Secondly, it is necessary to determine the specific object of alleged infringement. The determination of the object accused of infringement is determined by two factors, one is the trademark accused of infringement, and the other is the goods used by the trademark accused of infringement.
Thirdly, compare the accused infringing object with the registered trademark and the goods approved by the registered trademark to determine whether the accused infringing trademark is the same or similar, whether the goods used by the accused infringing trademark belong to the same category or similar, and whether the trademark will confuse consumers.
Finally, determine whether it is infringement. Followed by copyright and patent rights; Let's take an example: Kohler Co, a world-famous manufacturer of kitchen and bathroom products, recently won six series of lawsuits involving four patented faucets in Shanghai. Three defendants, including Dai Mou, the owner of Shanghai Sanitary Ware Co., Ltd. and its business department, and Shanghai Dengle Industry and Trade Co., Ltd., were sentenced to stop the infringement and compensate Kohler for the economic loss of 500,000 yuan.
Various styles of "faucets" developed by Kohler Company were granted design patents by China Intellectual Property Office on 1998 and 200 1 respectively. The court confirmed through trial that compared with the patented faucet of Kohler Company, the products involved by the defendant only have slight differences in external patterns, round holes on the back, and their basic elements are the same, and their visual effects are similar in the eyes of ordinary consumers. Therefore, the alleged infringing faucets sold by the above two stores belong to the protection scope of Kohler's corresponding patents.
Finally, according to the types of patents involved, the degree of subjective fault of the infringer, the nature and circumstances of the infringement and the reasonable expenses paid by Kohler Company, the court ruled that Shi Mei Company and Daimou jointly compensated Kohler Company for RMB 340,000, and Dunler Company compensated Kohler Company for RMB 6,543,800+0.6 million.
For more and more patent infringement allegations and lawsuits from foreign enterprises, some enterprises in China have adopted a negative attitude or even no attitude. This practice will cause enterprises to lose the product market, damage the product brand and affect the company image. Especially in the United States, if we continue to sell products without actively responding to patent infringement lawsuits, it is likely to constitute intentional infringement, leading to aggravated compensation and payment of the other party's lawyer's fees.
In fact, in patent infringement allegations and lawsuits, the accusation of patent infringement by the other party does not mean that patent infringement is established. Many times, it takes a lot of time and money to prove the establishment of patent infringement. Actively responding to patent infringement disputes can sometimes solve patent infringement allegations; Even if it may constitute patent infringement, actively responding to the lawsuit can reduce the amount of compensation or reach a settlement agreement. Therefore, it is very necessary to actively deal with patent infringement disputes.
Copyright: According to the provisions of the Copyright Law, the infringement of art works includes the following situations: (1) using the names of other painters to create paintings; Sign one's name on someone else's painting; Copying other people's works without permission. So does a painting whose composition is similar to others' works constitute infringement of others' works? To what extent can it be called "similarity"? Is the painter's judgment "similar" or the judge's judgment "similar"? Abstract: Intellectual property (also known as intellectual property) refers to a kind of right that people enjoy according to law based on the results of their own intellectual and creative activities. Intellectual property rights, including personal rights and property rights, are called spiritual rights and economic rights by scholars in some countries. Traditional intellectual property rights only include copyright, patent right and trademark right, and some regular principles in the theory of intellectual property law are derived from these three kinds of intellectual property rights. However, with the development of social economy and scientific progress, intellectual property rights have been given new objects, such as layout design of integrated circuits, new plant variety rights and so on.
Infringement of intellectual property rights means that the actor objectively infringes on the property rights or personal rights of others' intellectual property rights and should bear civil liability. It can be seen that the definition of intellectual property infringement is different from that of general civil infringement. When talking about the difference between the two, an American scholar once figuratively said, "Just like watching a boxing match, anyone can see a fist hitting his nose, but with different intellectual property rights, it is difficult to tell where the fist is hitting at once." China's courts have accepted such a trademark infringement case. The defendant signed a contract with foreign businessmen to export bicycle parts with the plaintiff's well-known trademark, but it has not yet been fulfilled. However, the plaintiff has brought a lawsuit to the court, asking the court to stop the defendant's infringement of the plaintiff's trademark rights. In the end, the plaintiff's claim was recognized by the court. The verdict in this case has puzzled many people. How does the court determine the infringement? The defendant's behavior in this case does not meet the four elements of general civil tort. Obviously, the court's confirmation of the defendant's tort in this case has deviated from the traditional theory of civil tort.
Regarding the constitution of tort, some scholars call it the legal elements of tort, and some scholars call it the constitutive elements of tort liability. They think that the constitutive elements of tort and tort liability are two different concepts, and some scholars call it the constitutive elements of tort. In any case, its content is nothing more than three elements or four elements. In my opinion, the constitutive requirements of tort refer to the conditions for the establishment of tort. The constitution of tort is the premise of assuming tort liability. Since the tort is established, it should bear the tort liability. As for what kind of tort liability and the size of tort liability, it depends on the nature of the act and the subjective state of the actor. The relationship between these two concepts is similar to the relationship between criminal behavior and punishment (criminal responsibility). A criminal act is an act that should be punished by penalty, and constituting a crime is the premise for the actor to bear criminal responsibility. We usually call it the constitution of a crime and what kind of criminal responsibility we bear. Therefore, the author thinks that the above viewpoints are consistent in essence, and it is more appropriate to call them the constitutive elements of intellectual property infringement, so as to conform to the logic of this paper's structure.
Intellectual property law is a discipline with rapid development and changes, unlike the traditional civil law theory, which has established a mature theoretical framework. When people really study intellectual property rights, the traditional theoretical framework of civil law has taken shape. Due to the inherent characteristics of intellectual property rights, it is not very appropriate to apply some phenomena with traditional civil law theory. As the WTO textbook says, "a tangible owner can generally protect his property from infringement by possessing his property, but an intellectual property owner cannot do this by possessing his invention." Therefore, some intellectual property laws are still unclear, which makes the judges engaged in intellectual property trials at a loss. Different from other traditional civil law disciplines, the immature intellectual property theory is often verified by the precedents of judges engaged in such trials and accepted by legislators, such as instant infringement and reverse counterfeiting of trademarks. The above are personal suggestions, and some information collected by individuals hope to play a role in the landlord. If there are any mistakes, please point them out and learn together. Thank you and hope to adopt it!