1. Case Analysis of Intellectual Property Law
Case Analysis of Intellectual Property Law The painter Zhang and the painting enthusiast Yang are close friends. Zhang sent Yang more than 50 of his paintings. After Zhang died of illness, Yang selected 30 paintings sent by Zhang and published them in Zhang's name. When Zhang's children learned about it, they believed that Zhang's paintings had been published without permission and infringed on their and Zhang's copyright, so they negotiated with Yang. He believes that since the painting has been gifted to him, he has acquired ownership rights including copyright, and there is no copyright infringement since the painting was published in Zhang's name.
Question: Does Yang’s behavior infringe on the copyright of Zhang and his children? Why? Best answer 1. Article 10 Copyright includes the following personal rights and property rights: (1) The right of publication, that is, the right to decide whether a work will be made public; (2) The right of signature, that is, the right to indicate the identity of the author and sign his name on the work; (5) The right of reproduction, that is, the right to make one or more copies of a work by printing, copying, rubbing, recording, videotaping, ripping, re-photographing, etc.; (6) The right of distribution, that is, providing the original copy of the work to the public by selling or donating it or the right to make copies; (8) Exhibition rights, that is, the right to publicly display the originals or copies of fine arts and photographic works; 2. Article 18 The transfer of ownership of the original works of fine arts and other works shall not be regarded as the transfer of the copyright of the work. However, the right to display original works of art belongs to the owner of the original work. 3. Article 19 If the copyright belongs to a citizen, after the death of the citizen, his rights stipulated in Items (5) to (17) of Paragraph 1 of Article 10 of this Law shall be protected according to inheritance during the protection period stipulated in this Law. transferred under the provisions of the law.
4. Article 46 Anyone who commits the following infringements shall, according to the circumstances, bear civil responsibilities such as stopping the infringement, eliminating the impact, making an apology, and compensating for losses: (1) Publishing without the permission of the copyright owner (3) He did not participate in the creation, but signed other people's works in order to seek personal fame and fortune; He has infringed on multiple rights of the copyright owner and violated the Copyright Law of the People's Republic of China.
2. Asking for an intellectual property case because we are going to do a mock court and teachers are not interested in ordinary cases.
Li Ming, a teacher from a certain school, did his own independent research during the teaching process. A teaching instrument "ball" was invented and passed the internal appraisal of the provincial education committee system.
Afterwards, Li Ming applied for a utility model patent for the invention of the "ball" and obtained the patent right granted by the National Patent Office. Later, Li Ming entered into a patent licensing contract with a local teaching instrument factory.
Later, the patentee Li Ming discovered that the "ball" purchased by a middle school was exactly the same as his invention, but it was not produced by the factory licensed to manufacture the patented product. After investigation, it was found that the manufacturer of the "ball" was organized by a local school-run factory, which signed a production license contract with the teaching instrument factory.
May I ask: 1. Who is the offender in this case? Give reasons. 2. Is the school’s act of setting up a factory an act of counterfeiting patents? Why? 3. In what ways can Li Ming protect his patent rights? .
3. Several questions about intellectual property law
1. 1. No infringement, according to Article 22, Paragraph 6 of the Copyright Law: for school classroom teaching or Scientific research, translation or small copy of published works for use by teaching or scientific researchers, but shall not be published or distributed.
This behavior should be characterized as fair use, so there is no infringement. 2. Infringement. The TOEFL test questions are divided into four parts: listening, grammar, reading and writing. The development and design are hosted by ETS. In terms of the design and creation process , each test question requires multiple people to go through multiple steps and put in creative work to complete. It is original and is a work within the meaning of my country's copyright law and should be protected by my country's laws. The entire set of test questions compiled thus should also be protected by our country's laws.
New Oriental School copied and distributed TOEFL test questions for public sale for commercial purposes without the permission of the copyright owner ETS. Its use of the works exceeded the scope of reasonable use in classroom teaching. New Oriental School Copying and publicly selling TOEFL test questions has infringed ETS's copyright and should bear corresponding legal liability.
3. No infringement. Although ETS has legally registered the TOEFL trademark in publications and audio tapes, and New Oriental School has prominently used the word "TOEFL" in the "TOEFL Series Textbooks" and "TOEFL Listening Tapes", New Oriental School has no right to use the word "TOEFL" It is being used descriptively or narratively.
