[Question] 1. Does the painting shop infringe Li's rights by exhibiting Li's works without Li's consent? Why? 2. Is there a legal basis for the collection and publication of 10 paintings by the painting shop?
Case 46
Zhou Dawei and Liu Guoqing are designers of a design institute. 1February, 1997, the design institute was entrusted by a university to design the mural painting in the front hall of the library building for the university. After accepting this task, the design institute appointed Zhou Dawei and Liu Guoqing to take charge of this design task. 1May, 1997, Zhou Dawei, who had not completed the design, was transferred from this city for personal reasons, and Liu Guoqing was responsible for the remaining design tasks. At the end of 1997, Zhou Dawei published the sketches he participated in the design in his own name in the magazine Selected Works of Design. 1April, 1998, after the design was completed, the university paid the design institute, and the design institute also gave Liu Guoqing a certain bonus. The design institute incorporated the design into the design institute's ten-year achievements in the name of the unit, so Liu Guoqing raised an objection to the design institute.
[Question] 1. Does Zhou Dawei have the right to publish design sketches in its own name? Why? 2. Is there a legal basis for Liu Guoqing's opposition to design institutes?
Case 47
There are two breweries, A and B, in Nanshan City. Factory A has a long history. With its unique brewing technology, it produces pure wine with good quality and low price. Beihu? Liquor. After the wine was put on the market, it was deeply loved by local customers and exported to other provinces and cities. See you at factory B? Beihu? Liquor is so popular, will you use the liquor produced by your own factory? Beihu? Trademark, sales immediately increased, a monthly profit of 500 thousand. The leader of factory B is very happy, but I heard that it is from factory A? Beihu? Liquor did not apply to the Trademark Office for registration, so it immediately applied to the Industrial and Commercial Bureau for trademark registration and was approved. Factory A was very angry after hearing the news and applied to the Trademark Office. Nanshan? As the trademark of liquor produced by it, its application was rejected by the Industrial and Commercial Bureau.
[Question] 1. Can a factory claim that the behavior of B factory infringes its trademark right? Why? 2. Is it reasonable that the application for trademark registration of Factory A was rejected? What is the reason?
Case 48
Factory A and Factory B are both cosmetics manufacturers in a certain province. 1In August, 995, a factory developed a new whitening product, which can quickly fade facial pigment and make the skin white in a short time. After the product was put on the market, it won the love of female friends. 1in may, 996, a factory complained to the trademark office? Beautiful scenery? You applied for trademark registration, but were told that a whitening lotion and body lotion produced by factory B had been registered in the Trademark Office before 10? Beautiful scenery? Trademark application. A factory said that B factory began to produce and sell the product in June 1996+ 10, so it should be? Beautiful scenery? The exclusive right to use the trademark was granted to Factory A. ..
[Question] 1. Which factory should the Trademark Office grant the exclusive right to use a trademark to? 2. If Factory A and Factory B apply for trademark registration on the same day, who should be granted the trademark right?
Case 49
1989, a research institute and a factory decided to develop a multifunctional household stove through oral consultation. Therefore, the enterprise specially sent two workers' representatives to assist the researchers of the institute to complete the design task. During the design process, factory workers' representatives are mainly responsible for logistics work such as drawing arrangement and facility maintenance, while the research institute is mainly responsible for technical development and drawing drawings. 199 1 year 1 month, and the design of the cooker was completed through the joint efforts of both parties. 199 1 June, the manufacturer unilaterally applied for a patent for utility model to the China patent office, but the research institute thought that the invention was mainly completed by the designers of our institute, and the research institute should be the applicant, so the manufacturer had no right to apply for a patent. Later, Zhao, an engineer in the factory, installed one for home use in his spare time. After learning about it, the institute claimed that Zhao had infringed his patent right. ，u | u C9r y:T
[Question] 1. Who should have the patent application right in this case? 2. Does Zhao's behavior constitute infringement? Why?
