Foreign intellectual property rights infringement disputes

时间:2018-07-30 作者:博学论文网
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  Abstract: the fiftieth article of the law applicable law on foreign related civil relations of the People's Republic of China provides specific provisions on the application of laws concerning infringement of intellectual property rights in foreign countries. The discussion is carried out at the center of the fiftieth section of the law. It points out the shortcomings of the court in the application of the applicable law, and puts forward some suggestions for the application of the legal application of the liability for infringement of intellectual property rights involved in foreign affairs.
  
  Key words: foreign intellectual property; requested protection; connection point;
  
  The legal application of the legal application of foreign intellectual property rights infringement disputes is in the blank state before the law applicable to foreign civil relations (hereinafter referred to as the law applicable law), and is limited by the lack of trial experience and the imperfect legal origin. The court infringed on foreign intellectual property rights in accordance with the common invasion. The right conflict rules, namely the 146th article of the general principles of civil law, determine the applicable law. The law applicable law, as the first single line of our country, has been in force for more than six years since the implementation of the private international law of the first single line of China. The seventh chapter of the law has made a special chapter on the legal application of the infringement of intellectual property rights involved in foreign intellectual property rights.
  
  1. Unscramble the request protection of the connection point
  
  The fiftieth article of law applicable law stipulates that the tort liability of intellectual property right applies to the law which is requested to protect the land, and the parties may choose to apply the law of the court in the agreement after the infringement.
  
  The requested protection should be understood as the country involved in which the infringed party requests its protection of the relevant rights of intellectual property. As a connection point, it is a priority for the application of domestic law. Although the right registration, tort and court are all related to intellectual property rights, the choice of the right to register as a connection will cause the right holder to apply for intellectual property rights in a country with high protection, and form the polarization trend of intellectual property protection; infringement acts as a connection point to tort. In order to avoid the law, it is possible to choose the location of the infringement, and the court is contrary to the territoriality of the intellectual property as the connection point in the infringement of intellectual property rights and the court.
  
  The requested protection is also a common mode of legislation in the field of intellectual property in the world. The eighth section of the EU regulation No. 864/2007 (Rome II) on the legal application of non contractual debt (II) stipulates that “the law of the state which claims to be protected by the law on the protection of the intellectual property rights shall be applicable to the non contractual debt caused by infringement of intellectual property rights”. The international law of private international law in 1987 in Swiss Confederation. The first paragraph of the 110th article stipulates that “intellectual property is applicable to the law of a state that is requested to protect intellectual property”. The first paragraph of the 1132nd article of the civil code of the Russian Federation stipulates that “intellectual property and its protection shall be applied to the law of the state which is requested to protect this right”. From scratch, from the fragmentary provisions of the various departments law to the formulation of special international private law, the legislative and practical experience of the European countries such as the European Union and Switzerland, such as the European Union and Switzerland, have been drawn from the development process.
  
  2, the cognizance of the requested protected areas in our judicial practice.
  
  With the rapid development of intellectual property, the flow of intellectual property rights in China and overseas is accelerating, and the cases of intellectual property rights infringement disputes involving complex technology, especially high end technology, are increasing. However, under the influence of traditional views, China's judicial practice is often considered to be applicable to the choice of applicable law in cases involving infringement of intellectual property rights involving foreign intellectual property rights, and it is generally not applicable to the application of foreign laws, and the law of our country should be applied. The fiftieth provisions of the law applicable law still remain in the form level in the judicial practice, and there are still some shortcomings in the judicial organs in the practice of hearing foreign intellectual property rights infringement disputes.
  
  Domestic courts often ignore the foreign elements of the case and directly apply the domestic law to the infringement of foreign intellectual property rights disputes. The law of the requested protection and the law of our country are two completely different concepts, and there is no inevitable connection between the two. In the case of hearing foreign intellectual property, the court of our country lacks the explanation of the affirmation of the requested protection and the obvious neglect of the foreign factors of the case, and the phenomenon of the direct application of our law is more common. For example, in the case of intellectual property rights disputes between Hangzhou Wei Guo Machinery Co., Ltd. and the Kass Carter Co, the original trial plaintiff Cathcart was not appealed to the civil judgment of the intermediate people's court in Hangzhou, Zhejiang Province, and the final decision of the civil judgment of the second instance of the higher people's Court of Zhejiang was “refutation”. The application of the law is stated as “the 146th article of the general rule of the PRC on the law of the people's Republic of China” stipulates “the compensation for damages of the tort and the law of the place of tort,” the case of the production and sale of the infringed product in this case is in the territory of People's Republic of China, so this case applies to the people's Republic of China. The case of the general rule of the civil law is directly quoted in the law of the civil law, which ignores the application of the law applicable law to the requested protection, although the case applies to the same result as the requested protection or tort, but the law invoking the rules of the conflict rules lacks appropriateness and rigor. In the case of the middle people's Court of Xiamen in Fujian Province, in the case of the intellectual property dispute between montblan simplo and the big Hotel Plaza Limited new Egret Island in Xiamen, the court of original trial did not elaborate on the choice of the applicable law and applied the trademark law directly, neglecting the particularity of the subject involved in the case; and Xiamen City In the second instance civil judgment, the intermediate people's court also affirms that the court of first instance decided the facts clearly and correctly applied the law. Even if the above cases are applicable to China, the law will not affect the outcome of the hearing, but the choice of applicable law should be fully and rigorously stated.
  
