Some scholars believe that product tort liability is actually a strict western product liability, but the understanding of product liability in China's theory and practice includes both product tort liability and product contract liability. The product tort liability theory was originally based on the product contract liability, that is, the counterpart of the contract must undertake the obligation of product defect warranty (from the initial express warranty to the later implied warranty), but the contract liability can't make up for the damage caused by the defective product to the original interests of the parties, so the damage compensation theory came into being, but the theory can't solve the relief problem of the loss caused by the defective product to the interests of the third party other than the parties to the contract. This leads to the theory of tort liability, that is, as long as the damage of the victim's interests is attributed to the defective product, the supplier (producer or seller) of the product should be liable for compensation.
Second, the legal characteristics of product tort liability.
1, the tort liability and people's livelihood after commodities enter the circulation field. The sign that a product enters the circulation field is that it goes through several circulation links, namely, wholesale, sales, warehousing, transportation and other processes, from the hands of manufacturers and producers. Therefore, the premise of product tort liability is always related to the contract, and there is no product tort liability without the premise of the contract.
2. Product tort liability is property damage other than defective products caused by product defects. Product tort liability is not property damage other than property caused by product quality problems (property damage other than property caused by product quality problems belongs to contract disputes and is not discussed in this paper).
3. Product tort liability is a special tort liability caused by things. This nature of product tort liability distinguishes it from state liability and employer liability. Therefore, product tort liability is that people are responsible for the damage caused by things, that is, when a product causes damage to people, people associated with the product, that is, producers and sellers, are responsible for the damage caused, which is a special tort liability.
4. Product tort liability is no-fault liability. Scholars have different opinions on whether product tort liability is fault liability or no-fault liability. The author agrees with the latter view: firstly, the provisions on product liability in Article 122 of the General Principles of Civil Law and the Product Quality Law refer to the strict case law on product liability in the United States and the European directives on product liability. According to the strict case law of product liability in the United States and the directives of European countries on product liability, product tort liability adopts no-fault tort. From the perspective of comparative hermeneutics, the provisions on product tort liability in China's legislation should be interpreted as strict liability. Secondly, according to the provisions of the General Principles of Civil Law, people who are damaged by product liability can claim compensation from product producers or product sellers. No matter whose fault it is, both the manufacturer and the seller should bear the responsibility, so it is a no-fault responsibility.
Is it infringement to download pictures online for product promotion?
It is an infringement for you to use it for publicity without the authorization of the picture author.
Commodity inspection If it is a commodity that needs legal inspection, it must be inspected every time it is exported. Inspection agencies have a policy of exemption from inspection for enterprises and goods that meet the requirements!
On the issue of product patent rights, only domestic patents cannot be protected internationally. If you want to apply for foreign patent protection abroad, please see the following introduction:
Ways to apply for foreign patents
1, Paris convention approach
Most countries in the world are members of the Paris Convention. According to the provisions of the Paris Convention on priority, any member country can enjoy the priority of 12 months when applying to other member countries after applying for an invention or utility model, and the priority of 6 months when applying for a design. Any disclosure or use of the application during this period will not affect the novelty of the application. As China is a member of the Paris Convention, after applying for a patent in China, China applicants can claim the priority by using the provisions of the Paris Convention on priority when applying for a patent abroad.
2.PCT pathway
Patent Cooperation Treaty (PCT) is a special treaty under the Paris Convention, which is managed by the World Intellectual Property Organization. Its member countries are all members of the Paris Convention, which has reached 178 at present. According to the provisions of PCT, a patent application filed in any PCT member country can be regarded as an application filed in other designated member countries at the same time. It has realized the application in one country and is effective in many countries. The examination and approval procedure of PCT application is divided into international stage and national stage. In the international stage, acceptance, publication, retrieval and preliminary examination are carried out, while in the national stage, examination and authorization are carried out by specific national bureaus. The time for PCT application to enter a specific national phase is within 30 months from the date of application. In this way, when the applicant wants an invention to be protected by more than five countries (generally more than five), it is very suitable to use the PCT approach. Because only one international application needs to be submitted to the Chinese Patent Office through the PCT channel, it saves the trouble of submitting national applications to various countries, and has more time to consider which specific countries to enter eventually. PCT method is not suitable for design.
The applicant can judge the patentability (novelty, creativity and practicality) of the invention according to the existing technical data mentioned in the international search report and the international preliminary examination report, and can make appropriate amendments to the claim (if necessary), and then decide whether to enter the national procedure.