Case 50
Li Mingda is a retired cadre in a public institution, his wife died young, and his only son Li Lijun got married on 1990 and died with his father. 1992 1 month, it was introduced that Li Mingda registered marriage with Liu Liying, a widowed female worker, and moved to Liu Liying to live with her after marriage. Liu Liying has no children, and only one elder sister, Liu Lina (divorced), lives with them. 102, Liu Lina found Mr. and Mrs. Li Mingda gas poisoning when he came home. On the way to the hospital, Li Mingda died, and Liu Liying died in the early morning of the next day because of ineffective rescue. When sorting out the relics, I found that Mr. and Mrs. Li Mingda left a deposit of 30,000 yuan. Now Li Lijun wants to inherit all the inheritance, and Liu Lina objects.
[Question] 1. How should the inheritance be distributed in this case? Why? 2. If when Liu Lina comes home, Li Mingda and his wife are both dead, and the time of death is unknown, how should the inheritance be distributed?
Case 5 1
Zhao Weiguang is the manager of a company. His wife Wang has been ill at home for a long time. The couple have a son and a daughter. On 1990, my son Zhao Hong married Wang Ying, an employee of our factory, and gave birth to his son Zhao Xiaogang. Zhao Hong died in a car accident on 1992. Daughter Zhao Juan is unmarried and lives with her parents. Zhao Weiguang often travels because of his work. 1995 met local young women Qian in a southern city. The following year, Qian gave birth to Zhao Weiguang's son Zhao Yang, who has been living with his mother. 1May, 999 Zhao Weiguang died unexpectedly. After investigation, he left 654.38 million yuan in cash and 654.38 million yuan in bank deposit. Zhao Weiguang didn't have a will before his death, and now there is a dispute over the share of the inheritance at home.
[Question] 1. Qian proposed that Zhao Yang is Zhao Weiguang's own son and also has the right to inherit Zhao Weiguang's share of the estate. Is her claim valid? Why? 2. Zhao Hong's wife claims subrogation inheritance Zhao Hong's share of inheritance. Is her claim valid?
Case 52
Liu Ziying is a retired cadre of a state-owned enterprise. Her husband died young, and the couple had two daughters, both of whom were raised by Liu Ziying. Zhou Jin, the eldest son, married Betty Wong on 199 1 and gave birth to a son, Zhou Yu. Zhou Jin died of illness on 1993. Betty Wong was very sad and decided not to remarry, so he concentrated on taking care of his son and his sick mother-in-law. Zhou Feng, the second son, suffered from mental illness due to an accident and was sent to a mental hospital for treatment. Daughter Hong Zhou is very popular with her mother, and now she is studying in the United States. On February 1998, Liu Ziying was taken to the hospital by Betty Wong due to a sudden heart attack. After months of careful care and treatment, she couldn't control her illness and died four months later. On the issue of her inheritance, Hong Zhou, who is far away in the United States, called and said that Liu Ziying had called her before her death, saying that all her inheritance would be inherited by Hong Zhou after her death.
[Question] 1. Is Liu Ziying's will valid? Betty Wong now claims that she will inherit Liu Ziying's legacy as an heir. Is her claim reasonable? 3. Does Zhou Yu have the right of inheritance in this case? Why?
Case 53
Ye Guangsheng is a villager in a village. His wife died young and raised two sons alone. After graduating from high school, Jun Ye, the eldest son, went to work in the south and got married there, with little contact with his family. Ye Wei, the youngest son, farmed at home and lived with his elderly father after marriage. Considering that the eldest son's economic conditions are good and the younger son and his wife are so filial, Ye Laohan wrote a will on 1995. His three tile houses and his 5000 yuan deposit were all inherited by the younger son Ye Wei after his death. On 1997, Mr. and Mrs. Ye Wei were introduced by friends to work as temporary workers in the provincial capital and temporarily stayed in the provincial capital. Ye Laohan couldn't take care of himself after his stroke, so he signed an agreement with the village Committee: the village was responsible for Ye Laohan's life, support and death. After Ye Laohan's death, all three tile houses were owned by the village Committee. Since then, the village has specially sent people to take care of him until he died two years later to deal with his affairs. I found Ye Laohan's passbook of 10,000 yuan when I was doing the funeral. After the village Committee took over his three houses as agreed. Ye Laohan's two sons objected to this.