  The second is the lack of accuracy in the identification of the requested protection. Compared with the forty-fourth article of law applicable law, the fiftieth provisions on the infringement of intellectual property rights involving foreign intellectual property rights belong to special law, which should be given priority in accordance with the principle of the order of law, especially if it is more necessary to distinguish it when the requested protection is different from the tort. In the practice, the courts of our country confuse the infringement of intellectual property rights with the general foreign-related infringement. In the case of Qiu Tingxi's infringement of trademark rights in a Japanese zebra Corporation, the Binjiang District people's court in Hangzhou decided that the defendant Qiu Tingxi stopped selling and violated the trademark patent of the original zebra company. Products and compensation for economic losses. The verdict directly quotes the forty-fourth articles of law applicable law to apply the law of the tort law. It is considered that “zebra Corporation is a legal person registered in Japan, because the infringement of this case occurs in People's Republic of China, so the trial of this case should be applicable to the legal provisions of People's Republic of China”, while avoiding its fifth. 0, the cognizance of the requested protection place ignores the difference between the infringement of intellectual property rights and the general civil tort disputes. In the case of the infringement of trademark rights and unfair competition disputes, such as the OSRAM joint-stock company v. Sichuan blue view photoelectric technology limited liability company, the Chengdu intermediate people's court also directly invoked the forty-fourth provisions of the law applicable law, and the process of identification is not accurate.
  
  In practice, the district court often confuses the requested place of protection with the place of registration and the place where the rights are registered. The fiftieth section of the law applicable law will be placed in parallel with the courts. According to the general interpretation rules of the law, the two are obviously not the same. Legislators have made the legislative rigor in the design of the legal system, and the courts should pay more attention to distinguishing them in practice. In practice, it is possible to be requested to be protected and the place of the court and the right to register, but the choice of the applicable law applicable to the law should be explained when the three are different.
  
  3, an improvement proposal for the affirmation of the requested protection
  
  According to the previous analysis, it is of great significance to determine the applicable law of the foreign-related intellectual property rights infringement disputes according to this connection point which is requested to protect the rights and obligations of the parties. In view of the shortcomings of the court's cognizance of the requested protection in practice, we can improve it from the following aspects.
  
  We should attach importance to foreign-related factors in the infringement of intellectual property rights, and take into account its foreign and particularities. In the application of the fiftieth article of law applicable law, the court should first make a confirmation of the requested protection, and fully explain the applicable law according to this connection point, so as to ensure the correct application of the law, which is the premise for the court to make a fair decision.
  
  Strictly distinguish the relationship between the requested protected area and other connection points, and accurately quote the applicable law. The requested protection, the tort, the court and the right to register are different and independent, and in practice there is a coincidence. Therefore, it is necessary for the judicial trial to distinguish between the requested protection and the relevant connection points. Since the fiftieth article of law applicable to law can only guide the legal norms applicable to foreign intellectual property rights infringement disputes, it is determined that the applicable law is directly related to the rights and obligations of the parties. In view of the above analysis, the author believes that it is difficult to make and modify the law in the short term. It can unify the standard of identification by judicial interpretation and enhance the accuracy of the application of the law.
  
  We should give full play to the leading role of the intellectual property court and improve the judicial mechanism. Since the establishment of the intellectual property court in Beijing, Shanghai and Guangzhou in 2014, the work has been carried out in an orderly way and achieved a good start. In the case of foreign-related intellectual property rights cases, three intellectual property courts should play a leading role in leading the demonstration, improve the quality of the trial and unified judgment standards, and build some guidance and reference cases, and set up a new image of the intellectual property trial of the court of our country.
  
  4. Conclusion
  
  It is of great significance to standardize the legal application of the liability for infringement of intellectual property rights involved in foreign intellectual property rights, and to improve the court's trial on intellectual property infringement involving foreign intellectual property rights, and to improve our international image of openness and confidence in the judicial protection of intellectual property. We should not only summarize the achievements and judicial experience in the field of intellectual property rights, but also face the shortcomings of the judicial trial, especially the question of the identification and selection of the protected areas when the foreign intellectual property rights infringement disputes are tried. The improvement of the fiftieth articles on the applicable law of law on the protection of the requested protection will help to improve the quality of the trial of intellectual property infringement disputes in our country and strengthen the international cooperation of intellectual property in our country.
  
  Reference
  
  [1] Wu Handong. Intellectual property law (Fourth Edition) [M]. Beijing: Peking University press, 2014.  
  [2] Li Bi Yuan. Private international law (Revised Edition) [M]. Wuhan: Wuhan University press, 2001.  
  [3] Zou Guoyong. Selected translation of foreign private international law [M]. Wuhan: Wuhan University press, 2017.  
  [4] Wu Wenling, Zhu Li. The legal application of foreign intellectual property relations is centered on the seventh chapter of the law applicable to foreign-related civil relations, [J]. people's judiciary, 2012, (9)。  
  [5] Wang Chengzhi. On the application of law in the trial of intellectual property rights in foreign countries [J]. law review, 2012, (1)。  
  [6] Qi Aimin, how to cultivate. The application of law in disputes concerning intellectual property rights in foreign countries -- Also on the relevant provisions of the law applicable to foreign related civil relations [J]. intellectual property rights, 2011, (2)。  
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