1. The concept of intellectual property law.
Intellectual property law refers to the general term for the legal norms that regulate social relations arising from activities such as the ownership, exercise, management and protection of intellectual property. The comprehensive and technical characteristics of intellectual property law are very obvious. In intellectual property law, there are both private law norms and public law norms; there are both substantive law norms and procedural law norms. However, in terms of the ownership of the legal department, intellectual property law still belongs to civil law and is a special law of civil law. Most of the basic principles, systems and legal norms of civil law apply to intellectual property rights, and the public law norms and procedural law norms in intellectual property law serve to confirm and protect the private right of intellectual property rights and do not occupy a dominant position.
2. Legal characteristics of intellectual property rights
(1) Intangible property rights.
(2) Confirmation or granting must be directly stipulated by national special legislation.
(3) Duality: It has the nature of a certain personal right (such as the right to sign) and contains the content of property rights. But trademark rights are an exception. They only protect property rights, not personal rights.
(4) Exclusiveness: Intellectual property rights are exclusive to the rights holder. No one other than the right holder can enjoy or use this right without the consent of the right holder or special provisions of the law.
(5) Regionality: Intellectual property rights recognized and protected by the laws of a certain country only have legal effect within the territory of that country.
(6) Timeliness: The law stipulates a certain protection period for the protection of intellectual property rights, and intellectual property rights are valid within the statutory period.
3. The legal system of intellectual property rights
Generally includes the following legal systems: copyright legal system; patent certificate patent legal system; copyright legal system; trademark legal system; trade name legal system for rights; legal system for origin marking rights; legal system for trade secret rights; and anti-unfair competition legal system, etc.
IV. Legal sources of intellectual property rights
(1) Domestic sources
1. Intellectual property laws, such as copyright law, patent law, and trademark law.
2． Intellectual Property Administrative Regulations. It mainly includes the Implementation Regulations of Copyright Law, Computer Software Protection Regulations, Patent Law Implementation Regulations, Trademark Law Implementation Regulations, Intellectual Property Customs Protection Regulations, New Plant Variety Protection Regulations, Integrated Circuit Layout Design Protection Regulations, etc.
3. Local regulations, autonomous regulations and separate regulations on intellectual property, such as the Regulations on the Protection of Enterprise Technical Secrets in the Shenzhen Special Economic Zone.
4. Intellectual property administrative regulations, such as the State Administration for Industry and Commerce’s regulations prohibiting infringement of trade secrets.
5. Judicial interpretations of intellectual property, such as "Several Provisions of the Supreme People's Court on Applicable Legal Issues in the Trial of Patent Dispute Cases" and "Interpretations of the Supreme People's Court on Applicable Legal Issues in Stopping Infringement of Registered Trademark Exclusive Rights and Preserving Evidence Before Litigation".
(2) International origins
1. International treaties: While formulating domestic intellectual property laws and regulations, China has strengthened exchanges and cooperation with other countries in the world in the field of intellectual property, joining More than ten international conventions on intellectual property protection have been adopted. The main ones are: Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), Paris Convention for the Protection of Industrial Property, Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention, Madrid Agreement on the International Registration of Trademarks, Patent Cooperation Treaty, etc. Among them, the TRIPS Agreement in the World Trade Organization is considered to be an international convention with wide coverage, high protection level, strong protection and strong restrictive power in the field of intellectual property protection worldwide. It has played an important role in the revision of China's relevant intellectual property laws. important role.
2. International practice: International practice is accepted as law as proof of general practice. It refers to a customary practice or routine that has been formed repeatedly in international practice, has fixed content, and has not been formulated through legislative procedures. If it is recognized by a country or adopted by a party, it will be binding on it.