Medical Device Industry
Case Study
By China IPR SME Helpdesk
医疗器械行业
案例
案件的背景
一家欧洲牙科器械公司通过中国经销商在中国销售其产品。 他们发现，中国的竞争对手使用相同的外观设计，配色方案和控制界面，提供类似但规格较低的产品。总体而言，竞争对手的产品外观与欧洲公司的功能相似，但其性能水平和价格要低得多。
欧洲公司采取了哪些行动？
欧洲公司的代表之前曾在一个贸易展览会上与该公司接洽，抱怨侵权行为，但未得到积极回应。
该公司此后寻求法律建议。试图依靠其他法律依据声称侵犯产品形状和装饰是可能的，但成功的可能性很小。 唯一明确的法律依据是版权侵犯了技术手册的内容。
经验教训
• 欧洲中小企业应确保尽早注册其知识产权，以确保最大程度的保护。
•不要认为诉讼是唯一途径。
• 使用警告信可以成为刑事诉讼或民事诉讼的可行替代方案。
•始终强制执行您的知识产权。
Background of the Case
A European company in the dental instruments sector was selling its product in China through a Chinese distributor. They discovered that a competitor in China was offering a similar, but lower-specification product, using an identical exterior design, colour scheme, and control interface. The technical manual, diagrams and parts of their brochure appeared in part to be directly copied from the original. Overall, the competitor’s product gave the appearance of being similar in function to that of the European company, although its performance level and price were much lower.
What Actions Did The European Company Take?
The European company’s representatives had previously approached the company at a trade fair to complain about the infringement but had not received a positive response.
The company thereafter sought legal advice. They did not have a design patent to protect the overall shape of their product, nor were there any patents covering the product. Trying to claim infringement of the product shape and decoration by relying on other legal grounds was possible, but chances of success were poor. The only clear legal grounds were copyright infringement of the contents of the technical manual.
Instead, the company decided to send a warning letter through their local lawyers that alleged infringement of the product shape (even though the legal grounds were not strong) and copyright in the manual. The letter implied that the company would take the matter to court. The law firm and representatives of the European company followed up the letter and met with the infringer to press upon them to stop their infringement. The European company argued that a lawsuit would be wasteful for both parties, even if they were not successful, and that the Chinese competitor’s imitation of a European product would harm their own image in the long run. As a result, the infringing company decided to change a number of exterior features of the product and produced new manuals and brochures which greatly reduced similarities to the European product.
Although the European company did not have very strong rights, in this case, use of a warning letter followed up with determined negotiation was able to yield a satisfactory result.
Lessons to Take Away
• The European company would have had an even better result if they had had design patent or other patents for their product in China, which would have given them clear rights over the product design. Therefore European SMEs should make sure that they register their IP rights as early as possible, to ensure maximum protection.
• Do not assume that litigation is the only way forward. Make use of the full IPR framework that exists in China to achieve you goals. You should also not assume that any legal action will be very costly.
• Use of warning letter can be a viable alternative to criminal prosecutions or civil litigation. Using warning letters combined with determined negotiations can, in some cases, lead to satisfactory results.
• Always enforce your IP rights. If you manage to create an image of being litigious or of always taking action, the infringers are less likely to infringe on your products and would simply move on to less litigious companies.
