In real life, counterfeit intellectual property products often appear, which is an infringement of the rights of intellectual property holders. So, in the case of intellectual property infringement, how should the infringed party protect its legitimate rights and interests, and how to combat intellectual property infringement? This article has compiled methods for protecting intellectual property rights. I hope it will be helpful to you.
1. How to counterfeit intellectual property in intellectual property infringement cases?
Difficulties in intellectual property protection and counterfeiting
As mentioned above, intellectual property protection and anti-counterfeiting still face a series of difficulties and confusions, mainly in the following aspects:< /p>
1. It is difficult to identify the defendant.
In many intellectual property infringement cases, the infringer tries to hide behind the scenes through various channels, and is generally not easy to be discovered. In many cases, rights holders can only see the infringing products on the market, but cannot know where these products come from. Even if there is a company name, the investigation will find that the company's registered address and phone number are fake, and the barcode is copied from other companies. This makes the rights holder very entangled and feels that his angry fist cannot find a focus.
2. Difficulty in obtaining evidence
Difficulty in obtaining evidence is a common feature of intellectual property cases. Many infringing products entering the circulation market are scattered, and a single sales behavior cannot be effectively stopped. It is also very difficult to obtain evidence of production behavior. Intellectual property infringement in some fields has formed a complete industrial chain, showing the characteristics of network, organization, internationalization and specialization. For example, when a blockbuster movie is released, there are dedicated people responsible for the acquisition, production, wholesale, logistics, and regional distribution of the master film, and then from regional distribution to local retail. Cultural law enforcement departments often can only find terminal sales, but cannot trace the source. This is because the anti-counterfeiting industry has been constantly improving and becoming more tightly organized and even overstepping boundaries in the fight against counterfeiting, which has brought great difficulty to the fight against counterfeiting.
3. It is difficult to obtain compensation
In intellectual property infringement cases, ten compensations are often not enough. According to legal provisions, the amount of compensation to the plaintiff shall be determined based on the actual losses suffered by the right holder due to the infringement; if the actual losses are difficult to determine, it may be determined based on the benefits obtained by the infringer due to the infringement. It is difficult to determine the losses suffered by the rights holder and the benefits gained by the infringer. The people's court may determine the amount of compensation to be between 10,000 yuan and 500,000 yuan based on the type of rights, the nature and circumstances of the infringement, etc.
Compensation (one million yuan for patent). In real cases, few infringers keep accounts. Even if there are, there may be two ledgers, which would be difficult for the plaintiff to obtain. Even if the court obtains evidence, the defendant may refuse to provide it for various reasons and does not bear any legal responsibility. Therefore, the right holder's compensation request can usually only be realized through statutory compensation, but the amount of statutory compensation is difficult to cover the actual losses of the right holder in many cases. Therefore, the difficulty in obtaining compensation has greatly dampened the enthusiasm of rights holders. On the contrary, the low cost of breaking the law has encouraged the spread of infringement and piracy.
(2) Correctly view the protection of intellectual property rights and counterfeiting
Due to the difficulty of cracking down on counterfeiting and safeguarding rights, many companies are deterred. Some companies think it is better to let the water go to fish, and some companies think it is better to crack down on counterfeiting. Raising product awareness goes a long way. To fight or not to fight? This is actually a false proposition, a fantasy of letting go of water to raise fish or increase corporate visibility. If left unchecked, counterfeit products will flood the market and cause damage to a company's brand and reputation. In fact, what companies need to consider is not whether to fight, but when to fight, whether to fight wages or the market. Different companies and different product types should have different strategic choices. Under normal circumstances, companies can choose the following five ways to protect their rights based on the severity, consequences and goals of the infringement:
1. Send a warning letter
If the infringement and consequences are not consistent In serious cases, if the suspected infringing company is not too big, the rights holder can remind the other party in the form of a warning letter and require it to stop the infringing behavior.
2. Aim for compensation.
If the alleged infringement has caused heavy losses to the right holder, and the right holder intends to sue the infringer for the purpose of obtaining compensation, he should actively and fully prepare evidence of the infringement before filing a lawsuit in court. and evidence that you have suffered losses or that the other party has gained benefits, so as to prepare for future court proceedings and occupy a favorable position.
3. Promote peaceful negotiations through litigation.
Sometimes, rights holders file lawsuits in court not to obtain a court judgment, but to negotiate with the infringement suspect and compensate for the losses caused by the infringement. Rights holders should know their own bottom line before negotiating between the two parties, and they should also try their best to investigate the other party's bottom line in order to better safeguard their legitimate rights and interests.
4. Clean up the market through litigation.
Many times, it is difficult for rights holders to obtain full compensation from lawsuits.
However, if a lawsuit is not filed, the infringement will spread and the market share of the rights holder will be greatly affected, so the rights holder has to file a lawsuit to regain the market share of genuine products. For example, a luxury brand can tolerate fakes with poor workmanship being sold at bargain prices in markets, but it will never accept high-quality imitations for sale in hotels and shopping malls, because the consumer group of the former is not the target group of the rights holder. , and the latter is likely to divert the right holder’s target customers. Therefore, even if the right holder cannot obtain full compensation from the case, he will take legal means or even criminal means to safeguard his market share.
5. Promote cooperation through litigation.
Sometimes, when the rights holder asks the alleged infringer to stop infringement or file a lawsuit in court, it does not really require it to stop using the rights holder's intellectual property rights, but uses it as a platform to encourage the other party to negotiate with the rights holder. Negotiation or mediation, and then both parties reach an intention to cooperate.
