1. Application of cessation of infringement

Ceasement of infringement is an important civil remedy measure for intellectual property rights holders. It has very important significance and role in the protection of intellectual property rights. Its basic The purpose is to prevent intellectual property infringement that has already occurred from continuing and to avoid the occurrence or further occurrence of damage. Liability for cessation of damage in terms of intellectual property rights in my country is equivalent to permanent injunction (Permanent Injunction) in British and American law. A permanent injunction is a common legal remedy in common law countries. It is a writ or order issued by the court at the end of the litigation process to prohibit or require the parties to do specific actions.

There is only one element for the cessation of liability for damages, that is, the perpetrator has committed an infringement of intellectual property rights and the infringement continues. Once an infringement exists, it can be excluded regardless of whether the perpetrator is at fault or can be held responsible, or whether the victim has suffered any damage.

However, in some cases, even if the infringement of intellectual property rights continues, it is not appropriate for the court to use the duty to stop the infringement.

(1) The plaintiff did not make a request in accordance with the law

In our country, the defendant’s civil liability follows the principle of plaintiff’s request, that is, only the plaintiff requests the court to order the defendant to bear some form of civil liability. liability, and the court will decide that the defendant should bear the civil liability only if it is held after trial that the defendant should bear the civil liability. This is different from Anglo-American law.

(2) Damage to the interests of the public ***

After the legitimate rights of the intellectual property right owner are unlawfully infringed by others, they have the right to request an end to the infringement. However, if the consequences of applying the liability for cessation of infringement will harm the interests of the public, the liability for cessation of infringement cannot be applied. There is great flexibility in the measurement of public interests, and the court enjoys greater discretion. Under normal circumstances, if the application of the responsibility to stop infringement will lead to the following situations, it should be regarded as harming the interests of the public:

A seriously hindering the exchange and dissemination of culture

B seriously hinders scientific and technological progress

C affects public health

D undermines the order of fair competition

E conflicts with objective economic policies

F Violation of basic moral principles

G Damage to the legitimate interests of consumers, etc.

2. Application of damages

Damages are the most commonly used in civil litigation for intellectual property infringement. civil liability. Compensation for damages is called "compensation for losses" in my country's "General Principles of Civil Affairs" and relevant intellectual property laws and regulations. Strictly speaking, "damages" and "compensation for losses" are not entirely equivalent. "Loss" refers to the consequences of infringement of property rights, while "damage" refers to the consequences of infringement of property rights and personal rights. Therefore, the term "damages" is more appropriate.

There are two reasons for liability for damages in the field of intellectual property: one is breach of intellectual property contract, and the other is infringement of intellectual property rights. The damages referred to here specifically refer to infringement damages. It refers to the civil liability that an actor who infringes upon the specific intellectual property rights of others due to his fault should bear in accordance with the law to compensate the victim in money or in kind for the damage suffered.

The components of damages are as follows

(1) The act of infringement of intellectual property rights has been carried out

(2) The perpetrator is at fault

(3) There are damaging consequences

(4) There is a causal relationship between the behavior and the damaging consequences

The principle of damage compensation refers to the court’s determination of the specific scope of compensation and the compensation of the obligor. General guidelines to follow when determining the amount. In intellectual property civil infringement litigation, the main principles of damages include the principle of full compensation, the principle of offsetting negligence and the principle of equity. Among them, the principle of total compensation is the highest guiding principle in the field of intellectual property rights and even the entire field of civil infringement compensation.

The principle of full compensation, also known as the "fill-in principle", means that the infringer should compensate the victim for all the actual damages caused by the infringement, aiming to enable the victim to be in the same position as before the damage occurred. level. The basic requirement of the principle of total compensation is that the victim should be compensated for all direct losses and indirect losses caused by the infringement. In intellectual property civil infringement litigation, compensation for indirect losses is often not supported by judges. This is a trend worth paying attention to.

Insufficient calculation of the amount of compensation may lead to the situation where the right holder "loses more than the gain", "wins the lawsuit but loses the money", and is no longer willing to "fight the lawsuit", thereby affecting the public's confidence in the judicial protection of intellectual property rights.

