How to deal with repeated infringement of intellectual property rights

The first outlet shopping company in Ningbo has not officially opened, that is, it has encountered infringement claims, which has attracted the attention of Ningbo commercial enterprises. How to effectively avoid intellectual property infringement claims disputes brought by suppliers and lessees is a problem worthy of our serious consideration in large supermarkets in Ningbo. First, the legal basis for supermarkets to bear the risk of intellectual property infringement claims filed by suppliers and lessees. Shopping malls and supermarkets generally do not produce products, and the infringement of intellectual property rights of third parties is mainly caused by selling or promising to sell infringing products of suppliers or renting booths by lessees to sell or promise to sell infringing products. According to the different intellectual property rights infringed, the legal basis for shopping malls and supermarkets to bear tort liability is also different. The general legal basis is that Article 2 of the Tort Liability Law of People's Republic of China (PRC) stipulates that "anyone who infringes personal rights and property rights such as copyright, patent right and trademark exclusive right shall bear tort liability in accordance with this Law". Section 7 of the Criminal Law of People's Republic of China (PRC) stipulates the legal basis for criminal responsibility. The main crimes against sellers are: the crime of selling goods with counterfeit registered trademarks in Article 2 14, the crime of counterfeiting others' patents in Article 2 16 and the crime of selling infringing copies as stipulated in Article 2 18. According to the different infringement of intellectual property rights, the specific legal provisions are as follows: 1. Anyone who sells a work with a fake signature and infringes on the copyright of others shall, according to Article 48 of the Copyright Law of People's Republic of China (PRC), bear civil liabilities such as stopping the infringement, eliminating the influence, apologizing and compensating for losses according to the situation; At the same time, if the public interests are harmed, the copyright administrative department may order the infringement to stop, confiscate the illegal income, confiscate and destroy the infringing copy, and may also impose a fine. 2. Without the permission of the patentee, promising to sell or sell its patented products, or promising to sell or sell products directly obtained according to its patented method, which infringes the patent right of others, can be settled by the parties through consultation according to Article 60 of the Patent Law of People's Republic of China (PRC); Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. 3. Selling a product that has not been granted a patent right or whose packaging is marked with a patent mark, or continuing to mark a patent mark on the product or its packaging after the patent right is declared invalid or terminated, or marking the patent number of another person on the product or product packaging without permission, is an act of counterfeiting patents according to Article 84 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC). According to Article 63 of the Patent Law of People's Republic of China (PRC), in addition to bearing civil liability according to law, the patent administration department shall order it to make corrections and make a public announcement, confiscate the illegal income, and may impose a fine of less than four times the illegal income; If there is no illegal income, a fine of less than 200,000 yuan may be imposed; If a crime is constituted, criminal responsibility shall be investigated according to law. 4. Selling goods that infringe upon the exclusive right to use a registered trademark, or infringing upon the exclusive right to use a registered trademark. According to the provisions of Articles 53 and 59 of the Trademark Law of People's Republic of China (PRC), it can be settled by the parties through consultation; Unwilling to negotiate or failing to negotiate, the trademark registrant or interested party may bring a lawsuit to the people's court or request the administrative department for industry and commerce to handle it. Whoever knowingly sells goods with counterfeit registered trademarks, which constitutes a crime, shall be investigated for criminal responsibility according to law, in addition to compensating the losses of the infringed. 5. Using the unique name, packaging and decoration of a well-known commodity, or using the name, packaging and decoration similar to that of a well-known commodity, causing confusion with other well-known commodities, and making the purchaser mistake the well-known commodity, which is an act of unfair competition according to Article 5 of the Anti-Unfair Competition Law of People's Republic of China (PRC). According to the provisions of Articles 20 and 22 of this Law: if an operator violates the provisions of this Law and causes damage to the infringed operator, he shall be liable for damages, and the supervision and inspection department shall order him to stop the illegal act, confiscate his illegal income, and may impose a fine of more than one time but less than three times his illegal income according to the circumstances; If the circumstances are serious, the business license may be revoked; If selling fake and inferior commodities constitutes a crime, criminal responsibility shall be investigated according to law. Second, how to deal with the relationship with suppliers and lessees, so as to avoid the legal risk of intellectual property infringement claims. Because most of the intellectual property infringements of vendors