I have noticed that the problem of liability for warranty of rights defects is not only because of the necessity of establishing this system, but also because intellectual property rights are different from traditional property rights and creditor's rights, which makes this problem more complicated. Therefore, this paper attempts to discuss the intellectual property rights in the system of guarantee of rights defects from the perspective of intellectual property rights.
I. Overview of Defects Warranty Liability
The liability of warranty for defects originated from Roman law, and it has its embryonic form in Twelve Copper Tables Law and Justinian Theory Collection. Around the third century BC, the market department in charge of market affairs promulgated the "Adile" rules for the sale of slaves and livestock. According to this rule, when the quality of the goods is defective, the buyer can bring a lawsuit to cancel the contract or reduce the price. Only when the seller explicitly guarantees certain quality of the goods when concluding the contract can the buyer exceptionally claim damages. 1 Roman law has been inherited by modern civil codes in many countries, and the common law system has the same functions as the civil law system.
At present, the liability of warranty for defects refers to the debtor in a paid contract, and the payment provided to him should ensure the integrity of his rights and the quality of the subject matter. If the debtor violates this guarantee obligation, it shall bear the liability for warranty of defects. Therefore, the liability for warranty against defects can be divided into two types: the liability for warranty against defects in things and the liability for warranty against defects in rights. Defects liability exists in all paid contracts except labor contracts, and also in some unpaid contracts. However, in the sales contract, the warranty responsibility for defects is the most typical, and the contract arising from the payment of goods or rights is a * * * problem. Therefore, foreign laws stipulate the liability for warranty of defects in sales contracts, which is also applicable to other contracts, with the aim of better protecting the legitimate rights and interests of consumers and maintaining the security of transactions.
The liability of the right defect guarantee originates from the right of recourse guarantee and the corresponding right of recourse in Roman law. It is a kind of civil liability that the seller owes the buyer the right that any third party cannot claim for the sale of the subject matter. That is, when a third party takes possession of the subject matter of the sale from the buyer based on ownership, usufructuary right or mortgage right, the seller assumes the guarantee responsibility and the buyer obtains the right to request the guarantee from the seller. The guarantee of recovery in Roman law is inherited by the civil law of modern civil law countries. The French Civil Code, which is strengthened by Italy as a defense obligation, stipulates that it is the seller's obligation to prevent seizure. 3 pages
Different from the above-mentioned legislation, it is manifested in the German Civil Code and the Swiss debt law as the obligation to enable the buyer to obtain rights. The provisions of the Japanese Civil Code are similar to those of the German Civil Code, and the Taiwan Province Civil Code also follows Derry's example, stipulating that the seller has the obligation to make the buyer acquire rights. Anglo-American law has a system similar to civil law, such as the British law on the sale of goods and the United States Uniform Commercial Code, which stipulates that the seller should have the right to sell the subject matter of the sale and ensure that the goods are free and the buyer can occupy them peacefully.
In principle, intellectual property, as a kind of "real right with rights as the subject matter", exists in the liability system of right defect guarantee. However, as a special type of intangible rights, intellectual property rights are different from creditor's rights, securities and other rights. Moreover, its trading relationship often involves the relationship between the transferor, the transferee and the third party (intellectual property owner), and the nature of its creditor's rights or property rights is also special. Therefore, intellectual property rights are different from general rights in the scope of guarantee and liability for defects.
Second, the defects in the scope of intellectual property protection.
The guarantee of right defect originated from the contract system of goods sale. There have been two different views on the scope of the right defect guarantee in the contract of goods sale. One view is that the warranty of defects in rights does not apply to the sale of things, but only to the sale of rights. Another point of view is that the right defect guarantee is not only applicable to the sale of rights, but also to the sale of things. For the sale of things, the seller should guarantee his ownership of things, and for the sale of rights, he should ensure that his right of transfer does exist. Due to the different legislation in different countries, the adjustment scope of the sales contract system is not the same, and the scope of the right defect guarantee is also different.
