When a patent or trademark infringement occurs, the parties can either request administrative agencies to handle it, or they can resolve the dispute through litigation in court. It should be said that this system with Chinese characteristics has played a huge role in stopping trademark and patent infringements and effectively protecting the exclusive rights to trademarks and patents. Therefore, this system has always been recognized by my country's trademark law and patent law. Those who hold the opposite view believe that administrative agencies will have many disadvantages as defendants in administrative litigation. Therefore, in the current revision of intellectual property laws, including trademark laws and patent laws, in preparation for China's accession to the WTO, the theoretical circles The more controversial issue regarding the handling of infringement disputes by trademark administrative agencies and patent administrative agencies has been significantly revised. However, the current legislation on this system is not perfect and needs further improvement.

1. Current legislation and defects

It can be seen from the provisions of the legislation that the Trademark Law and the Patent Law compare the nature of the trademark management agencies and patent management agencies in handling infringement disputes. clearly defined and stipulated different legal effects.

When an infringement dispute occurs, the parties may request the administrative agency to handle it. If the administrative agency determines that the infringement is established, it may make a decision to order the infringement to cease. Regarding this decision, both the Patent Law and the Trademark Law clearly stipulate that if the parties are dissatisfied, they have the right to file an administrative lawsuit. In the field of administrative law, this act of an administrative agency is called an administrative ruling. This kind of administrative ruling is a specific administrative act of an administrative agency. The administrative agency that makes the decision must bear the responsibility of the defendant in administrative litigation.

Second, the administrative agency handling the case may mediate the amount of compensation for the infringement at the request of the parties; if mediation fails, the parties may file a civil lawsuit. Administrative law circles call this behavior of administrative agencies administrative mediation. Administrative mediation is different from administrative adjudication in that it is not mandatory and administrative agencies do not have to bear the liability of defendants in administrative litigation for their mediation actions.

Therefore, the revised legislation clearly explains the nature of the administrative agencies’ actions in handling civil infringement disputes. However, the following problems resulting from this have not been completely solved.

, leading to confusion in the application of the law. When an infringement dispute occurs, if the party first files a lawsuit in court to order the infringer to stop the infringement, and after trial, the court finds that there is no fact of infringement and dismisses the party's lawsuit or rules against the party, the party still has the right to request an order from the administrative agency The infringer stops the infringement. Due to the complexity and variety of the actual situation and the differences in subjective understanding and professional quality of case handlers, administrative personnel are likely to have completely opposite results from judges for the same incident. On the contrary, if the party concerned first requests administrative relief, the above situation may also occur. For the same case, regulated by the same substantive law, different legal consequences arise because different authorities apply different procedures to resolve it, resulting in contradictions in the process of legal application.

Second, the jurisdiction is not smooth. When an infringement dispute occurs, if the parties choose administrative relief, and the intellectual property management agency determines that the infringement is established after review, it should make a decision ordering the infringer to stop the infringement. If the party is dissatisfied, it has the right to file an administrative lawsuit. The parties may also directly choose civil litigation to request relief. According to my country's current legislation, administrative litigation and civil litigation are completely different in nature, but the objects they resolve are the same civil dispute. Moreover, administrative litigation and civil litigation are usually conducted in different tribunals of the same court. Administrative litigation generally requests the revocation of an administrative ruling, while civil litigation requests compensation. This is likely to lead to a conflict where one court determines that there is no infringement and another court determines the amount of compensation for infringement.

Third, it increases case trial costs and wastes limited social resources. Having administrative agencies handle civil infringement disputes has its advantages, that is, it can stop the infringement more quickly and at least stop the further expansion of the infringement in a simpler procedure. However, according to current legislation, administrative agencies have no power to impose mandatory provisions on the amount of compensation.

