With the delegation of China's intellectual property law enforcement organized by China National Intellectual Property Administration, he went to Daejeon, South Korea, and participated in the "Intellectual Property Law Enforcement Seminar" jointly organized by Japan Patent Office, Japan Inventors Association, Korea Industrial Property Office and Korea International Intellectual Property Institute. Through exchanges and discussions, the author has a certain understanding of intellectual property protection in Korea and Japan, especially the role that procuratorial organs can play in the field of intellectual property protection. Now I will introduce the above situation to readers.
Since Adam Smith published Fortune, labor, capital and land have been regarded as the three basic elements to create wealth. However, over the past half century, the practice of economic development in various countries shows that the ability to turn intellectual achievements into material wealth is the decisive factor of a country or region's economic strength and people's wealth, and creative knowledge, as a resource, is regarded as the decisive factor of a country's economic competitiveness. Because of this, the legal system of intellectual property rights that provides protection for intellectual achievements has become the focus of attention of governments all over the world.
Although some economically developed countries in Asia have their own characteristics in national political system, historical tradition and cultural background, they all have a similar feature in intellectual property protection-they all have strict intellectual property legal systems.
The legal system for protecting intellectual property rights in Korea includes: patent law, utility model law, design law, trademark law, copyright law, computer program protection law, semiconductor circuit design law, unfair competition prevention and trade secret protection law, seed industry law and customs law. Japan's intellectual property legal system consists of the following substantive laws: patent law, utility model law, design law, trademark law, copyright law, unfair competition prevention law, commercial law, semiconductor integrated circuit process design law, seed seedling law and customs law.
Main contents of intellectual property protection in Korea and Japan
Trademark and patent enforcement rights in Korea belong to the courts. The court's protection and treatment measures for registered trademarks and patents are similar to those in China. There are civil sanctions and criminal sanctions, and the customs has some administrative coercive powers such as confiscation of goods. The Korean Intellectual Property Office only has the power of administrative investigation on counterfeit trademarks and patented goods, but has no administrative coercive power. Its main duty is to grant trademark rights and patent rights. The protection of well-known trademarks is limited to cases and case identification.
South Korea's Law on the Prevention of Unfair Competition and the Protection of Trade Secrets (hereinafter referred to as UCP&t pact) provides effective protection for well-known trademarks that are not registered in South Korea by stopping acts of unfair competition such as counterfeiting. According to the provisions of this law, this kind of unfair competition refers to the use of well-known trademarks that are the same as or similar to others in Korea, which are confused with other people's goods. The party harmed by such unfair competition can bring a civil lawsuit to the court to seek an injunction, monetary compensation and restore the reputation and credibility of the damaged enterprise. The law also provides criminal provisions, and the party engaged in unfair competition can be sentenced to imprisonment of not more than three years or a fine of not more than 30 million won.
The UCP Treaty authorizes the Korea Industrial Property Office to conduct administrative investigation on unfair competition (including unauthorized use of other people's trademarks). In order to ensure the authority and efficiency of administrative investigation, the Korea Industrial Property Office set up an anti-counterfeiting office in 1987. The UCP Convention adds some administrative procedures and administrative relief clauses to ensure the effective operation of the anti-counterfeiting office. If the Korea Industrial Property Office thinks it is necessary to verify unfair competition, it has the right to send public officials into the business premises or production site of the enterprise to inspect relevant documents, promotional materials or products, and collect necessary products as inspection or test samples.
JPO Patent Office is responsible for granting exclusive rights to patents and trademarks, publicizing intellectual property law, and conducting international exchanges and cooperation.
The contents of Japan's Law on the Prevention of Unfair Competition (hereinafter referred to as UCPL) concerning intellectual property protection include: first, the protection of well-known trademarks. Item 1, paragraph 2 of article 1 of UCPL stipulates that it is unfair competition to use trademarks that are the same as or similar to others or other marks that are widely known to consumers without permission. The legal sanctions for this kind of behavior are: stop the infringement; Compensation for losses; Criminal sanctions. The second is the protection of well-known trademarks. Article 1 of UCPL stipulates that it is unfair competition to use a trademark that is the same as or similar to other people's well-known trademarks or other marks without permission. The legal sanctions for this kind of behavior are: stop the infringement; Compensate for the loss. UCPL did not impose criminal sanctions on this behavior. The third is the protection of counterfeit designs. According to UCPL, there is no need to prove the popularity of other people's designs or whether counterfeiting is confusing. In addition, when solving the conflict between the Trademark Law and the Law on the Prevention of Unfair Competition (UCPL), UCPL stipulates that the right holder who has obtained trademark registration in bad faith has no right to use his trademark right against the real trademark owner. If the trademark of the trademark owner is a well-known trademark, then the trademark owner can maliciously confront the registered trademark according to UCPL and demand to stop the infringement and compensate for the losses. In Japan, cases of unfair competition can only be solved through the courts. Corresponding to the principle of prior registration in trademark law, UCPL established the principle of prior use. According to this principle, if the trademark owner's trademark has been used before others apply for a registered trademark, and it is widely known, then the prior user of the trademark has the right to object to the registered trademark according to the Trademark Law, and can claim rights from the Japanese Patent Office. UCPL believes that the prior user of a trademark has the right to claim rights from the well-known trademark or the owner of the well-known trademark, but it must be resolved by the court.
The duty and role of Korean procuratorial organs in protecting intellectual property rights
In South Korea, prosecutors and police have the responsibility to investigate counterfeiters and sellers of counterfeit products in order to maintain normal social and trade order. The prosecution's anti-counterfeiting behavior focuses on cracking down on offenders. 1993, South Korea's Supreme Prosecutor's Office set up a joint investigation center for infringement of intellectual property rights, and set up regional joint investigation teams with 2 1 major regional procuratorates, and established a special institution for procuratorial organs to protect intellectual property rights. Prosecutors specializing in investigating intellectual property crimes have been selected to work in this department. In all kinds of anti-counterfeiting operations, this system has achieved good results every year.
Since 1993, the Supreme People's Procuratorate has held regular meetings to guide the investigation of intellectual property infringement, analyze and study the actual effect of cracking down on intellectual property infringers, and formulate new anti-infringement measures. Every local police station and sub-bureau has also set up a special anti-counterfeiting department. 1999, the procuratorate and the police investigated and dealt with 6,862 people who violated the Trademark Law and the Anti-Unfair Competition Law, and 7 12 of them were arrested and prosecuted.
In addition, the joint enforcement of intellectual property protection in Korea has achieved remarkable results. 1999, the Korea Industrial Property Office, together with the procuratorial organs, police stations and local governments, seized 1000 cases of distribution of counterfeit goods, involving164,000 pieces, and 45% of the infringers were criminally punished. In the joint law enforcement, the Korea Industrial Property Office provides relevant information to procuratorial organs, police stations, customs and local governments to support the anti-counterfeiting law enforcement actions of these relevant departments. Relevant information includes a copy of the trademark registration certificate, a list of trademark owners, and the trends of infringing trademarks at home and abroad. If necessary, the Korea Industrial Property Office will assign professionals to relevant institutions to assist in law enforcement.
(In Baidu Library)