3. Apply directly to foreign countries without claiming priority. In addition, some countries or regions are not members of the Paris Convention and PCT, and can only file patent applications according to the requirements of their own laws. For example, Taiwan Province Province is not a member of PCT, and Chinese mainland and Taiwan Province Province do not support priority.
4. Apply for a European patent through the regional treaty "Convention on the Granting of European Patents":
Convention on the Granting of European Patents, 19731signed in Munich on 5 October, 19771entered into force on 7 October. The European Patent Convention established the European patent system, aiming at strengthening the cooperation among European countries in the field of industrial property rights, so as to obtain patent protection in several contracting States or all contracting States through a single authorization procedure. 1977, the European patent office was established according to the European patent convention. Its duty is to provide patent protection to the member countries of the European Patent Organization according to individual patent applications and unified patent authorization procedures, so that invention patents can be protected in one, several or all contracting countries. If the applicant intends to apply for a patent in more than three European regions or countries, it will be faster and more economical to adopt this treaty than to apply to each contracting state one by one.
5. Apply for joint design of European * * * body.
From April 1 2003, industrial designs in the EU will be registered through a single safety protection system. The application for industrial design registration will be reviewed by OHIM for a short time, and the registration certificate will be issued in about three months.
The industrial design registration certificate will be recognized by all EU countries, including Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom.
The initial registration period of industrial design is five years, but it can be extended for five years, and the longest extension period can reach 25 years.
Patent applications in several major countries
Part I: Applying for American Patent
1, patent application category
(1) Practicality: A method, a machine, a product or a combination of things, or a new and useful improvement can be patented according to the terms and conditions stipulated in this Law.
(2) Design patent: Anyone who creates a novel, original and decorative product design may obtain a patent in accordance with the provisions and requirements of this Law.
(3) Temporary application: Only the description and drawings are submitted, and a formal patent application is submitted within one year, which enjoys the filing date of the temporary application.
2. Review period
Generally speaking, the application will be reviewed about six months to one year after the application is obtained.
3. Term of patent
(1) The invention patent case is 20 years from the date of filing.
(2) The design patent case shall be 14 years from the date of announcement.
Section 2 Application for British Patent
1, patent application category
(1) invention patent (2) design patent
2. Term of patent
(1) The patent right of an invention patent case lasts for 20 years from the date of filing.
(2) The patent right for design is five years from the date of application, and can be extended for four times, each time for five years, totaling ***25 years.
Section 3 Application for German Patent
1, German patent application and examination
(1) Invention patent: substantive examination (2) Utility model patent: formal examination only.
(3) Design: Registration system is adopted.
2. Validity period:
(1) invention patent: the invention patent lasts for 20 years from the day after the invention application date;
(2) utility model: it can be extended to ten years at the longest from the date of application;
(3) Design: It can be extended for up to 20 years from the date of application.
Section 4 Application for Japanese Patent
1, Japanese patent application and examination
(1) invention patent (patent right) (2) utility model patent (utility model) (3) design patent (designer)
2. Term of patent
Invention patent: the protection period is 20 years from the date of application.
Patent for utility model: the protection period is six years from the date of application.
Design patent: the protection period is fifteen years from the date of registration.
3. Review system
(1) invention patent: the application content shall be made public within 18 months from the date of application, and submitted for actual examination within three years from the date of application.
(2) Patent of utility model: This patent adopts the registration system, which can obtain the patent right without actual examination, and will be granted registration within 4~6 months.
(3) Design patents: The principle of actual trial shall be adopted, and the actual trial shall begin on1March.
Section 5 Application for Korean Patent
1, Korean patent application and examination
1- 1, invention patent
Request for substantive examination within 5 years from the date of application, and request for examination within 25 months from the date of actual trial;
The protection period of the invention patent right is from the date of registration to "20 years from the date of application". With regard to pesticides or medicines, under certain conditions, the protection period can be extended to 5 years.
1-2, utility model
Registration system (about 3 months after application)
The protection period of the utility model is from the date of registration to "from the date of application 10 year".
1-3, design
South Korea adopts a parallel design review registration system and non-review registration system for the design of some specific projects.
Articles that have not applied for design review.