After the administrative agency makes a determination of infringement, it can mediate on the amount of compensation at the request of the parties. If the mediation fails or one party regrets after reaching a mediation agreement, the victim must file a lawsuit in court again to make up for his losses, or the victim foresees When it is impossible for both parties to negotiate the amount of compensation and they want to stop the infringement immediately, they can use both litigation relief and administrative relief. After the court accepts the case, it must investigate and collect evidence according to civil litigation procedures. After determining that the infringement is established, it will make a judgment on the amount of compensation. In this way, the litigation procedure repeats part of the work in the administrative procedure, which actually increases the trial cost of the case and wastes limited social resources.

2. Suggestions for improving the current legislation

In order to solve these problems and truly give full play to the role of management agencies in handling civil infringement disputes, the author believes that the current legislation should be improved from the following aspects:

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(1) Make reasonable provisions on the choice of initially filing a lawsuit or requesting a ruling.

Civil infringement disputes can be divided into two categories:

First, clearly define the scope of management agencies to handle civil infringement disputes through legislation, determine the statutory jurisdiction principles of intellectual property management agencies, and exclude The court's original jurisdiction over specific civil infringement disputes. The scope of such disputes must be strictly limited to those that are closely related to the interests of the public and are closely related to the performance of administrative functions by administrative agencies. Moreover, this type of dispute falls under compulsory jurisdiction. If the parties request to handle it, the administrative agency must accept it; otherwise, the party may file a lawsuit because the administrative agency refuses to perform its statutory duties.

Secondly, for other infringement disputes, the parties can freely choose between two protective measures: litigation relief and administrative relief, but they can only choose one. If you choose the former, you cannot choose the latter, and vice versa. . If you choose both, the agency that accepts the application first will handle it. The handling of such disputes has nothing to do with the administrative functions of the administrative agencies. The administrative agencies resolve disputes between the two parties from a completely neutral position. Therefore, the parties cannot file administrative lawsuits against the administrative agencies.

(2) Establish a special agency to be responsible for administrative adjudication.

The specialization of administrative adjudication agencies is the basic condition for the existence of administrative adjudication. Without specialized agencies, administrative adjudication is not just a formality, but it is difficult to ensure that the adjudication is correct and reasonable, thus making the existence of administrative adjudication meaningless. On this issue, the British tribunal system and the American administrative judge system have provided us with good precedents. Whether they are experts from British tribunals or administrative judges in the United States, they all perform their duties independently and impartially in accordance with the principles of "fairness, impartiality, and openness." In our country, relatively independent institutions should also be established within the patent management agencies and industrial and commercial administrative agencies to improve the procedures for handling civil disputes to ensure the quality of the administrative agencies' handling of civil disputes.

(3) Establishing a post-event prevention mechanism - judicial review

Traditional theory tells us that civil disputes, a dispute between equal subjects, cannot be resolved by coercion by administrative power. To achieve this through means, at least administrative power should not be the final remedy. Only judicial power is the final power to resolve civil disputes. For cases over which the administrative agency has original jurisdiction, those who are dissatisfied with the administrative ruling may file an administrative lawsuit in court. Usually administrative litigation only examines the legality of administrative actions, but in administrative adjudication, given that the civil disputes to be resolved by administrative adjudication are originally cases under the jurisdiction of the court, in hearing such administrative cases, in addition to examining the legality of administrative actions, it also The legality of the handling of civil disputes must be reviewed. If an effective administrative ruling is not implemented, the administrative agency shall apply to the People's Court for compulsory enforcement, and the costs of the civil dispute shall be paid by the parties concerned. This is one of them. Secondly, for other infringement cases handled by administrative agencies, the parties may apply to the court to revoke the administrative ruling if they have evidence proving that the following circumstances exist: ① The ruling violates legal procedures; ② The evidence on which the ruling is based is forged; ③ Work The personnel solicited, accepted bribes, or committed malpractice for personal gain when handling the case; ④ The application of the law was incorrect; ⑤ The parties concealed evidence that could affect a fair decision.