Its purpose is to explain and emphasize that the content of the publication is related to the TOEFL test, and to facilitate readers to know the content of the publication, but not to indicate the source of the publication, and will not cause readers to have doubts about the source of the product. misrecognition and confusion. 2. 1. Infringement, infringement of the manufacturing rights and sales rights in the patent; whether the liability for compensation is determined based on whether the party has subjective fault, that is, whether the party knew or should have known that he had engaged in infringement.
Company W’s use of company h’s patent without permission was intentional, so it should bear the corresponding liability for compensation. 2. Infringement, infringement of the sales right in the patent; the same as the above question, the behavior was subjective and intentional , bear liability for compensation; cannot continue to sell, because its behavior is infringement, and selling it will continue to infringe, which will cause further damage to the legitimate rights and interests of h company 3. Infringement, infringement of the right to use the patent; the behavior is not subjective If the product is at fault, it will not be liable for compensation; it cannot continue to sell, and the infringement must stop, for the same reason as above. (See Article 33 of the "Patent Administrative Enforcement Measures") 3. 1. To determine whether trademarks are similar, first of all, the general attention of the relevant public should be used as the standard; secondly, "isolated observation and comparison" and "significant part comparison" of the trademarks should be carried out "Overall observation and comparison" to determine whether they are similar; finally, consider the distinctiveness and popularity of the trademark.
In this case, "Huabiao" and "Hua Deng" personally believe that there will be no cognitive confusion because the pronunciation and glyphs are different, so I think they are not similar. 2. The trademark decoration infringes on Hua Deng. Trademark right; Reason: Article 50, Paragraph 1 of the "Regulations for the Implementation of the Trademark Law": If a mark that is identical or similar to another person's registered trademark is used as a trade name or for product decoration on the same or similar goods, misleading the public, It is an act that infringes upon the exclusive right to use a registered trademark as referred to in Article 52 (5) of the Trademark Law. 3. Should bear infringement liability; reasons: 1. The act is an infringement, Article 50, Paragraph 2 of the "Regulations for the Implementation of the Trademark Law": Intentionally providing convenient conditions such as warehousing, transportation, mailing, concealment, etc. for infringing the exclusive rights of others to register trademarks , which is an act of infringement of the exclusive right to use a registered trademark as specified in Article 52 (5) of the Trademark Law.
As long as it is an infringement, we must bear the responsibility to stop the infringement and return the infringement proceeds; 2. The Beijing Winery sent a letter to the warehousing company, but it ignored it, regardless of whether it was intentional or not, from this moment on , it can be determined that it was done intentionally. Since it is subjective intention, it must bear the liability for compensation (note that legal liability and liability for compensation are different) 4. Should bear the liability for infringement; reasons: 1. The behavior is infringement, and the "Trademark Law" Article 52, Paragraph 2: Selling goods that infringe upon the exclusive right to use a registered trademark is an infringement of the exclusive right to use a trademark. As long as it is an infringement, you must bear the responsibility to stop the infringement and return the infringement proceeds; 2. The Beijing Winery sent a letter to the mall, but it ignored it. Regardless of whether it was intentional before, from this moment on, it can be determined to be intentional. Because it is subjective and intentional, you must bear the liability for compensation.
4. 1. First, let’s analyze student L’s behavior: L’s translation without S’s permission infringes on S’s translation right in copyright, that is, without the author’s authorization, others are not allowed to use the work at will. Translated into other languages. The right to translate an original work is a property right of the copyright holder of the original work.
Translators enjoy copyright in the works they translate, but they must not infringe upon the copyright of the author of the original work when exercising their copyright. That is to say, if L publishes a translation in a magazine, he must also obtain the consent of the original author S, otherwise it will be an infringement.
2. The behavior of "Leisure": its defense is not established. 1. Among the conditions stipulated in my country's Copyright Law for foreigners' works to be protected by my country's copyright, one is that if their works are published in a country that is a party to an international treaty to which China is a party, they can be protected by my country's copyright.
The United States is a party to the TRIPs Agreement, so S’s articles published in American newspapers are protected by my country’s copyright law. 2. Copyright not only includes personal rights, but also property rights. It is obviously unreasonable for "Leisure" to refuse to pay remuneration for using S's name on the translation.
3. The defense of "After Tea and Dinner" is not completely established. 1. The translation does fall within the scope of statutory permission, and remuneration should be paid to L. 2. L's translation is based on S's article and is a derivative work. Therefore, when reprinting the translation, it is also equivalent to reprinting S's work. Based on statutory permission, Corresponding remuneration should be paid to S.