Determination of the amount of damages

There are three methods for calculating the amount of damages. First, it is calculated based on the loss of the right holder or the profit of the infringer. If it is difficult to determine these two items, refer to the patent. The amount of compensation shall be determined by a reasonable multiple of the license fee. The relevant systems of some countries also stipulate the amount of statutory compensation, that is, the judge will award a certain amount of monetary compensation based on the social impact of the infringement, the means and circumstances of the infringement, the time and scope of the infringement, and the degree of subjective fault of the infringer.

Compensation for mental damages

Compensation for mental damages refers to a civil subject who has been unlawfully infringed on his personal rights, causing damage to his personality and identity interests or suffering mental pain, and requires the infringer to A civil legal system that provides relief and protection through property compensation and other methods. In the theoretical and practical circles, many scholars and judges have called for the establishment of an intellectual property moral damage compensation system. Internationally, the specific legislation regarding moral damage compensation for intellectual property rights varies. The Berne Convention and the TRIPVs Agreement do not clearly stipulate the issue of compensation for moral damage caused by intellectual property rights. With reference to the legislative examples of civil law countries, my country should establish and improve a compensation system for moral damage caused by intellectual property rights.

However, intellectual property moral damage compensation must be subject to necessary restrictions and cannot be applied arbitrarily:

(1) Mental damage compensation is only applicable to the infringement of the personal rights of the copyright, not to the infringement of the copyright. Infringement of property rights and property intellectual property rights such as patent rights, trademark rights, and trade secret rights. For infringement of property intellectual property rights, unless it also infringes on the victim's right to health and life and causes serious consequences, compensation for mental damage should not be made, and only the principles and methods of property damage compensation can be applied for compensation.

(2) If the infringement of personal rights has not caused serious consequences, and the victim requests compensation for mental damage, it will generally not be supported. The people's court may order the infringer to stop the infringement, restore his reputation, eliminate the impact, and make amends according to the circumstances. Apologize.

(3) If the personal rights of a legal person or other organization have been infringed upon and require compensation for mental damage, the court will not accept the application.

(4) If the party does not file a claim for compensation for mental damage during the infringement lawsuit, and after the litigation is concluded, he files a separate lawsuit for compensation for mental damage based on the same infringement facts, the court will not accept it.

3. Application of apology

Apology is a form of civil liability that requires the tortfeasor to formally admit his mistake to the victim and express his apology. It was formulated by the legislative department of our country on the basis of summarizing the practical experience of judicial trials in the past, including the judicial experience of civil trials in the Anti-Japanese Base Areas and the War of Liberation, and is unique to our country's law. There are two forms of apology: one is in court, where the offender apologizes to the victim and asks for forgiveness, and if the victim agrees to accept it, the court should record it; the other is a written apology, if the victim refuses If the offender does not agree to apologize, or the victim insists on a written apology, the offender should draft an apology notice and publish it in the media. If he refuses to perform it, the people's court will make an apology in the name of the offender, and the offender will bear the cost. Apologies have special meaning and function in soothing and calming the emotional pain of the victim.

In intellectual property civil litigation, it is a controversial issue whether an apology is only applicable to infringement of personal rights. According to the provisions of our country's current laws, in cases of copyright infringement, whether it is an infringement of personal rights or property rights, the liability for apology can be applied according to the specific circumstances of the case. However, in other cases of intellectual property infringement, Article 118 of the General Principles of the Civil Law and separate laws and regulations on intellectual property do not include provisions for the application of apology. The application of this civil liability obviously lacks legal basis. In trial practice, the practice of abusing the liability for apology should be correct. In cases of intellectual property infringement other than copyright, if the infringement has caused adverse effects, civil remedies can be provided by eliminating the effects, which can also achieve the purpose of soothing the victim's mental pain to a certain extent.

When the plaintiff is not the original copyright owner, but a copyright collective management organization, a contractual assignee or successor of the copyright property rights, it cannot be generalized whether the liability for apology is applicable.