[Question] 1. Is Ye Laohan's will valid before his death? Who should own Ye Laohan's three houses? 2。 What should I do with Ye Laohan's deposit of 1 0,000 yuan?
Case 54
Zhang Fu and his wife work in the countryside, and his only son, Leo Chang, is married. He lives in this city with his wife Yang Jing and his little grandson Bao Xiao. In February this year, during the slack season, Mr. and Mrs. Leo Chang decided to bring their parents from the countryside to live for a few months to help look after their son Bao Xiao. Unexpectedly, Leo Chang, who just got his driver's license, accidentally drove off a cliff on his way home due to lack of experience. Now three people have been killed. Zhang Fu and his wife were heartbroken when they heard the news, and they quickly sold all the property left by Leo Chang and his wife, with a total deposit of 40,000 yuan. Now Yang Jing's only sister, Yang Ning, has proposed that she is also the heir of Yang Jing, and asked to inherit part of the inheritance.
[Question] 1. How to determine the death order of the parties in this case? 2. How to deal with the problems left over from this case?
Case 55
Liu Tianshun's wife died early and had no children. Considering his poor health, his brother Liu Tiande often asks his son Liu Er and his daughter Liu Lan to take care of Liu Tianshun's life. Liu Tianshun was very moved, so he made a personal will and divided all his property equally among his nephews and nieces after his death. From 65438 to 0996, after Liu Tiande died of liver cancer, Liu Er seldom came to take care of Liu Tianshun, but Liu Lan always cared about his life and washed and cooked for him. Liu Tianshun felt that Liu Lan had paid so much for him and deserved more property, so he personally went to the notary office to make a notarized will, making it clear that after Liu Lan's death, he would inherit all the property except the TV. After Liu Er learned about it, he never came to the door again. He ignored Tian-shun Liu and glared at Liu Lan. After Liu Tianshun was critically ill in hospital, Liu Er never visited him again. On his deathbed, Liu Tianshun said in front of doctors and nurses that all his inheritance was inherited by Liu Lan. When Liu Er learned about it, he didn't agree. Instead, he took his wife and children to play in other places and came back three months later, asking him to take back his TV set.
[Question] 1. Excuse me, which will is valid in this case? Which will should be executed? 2. Does Liu Er have the right to get the TV back?
case analysis
Case 45 Copyright Ownership of Artistic Works
1. The exhibition of Li's works in the painting shop did not infringe Li's rights. In this case, the painting shop entrusted Li to paint, and the painting shop paid the remuneration, so the ownership of the painting should belong to the painting shop. According to article 18 of the Copyright Law, the transfer of the original ownership of an artistic work is not regarded as the transfer of copyright, but the right to display the artistic work is enjoyed by the original owner. Therefore, as the owner, the painting shop has the right to decide whether to exhibit the works. 2. There is no legal basis for the painting shop to publish 10 with other works, which is an infringement. Article 17 of the Copyright Law stipulates that the ownership of copyright in a commissioned work shall be agreed upon by the client and the trustee through a contract. If the contract is not clearly stipulated or concluded, the copyright belongs to the trustee. ? In this case, when the painting shop signed a contract with Li, there was no agreement on the ownership of the copyright, so the copyright of the painting should belong to Li. The collection and publication of the painting shop without Li's consent should be regarded as an infringement of Li's copyright.
Case 46 Copyright of Job Works
1. There is no legal basis for Zhou Dawei to publish his mural sketches in his own name. Because Zhou Dawei's mural design works were created by the design institute and designed together with Liu Guoqing. Therefore, the design sketch completed before its transfer belongs to cooperative duty behavior. Sketch design is not only a cooperative work with Liu Guoqing, but also a job. As a cooperative work, publishing a sketch in one's own name infringes the copyright of other collaborators. As a job work, it was published by others without the permission of the unit within two years of delivery, which also violated the right of the unit to use the job work and get paid. 2. Article 16 of the Copyright Law stipulates that works created by citizens to complete the tasks of legal persons or unincorporated units belong to job works. Except as otherwise provided in this Law, copyright belongs to the author, but the legal person or entity without legal personality has the right to give priority to the use within its business scope. Within two years after the completion of the work, the author shall not permit a third person to use the work in the same way as the work used by the unit without the consent of the unit. That is, within two years after the creation is delivered, the unit enjoys the right to use and get paid before the author, and the author may not claim that the right to use and get paid for the work within two years belongs to himself.