Article 433 of the German Civil Code (1) stipulates: "According to the sales contract, the seller of the property is obliged to pay the buyer to obtain the ownership of the property. The seller of rights has the obligation to make the buyer acquire rights. If you have the right to possess a main object because of this right, you are also obliged to deliver it. " Article 437 stipulates the guarantee liability when buying and selling rights, and article 45 1 stipulates the risk transfer and expenses when buying and selling rights. It can be seen that the adjustment scope of the sales contract in the German Civil Code includes not only the sales relationship of things, but also the sales relationship of rights. It unifies the adjustment of the buying and selling relationship between property and right through the system of buying and selling contracts. Article 130 of China's Contract Law defines sales as: "A sales contract is a contract in which the seller transfers the ownership of the subject matter to the buyer and the buyer pays the price." Because this article only stipulates the obligations of the seller when the ownership of the subject matter is transferred, it does not stipulate the obligations of the seller in the relationship between the sale and purchase of rights, which shows that the contract law of our country is not applicable to the sale and purchase of rights in principle, thus extending to the provisions of Article 150 of the contract law: "The seller has the obligation to ensure that the third party cannot claim any rights from the buyer on the delivered subject matter, except as otherwise provided by law." It also refers to the seller's obligation to guarantee the right defects in the sale of goods. However, this does not mean that the contract law of our country absolutely excludes the contractual relationship between the sale of rights and the guarantee of defects, including the sale of intellectual property rights, such as the transfer, license and guarantee of defects of patents, trademarks and copyrights. In some civil law countries, intellectual property is called "real right" with rights as the object in property law and guarantee law, while in some common law countries it is called "quasi-real right in litigation" or "intangible quasi-movable property". Undoubtedly, intellectual property, as an intangible property right, is just a substitute different from traditional things, but its core content is property right. It becomes the subject matter and object of sale with the right of property content. The basic content of its sale is that one party transfers its property to the other party, and the other party pays a certain consideration to obtain the other party's property. It's essentially the same as selling things. Therefore, the scope of intellectual property right defect guarantee should be "applicable" to the application of property right defect guarantee. Article 174 of China's Contract Law stipulates: "If the law has provisions on other paid contracts, those provisions shall prevail; If there are no provisions, refer to the relevant provisions of the sales contract. " This shows that the scope of warranty for intellectual property defects should first be adjusted by special laws or other legal systems, rather than the provisions of the sales contract system. In the absence of other laws, the provisions of the sales contract shall apply. [Page]
Third, the right defects of intellectual property rights and guarantee responsibilities
In principle, the defects of intellectual property rights refer to the defects of incomplete or missing rights and the defects of non-existent rights themselves. Common situations are as follows:
1. Defects of incomplete or missing rights in the purchase and sale of goods, including those arising from infringement of industrial property rights or other intellectual property rights of a third party, that is, in the traditional purchase and sale relationship of goods, the goods sold have industrial property rights or other intellectual property rights enjoyed by a third party, and the third party claims rights.
In this case, the liability for warranty of rights defects is the same as that for general goods sales, and the buyer can claim the liability by means of liquidated damages, actual performance, termination of the contract and damages. According to the provisions of China's Contract Law, the seller's liability for warranty of rights defects is based on the third party's "right" to claim intellectual property rights, and does not naturally arise from the "request" made to the third party. Moreover, according to the principle of liability for warranty of right defects, if the right defects are eliminated in the process of performance, there is no need to bear the liability for warranty of right defects. If a third party claims the right of intellectual property, although it existed when the buyer and seller signed the sales contract, if the seller can eliminate the third party's claim in the performance, such as "reconciliation", the patent right being declared invalid, the trademark right being revoked, etc. , the seller does not violate the right defect guarantee obligation.
2, the right itself does not exist in the sale of rights, that is, in the transfer and licensing of intellectual property rights, the seller's patent rights, trademark rights, copyright, trade secrets and other rights do not exist at all. Typical examples are: the seller signs a transfer contract with the patent that has been declared invalid, terminated or even nonexistent, and the unauthorized seller signs an intellectual property transfer contract.