I played for more than an hour. ..hope this helps you.
4. Intellectual Property Law Cases
1. Criminal Cases of Intellectual Property Infringement 1. Huang Weijin and other counterfeit registered trademark cases Public Prosecution Agency: Mianzhu City People’s Procuratorate of Sichuan Province Defendant: Huang Weijin , Chang Rongfang, Zhang Huijian, Chang Zhujia, Qiu Lunfu, Chang Chunrong, Wen Yong Cause of the case: Counterfeiting of registered trademarks First instance case number: (2003) Sichuan Mianzhu Xingchuzi No. 66 May 26, 2003, Mianzhu City, Sichuan Province The People's Procuratorate filed an indictment No. 64 of Zhujian Criminal Indictment (2003), accusing the defendants Huang Weijin, Chang Rongfang, Zhang Huijian, Chang Zhujia, Qiu Lunfu, Chang Chunrong, and Wen Yong of committing the crime of counterfeiting registered trademarks, and filed a lawsuit against Mianzhu City, Sichuan Province. The People's Court initiated a public prosecution.
The People's Court of Mianzhu City, Sichuan Province found out after trial: Defendant Huang Weijin and defendant Chang Rongfang verbally agreed that Huang Weijin would provide the original wine, and Chang Rongfang organized packaging materials and trademarks to jointly produce counterfeit wines. Famous wines. After that, Chang Rongfang hired the defendant Wen Yong to sell "Mianzhu Daqu", "Jiangkou Chun", "Jianzhuang", "Luzhou" Laojiao Erqu, etc. The wine was transported to the rental houses rented by Chang Rongfang in Zhonghe Town, Chengdu City and Huayang Town, Shuangliu County. Defendants Chang Rongfang and Zhang Huijian organized the trademarks "Jiannanchun", "Quanxing", "Wuliangye" and "Luzhou" and packaging, and hired the defendants Chang Zhujia, Qiu Lunfu, and Chang Chunrong to clean and repack wine bottles, and affixed a total of 648 copies of the "Jiannanchun" trademark, 300 copies of the "Quanxing" trademark, and 88 copies of the "Luzhou" trademark , 96 copies of the "Wuliangye" trademark.
Except for "Wuliangye", the defendant Chang Rongfang hired the defendant Wen Yong to transport the wine to the Xingda Liquor Wholesale Department opened by the defendant Huang Weijin in Chengdu Southwest Food City for sale. The People's Court of Mianzhu City, Sichuan Province held that the defendants Huang Weijin, Chang Rongfang, and Zhang Huijian illegally used the trademarks of "Jiannanchun", "Wuliangye", "Quanxing", and "Luzhou" Laojiao Tequ without the permission of the registered trademark owner. packaging, the circumstances are serious, and his actions have constituted the crime of counterfeiting registered trademarks.
The defendants Wen Yong, Chang Zhujia, Chang Chunrong and Qiu Lunfu knew that the above defendants were counterfeiting registered trademarks and provided them with transportation and other assistance. Their actions should be charged with the crime of counterfeiting registered trademarks. *** Penalties will be punished. The defendants Huang Weijin, Chang Rongfang, and Zhang Huijian played a major role in the crime and were the principal offenders; the defendants Wen Yong, Chang Zhujia, and Qiu Lunfu played a minor role and were accomplices, and their punishments may be reduced according to law; the defendant Chang Chunrong played a minor role. He is an accessory, and he participated in counterfeiting registered trademarks for a short time, and the circumstances are minor, so he can be exempted from punishment according to law.
The defendant Chang Zhujia committed another crime within 5 years after his release from prison. He is a recidivist and should be severely punished. On August 20, 2003, the People's Court of Mianzhu City, Sichuan Province, in accordance with Article 213, Article 25, paragraph 1, Article 26, paragraph 1, paragraph 4, and Article 27, paragraph 1, of the Criminal Law of the People's Republic of China According to the provisions of paragraphs 1, 2, 64 and 65, defendant Huang Weijin was sentenced to 3 years and 6 months in prison and fined 10,000 yuan; defendant Chang Rongfang was sentenced to 3 years and 6 months in prison. , and was fined 10,000 yuan; the defendant Zhang Huijian was sentenced to 3 years and 6 months in prison, and was fined 10,000 yuan; the defendant Chang Zhujia was sentenced to 1 year and 6 months in prison, and was fined 2,000 yuan; the defendant Wen Yong The defendant Qiu Lunfu was sentenced to 1 year in prison and fined 2,000 yuan; the defendant Qiu Lunfu was sentenced to 1 year in prison and fined 2,000 yuan; the defendant Chang Chunrong was exempted from criminal punishment.
