Unitalen client LG Life Health Co., Ltd. (hereinafter referred to as “the plaintiff”) is a world-renowned cosmetics company. Its WHOO brand Luxury lipstick series is popular among a wide range of female customers since it came out into the market. The patent involved in this case is the container of this series of lipsticks, which comprises two parts: a tube body and a lid. The patent was filed on June 6, 2017 and granted on December 15, 2017 with the priority date as May 24, 2017.
The product alleged of infringement in this case is the TUTU brand lipstick launched by Guangzhou Aoxini Cosmetics Co., Ltd (hereinafter referred to as “the defendant”).
In comparison, the patent involved is a lipstick container, which is used to hold various items such as cosmetics, while the alleged product is a lipstick. However, both of them fall under 28-02 category on the International Design Classification Table, so they are of the same type of products.
According to the patent right evaluation report of the involved patent, the main difference between the involved patent and other existing designs is:
1) The shape of the tube body, that is, it’s in the shape of the bullet, which is completely different from other existing design and thus constitutes the essence of innovative design;
2) The shape and pattern of the lid, that is, it’s a combination of a cylindrical upper part and the lower part of a trapezoid with a concave curve in the cross section. The upper part is designed with a hollow carved pattern, and the lower part is smooth without a pattern.
To compare the patent involved and the alleged product, it’s true that there are two differences in between, 1) The specific pattern of the hollow carving on the lid is slightly different; 2) whether there is a lip brush connected to the top perforation.
However, the first difference mentioned above is too for ordinary consumers to notice and has no significant impact on the overall visual effect, because: first, it’s a customary design method and does not produce a significant visual effect; secondly, the difference is relatively a very small difference vs other areas of the design, i.e., the pattern occupies a small proportion and is not easy to attract the attention of ordinary consumers.
As for the second difference, because it is an additional design feature, it does not belong to the scope of protection of the involved design patent and should not be included in the infringement comparison; in addition, this difference involves a lip brush, which is a functional feature Therefore, it should be excluded from the scope of protection of the involved patent.
Therefore, the design of the alleged infringing product falls within the protection scope of the patent involved and constitutes patent infringement. Our client LG Life Health Co. Ltd. thus filed the infringement litigation against the defendant.
Recently, the Guangzhou IP Court made the judgement of first-instance for this case, which found that our client’s claim established and ordered the defendant to compensate 200,000 yuan for our client’s economic losses.