In principle, these subjects should not be denied the right to demand an apology from the defendant. However, in cases where the infringement is minor, the duration is short, the defendant’s fault is minor, and there are no adverse consequences, the request for an apology may not be supported.

4. Application of elimination of impact

Elimination of impact refers to the liability that an actor should bear in a certain way due to the negative impact caused by his actions that infringe upon the intellectual property rights of citizens, legal persons or other organizations. Civil remedies to eliminate the adverse effects.

In Europe, civil remedies for the elimination of impacts are rare in legislation and jurisprudence. However, restoration to the original status quo is widely used in non-property damages, and its nature and function are basically equivalent to my country’s liability for elimination of impacts.

The scope of liability for elimination of impact is very broad. In intellectual property infringement cases, if the defendant’s infringement has caused adverse effects, especially damage to the plaintiff’s reputation or credibility, the court should support the plaintiff. Claims to eliminate the impact.

To eliminate the impact, methods such as publishing newspapers, announcements, and publishing judgments can be adopted, and the scope should not be smaller than the scope of the impact of the infringement. In Europe, public judgments are also a commonly used remedy in civil legislation and jurisprudence in various countries to protect reputation and other personality rights. In the judgments of various types of intellectual property infringement disputes, Chinese courts apply the responsibility of apology far more than the responsibility of eliminating the impact. This is actually a practice that lacks legal basis and deserves correction. As mentioned before, there is no provision for "apology" in Article 118 of the General Principles of the Civil Law of my country and other separate intellectual property laws and regulations other than the Copyright Law, but there is a provision to eliminate the impact in Article 118 of the General Principles of the Civil Law. In trial practice, publishing an apology statement for infringement in newspapers or other media can be used as a measure to eliminate the impact, but it should be clearly stated in the judgment that the applicable legal basis is Article 118 of the General Principles of Civil Affairs and that the specific form of liability is "elimination" Impact" rather than "apology".

5. Application of the statute of limitations for intellectual property infringement

The statute of limitations, also known as the statute of limitations, refers to the legal fact that the right to claim will be extinguished if the right is not exercised within a certain period.

The statute of limitations usually applies to the protection of claims. Our country's laws and regulations on intellectual property do not specifically stipulate the statute of limitations for intellectual property infringement. Therefore, the statute of limitations system stipulated in the general principles of civil law should in principle apply to civil intellectual property infringement litigation. Except for a few cases involving the longest statute of limitations, intellectual property civil infringement litigation mainly applies to the ordinary statute of limitations stipulated in the general principles of civil law. Articles 135 and 137 of the "General Principles of the Civil Law" stipulate that the statute of limitations for requesting the people's court to protect civil rights is two years (unless otherwise provided by law), calculated from the date when the person knows or should know. Intellectual property right holders should actively claim their rights within two years from the time they know or should know that their intellectual property rights have been infringed. If they claim their rights beyond the time limit, they will not be protected.

There are different views on the scope of application of the statute of limitations for intellectual property litigation. Among them, the most widely accepted view and recognized by the Supreme People's Court is that in intellectual property infringement litigation, the statute of limitations is not applicable to cessation of infringement, but the statute of limitations is applicable to damages. The statute of limitations for damages compensation shall be calculated from the date when the right holder knew or should have known that the infringement occurred. If the right holder sues again after the statute of limitations for the continuing infringement has begun, two years will be extrapolated forward from the date the right holder filed the lawsuit. If the statute of limitations exceeds two years, No compensation will be awarded on the grounds that the statute of limitations has expired. However, if it does not exceed two years, it should be deemed that the statute of limitations has not expired. The rights holder has the right to request a cessation of infringement and compensation for losses. The court should also support the plaintiff's claim. This method of calculating statute of limitations can better achieve social fairness, is conducive to balancing the interests between right holders and infringers, and can encourage parties to actively exercise their rights. It is also in line with the trend of strengthening intellectual property protection in the world today.