In real life, counterfeit intellectual property products often appear, which is an infringement on the rights of intellectual property owners. Then, in the case of intellectual property infringement, how should the infringed protect their legitimate rights and interests and how to crack down on intellectual property infringement? This paper sorts out the methods of protecting intellectual property rights, hoping to help you.
1. How to counterfeit intellectual property rights in intellectual property infringement cases?
Difficulties in intellectual property protection and counterfeiting
As mentioned above, intellectual property protection and counterfeiting still face a series of difficulties and puzzles, mainly in the following aspects:
1, it is difficult to determine the defendant subject.
In many cases of intellectual property infringement, the infringer tries to hide behind the scenes through various channels, which is generally not easy to be found. In many cases, the obligee can only see the infringing products on the market, but can't know where these products come from. Even if there is a company name, the investigation will find that the registered address and telephone number of the company are fake, and the bar code is copied from other companies, which makes the obligee very entangled and feels that his angry fist can't find the focus.
2. Difficulties in obtaining evidence
The difficulty in obtaining evidence is the same feature of intellectual property cases. Many infringing products entering the circulation market are scattered, and a single sales behavior cannot be effectively stopped, and it is very difficult to obtain evidence of production behavior. Intellectual property infringement in some fields has formed a complete industrial chain, showing the characteristics of networking, organization, internationalization and specialization. For example, when a blockbuster is released, there is a special person responsible for the acquisition, production, wholesale, logistics and regional distribution of the master film, and then the regional distribution is distributed to local retail. Cultural law enforcement departments can often only find terminal sales, but can't trace the source. Because the anti-counterfeiting industry has been constantly improved, well-organized and even crossed the border in repeated attacks, it has brought great difficulty to anti-counterfeiting
3. It is difficult to get compensation
In intellectual property infringement cases, ten compensations are often not enough. According to the law, the amount of compensation for the plaintiff is determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. It is difficult to determine the loss of the obligee and the benefit of the infringer. The people's court may, according to the type of right, the nature and circumstances of the infringement, determine the compensation of 1 10,000 yuan to 500,000 yuan.
Compensation (patent one million yuan). In real cases, few infringers do accounts. Even if there are, there may be two account books, which are difficult for the plaintiff to obtain. Even if the court takes evidence, the defendant can refuse to provide it for various reasons and will not bear any legal responsibility. Therefore, the obligee's claim for compensation can usually only be realized through statutory compensation, but the statutory compensation amount is difficult to make up for the obligee's actual loss in many cases. Therefore, the difficulty of obtaining compensation has greatly hit the enthusiasm of the obligee, but on the contrary, because of the low illegal cost, it has contributed to the spread of infringement and piracy.
(B) a correct view of intellectual property protection and counterfeiting
Due to the difficulty in defending rights against counterfeiting, many enterprises are discouraged. Some enterprises think that it is better to release water to raise fish, while others think that counterfeiting is of great benefit to enhance product awareness. Fight or not? This is actually a false proposition, fantasizing about releasing water to raise fish or improving corporate visibility. If left unchecked, counterfeit products will flood the market and lead to the depreciation of the brand and reputation of enterprises. In fact, what enterprises need to consider is not whether to fight or not, but when to fight, whether to fight for salary or to fight the market. Different enterprises and different commodity types should have different strategic choices. Under normal circumstances, enterprises can choose the following five ways to deal with rights protection according to the severity, consequences and goals of infringement:
1, send a warning letter
If the infringement and consequences are not serious and the suspected infringing enterprise is not too big, the obligee may remind the other party in the form of a warning letter and ask it to stop the infringement.
2. Take compensation as the goal.
If the alleged infringement has caused great losses to the obligee, the obligee intends to sue the infringer for the purpose of obtaining compensation. Before bringing a lawsuit to the court, he should actively and fully prepare the evidence of infringement and the evidence that he has suffered losses or the other party has gained benefits, so as to prepare for future court proceedings and occupy a favorable position.
3. Promote peace negotiations through litigation.
Sometimes, the obligee brings a lawsuit to the court not to get the judgment of the court, but to hold peace talks with the suspect of infringement and make up for the losses caused by his infringement. The obligee should know his own bottom line before the two sides negotiate, and at the same time, he should try his best to investigate the other side's bottom line in order to better safeguard his legitimate rights and interests.
4. Clean up the market through litigation.
Many times, it is difficult for the obligee to get full compensation from the lawsuit.
However, if no lawsuit is filed, the infringement will spread and the market share of the obligee will be greatly affected, so the obligee has to file a lawsuit to regain the market share of the genuine product. For example, a luxury brand can tolerate fake goods with poor workmanship to be sold at cabbage prices in bazaars, but it will never accept high-quality imitations to be sold in hotels and shopping malls, because the consumer group of the former is not the target group of the obligee, while the latter is likely to divert the target customers of the obligee. Therefore, even if the obligee can't get full compensation from the case, he will take legal or even criminal measures to safeguard his market share.
5. Promote cooperation through litigation.
Sometimes, the obligee asks the suspected infringer to stop the infringement or bring a lawsuit to the court, not really asking him to stop using the obligee's intellectual property, but using it as a platform to urge the other party to negotiate or mediate with the obligee, and then the two sides reach a cooperation intention.
