusal to register their SUV automobile design. Thanks once more to the good people at Hogan Lovells and particularly Georgia Chiu and Binxin Li of their Shanghai office for permission to cover a story from their excellent IP Quarterly newsletter reporting the Supreme Court's judgment in that case.
A side-by-side comparison (the upper one is the Chinese design, the lower one the prior art) indicates why there was a problem - they are not completely different, are they? The spare tyre in the prior art is omitted from the Chinese design, but there is clearly a space for it, so ignore that, and you are left with some differences in detailing in and around the headlights and windows.
In an ideal world, perhaps, Honda would have been able to register just the novel parts, using dashed lines to omit the rest. However, in China this may not have been possible when the application was filed (indeed, I am not sure it is possible now).
This case is therefore pretty much on all fours with DaimlerChrysler's Application, in which the Swedish Supreme Court held that a new Merc was too close to a previous model (from which it differed in headlight and rear indicator specifics).
According to the Lovells report, the Chinese Supreme Court put much of the similarity down to the generic nature of SUVs, which would cause the user to focus attention on the headlights and windows. Registration of the design was therefore allowed.
Is this a happy ending? Depends on where you stand.
If only small differences are sufficient to obtain registration, then only small differences are required to avoid infringement. The question posed by the Swedish court was - would DaimlerChrysler have been happy if anyone else had registered something so close to their earlier design? The effect of their refusal of the later design was to confirm the wide scope of the earlier. Conversely, the effect of the Chinese allowance may be to indicate that the bulk of Honda's design is merely a generic SUV which can be freely copied by competitors.
This result may well be right on the facts. Possibly there is something special about the front aspect of a car - the radiator, headlights and wing mirrors perhaps create something we react to as we do a human face - giving it more weighting in a comparison between designs. But the case highlights the difficulties faced by applicants in design systems which do not allow registration of "partial" designs. Posted by: David Musker @ 16.45
Tags: automobile, car design, china,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA263
Honda succeed in China - but should they be careful what they wish for?
Some time back, we reported on Honda's appeal in the Chinese Supreme Court against a refusal to register their SUV automobile design. Thanks once more to the good people at Hogan Lovells and particularly Georgia Chiu and Binxin Li of their Shanghai office for permission to cover a story from their excellent IP Quarterly newsletter reporting the Supreme Court's judgment in that case.
A side-by-side comparison (the upper one is the Chinese design, the lower one the prior art) indicates why there was a problem - they are not completely different, are they? The spare tyre in the prior art is omitted from the Chinese design, but there is clearly a space for it, so ignore that, and you are left with some differences in detailing in and around the headlights and windows.
| Chinese application |
This case is therefore pretty much on all fours with DaimlerChrysler's Application, in which the Swedish Supreme Court held that a new Merc was too close to a previous model (from which it differed in headlight and rear indicator specifics).
According to the Lovells report, the Chinese Supreme Court put much of the similarity down to the generic nature of SUVs, which would cause the user to focus attention on the headlights and windows. Registration of the design was therefore allowed.
Is this a happy ending? Depends on where you stand.
| Prior design |
This result may well be right on the facts. Possibly there is something special about the front aspect of a car - the radiator, headlights and wing mirrors perhaps create something we react to as we do a human face - giving it more weighting in a comparison between designs. But the case highlights the difficulties faced by applicants in design systems which do not allow registration of "partial" designs. Posted by: David Musker @ 16.45
Tags: automobile, car design, china,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA263
MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.
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