2. Selection before intellectual property litigation
(1) Selection of target objects
Legal litigation should also focus on efficiency, and the ultimate goal is to safeguard the rights of the right holder Legitimate interests. However, in the above-mentioned circumstances where it is difficult to safeguard rights and fight against counterfeiting, it is particularly important to choose the appropriate litigation subject. When rights holders choose litigation targets for rights protection, they should take as the first target those infringers who have the ability to compensate, influence and direct competitiveness. Such enterprises are generally larger in scale, and rights holders can receive more adequate compensation when safeguarding their intellectual property rights. At the same time, if the infringer's business is in the same industry that competes with the right holder, it can also be used as a means of market competition to gain a better competitive advantage. Among these enterprises, foreign companies and listed companies are the most important. Foreign companies generally attach great importance to the protection of intellectual property rights. If they are accused of infringement, they will resolve disputes as soon as possible, and the court's judgments can also be well implemented. However, all information of listed companies is required to be disclosed, and they are sensitive to corporate litigation and may affect stock prices. Therefore, such disputes are generally avoided as much as possible, and it is easier for rights holders to defend their rights.
(2) Choice of jurisdiction
According to the provisions of my country's Civil Procedure Law, lawsuits filed due to infringement shall be under the jurisdiction of the people's court where the infringement occurred or where the defendant is domiciled. The place where a property rights infringement lawsuit is filed can be the place where the defendant is domiciled or the place where the infringement occurred. Among them, the place of infringement includes the place where the infringement is committed and the place where the infringement results occur. This legal provision provides room for rights holders to choose jurisdiction in litigation. The reason why rights holders choose jurisdiction is that many local courts will be affected by local protectionism during the litigation process. Many of the companies suspected of infringement have played a huge role in promoting local economic development and absorbing employment. If they lose the case, it is likely to affect the development of the enterprise and thus the local economic development. In addition to other reasons, if the right holder chooses to file a lawsuit in the court where the defendant is located, he may encounter various difficulties and the judgment will be difficult to enforce. Second, courts in different regions handle intellectual property cases at different levels. Intellectual property protection is the product of a highly developed market economy. Generally speaking, local courts with developed economies have rich experience in handling intellectual property cases and have a higher level of case handling. Third, different judges have different understandings of the law and their views may be very different or even diametrically opposed. When choosing a jurisdiction, you should consider the presiding judge's previous views on a certain legal issue and choose a jurisdiction that is beneficial to you.
(3) Selection of institutions
Compared with other civil and commercial cases, intellectual property infringement cases are more professional, and professional institutions must be entrusted to resolve such disputes.
At present, the service market for intellectual property infringement and counterfeiting is mainly law firms and investigation companies, each of which has its own focus. Investigation companies tend to investigate and track infringing articles in the early stage, while rights protection in the later stage is the strength of lawyers. When choosing a lawyer, rights holders should choose a professional intellectual property lawyer or team of lawyers and consider the size of the law firm. As mentioned above, intellectual property infringement in some fields has the characteristics of network, organization, internationalization and specialization. When choosing a law firm, rights holders should choose a national law firm. At the same time, service agencies are required to coordinate and provide unified and professional services across the country, making use of local resources so that rights holders can benefit from one entrustment.
(4) Choice of timing for litigation
Litigation by rights holders is not only for rights protection, but also an excellent opportunity for commercial promotion. For example, when infringing companies start to go public, it can put more pressure on infringers, prompting the cases to be resolved as soon as possible and obtaining better compensation amounts.
Third, litigation preparation
(1) Preparation of evidence
Before starting judicial proceedings, the preparation of evidence is very important. When preparing evidence, the right holder can collect evidence by himself or entrust a professional agency to collect evidence. It is simple and easy for the right holder to obtain evidence by himself and the cost is low. However, due to the irregularity of the evidence collection process, its acceptance in court cross-examination is low. In addition, intellectual property cases are highly professional and difficult to obtain evidence. It is recommended that the rights holder entrust professionals to collect evidence on their behalf. Rights holders should try their best to use notarization when collecting evidence, because in the absence of contrary evidence that is sufficient to overturn the validity of the notarized evidence, the evidence obtained through notarization will directly become the basis for the court to determine the facts. In addition, before filing a lawsuit, if the evidence may be lost or difficult to obtain later, the rights holder may apply to the court for pre-litigation evidence preservation, or when an infringement is discovered, report it to the corresponding administrative agency, which will investigate and retain the evidence.
(2) Determination of the amount of compensation
At present, compensation for intellectual property infringement in my country is mainly based on the principle of compensating for damage. Therefore, the right holder should take the initiative to prepare evidence of the amount of damage suffered, or take the initiative to investigate the benefits obtained by the infringer due to the infringement. When determining the amount, the reasonable expenses paid by the right owner to stop the infringement should be included. In this way, the court can well support the claims of the right holders. If the former cannot be determined, the court will grant statutory compensation of not less than RMB 10,000 but not more than RMB 500,000 (RMB 1 million for patents) based on the type, nature, scope, circumstances and other factors of the infringement. Even if it is statutory compensation, it is necessary to prove the circumstances of the infringement, the effect of the infringement and the consequences of the infringement as much as possible. If there is evidence that the actual loss of the right holder is greater than the statutory compensation, the court can also make a decision on this basis. Therefore, even for the same type of case and different evidence, the amount of compensation awarded may be completely different.
The above is the relevant knowledge compiled for you. I believe that after reading the above content, you must have a certain understanding of how to fight intellectual property counterfeiting. At the same time, the above also introduces how to conduct intellectual property litigation, choices before litigation, and what preparations need to be made during litigation. Hope the above content can help you.