1. Is Taobao's appearance patent infringing?
Taobao products are all kinds. First of all, you need to check the legal status of the patent of the other party to see whether it is stable and invalid or other defense reasons. Second, you need to see whether your product belongs to the protection scope of the patent of the other party, that is, whether it constitutes infringement in the legal sense. In addition, you also need to consider a compensation amount in combination with a sales volume of your goods and whether there is intentional infringement. If it is highly similar to other people's works with only a slight change, it may cause infringement, but whether it is really certified as infringement needs further consideration to judge.
Second, the conditions that constitute tort liability should have.
1. The fact of damage exists objectively, that is, property damage or mental damage must be caused objectively;
2, the behavior is illegal, such as damage caused by legal behavior, the actor does not assume responsibility;
3, there is a causal relationship between illegal behavior and damage consequences;
4. The actor is subjectively at fault, including intention and negligence. If the actor is not subjectively at fault, he will not bear the responsibility. The civil liability of special tort does not need to meet all the above requirements, but it can be established based on special provisions of the law or some special conditions.
3. What are the ways to bear tort liability?
(1) Stop the infringement. Stopping the infringement means that the infringed person has the right to ask the court to stop the ongoing or continuing infringement that infringes on his legitimate rights and interests, and it is applicable to all kinds of infringement.
(2) Remove obstacles. Eliminating obstruction means that the infringer eliminates the objective factual state that prevents others from exercising their rights and realizing their interests normally. This method is mainly applicable to cases where property rights, especially neighboring rights, are violated.
(3) eliminate the danger. Danger is related to the fact and state that may cause infringement damage in the future. In this state, the infringed has the right to request the court to ask the infringer to eliminate it.
(4) Return the property. Returning property means that the infringer transfers the illegally possessed or managed property to the infringed.
(5) restitution. Restitution is mainly applicable to the case of property damage, that is, requesting the infringer to restore the property to its original state. There are two conditions for requesting restitution: one is the possibility, that is, the damaged thing may be restored to its original state; The second is the necessity, that is, the object needs to be restored to its original state.
(6) Compensation for losses. Compensation for losses is the most common way to bear tort liability. It may be applicable not only to cases where property rights and interests are infringed, but also to cases where personal rights and interests are infringed. The range of losses includes not only positive losses, but also negative losses, and the compensation for losses is generally limited to actual losses.
(7) apologize. Apologize means that the infringer admits his mistake and apologizes to the infringed in oral or written form, which is mainly applicable to the situation of infringement of personal rights and interests;
(8) Eliminate influence and restore reputation. Eliminating influence means that the infringer eliminates the adverse consequences to the infringed within the scope of adverse influence; Restoration of reputation means that the infringer restores the reputation of the infringed person to its undamaged state within the scope of the damage caused by it. They usually only apply to cases of infringement of personal rights and interests.
The above is related to the patent infringement of Taobao appearance. According to the relevant regulations, whether the product appearance infringes depends on the similarity and the scope of patent application by others. It is difficult to make a judgment at once. Generally, it needs to be further understood in combination with the corresponding institutions. If there are any legal problems, it is recommended to consult a professional lawyer of the French Open.
Legal objectivity:
patent law of the people's republic of china
Article 60
If a patent is exploited without the permission of the patentee, that is, the patent right is infringed and a dispute arises, it shall be settled by the parties through consultation;
Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it.
When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling.
If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution.