How to punish the infringement of the pattern of sales of goods

For those who infringe the exclusive rights of registered trademarks but do not constitute a crime, the industrial and commercial administration authorities may impose a fine of less than 50% of the illegal business revenue or the proceeds of the infringement according to the circumstances. A fine of not more than five times the profit may be imposed; the person directly responsible for the infringement unit may be fined not more than 10,000 yuan depending on the circumstances. Article 60 of the Trademark Law of the People's Republic of China stipulates: If there is any infringement of the exclusive right to use a registered trademark as listed in Article 57 of this Law, and a dispute arises, it shall be resolved by negotiation between the parties; if the parties are unwilling to negotiate or negotiate If this fails, the trademark registrant or interested party may file a lawsuit in the People's Court or request the industrial and commercial administration department to handle the matter. When the administrative department for industry and commerce determines that the infringement is established, it shall order it to immediately stop the infringement, confiscate and destroy the infringing goods and tools mainly used to manufacture infringing goods and counterfeit registered trademarks. If the illegal business turnover exceeds 50,000 yuan, it may be punished. A fine of not more than five times the illegal business volume may be imposed. If there is no illegal business volume or the illegal business volume is less than 50,000 yuan, a fine of not more than 250,000 yuan may be imposed. The design of one of our company's products has been infringed. How should we deal with it?

1. How to determine design infringement

Generally speaking, if the design patent is within the validity period and the annual fee is paid on time, then the patent is valid. As long as the product produced by the defendant is similar in appearance to the drawings (six-sided drawings) attached to the design patent certificate, it can be deemed to be infringing.

The defendant’s general countermeasures are:

(1) If the defendant raises a defense that the patent is invalid during the defense period, the court of first instance will suspend the trial. Both the plaintiff and the defendant need to go to the Patent Reexamination Committee of the State Intellectual Property Office to file a lawsuit to determine the validity of the patent, and the Patent Reexamination Committee of the State Intellectual Property Office will make a decision. After the first-instance court received the decision, it resumed the trial. This was the "two litigations" of the patent.

(2) The defendant will argue that it constitutes infringement by claiming prior use, because prior use does not constitute infringement under the Patent Law.

2. How to calculate the amount of compensation for design infringement

1. Determine based on the actual losses suffered by the right holder due to the infringement. The calculation formula of this method is: the patentee’s total reduction in sales due to infringement multiplied by the profit of each patented product.

2. Determined based on the benefits obtained by the infringer due to the infringement. The general calculation formula of this method is: the total number of sales of infringing products multiplied by the reasonable profit of each product.

3. Determine reasonably with reference to the multiple of the patent license fee. As for "several times", there is no provision in the Patent Law. According to the Supreme Court's Judicial Interpretation on Patent Dispute Cases (Law Interpretation No. 21, 2001), it is determined to be 1 to 3 times.

4. Compensation in statutory amounts. The Patent Law stipulates that the upper limit of legal compensation is 1 million yuan and the lower limit is 10,000 yuan.

When calculating the amount of compensation for patent infringement using the first three methods above, it should generally also include the reasonable expenses paid by the rights holder to stop the infringement, which generally include investigation and evidence collection fees, attorney fees, etc.

< p>In practice, only after a design patent infringement is determined can the infringer be held legally responsible. Will the theft of product images cause infringement?

Legal analysis: Theft of product images is an infringement. Reproduction, distribution, performance, screening, broadcasting, compilation, or dissemination of works to the public through information networks without the permission of the copyright owner constitutes an infringement of copyright. If there is evidence that a company or individual owns the copyright of the photo or written work, a warning letter can be issued to the infringer and required to delete the infringing images and content on the relevant website, or the company or individual can resort to law and require the infringer to compensate for losses.

Legal basis: Article 49 of the Copyright Law of the People's Republic of China. If a copyright or copyright-related rights are infringed, the infringer shall compensate the right holder according to the actual loss; actual loss If it is difficult to calculate, compensation may be awarded based on the illegal income of the infringer. The amount of compensation should also include the reasonable expenses paid by the right owner to stop the infringement.

If the actual losses of the right holder or the illegal gains of the infringer cannot be determined, the People's Court shall, based on the circumstances of the infringement, award a compensation of less than 500,000 yuan.