In nature, buying and selling without rights is an unauthorized disposition, and its contract is certainly not invalid, but a contract with undetermined effect. If the obligee ratifies or the seller obtains the right of disposition, the transfer contract shall come into effect from the beginning, and the right defects have been eliminated; If the obligee fails to ratify or obtain the disposition right after selling the personnel, the transfer contract is invalid, and a third party (obligee) may claim the rights from the buyer. In this case, even if the buyer is in good faith, the system of bona fide acquisition cannot be applied, and the seller can claim the liability for guaranteeing the right defect; If the buyer is malicious, he knows that the seller has no right to dispose of it (there is a right defect) when concluding the sales contract, and the buyer has no right to claim the guarantee of the right defect.
3. Incomplete or defective trading rights, including:
(1) Sign a transfer or license contract without the consent of the intellectual property owner;
(2) Transfer and license of pledged intellectual property rights;
(3) In the transfer and licensing of intellectual property rights, the third party claims the rights of intellectual property rights enjoyed by the seller or the transferee.
All the above situations belong to the existence of defects in rights, and the liability for guaranteeing defects in rights should be applied.
It should be noted that China's "Contract Law" only stipulates in Article 349 of the "Contract Law" that "the transferor of a technology transfer contract shall guarantee that he is the legal owner of the provided technology and that the provided technology is complete, correct and effective, and can achieve the agreed goals." Accordingly, the transferor in the technology transfer contract should bear the defect guarantee of the "subject matter" and the defect guarantee of the right. It can be inferred that the legislative intention is to require the seller in the sale of intellectual property to bear the full responsibility of the defect guarantee of the right, but because the sale system in the contract law of our country only adjusts the relationship between the purchase and sale of things in principle, it does not adjust the relationship between the purchase and sale of rights. However, the patent law, trademark law, copyright law and other intellectual property laws do not stipulate the right defect guarantee system for intellectual property trading. In particular, according to the popular view, the guarantee of complete rights applies to the sale of goods and rights, while the guarantee of rights only exists for the sale of rights. This means that in the second case, in principle, the transferee can claim the liability for guaranteeing the right defect from the seller through the provisions of the "mutatis mutandis" sales contract. In the third case, he can only claim the liability for breach of contract, but can't claim the liability for warranty of rights defects, which reflects the defects of the liability for warranty of rights defects in the sale of intellectual property rights in legislation. [Page]
Fourth, the rights defects caused by intellectual property disputes in international trade.
One of the important characteristics of intellectual property is its regionality. Up to now, traditional intellectual property rights, such as patent right, trademark right and copyright, can only be produced according to the laws of some countries, and can only be effective in areas where they are produced according to law, except for areas where the process of intellectual property integration is extremely rapid (such as the European Union and French-speaking African countries). In private international law, a principle accepted by most countries is that tangible property is governed by the law of the place where the property is acquired or located, while intellectual property is governed by the law of the place where the right is registered or claimed. Moreover, in addition to intellectual property legislation, most countries also have corresponding provisions in the law on the sale of goods. One of the cases of the right defect referred to in the UK 1979 Law on the Sale of Goods means that the sale of goods infringes the copyright or patent right, and it is clearly stipulated. A famous case is: Neblett v. Confessor (192 1) 3Kb387, which involves a canned condensed milk with the label "Nislai Brand". Nestle and British-Swiss companies threatened to sue the buyer for patent/copyright infringement, and the buyer was forced to remove the label and resell it at a loss. Afterwards, the buyer claimed the loss from the seller, and the court ruled that the seller violated Article 12 of the British Sales of Goods Act 1979. There are similar provisions in the Uniform Commercial Code (UCC). Therefore, in the international sale of goods, this kind of right defect guarantee is particularly complicated, involving the rights and obligations of sellers, buyers and intellectual property rights holders.