-B 1 (clothes);
-C 1 (sheets, floor mats, curtains);
-F3 (office paper, printed matter)
-F4 (wrapping paper, packaging container)
-M 1 (textiles, etc. )
The patent right of design occurs in authorized registration and ends on the date of registration 15 years.
Section 6 Application for Patent in Hong Kong
1, patent system
1- 1, Patent Regulations and Registered Designs Regulations
According to Hong Kong's new patent regulations, Hong Kong's patent system includes "standard patents" and "short-term patents", which roughly correspond to China's invention patents and utility model patents.
1-2, standard patent
A standard patent refers to an invention patent that is examined and granted by a designated patent office and then registered and granted in Hong Kong. There are two stages in obtaining standard patent: the first stage: application record; The second stage: apply for registration and authorization.
1-2- 1, application record
In the first stage, an application for a patent for invention submitted to the designated patent office must be submitted to the Hong Kong Intellectual Property Department within six months after it is made public by the designated patent office.
1-2-2, Registration and Authorization Request
In the second stage, after the recorded and published applications are authorized by the designated bureau, they should request the Hong Kong Intellectual Property Department to register and authorize them within six months after the authorization of the designated bureau. The protection period of a standard patent is 20 years from the date of the initial designated patent application.
1-3, short-term patent
Short-term patents are directly accepted by the Intellectual Property Department of Hong Kong and authorized after formal examination. However, when applying for a short-term patent, a search report issued by the designated patent office must be submitted. The term of a short-term patent is 4 years from the date of application or the priority date, which can be extended for 4 years.
1-4, design
In Hong Kong, designs are protected by the Registered Designs Ordinance. Hong Kong Intellectual Property Department directly accepts design applications without substantive examination and authorization. An application for registration of a design may enjoy the priority of the earlier application. The protection period of a design is five years from the date of application or the priority date, and it can be renewed for four times, each renewal period is five years, and the longest protection period is 25 years.
Section 7 Application for Patent in Taiwan Province Province
1, application type
Invention patent: a request for actual examination is made within 3 years from the date of application, and the patent right is valid for 20 years from the date of application;
New patent (utility model): formal examination, the patent right is valid for 10 year from the date of application;
New patent (design): registration system, and the patent right is valid for 12 years from the date of application.
Chapter III Documents to be signed or provided when applying for an international patent
1, power of attorney and entrustment contract
2. A list of entrustment, including the following contents: the name and address of the applicant (in Chinese and English); Name and address of the inventor (in Chinese and English); Category of patent application; Applicant country; The date and number of the original application and the category of the patent application; Whether priority is required; Whether to submit a request for substantive examination at the same time as the application, etc.
3, the original China patent application request, acceptance notice, the original patent application documents (including instructions, claims, drawings and abstracts).
4. Existing technical data (patent documents, scientific and technological documents closely related to the invention known by the applicant, etc.). ).
Chapter iv application for PCT patent
1, abstract of patent cooperation treaty
Patent Cooperation Treaty (PCT) was signed in June 1970, and revised in June 1979, June 1984 and June/2000/kloc-0 respectively. The treaty established an international cooperation system in the patent field and standardized the formal requirements that international applications must meet. This system provides a more convenient and cost-effective way for applicants who wish to obtain patent protection in many countries. According to the Patent Cooperation Treaty, an applicant can obtain invention patent protection in several countries at the same time as long as he submits a PCT "international" patent application to the Patent Office ("PCT Acceptance Bureau") in one language. Nationals or residents of any contracting state may apply for PCT. As of June 5438+1October 5, 2003, * * there were 123 parties. China joined the Patent Cooperation Treaty (PCT) on 1994 1 month 1.
2. Apply for foreign patent through PCT.
2- 1. Benefits available to the applicant
2- 1- 1. For any individual or company seeking invention protection in several countries ("the applicant"), using PCT means saving time, workload and money.
The use of 2- 1-2.PCT is also helpful for the applicant to decide whether to continue the application processing in the State Patent Office.
2- 1-3. The above-mentioned savings mainly come from the fact that according to the provisions of PCT, the applicant submits an international application in one place and one language and pays the initial fee, which means that the international application has the effect of a national or regional application (subject to certain conditions specified later). If there is no PCT, the applicant must submit an application to each country or region separately.
2- 1-4. Applicants can apply at the last minute. Since PCT applications can be submitted in Chinese, applicants can file applications at the last moment of the priority period.
