On The Conflict Between A Design Patent And A Prior Trademark Right

Article 23.3 of the China's Patent Law sets forth the provision on the conflict between a design patent and prior rights, including a prior trademark right. If a symbol identical or similar to other's registered trademark is adopted by the design for the same or similar goods to such an extent that the exploitation of the design patent may cause the relevant public to mistakenly believe that the goods come from the trademark holder, thereby impairing the legitimate rights of the trademark holder, there exists a conflict between the design patent and the prior trademark right. The criterion for judging such a conflict is to examine whether the exploitation of the design patent will infringe the trademark right. ¹