Second, the choice before intellectual property litigation
(A) the choice of target objects
Legal proceedings should also stress efficiency, and the ultimate goal is to safeguard the legitimate rights and interests of obligees. However, under the above circumstances, it is particularly important to choose a suitable litigation subject. When choosing the litigation object of rights protection, the obligee should take those infringers who have the ability to compensate, influence and direct competitiveness as the first goal. This kind of enterprise is generally large in scale, and the obligee can get more adequate compensation when defending intellectual property rights. At the same time, if the infringer's business is the same industry that competes with the obligee, it can also be used as a means of market competition to gain a better competitive advantage. Among these enterprises, foreign companies and listed companies are the most important. Foreign companies generally pay more attention to the protection of intellectual property rights, and will settle disputes as soon as possible in the case of being sued for infringement, and the court's judgment can be well implemented; However, all information of listed companies is required to be disclosed, which is sensitive to corporate litigation and may affect the stock price. Therefore, such disputes are generally avoided as much as possible, and it is easier for obligees to defend their rights.
(2) Choice of jurisdiction
According to the provisions of China's Civil Procedure Law, a lawsuit filed for infringement shall be under the jurisdiction of the people's court of the place where the infringement occurred or where the defendant was domiciled, and the place where the intellectual property infringement lawsuit was filed may choose the defendant's domicile or the place where the infringement occurred. Among them, the place of infringement includes the place where the infringement was committed and the place where the infringement result occurred. This legal provision provides space for the obligee to choose jurisdiction in litigation. The obligee chooses jurisdiction because many local courts will be influenced by local protectionism in the process of litigation. Many enterprises suspected of infringement have played a great role in promoting local economic development and absorbing employment. If they lose the case, it is likely to affect the development of enterprises, and then affect the local economic development. Coupled with other reasons, if the obligee chooses the court where the defendant is located to file a lawsuit, it may encounter various difficulties and the judgment result is difficult to implement. Second, the level of handling intellectual property cases in local courts is different. Intellectual property protection is the product of a highly developed market economy. Generally speaking, local courts with developed economic level have rich experience in handling intellectual property cases and a high level of handling cases. Third, different judges have different understandings of the law, and their views will be very different, even diametrically opposite. When choosing the jurisdiction, we should consider the presiding judge's previous views on a legal issue and choose the jurisdiction that is beneficial to us.
(C) the choice of institutions
Compared with other civil and commercial cases, intellectual property infringement cases are more professional, and professional institutions must be entrusted to solve such disputes. At present, the service markets of intellectual property infringement and counterfeiting are mainly law firms and investigation companies, each with its own emphasis. Investigation companies tend to investigate and track infringing articles in the early stage, and defending rights in the later stage is the lawyer's strength. When choosing a lawyer, the obligee should choose a professional intellectual property lawyer or a team of lawyers, and consider the size of the law firm. As mentioned above, intellectual property infringement in some fields is characterized by networking, organization, internationalization and specialization, and the obligee should choose a national law firm when choosing a law firm. At the same time, it is necessary for service agencies to coordinate and provide unified and professional services nationwide, and make use of local resources, so that rights holders can benefit from one commission and many places.
(D) the choice of litigation opportunity
The lawsuit of the obligee is not only for safeguarding rights, but also an excellent opportunity for commercial propaganda. For example, when an infringing enterprise starts to go public, it can put more pressure on the infringer, prompt the case to be solved as soon as possible, and obtain a better compensation amount.
Third, litigation preparation.
(1) Preparation of evidence
The preparation of evidence is very important before starting the judicial process. When preparing evidence, the obligee may collect evidence by himself or entrust a professional institution to collect evidence. It is simple and easy for the obligee to obtain evidence by himself, and the cost is low. However, due to the irregular process of obtaining evidence, the acceptance in court cross-examination is low. In addition, intellectual property cases are professional and difficult to obtain evidence. It is suggested that the obligee entrust a professional to collect evidence on his behalf. The obligee should try to use notarization when obtaining evidence, because when there is no evidence to the contrary that can overturn the validity of notarized evidence, the evidence obtained by notarization will directly become the basis for the court to determine the facts. In addition, before bringing a lawsuit, if the evidence may be lost or difficult to obtain later, the obligee may apply to the court for pre-litigation evidence preservation, or report the infringement to the corresponding administrative organ, which will investigate and keep the evidence.
(2) Determination of the amount of compensation
At present, the compensation for intellectual property infringement in China is mainly based on the principle of filling the damage. Therefore, the obligee should take the initiative to prepare the evidence of the amount of damage he has suffered, or take the initiative to investigate the benefits that the infringer has gained from the infringement. When determining the amount, it shall include the reasonable expenses paid by the obligee to stop the infringement. In this way, the court can well support the demands of the obligee. If the former can't be determined, the court will give legal compensation of 1 10,000 yuan but not more than 500,000 yuan (the patent is110,000 yuan) according to the type, nature, scope and circumstances of the infringement. Even if it is legal compensation, it is necessary to prove the infringement circumstances, infringement effects and infringement consequences of the obligee as much as possible. If there is evidence that the actual loss of the obligee is greater than the legal compensation, the court can also make a judgment on this basis. Therefore, even in the same type of cases, the amount of compensation awarded may be completely different with different proofs.
The above is the relevant knowledge compiled for you. I believe that after reading the above contents, you must have a certain understanding of how to carry out intellectual property counterfeiting. At the same time, the above also introduces how to carry out intellectual property litigation, the choice before litigation and what preparations need to be made in litigation. I hope the above content can help you.