Jaquar Land Rover Evoque v Landwind X7 - IP in China
Chinese intellectual property laws broadly replicate the forms of protection (patent, registered design, etc) available in the European Union and the US, but there are differences, particularly in relation to registered designs.
The Evoque and the X7
These differences may be contributing to the difficulty that Jaguar Land Rover is experiencing in China in trying to put a stop to the Landwind X7 which bears a striking visual similarity to the Evoque.
The grievance is that the X7 looks like the Evoque. Visual similarity suggests that registered designs, rather than patents, would be the IP 'tool' that is needed, because a registered design is concerned with protecting visual appearance, whereas a patent is concerned with protecting an underlying technical idea.
Unfortunately, whilst patent law is generally harmonised across the major jurisdictions of the EU, the US and China, so that what infringes a patent in the EU or the US is likely also to infringe the equivalent Chinese patent, the same is not true in relation to registered designs.
The EU has a modern design law which allows a visually striking part of a product to be protected as an alternative to protecting the whole product.
The part can be drawn in solid line, and dashed lines can be used to depict the features of the rest of the product which are to be ignored and which do not form part of the protected design.
For example, if your new car has a visually striking 'glasshouse' with tapering side windows, and generously flared and rounded front wheel arches which cut up into the lower lip of the bonnet, then these features could be depicted in solid line, and the rest of the car could be disclaimed in dashed line. This would ensure that the EU registered design protected just the striking features of the car, and that infringement could not be avoided by changing the other features (such as the door handles, the headlights, and the tailgate).
The same depiction technique can be used in the US.
Unfortunately the design law in China is old fashioned and less applicant friendly and does not permit just part of an overall product to be protected.
The whole product (the whole car) would have to be shown in solid line in the Chinese design application, and this would mean that (unlike in the EU and the US) infringement could be avoided by changing sufficiently the visual appearance of just enough of the 'minor' design elements of the car (the 'minor' features that were shown in dashed line in the EU and the US) in order to avoid the likelihood of a Chinese court holding that the registered design has been infringed.
Guidance for design applications in China
The best that can be done is for your design attorney to obtain some pre-filing advice from a Chinese attorney as to how, within the constantly evolving constraints of Chinese practice, your envisaged design application in China can be best presented based on what you have already filed in the EU or the US.
This article was first published in Automotive World, 04 May 2015