such as shopping malls and supermarkets are "import infringements" and are not intentional infringements. In order to protect bona fide parties, relevant laws stipulate that intellectual property rights shall not be maliciously infringed under certain conditions. For example, Article 56 of the Trademark Law of People's Republic of China (PRC) stipulates that selling goods you don't know is an infringement of the exclusive right to use a registered trademark. If you can prove that the goods were legally obtained by yourself and explain the supplier, you will not be liable for compensation. Article 52 of the Copyright Law of People's Republic of China (PRC) and Article 70 of the Patent Law of People's Republic of China (PRC) have similar provisions. It can be seen that although there are two conditions for infringement, there are two conditions for exemption: one is ignorance, that is, there is no subjective malice. If the seller knows that he is selling infringing products, but agrees with the supplier that the obligee shall be investigated for tort liability, the supplier shall bear the tort liability. According to the relativity theory of the contract, the agreement is only binding on the supplier, and it cannot resist the infringement claim of the intellectual property right holder. Second, it can provide a legal source for products, so that the right holder can find the infringer from the source and investigate its tort liability. According to the above laws and regulations, shopping malls and supermarkets can effectively avoid intellectual property infringement claims filed by suppliers and retailers from the following aspects. 1. Shopping malls and supermarkets should establish and improve the intellectual property protection system, designate the person in charge of intellectual property management, standardize intellectual property management behavior, establish a risk prevention mechanism for intellectual property infringement, establish a review system for commodity intellectual property rights and their legal status, and establish a physical review system for commodity intellectual property rights signs and signs to search for the legal status of commodity intellectual property rights that may cause disputes. Inform suppliers and lessees of relevant information on intellectual property protection regularly or irregularly, and dynamically monitor the intellectual property status of goods on sale to ensure that intellectual property rights are not infringed. Improve the purchase and sale records, and timely record the necessary intellectual property status of goods provided by suppliers and sold by lessees. 2. Sign intellectual property protection contracts with suppliers and lessees, requiring them to provide the following legal and effective intellectual property documents before purchasing; To accept the authorization of a third party, it shall have valid authorization documents; If it is really impossible to provide it, it shall provide proof of the legal source of the goods sold. 1). If the goods are marked with a registered trademark, the intellectual property certificate provided by the supplier shall include but not limited to the trademark registration certificate (original or photocopy with official seal) and the trademark authorization contract (original or photocopy with official seal). 2). If the goods are marked with patent, the supplier shall be required to provide proof documents of intellectual property rights, including but not limited to the copy of patent register and patent authorization contract (original or copy with official seal). 3) If the goods involve copyright, the supplier is required to check the ownership of the intellectual property rights of the goods and obtain relevant ownership certificates or obtain relevant commitments from the supplier in the form of written contracts. During the performance of the contract, the supplier may be required to supplement the corresponding documents according to the situation. If it is found that the supplier has made mistakes in the marking and identification of intellectual property rights of commodities, it may be required to make corrections within a time limit. 3. When complaints are received, they shall be handled in time, and the suppliers shall be required to provide corresponding supporting documents in time; It is also agreed that if the goods provided by the supplier infringe on the intellectual property rights of others or provide false certification documents, causing losses to shopping malls and supermarkets, the supplier shall be liable for compensation. 4. In order to avoid the risk of intellectual property infringement claims brought by the lessee, shopping malls and supermarkets should conclude an agreement with them, requiring them to strictly abide by the relevant rules and regulations on intellectual property management formulated by shopping malls and supermarkets, improve their own intellectual property protection system, cooperate with the intellectual property protection work of shopping malls and supermarkets, and maintain the intellectual property protection order of shopping malls. Ensure that the goods it sells have legal sources and do not infringe on the intellectual property rights of others. And ensure that shopping malls and supermarkets have the right to check the intellectual property status of the goods they sell, and may require the lessee to provide relevant supporting documents within a reasonable period of time according to the situation. If the lessee cannot provide the legal source and relevant evidence of the product, or has no objection to the goods suspected of infringement, he has the right to ask him to stop selling the goods suspected of infringement.