I elements of infringement of intellectual property rights
1, damaging the facts. Damage fact refers to the actual damage consequences, including property loss or mental pain. In this regard, China's intellectual property law has the following provisions:
(1) Article 47 of the Copyright Law stipulates that copying and compiling without the permission of the copyright owner, and Article 46 stipulates that recording without the permission of the performer is an infringement. If the infringer only copies, assembles and records, and neither uses it, nor sells it or gives it away, of course, it will not cause any damage. According to the compensatory characteristics of civil legal relationship safeguard measures, it should not bear the liability for civil damages. However, it is obvious that these acts are tort in nature.
(2) Article 1 1 of the Patent Law stipulates that the patentee has the right to manufacture and promise to sell. If the infringer only manufactures or promises to sell the patented product, and neither uses it, nor sells it or gives it away, similarly, he shall not be liable for civil damages. However, Article 57 of the Patent Law clearly defines it as an act of patent infringement.
(3) Article 49 of the Copyright Law, Article 6 1 of the Patent Law and Article 57 of the Trademark Law make it clear that immediate infringement is an infringement and should bear civil liability. We know that the essence of immediate infringement is an act that is likely to cause harm, but it does not cause harmful consequences, but it still constitutes intellectual property infringement.
As can be seen from the above, from the perspective of China's intellectual property legislation, the composition of intellectual property infringement is not based on damage facts.
2. Subjective fault. Some scholars believe that the infringement of intellectual property rights belongs to general infringement and advocate the application of the principle of fault liability; Some scholars believe that this kind of tort has many attributes, including general tort, infringement, obstruction, embezzlement and other acts, and advocate that the principle of fault liability and the principle of no-fault liability should be applied respectively according to the different nature of the act; Some scholars advocate introducing the principle of no-fault liability. In my opinion, compared with tort in tort law, intellectual property infringement does have many attributes, including both general fault infringement and so-called no-fault infringement. For example, according to the second paragraph of Article 63 of the Patent Law and the third paragraph of Article 56 of the Trademark Law, acts of using and selling in good faith still constitute infringement. If it can be proved that it has a legal source, it can be exempted from liability for compensation (only from liability for compensation), and at the same time, it is stipulated that "it should bear the legal responsibility to stop the infringement". Obviously, the tort mentioned here not only does not need to take the fault of the actor as the constitutive element, but also does not need to take the fault of the actor as the constitutive element to bear the legal responsibility of stopping the tort. Therefore, to sum up all the constitutive elements of intellectual property infringement, subjective fault should not be included, otherwise the extension of intellectual property infringement will be inappropriately narrowed, such as excluding no-fault infringement from intellectual property infringement.
Second, the infringement of intellectual property rights is mainly divided into four types:
The first is trademark infringement, which is the last thing we want to see, because it is the most blatant infringement. Before 1998, this kind of infringement occurred frequently, but in recent years, with the improvement of intellectual property awareness of most enterprises, it has gradually decreased.
However, enterprises should still pay attention to the geographical and time issues in the process of trademark use. There are regional restrictions on the use of some trademarks. For example, the trademark of a product can be used in the United States, but not in Italy, because the use of a trademark in a certain area requires the authorization of the trademark owner. In addition, there is a time limit for trademarks. The term of a trademark may be 10 or 20 years. Those that are still in use after this time limit may be sued for infringement.
Second, the tort is to copy the appearance, structure and principle of others. This kind of infringement happened most in recent years, accounting for 80% of the whole infringement cases.
The third kind of infringement is the alleged infringement of the color, packaging and fixtures of goods. When it comes to the color of goods, some people may doubt whether color can also constitute infringement, but it does. Some foreign businessmen are very cunning. They may have registered the color of their products in a certain area, and other manufacturers' products cannot use this color when they enter the area. For example, in Illinois, USA, wrenches exported to this area cannot be red. Other manufacturers will also cause intellectual property disputes because of copying other people's packaging and samples. In addition, one of the most easily overlooked infringements is the infringement of fixtures of exhibition goods. The so-called fixture is the attachment of fixed display goods. If exhibitors don't pay attention, it will also constitute infringement, because all products have commercial activities during the exhibition.
The fourth category is sample infringement. In previous exhibitions, sample infringement still occurred more, accounting for 20%.
Third, the standard of infringement judgment.
1. The act of using the portrait of the portrait owner without the consent of the portrait owner without hindrance and illegal reasons.
2. Making portraits of others without authorization (including having photos of others).
3. Malicious insults and uglification of other people's portraits.
The act of infringing the right to portrait should have the following two elements: one is to use the portrait, and the other is to use the portrait without the consent of the portrait owner or without justifiable reasons. Specifically, there are the following kinds of violations of portrait rights:
(1) using the portrait of the obligee for profit without the consent of the obligee;
(2) displaying, making public, displaying, copying or distributing the portrait of the obligee without the consent of the obligee, although it is not for profit;
(3) Using the portrait of the obligee without the permission of the obligee;
(4) using the portrait of the obligee beyond the geographical scope permitted by the obligee;
(5) Using the portrait of the obligee within the time limit without the permission of the obligee. Bring you all the elements of intellectual property infringement. Infringement is not allowed by law and will be punished by law, so we must abide by the law in our daily life. .