Case 47 Does the first used trademark enjoy the exclusive right?
Factory 1. Party A has no right to claim that the behavior of Factory B infringes its trademark right. Because the Trademark Law clearly stipulates that enterprises, institutions and individual industrialists and businessmen should apply to the Trademark Office for trademark registration if they need to obtain the exclusive right to use a trademark for the goods they produce, manufacture, process or distribute. In other words, trademark registration is an important basis for determining the exclusive right to use a trademark, and only registered trademarks can be protected by law. Although factory a uses it first? Beihu? Trademark, but unregistered, does not enjoy the exclusive right, so it can not claim infringement of factory B. There is a legal basis for the Trademark Office to reject the application for trademark registration of Factory A. The Trademark Law clearly stipulates that the names of administrative divisions at or above the county level or foreign names known to the public shall not be used as trademarks. However, registered trademarks using geographical names continue to be valid. This is due to the lack of distinctiveness of place names, which is not conducive to consumers' identification of goods and is easy to cause market confusion. In this case, does Factory A apply for registration? Nanshan? A trademark is a city name and cannot be used as a trademark of a commodity.
Case 48 Principle of Prior Application and Principle of Prior Use of Trademarks
1. The Trademark Office granted the exclusive right to use a trademark to Factory B. Because China's Trademark Law is used for trademark registration? Apply first? Principle, that is, on the same kind of goods or similar goods, apply for registration with the same or similar trademarks, initially examine and approve and announce the previously applied trademarks. Trademark rights will be granted to the first applicant, regardless of the order of use. 2. If Factory B and Factory A apply on the same day, the Trademark Office shall grant the trademark right to Factory A ... according to the Trademark Law? Use first? Where two or more parties file an application for registration of the same trademark with the Trademark Office on the same day, the first use shall be approved. In this case, A factory started to produce and sell the product in August 1995, while B factory only started to produce and sell the product in August 1996. A factory uses it first, so it should be granted the exclusive right to use the trademark.
Case 49 Ownership of Patent Application Right in Cooperative Development
1. In this case, the patent application right should belong to the research institute. As this case does not belong to * * * and invention, the workers sent by the factory only play an auxiliary role in the design process and cannot be regarded as * * * and the inventor. As the co-inventor of * * *, he must make creative contributions to the finished design. The workers' representatives in the factory are only responsible for some logistics work and do not participate in specific creative activities. Therefore, a factory cannot apply for a patent as a designer, let alone a designer. 2. Zhao's behavior does not constitute infringement. According to the patent law, patent infringement has the following characteristics: first, without the permission of the patentee; The second is for the purpose of production and operation; The third is to implement patents protected by law. In this case, Zhao's behavior did not use the patented method for profit, but was used by ordinary families, so it did not constitute infringement. If a large number of such patents are produced for profit, it constitutes infringement.
Case 50 Determination and presumption of the time of death of the decedent
1. In this case, the inheritance of 30,000 yuan should be inherited by Li Lijun, 7,500 yuan and Liu Lina, 22,500 yuan. The inheritance law stipulates that when dividing the estate, the personal property of the decedent's spouse shall be separated from the property jointly owned by the husband and wife, and the rest shall be the decedent's estate. In this case, Li Mingda died first, and 30,000 yuan belongs to both husband and wife, so only/kloc-0.5 million yuan belongs to Li Mingda's legacy, and the other/kloc-0.5 million yuan belongs to Liu Liying. Li Mingda's legacy 15000 is owned by his son Li Lijun and his wife Liu Liying, each of whom should inherit 7500 yuan. And half of the property shared by Liu Liying and his wife, plus 7,500 yuan she inherited, was inherited by her sister Liu Lina. 2. If both Mr. and Mrs. Li Mingda died when Liu Lina came home, the inheritance of 30,000 yuan should be inherited by Li Lijun and Liu Lina, each with 15000 yuan. According to the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the Law of Inheritance, if several people die in the same event with the same generation, they are presumed to have died at the same time and do not inherit from each other, and their respective heirs will inherit respectively. Therefore, since it is impossible to know the time of death, it should be presumed that Li Mingda and his wife died at the same time. After Li Mingda and Liu Liying divide the property of 30,000 yuan, Li Lijun will inherit his father's estate of10.5 million yuan, and Liu Lina will inherit Liu Liying's estate of10.5 million yuan.
