I. Overview of the IPR protection system of previous World Expositions
It is not difficult to find that the legal protection of intellectual property rights has become more and more professional since the Vienna World Expo 1873. Prior to this, including 1 85 1 the first London World Expo, all provided intellectual property protection based on existing domestic laws and some intellectual property laws. 1873 When the International Invention Exhibition (the predecessor of the World Expo) was held in Vienna, Austria enacted special laws to give special temporary protection to the inventions, trademarks and designs of foreigners exhibited in the exhibition. Later, the patent reform conference put forward the basic principles of the international patent system and called on countries to reach an international understanding on patent protection as soon as possible. On this basis, 1883 Paris Convention for the Protection of Industrial Property was formally born, which established the principle of national treatment, the principle of priority and the minimum standard of intellectual property protection for industrial property rights such as patents, trademarks and designs. Germany's intellectual property protection for the 2000 Hanover World Expo is a multi-level three-dimensional protection model. Among them, before the 2000 Hanover World Expo, the host country submitted the Special Regulations for the 2000 Hanover World Expo (on Industry and Intellectual Property). In the relevant provisions of this document, the host country promises to spare no effort to provide all possible protection measures for the intellectual property rights contained in all products displayed, used or sold during the World Expo. And through the specific provisions of the three chapters 14, many intellectual property rights involved during the World Expo, including patents, copyrights, trademarks and names, enterprise names, biodiversity varieties, etc. , protected. Even for the relevant designs and models of microelectronic semiconductor products and products specially designed for exhibition, temporary protection of similar patent level is provided during the exhibition. In the same document submitted by Japan to the Bureau of International Exhibitions for hosting the 2005 Aichi World Expo, it is also promised that Japan will provide maximum protection for copyright, patents, trademarks and other intellectual property rights during the World Expo in accordance with the existing intellectual property legal system, and provide special protection for copyrighted music works in combination with the characteristics of the World Expo, and provide temporary protection equivalent to exclusive rights for inventions, methods and trademarks that have not yet obtained exclusive rights. From this point of view, as far as intellectual property protection is concerned, the commitment of the host country to intellectual property protection in the relevant documents submitted to the International Exhibition Bureau two years before the official hosting of the World Expo constitutes the operational mechanism of the World Expo and has become an international obligation that all host countries must undertake. In-depth study of intellectual property protection in Hanover, Germany and Aichi, Japan should be of great reference significance to the special documents on intellectual property protection to be submitted by China in 2008.
2. Examine the current situation of the legal system and judicial practice of intellectual property protection in China.
Referring to the model of special clauses on industrial property and intellectual property provided by BIE, the framework of special clauses on industrial property and intellectual property of Expo Hanover, Germany in 2000, and the special clauses on industrial property and intellectual property of Expo Aichi, Germany in 2005, China should comprehensively examine China's existing legal system, especially the legal system of intellectual property and intellectual property protection, before submitting the special documents on industrial property and intellectual property of Expo 20 10. The author believes that the overall level of judicial and law enforcement of intellectual property protection in China still needs to be improved, the awareness of intellectual property protection of enterprises as the main participants and even the whole people is still relatively weak, and the advantages of intellectual property protection mechanism as promoting the whole social civilization and scientific and technological progress are far from being reflected:
1. Legislation on intellectual property protection related to the World Expo. The existing legal system of intellectual property protection in China contains contents and legislative spirit, which all reflect the requirements of new scientific and technological level since 2 1 century. Moreover, under the relevant legal system, China has also formulated a series of implementing regulations, departmental regulations, local regulations and local regulations, as well as special laws, regulations and management measures for various exhibitions that have flourished in China in recent years, forming a relatively systematic legislative system for convention and exhibition industry that is suitable for China's national conditions and reflects China's characteristics. However, with the rapid development of modern economy, science and technology, and culture, when the latest scientific and technological achievements of Expo 20 10 are displayed, the level of science and technology and civilization will have a greater or even more substantial mutation, and the intellectual property legal system, which is in line with the level of science and technology and civilization, will inevitably make a timely response. Therefore, based on the existing legislative level, it should be the unshirkable responsibility of China's academic circles in the future to pay attention to the scientific and cultural progress of developed countries and the world, and to study the legislative trends of related intellectual property rights with the times in order to promote the revision of China's more perfect intellectual property laws.