In view of the particularity and complexity of the above situation, the Law on International Sale of Goods provides the following provisions on intellectual property rights in international sale of goods: the goods delivered by the seller must be goods that no third party can claim any rights or requirements based on industrial property rights or other intellectual property rights. However, the seller's obligation to deliver the goods without the rights or requirements of a third party is limited to two situations: (1) If both parties know that the goods will be resold to a certain place or used at that place when concluding the contract, the delivered goods must be exempted from the requirements of intellectual property rights according to the laws of the resale place or the place of use; (2) In other cases, the delivered goods must be exempted from the requirements of intellectual property rights according to the laws of the buyer's place of business. Moreover, the seller is not liable in the following two cases: (1) the buyer knew or could not have been unaware of the request when signing the contract, and (2) the request occurred because the seller must abide by the technical drawings, drawings, procedures or other specifications provided by the buyer. At the same time, unless the seller already knows the rights or requirements of the third party and their nature, the buyer is obliged to inform the seller of such rights or requirements of the third party's intellectual property rights within a reasonable time. six
China's foreign trade often encounters intellectual property disputes mainly in the following three situations:
1, intellectual property disputes in product export.
Due to the regional characteristics of intellectual property rights, the same commodity may be regarded as infringing the intellectual property rights of a third party in one country, but it may be regarded as infringing the intellectual property rights of a third party in another country. In this regard, China has had a very painful lesson in foreign trade, and there are too many cases in practice. Therefore, it is the seller's obligation to pay full attention to the legal system and intellectual property protection of the buyer's country. [Page]
2. Intellectual property disputes in product import.
Up to now, more than one million trademarks and patents have been registered in China, among which the number of registered foreign companies accounts for a considerable proportion, resulting in more and more intellectual property disputes. In China, there are also practical cases: French company A obtained the patent protection of concentrated ammonium nitrate production technology in France and China respectively, and had a dispute with French company B. After Company C imported a concentrated ammonium nitrate production line from Company B in France, Company A filed a patent infringement lawsuit against Company C and Company B in China.
Intellectual property disputes in product import often bring adverse effects to enterprises. Foreign companies often invoke the provisions of Article 42 of the United Nations Convention on Contracts for the International Sale of Goods. If the seller did not know or could not know the existence of the intellectual property rights of the third party when concluding the contract, and if the third party claimed the intellectual property rights after the goods were shipped, the buyer should bear all the responsibilities. Accordingly, the seller can claim that the buyer is better equipped than the seller to understand the legal system and intellectual property protection of the country where the buyer is located, and put forward that the buyer should bear the responsibility. The seller's excuse still has certain facts and legal basis. seven
3. Intellectual property disputes in customer licensing transactions.
According to Article 42 of the Convention, if the products are produced or manufactured according to the technical drawings, drawings, procedures or other specifications provided by the buyer, we may not be liable, but the liability is limited to the liability in the sale of goods.
In the international sale of goods, the system of warranty for defects in rights only exists between the buyer and the seller, and it cannot prevent the third party from suing for infringement of intellectual property rights. It is also normal for the third party to sue the buyer and the seller for infringement. Therefore, both parties to the contract should pay full attention to the protection of intellectual property rights of third parties, especially: the contract should specifically stipulate to reduce losses by reducing or increasing liabilities, which domestic enterprises should pay attention to.
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The second paragraph of Article 2 (Definition of Real Right) of Mr. Liang Huixing's Proposed Draft of China Real Right Law (provisions, explanations, reasons and legislative examples) stipulates: According to the special provisions of the law, rights can also be the object of real right. The book (page 99) explains that "this kind of property right, such as the pledge of rights stipulated in China's security law, is legally called' property right'. Right can only be the object of real right under the circumstances clearly stipulated by law, but in China's current real right legislation, there is only the right pledge. Therefore, the right to property rights is not a denial of the concept of property rights, but an exception. " It can be seen that in the draft property law, intellectual property rights are regarded as the object of property rights, but as an exception, the object of "pledge of rights" is included in its adjustment scope, which also illustrates the particularity of intellectual property rights on the one hand.