2- 1-5. The applicant can get the search report about 9 months from the application date or about 16 months from the priority date. The applicant may also obtain the international preliminary examination report within 28 months from the date of application or the priority date (if the applicant requests the international preliminary examination within the prescribed time limit). The applicant can judge the patentability (novelty, creativity and practicality) of the invention according to the existing technical data mentioned in the above two reports, and can make appropriate amendments to the claim (if necessary), and then decide whether to enter the national procedure.
2- 1-6. Compared with the way of applying for foreign patents directly through the Paris Convention, the PCT application can delay the entry into the national phase by 8 months or 18 months, which is undoubtedly beneficial to those applicants who are not ready. In addition, the payment of the national stage fee was delayed by 8 months or 18 months.
2- 1-7, the disadvantage of PCT application is that the patent examination and approval time is long; Complicated procedures; Easy to make mistakes; The total cost is higher than that of foreign patents directly applied through the Paris Convention.
2- 1-8. The applicant can choose the acceptance office that accepts his international application among several acceptance offices, for example, when two or more applicants are nationals and residents of more than one contracting state, or when only one applicant is a national and/or resident of more than one contracting state.
2-2. Requirements for applying for foreign patents through PCT
2-2- 1, PCT applicant:
The applicant may be a natural person or a legal person
Different designated countries may have different applicants (rule (4) 5(d)).
At least one applicant's nationality or residence is a member of PCT.
2-2-2. What can be the theme of the international application?
An international application must be an application for the protection of an invention. PCT includes applications for invention patents, inventors' certificates, utility model certificates, utility models and various supplementary patents and certificates (see Article 2(i) of the Treaty), so it is invalid to submit other forms of international applications for industrial property rights that are not within the scope of "invention", such as purely decorative designs.
Several countermeasures against product infringement.
Comparative analysis, objective judgment
If the patentee thinks that his patent has been infringed, you should first make a careful comparative analysis of other technologies and your patented technology to determine whether the technical characteristics of the other party really belong to the scope of patent protection, so as to determine whether patent infringement is established. Patent holders often overestimate their own patents. Therefore, in order to avoid the loss caused by misjudgment, the company suggests to entrust a professional patent lawyer to analyze and provide objective and accurate legal advice, so that you can recover the loss caused by infringement and be invincible in the litigation process.
Second, re-evaluate yourself from the patent infringement lawsuit.
The outcome depends largely on whether the patent right in the hands of the patentee is really effective and impeccable. In the course of litigation, the court usually requires the patentee to issue a patent search report submitted by the State Patent Office to determine whether the patent is valid or not and whether the infringement is established.
Third, the second-hand warning infringement brings a patent infringement lawsuit, and the patentee may entrust a professional patent lawyer to issue a lawyer's letter to warn the infringer of infringement.
Fourth, collect evidence.
The patentee confirms that his patent is valid, and after the patent infringement is established, he should collect the evidence of the infringer as much as possible to prepare for the use of the litigation procedure.
Product infringement consultation `Hello:
The internet is not a completely virtual place, where you can express your views without fear. Some people mistakenly think that the internet is a "free paradise", and they can say whatever they want without any consequences. This is not right. According to the law, it is an infringement to publish comments that denigrate others or enterprises online, and you should also bear the responsibility.
Regarding the intellectual property infringement of Taobao, is it an infringement for Nike and other brands to resist XXXXXX grams? If your description is only based on the title, regardless of pictures, baby descriptions and attributes, then this title can be considered as non-infringement;
However, the Taobao system will automatically check whether there is fraud in adopting such a title, and it is very likely that you will be punished directly in the name of fake goods, requiring you to upload authentic vouchers;
Have a nice day!
About the import of products! Find a trading company as an agent, or have the right to import and export yourself, and let the customs declaration company do it.
Usually you ask them for an inquiry, and they will tell you the process and quotation.
After the trademark is infringed, it is generally recommended to mediate the products produced by the infringing merchants. Can't you consider giving the other party a trademark franchise for a period of time? They use these trademarks and give you a part of the trademark use fee.
What if the product is infringed? First of all, you have to find out the model and attributes of the infringed product, and then compare it with the infringing product to obtain evidence! Then consult professional institutions, such as elephant intellectual property rights and other intellectual property institutions or related law firms, to understand relevant laws and regulations, determine the infringement situation, and then issue your opinions to the infringer through lawyers, and negotiate for rectification or compensation. If you can't go to court.