When intellectual property rights are infringed, we should do the following:
1. Fixed the quantity and business scale of infringing goods found at the evidence collection site. Obtaining evidence for many times in the same place, if the existing evidence proves that there are many infringing goods and the business scale is large, and the multiple evidence collection is enough to prove that the operator continues to sell infringing goods, he can get more compensation;
2. Fix the business information of the operator to avoid the litigation efficiency being affected by the parties or other procedural issues;
3. Fixing the defendant's website, publicity materials or materials kept in relevant departments, such as the business scope, sales scale, profit and other data that the defendant publicly declared and submitted to relevant departments, can be used as preliminary evidence of the litigation request;
4, actively trace the source of infringing goods, stop the infringement from the source, and may get more compensation.
Second, how to protect the rights of intellectual property infringement?
1, send a warning letter. If the infringement and consequences are not serious and the suspected infringing enterprise is not too big, the obligee may remind the other party in the form of a warning letter and ask it to stop the infringement.
2. Take compensation as the goal. If the alleged infringement has caused great losses to the obligee, the obligee intends to sue the infringer for the purpose of obtaining compensation. Before bringing a lawsuit to the court, he should actively and fully prepare the evidence of infringement and the evidence that he has suffered losses or the other party has gained benefits, so as to prepare for future court proceedings and occupy a favorable position.
3. Rights holders who promote peace talks through litigation. Sometimes the purpose of bringing a lawsuit to the court is not to get the judgment of the court, but to hold peace talks with the suspected infringer and make up for the losses caused by his infringement. The obligee should know his own bottom line before the two sides negotiate, and at the same time, he should try his best to investigate the other side's bottom line in order to better safeguard his legitimate rights and interests.
4. Clean up the market through litigation. Many times it is difficult for the obligee to get full compensation from the lawsuit, but if no lawsuit is filed, the infringement will spread and the obligee's market share will be greatly affected, so the obligee has to file a lawsuit to regain the real market share. For example, a luxury brand can tolerate fake goods with poor workmanship to be sold at cabbage prices in bazaars, but it will never accept high-quality imitations to be sold in hotels and shopping malls, because the consumer group of the former is not the target group of the obligee, while the latter is likely to divert the target customers of the obligee. Therefore, even if the obligee can't get full compensation from the case, he will take legal or even criminal measures to safeguard his market share.
5. Promote cooperation through litigation. Sometimes, the obligee asks the suspected infringer to stop the infringement or bring a lawsuit to the court, not really asking him to stop using the obligee's intellectual property, but using it as a platform to urge the other party to negotiate or mediate with the obligee, and then the two sides reach a cooperation intention.
Three. Identification of intellectual property infringement
1. Infringed intellectual property rights must be valid.
This requirement requires that the infringed intellectual property rights must be applied in China and verified and approved by China National Intellectual Property Administration. The validity period of intellectual property rights shall not expire, nor shall it be an application that has not been approved, or an application declared invalid by the reexamination board of the Intellectual Property Office. If it does not have the above effect, the lawsuit of intellectual property infringement cannot be carried out.
2. Tort must be clearly defined.
This requirement is that the plaintiff must explain the behavior of the infringer and provide sufficient evidence to prove the occurrence of the infringement. In fact, China's relevant laws on intellectual property rights have stipulated this requirement in detail, and pointed out the types of infringement and events that cannot be counted as infringement.
3. The infringement must be for profit, not for profit, as the case may be.
According to the regulations, if the intellectual property is used for profit, the user must obtain the permission of the owner, otherwise it will constitute infringement of intellectual property rights. Therefore, for-profit is also one of the main elements of intellectual property infringement.
4, the occurrence of infringement must be caused by the subjective fault of the infringer.
This requirement holds that no matter whether the infringer's subjective fault is intentional or his own fault, he should be responsible for the loss of intellectual property rights. If the infringer can prove the legality of this act, he may not be liable for compensation, but he still needs to bear the civil liability for stopping the infringement and destroying the infringing products.
Fourth, the defense of intellectual property infringement.
1. Relevant departments should know whether they are qualified to be the owner of intellectual property rights. Therefore, the legal department needs to carry out technical certification on the plaintiff's subject qualification, and if it is found that there are those who do not meet the subject qualification, the lawsuit shall be withdrawn.
2. Clarify the effective protection period of the accused intellectual property. Generally speaking, intellectual property rights have a certain time limit. For example, the patent law stipulates that the protection period is between 10 and 20 years, counting from the date of patent application.
3. Clarify the statute of limitations of intellectual property rights. China's intellectual property law also clearly stipulates that the limitation period of intellectual property litigation is two years, which is counted from the day when the right holder knows or should know that his rights have been infringed. If the statute of limitations exceeds two years, the court will no longer accept such infringement and the plaintiff will lose the right to sue.
4. Clarify the scope of application of intellectual property law, mainly by applying for intellectual property protection. Under normal circumstances, both parties need to submit an application for intellectual property protection, and relevant departments need to effectively verify and compare the intellectual property submitted by both parties to determine whether the intellectual property rights owned by both parties are the same or similar. At the same time, it is also necessary to know in time whether the intellectual property applications of both parties contain restrictive clauses, so as to clearly define the scope of intellectual property rights owned by both parties, and finally define a series of contents in the protection application to determine whether it constitutes intellectual property infringement.
5, the use of well-known technology to defend. The so-called well-known technology means that it has been published in domestic and foreign publications or made known to the public by other means before the patent application date.
6. Make full use of various rights to defend. China's patent law clearly stipulates that although some units are not patentees, they can't be regarded as infringement because they have obtained certain licensing rights and used this knowledge to manufacture related products, and the patentee has no right to appeal.
7. Use legal channels to obtain defense. China's patent law also has a very clear explanation, that is, if the defendant does not know the specific matters, it should be regarded as a bona fide third party, which is not a real infringement and should be protected by law. This legitimacy essentially refers to all the manufacturing of the defendant. The sales and service links all follow the relevant provisions of the law, which can prove that the obtained property has a legitimate source, so it cannot be considered as infringement. In addition, the defendant can also use temporary transit, scientific research purposes and compulsory license to safeguard his rights and defend himself.