How to determine intellectual property infringement
Intellectual property infringement can be analyzed from the following four rules:
(1) Validity review rules, that is, proactive review of the validity of rights Conduct review
Review of the validity of rights is accepted The first thing a judge should do after an intellectual property infringement case reflects the principle of legality of intellectual property rights, which means that the judge should proactively review the case and not just based on whether the other party has raised a defense. The review of rights validity includes two aspects:
Section First, examine whether the plaintiff has the right to file an infringement lawsuit. It should be examined whether the plaintiff is the right holder or interested party of the intellectual property. Otherwise, the plaintiff has no right to file a lawsuit and the lawsuit should be dismissed. When two or more people share intellectual property rights, one or some of them should notify the co-owners before filing a lawsuit in court. If the notification obligation is not fulfilled before filing a lawsuit, the judge should notify the co-owners, and the co-owners will decide whether to act as co-owners. The plaintiff joins the lawsuit. In the patent infringement case of Haier Electric Co., Ltd. v. Ripu Electric Co., Ltd., the judge found that the patent rights involved in the case belonged to Haier Electric Co., Ltd. andHaier Group Co., Ltd. even though the defendant raised no objection to the plaintiff’s right to sue, the judge took the initiative to notify Haier Group Co., Ltd., and ultimately Haier Group Co., Ltd. stated that it gave up its right to litigate. In copyright infringement cases, whether the plaintiff is the copyright owner of the work sometimes becomes the main focus of the case. In this case, it is necessary to grasp the principle that "in the absence of contrary evidence, the person who signs the work is presumed to be the author."
Second, review the effectiveness of rights. For example, review whether the content of the copyright is legal and within the protection period, whether the patent right is valid when the infringement occurred, whether the trademark right exists legally, whether the variety rights, etc. are valid, etc. my country's Copyright Law stipulates the principle that prohibited works are not protected by law. In copyright infringement cases, the defendant often does not defend in this regard when it comes to whether the content of the work is prohibited, because once the work is recognized as prohibited, the defendant may be liable certain legal liability, so both the plaintiff and the defendant may avoid this issue. Under this premise, the judge should proactively review the validity of the work.
(2) Rules for determining the scope of rights, that is, based on The object of the right is the center to determine the scope of protection
The so-called definite protection Scope is to determine the scope of intellectual property rights. In layman's terms, it is the territory of rights. Anyone who enters this territory constitutes infringement. For tangible property, the scope of rights is very clear, but for intellectual property rights, the scope of rights is not as obvious as tangible property, and sometimes it is even difficult to judge. When determining the scope of intellectual property protection, the following three steps should be followed:
First, clarify the object of rights. It is to determine what intellectual property rights are to be protected. In a copyright infringement case, the plaintiff must clearly specify the works that are required to be protected. For example, manuscripts should be provided for literary works, drawings should be provided for artistic works, and on-site recordings or transcripts of people present should be provided for oral works. If it cannot be provided, thenUnable to protect its copyright, in the copyright infringement case of Modern Advertising Agency, the plaintiff believed that the defendant had plagiarized its advertising art design style, but the judge believed that the design style was a creative idea that could not be accepted because it had no external objective form of expression. For the protection of copyright law, the plaintiff must provide a work that embodies his creative ideas in order to be protected. In a trade secret infringement case, the right holder must explain what technical information or business information it requires to protect the trade secret, that is, what the secret point is. However, in intellectual property infringement lawsuits involving patent rights, trademark rights, variety rights and integrated circuit layout design rights that require registration, the task of determining the object of the rights is simpler. The object of rights of invention or utility model patents is rights. The technical solution stated in the request; the object of trademark rights is the registered trademark logo; the object of variety rights protection is the novelty, specificity, consistency and stability of plant varieties granted by the approval authority and appropriately named ; The protected object of the integrated circuit layout design right is the integrated circuit layout design confirmed by a certificate issued by the intellectual property administrative agency of the State Council after application; etc.
Second, eliminate unprotected rights objects part. This is mainly reflected in copyright, patent, trade secret and other infringement cases. It refers to removing unprotected elements from the object of rights based on the plaintiff's request or the defendant's defense, focusing on the remaining original parts. Determine the scope of protection.
You can come to the Legal Savior website to find a professional lawyer to help you Providing consulting services is the best choice. Lawyers here will take you to understand relevant legal knowledge and answer your questions for you.