2. The judicial and law enforcement environment and level related to the intellectual property rights of the World Expo. If China has a relatively complete intellectual property legislation system, then we can also say that the judicial and law enforcement situation of protecting intellectual property rights and promoting its realization in China is extremely worrying. Therefore, the problem of our legal system construction lies not in legislation, but in justice and law enforcement. As far as the relevant judicial protection required by China International Import Expo(CIIE) is concerned, the rapid injunction procedure related to intellectual property rights provided by the German litigation system is quite perfect. The basic practice is that during the exhibition, as long as the plaintiff has evidence to prove to the court that the situation is urgent, the plaintiff's rights and interests will be more damaged than the defendant through normal litigation procedures and deadlines. In principle, the court can issue a temporary injunction without any oral procedure, that is, without notifying the defendant in advance, so that the defendant will only know the injunction procedure when the plaintiff issues a court order. Of course, this litigation mechanism also provides the defendant with an opportunity to protest against the ban. As far as the litigation injunction system is concerned, the application of this system in China's current judicial practice involving expositions and exhibitions shows poor implementation. After the revision of the patent law in 2000, the specific system of pre-litigation injunction was clarified. In an exhibition industry case accepted by an intermediate people's court in Shanghai, the plaintiff filed a request for "pre-litigation injunction", which was applied after examination by the court. Unexpectedly, when the judge of the court went to the booth suspected of infringement in the exhibition area to enforce the ban according to the ban, he was violently resisted by the law, and the enforced enterprise thought that the court's behavior had a great influence on him during the exhibition. Considering that the transactional exhibition is not only a gathering of business opportunities for exhibitors, but also a display of business image, it may cause disaster to exhibitors before the facts are ascertained. After mediation by the court, the plaintiff withdrew the request for "pre-litigation prohibition". As far as administrative law enforcement is concerned, this working mechanism of protecting intellectual property rights through administrative law enforcement can be said to be unique to the existing legal conditions in China. However, when investigating and dealing with the suspected infringement of intellectual property rights in various exhibitions, the administrative organs also encountered considerable difficulties and confusion. On the one hand, the intellectual property administrative department stationed at the exhibition site does not have the function of administrative law enforcement, but can only be a professional service department invited by the organizer, and the legal status of the administrative department in the exhibition is questioned; On the other hand, even though the administrative departments in some expositions and exhibitions have been endowed with certain law enforcement powers, the relative principles stipulated in the existing patent law, and even the lack of some specific provisions, have created obstacles to dealing with the common suspected infringements in exhibitions and seriously affected the protection and realization of the legitimate rights of intellectual property rights holders. The perfect litigation mechanism and judicial level abroad provide a relatively complete guarantee for the protection of related rights. During the 20 10 World Expo, whether the operational mechanism and enforcement of administrative law in China will be strengthened or weakened is a problem that we must face.
3. Present situation of intellectual property protection of exhibitors The intellectual property protection of enterprises in China is still in its infancy, and there are still many imperfections:
-Domestic exhibitors have a weak awareness of intellectual property management, protection, rights protection and related laws. Most disputes have the meaning that it is a shame to wash one's dirty linen in public They tried to eliminate disputes through private consultation, negotiation between trading groups and coordination of the general assembly office. All parties concerned have the intention to minimize the problem, and no one can clearly define the impact and loss caused by infringement.
According to the preliminary data comparison, we think that the legislative style and judicial environment in China are quite different from those in foreign countries, especially Germany, the United States and Japan, where the convention and exhibition industry is relatively developed. Therefore, most of the infringement cases of convention and exhibition industry are suspected by China enterprises.
-In-depth study of the current situation of intellectual property protection of domestic enterprises, we found that the following problems generally exist in domestic enterprises:
The overall intellectual property awareness of enterprises is weak;
Lack of practical experience in the application and management of intellectual property;
Lack of mechanism and experience to encourage innovation;
Lack of professional and high-quality intellectual property management talents;
There is a lack of early warning and corresponding strategies for the prosecution and response of suspected infringement.