After the verdict of the first instance was pronounced, none of the seven defendants including Huang Weijin appealed, and the prosecutorial office did not protest, so the verdict became legally effective.
2. The case of Ying Hongxia and others selling goods with counterfeit registered trademarks Public prosecution authority: People’s Procuratorate of Xihu District, Hangzhou City, Zhejiang Province Defendants: Ying Hongxia, Gu Linlin, Feng Shengwei Cause of the case: Selling goods with counterfeit registered trademarks First instance case number: (2004) Zhejiang Hangxi Xingchu Zi No. 336 On July 5, 2004, the People’s Procuratorate of Xihu District, Hangzhou City, Zhejiang Province filed an indictment No. 285 of Hangxi Procuratorate (2004), accusing the defendants Ying Hongxia, Gu Linlin, and Feng Shengwei of selling counterfeit products. For commodity crimes involving registered trademarks, public prosecution was filed with the People's Court of Xihu District, Hangzhou City, Zhejiang Province.
The People’s Court of Xihu District, Hangzhou City, Zhejiang Province found after trial that the defendant Feng Shengwei was originally a staff member of the Hangzhou office of Guangzhou Dasheng Integrated Marketing Communications Agency, from early January 2004 to February 23 of the same year. , for the purpose of illegal profit, knowing that the shampoo provided to him by "Chen Dawei" and "Ni Zhuang" in Guangzhou were counterfeit registered trademarks such as Rejoice, Head and Shoulders, and Pantene produced by Procter & Gamble (China) Company. This time, he sold counterfeit shampoo with the above-mentioned registered trademark produced by Procter & Gamble (China) worth more than 1.5 million yuan to Ying Hongxia and Gu Linlin, the former external staff of Guangzhou Procter & Gamble Company in Hangzhou, and paid a commission of 10-15 yuan per box. The illegal profits totaled more than RMB 70,000. During the same period, the defendants Ying Hongxia and Gu Linlin, for the purpose of making illegal profits, knowingly knew that the above-mentioned shampoo was a counterfeit product and sold it to Huang, a daily chemical products dealer, seven times, from which the defendants Ying Hongxia and Gu Linlin Illegal profit of more than 150,000 yuan.
After the incident, the defendant Feng Shengwei surrendered. After trial, the Hangzhou Xihu District People's Court held that the defendants Feng Shengwei, Ying Hongxia, and Gu Linlin knowingly sold goods with counterfeit registered trademarks, and the sales amount was huge. Their actions constituted the crime of selling goods with counterfeit registered trademarks.
The defendant Feng Shengwei voluntarily surrendered and truthfully confessed his crime. He should be considered a surrender and may be given a lighter punishment in accordance with the law. On August 3, 2004, the People’s Court of Xihu District, Hangzhou City, in accordance with Articles 214, 67, paragraph 1, 25, paragraph 1, 64, 72, and According to the provisions of paragraphs 2 and 3 of Article 73, the defendant Ying Hongxia was sentenced to 3 years in prison, suspended for 5 years, and fined RMB 50,000; the defendant Gu Linlin was sentenced to 3 years in prison, suspended for 5 years, and fined RMB 50,000. 50,000 yuan; the defendant Feng Shengwei was sentenced to 3 years in prison, suspended for 4 years, and fined 50,000 yuan.
After the first-instance verdict was announced, the defendant did not appeal and the prosecutorial office did not protest. The verdict has taken legal effect. 3. The case of copyright infringement by Wang Hongxing and Zhao Kun. Public prosecution authority: People’s Procuratorate of Haidian District, Beijing. Defendants: Wang Hongxing and Zhao Kun. Cause of the case: Copyright infringement first instance case number: (2003) Jinghai Fa Xing Chu Zi No. 2434, November 2003. On the 3rd, the People's Procuratorate of Haidian District, Beijing, charged the defendants Wang Hongxing and Zhao Kun with copyright infringement in the (2003) Jinghaijingsuijingzi No. 621.