Case 5 1 subrogation inheritance and the inheritance right of illegitimate children.
1. Qian's claim holds, and Zhao Yang has the right to inherit Zhao Weiguang's legacy. According to the provisions of the inheritance law, children include children born in wedlock, children born out of wedlock, adopted children and stepchildren with dependency. Therefore, although Qian is not Zhao Weiguang's legal wife, Zhao Yang belongs to Qian and Zhao Weiguang's illegitimate children, who enjoy the same rights and obligations as their legitimate children in inheritance and have the right to inherit their father's legal property. 2. Zhao Hong's wife, Wang Ying, argues that her claim of subrogation inheritance has no legal basis and cannot be established, but Zhao Hong's son Zhao Xiaogang has the right to subrogation inheritance's share of Zhao Hong. According to Article 1 1 of the Inheritance Law, if the decedent's children died before the decedent, the descendants of the decedent's children have a direct relationship with subrogation inheritance. Generally speaking, subrogation inheritance people can only inherit the share of the inheritance that their father or mother has the right to inherit. Therefore, Wang Ying, as the wife of Zhao Hong, is not a direct relative of Zhao Hong's younger generation, which does not meet the requirements of subrogation inheritance. Her son subrogation inheritance's inheritance, while Wang Ying only enjoys the custody of Zhao Xiaogang until he comes of age.
Case 52: Inheritance Rights of Widowed Daughter-in-law and Persons with No Ability to Work
1. Liu Ziying's will is invalid. According to the provisions of the inheritance law, an oral will must be made in an emergency, and it must be witnessed by more than two witnesses to be legally effective. Liu Ziying's will is illegal in form because there is no witness to witness it. Moreover, Article 19 of the Inheritance Law stipulates that the will shall reserve the necessary share of inheritance for the heirs who lack the ability to work and have no source of income. Liu Ziying did not reserve the necessary share for his second son Zhou Feng in his will, so it was illegal in content. 2. Betty Wong can inherit his share of the inheritance as an heir. Article 12 of the Inheritance Law stipulates that a widowed daughter-in-law and a widowed son-in-law who have done their main duty to support their parents-in-law are regarded as the first heirs. In this case, Betty Wong gave up the right to remarry and took the initiative to take care of her family and mother-in-law. Therefore, she has fulfilled her obligation to support her mother-in-law and has the right to inherit her mother-in-law's inheritance as the first heir. 3. Zhou Yu has the right to subrogation inheritance's share of the property that his father Zhou Jin should inherit. As a widowed daughter-in-law, Betty Wong inherits the inheritance, which is a special right given to her by law. It is precisely because she has fulfilled more support obligations that she has been given the legal status of the first heir. Moreover, Zhou Yu's inheritance right is the inheritance right enjoyed by her father in subrogation inheritance according to Article 1 1 of the Inheritance Law, and her mother's inheritance right cannot be deprived of her subrogation right.