4. China's legal environment and people's legal consciousness. Intellectual property protection of the World Expo is a comprehensive issue. The ancients said: Cang Yu really knows etiquette. As a right derived from intellectual achievements, the maintenance and realization in judicial practice requires the enterprise or obligee as a party to invest relatively more intelligence and financial resources. In other words, as a right in litigation, the realization of intellectual property rights often needs to be guaranteed through more professional and technical litigation activities. However, China's current legal environment, national legal awareness and litigation ability are worrying. On the one hand, the situation of weak law enforcement and lax justice still exists, and the judicial credibility caused by litigation cost and efficiency is not high enough; Most citizens resolve various disputes through settlement, mediation and arbitration outside litigation; Most of them are afraid of going to court, responding negatively, avoiding and giving up; Actively defend rights, actively respond to lawsuits, and have an early warning mechanism for intellectual property rights. It can be seen that in order to achieve positive results in intellectual property protection during the 20 10 World Expo, we must promote the construction of the rule of law, improve the legal environment and raise people's legal awareness from now on.
Three. Thoughts and Suggestions on Intellectual Property Protection Mechanism of Expo 20 10
By comparing the research on the intellectual property systems of foreign countries hosting the World Expo, such as Germany, Japan and the United States, and the analysis of countries incorporating their intellectual property legal systems into the intellectual property protection measures of the relevant World Expo, we believe that the protection provided by China's legal system can not be ignored in order to run the 20 10 World Expo well. In particular, the establishment of the Expo intellectual property protection mechanism includes the latest object of intellectual property rights, reflects the level of intellectual property protection in a country, and even represents the progress of science, technology and civilization in a country, which should be a subject that our legislation, judicature, administration, academics and even the whole society must attach importance to. The intellectual property protection of the World Expo is a systematic project, and it is also a comprehensive and arduous research topic. Therefore, the author believes that in this systematic project:
Promoting the construction of the legal system in an all-round way and improving the level of the rule of law is the foundation;
Changing the functional orientation of the administrative department is the key;
The strategy and tactics of establishing enterprise intellectual property rights are the core;
It is the motive force to popularize and improve the legal consciousness of the whole society.
To a certain extent, the World Expo is a platform to show the latest development achievements of human civilization. The success of hosting a World Expo can not be underestimated for the prosperity and promotion of a country's economic, cultural, scientific and technological and social progress. With the unremitting efforts and joint efforts of the legal profession and the whole society, I believe that the holding of Expo 20 10 will definitely promote the construction of the rule of law in China, the improvement of people's legal awareness, the emergence of independent intellectual property rights of enterprises, and the civilization and progress of the whole city and even the whole country. It is believed that Expo 20 10 will greatly promote the legal system construction in China.
Countermeasures and suggestions
(1) Learn from the intellectual property protection modes of Hanover Expo and Aichi Expo, and combine with the national conditions of China, give the exhibits maximum protection, especially expand the scope of intellectual property protection of individual laws.
1. Expand the scope of copyright protection, and include works published for the first time in countries that have not acceded to the Berne Convention into the scope of intellectual property protection during the World Expo.
2. Establish temporary protection measures for traditional culture to protect the traditional culture of participating countries, and at the same time further explore the protection of traditional culture in China.
3. Protect the best interests of patented products, expand the protection scope of patent exclusive rights, and provide temporary protection of similar patents for microelectronic semiconductor products and product models with related designs and professional exhibition designs during the exhibition, especially for new varieties of animals and plants.
4. It is clearly stipulated that photography of design exhibits is not allowed during the exhibition.
5. Expand the scope of protection of well-known trademarks in special provisions, stipulating that well-known trademarks should be protected within the same scope whether they are registered or not during their stay in China International Import Expo(CIIE).
(2) While protecting intellectual property rights, popularize the internationally accepted theory of intellectual property rights restriction, so that decision makers in China enterprises can skillfully use the intellectual property system and create favorable conditions for the formation of product industrialization.
1, first time to use the system. In other words, a technology has been put into production by enterprises before China applied for a patent. Even after the technology is patented, enterprises can continue to produce and sell without being affected. At the World Expo, China enterprises have been able to produce products that have not been put into research or applied for patents. No matter whether this technology will be patented after the World Expo, China enterprises can continue to put into production.
2. Fair use system of copyright. Under certain circumstances, the law stipulates that others can use it for free in a small area without authorization. According to this convention, China enterprises can learn from the works published by foreign enterprises at the World Expo, form the achievements of independent intellectual property rights through in-depth research, and strive to form certain technological advantages in international competition.
3. The exhaustion doctrine Principles. After the product is put on the market for the first time, the obligee loses further control over the intellectual property products manufactured by the intellectual property owner or its authorized subject. That is to say, anyone who obtains an intellectual property product through purchase is free to dispose of the intellectual property product and can sell it again or use it for research. Its more important significance is that it can fight against monopoly and unfair treatment in international competition.