Overview of morphological imitation
The act of transferring a product that imitates the form of another person's product is an unfair competition act as an act of imitating the form.
If it is recognized as a form imitation act in a lawsuit, you can injunction or compensate for damages to another person who imitates it for 3 years from the date of sale in Japan.
Article of form imitation (Article 2, Paragraph 1, Item 3 of the Unfair Competition Prevention Law)
The act of transferring, renting, displaying, exporting, or importing a product that imitates the form of another person's product (excluding the form that is indispensable for ensuring the function of the product). (Unfair Competition Prevention Law, Article 2, Paragraph 1, Item 3)
Requirements recognized as morphological imitation
To be recognized as a form imitation act, (1) imitate the form of the product, (2) it is not an indispensable form to secure the function of the product, (3) transfer, etc., (4) the date when it was first sold in Japan. It is necessary to meet all the requirements of ① to ④ for 3 years from the above.
① To imitate the form of the product
What is the form of the product?
"Product form" refers to the external and internal shapes of a product that consumers can perceive when used in accordance with normal usage, as well as the patterns, colors, glosses and textures associated with those shapes (illegal). Competition Prevention Law, Article 2, Paragraph 4).
What is imitation?
"Imitating" means creating a product in substantially the same form as that of another person's product (Article 2, Paragraph 5 of the Unfair Competition Prevention Law).
Since it must be relied on, if it happens to be in substantially the same form, it is not a form imitation act.
Substantially identical requirements seem to be more stringent than similar designs.
Substantially the same will be described later with a judicial precedent.
(2) It is not an indispensable form to secure the function of the product.
Excluding "a form that is indispensable for ensuring the function of a product" from the act of imitating a form is specific if it cannot be established as a product and cannot enter the market unless it takes that form. This is because it is not suitable for the monopoly applicability of the person.
A design consisting only of shapes that are indispensable for ensuring the function of an article is the same reasoning that a design right cannot be obtained.
An example of "an indispensable form for ensuring the function of a product" is the shape of a communication cord plug that connects electronic and electrical equipment.
Since the shape of the plug of the communication cord is "an indispensable form for ensuring the function of the product", imitating this shape does not correspond to the act of imitating the form.
③ Transfer, etc.
Imitation alone is not a form imitation act.
If imitation itself is prohibited, imitation for test research will also be unfair competition, which is not appropriate.
Therefore, the act of imitating the form requires a specific act such as an act of transfer (an act of transferring, lending, displaying, exporting or importing for transfer or lending).
④ It has been 3 years since the first sale in Japan (Article 19, Paragraph 1, Item 5 of the Unfair Competition Prevention Law).
Three years after it was first sold in Japan, it will not be protected as a form imitation of the Unfair Competition Prevention Law.
The purpose of prohibiting imitation is to limit the period of investment recovery of the predecessor.
If you want long-term protection of the product form, we recommend that you obtain a design right.
The term of the design right is 25 years from the date of filing.
(Click here for design rights to open)
What is the requirement for imitation to be substantially the same? (Dragon Sword Keychain Case, Tokyo District Court Decision December 25, 1996)
"Imitation" as referred to in Article 2, Paragraph 1, Item 3 of the Unfair Competition Prevention Law means to imitate the existing form of another person's product and create a product with the same or substantially the same form, objectively. When observing the products of another person in comparison with the products produced, it is necessary that the morphology is so similar that it can be said that they are the same or substantially the same. It is necessary to know the product form and to recognize that it creates a product with a form that is objectively evaluated as a product with a form that is so similar that it can be said that the form is the same or substantially the same. ..
Here, even if the form of the created product is different from the form of another person's product that already exists, the difference is based on a slight modification and can be evaluated as being very similar. It should be said that the form is substantially the same, but the difficulty of the idea of the modification, the content / degree of the modification, the morphological effect of the modification, etc. are comprehensively judged, and the appropriate form is obtained by the modification. If the above characteristics are brought about and it cannot be evaluated as being very similar to the form of another person's product that already exists, it should be said that the form is not substantially the same.
Thus, the substantive identity of morphological imitation is understood to be narrower than the similarity in design right infringement.