Case 53 Effectiveness of Legacy Maintenance Agreement
1. Ye Laohan's will is partially valid. Article 5 of the Inheritance Law stipulates that after the inheritance begins, it shall be handled in accordance with legal inheritance; If there is a will, it shall be inherited or bequeathed according to the will; If there is a legacy support agreement, it shall be handled in accordance with the agreement. Therefore, the legacy and maintenance agreement is more effective than the will. Ye Laohan's two dispositions of all his three houses should be based on the legacy and support agreement signed with the village Committee. In his living will, the part in which Ye Wei inherited his three houses is invalid, but it does not affect the legal effect of the other parts, and the other parts are still valid. 2. Ye Laohan deposited 6,543,800 yuan, which should be inherited by his eldest son, Jun Ye, 2,500 yuan, and his youngest son, Ye Wei, 7,500 yuan. Because the 5000 yuan deposit inherited by Ye Wei in Ye Laohan's living will is still valid, this 5000 yuan should be handled according to the will and inherited by Ye Wei. The 5,000 yuan not involved in the will and legacy support agreement shall be treated as legal inheritance. Jun Ye and Ye Wei, as the legal heirs of Ye Laohan, should share the inheritance equally, and only their elder brother can inherit as the second heir, that is, after Wang Zhongtang's death, Wang Zhongyi inherited the undisciplined 5,000 yuan in his will, and then Wang Zhongyi died unexpectedly, and his wife inherited his share, so it is not required to inherit from subrogation inheritance? Direct blood relatives of the younger generation? The elements of. The debt of 32,000 yuan shall be borne by Wang Zhongyi. Article 33 of the Inheritance Law stipulates that inheritance shall pay off the taxes and debts that the decedent should pay according to law. And the Supreme People's Court's "Opinions on Several Issues Concerning the Implementation of the Law of Inheritance" stipulates in Article 62 that if there are both legal heirs and testamentary heirs, the legal heirs shall pay off the debts with their inheritance first. In this case, Wang Zhongyi is the sole legal heir of Wang Zhongtang. His wife will inherit 3000 yuan after he has paid off his debts with 5000 yuan.
Case 54 Inheritance of Death of Different Generations in the Same Event
Length According to Article 2 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of Inheritance Law, several interrelated people died in the same incident. If the time of death cannot be determined, the person presumed to have no heir will die first; If each deceased has an heir, if several deceased have different generations, it is presumed that the elders died first; Several dead people are of the same generation. Presumed to die at the same time, they do not inherit from each other, and their respective heirs inherit separately. In this case, the three people who died all had their own heirs, but their generations were different, so it should be presumed that their elders died first and their peers died at the same time, that is, Zhang Lizhi and Yang Jing died at the same time and did not inherit each other, while Bao Xiao, as a junior, was presumed to have died later.
2. Since it is presumed that Zhang Lizhi and Yang Jing died at the same time, they did not inherit from each other, and their inheritance should be inherited by their respective heirs. In other words, Leo Chang's inheritance is inherited by his parents, and his son Bao Xiao is the first heir. Yang Jing has no other heirs in first order, and all her inheritance is inherited by her son Bao Xiao. Although Bao Xiao also died in a car accident, people think that he died after death. After his death, because there were no first-order heirs and no other second-order heirs, his inheritance was completely inherited by his grandparents as second-order heirs. As for Yang Jing's sister Yang Ning. Because she is only the second in line to Yang Jing, when Yang Jing has the first in line, she is not qualified to inherit.
Article 55 The validity of the will and the conditions for the legatee to accept the legacy.
1. The three wills are valid in form and content. According to the provisions of the inheritance law, the decedent has several wills. If there is any conflict between the contents, the last will shall prevail. At the same time, however, it is stipulated that notarized wills may not be changed or revoked by means of writing, writing on behalf of others, recording, oral wills, etc. That is to say. The final notarized will shall prevail. If there is no notarized will, the final will shall prevail. In this case, among the three wills made by the decedent Liu Tianshun, the notarized will shall prevail, not the last oral will, because the notarized will has the strongest probative force and authenticity. Therefore, Liu Lan cannot advocate the execution of the will.
2. Liu Er is not entitled to the TV set owned by Liu Tianshun after his death in the notarized will. Because Liu Er and Liu Lan are Liu Tianshun's nephews and nieces, they are not Liu Tianshun's legal heirs in law, but people other than legal heirs, so their inheritance is not based on testamentary succession, but on bequest. According to the inheritance law, the legatee should make an indication of accepting or abandoning the inheritance within two months after knowing it. If he doesn't show it when it expires, he will be regarded as giving up his inheritance. In this case, Liu Er didn't express his legacy until three months after he knew it. If it exceeded the statutory time limit, it should be regarded as giving up the legacy. And Liu Tianshun has no legal heir. Television sets should be owned by the state or collective economic organizations.
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