Ningbo City’s first outlet shopping company has not yet officially opened, but it has encountered infringement claims, which has attracted the attention of Ningbo trading companies. How to effectively avoid intellectual property infringement claims and disputes caused by suppliers and lessees is worthy of serious consideration by our large shopping malls and supermarkets in Ningbo. 1. The legal basis for shopping malls and supermarkets to bear the risk of intellectual property infringement claims brought by suppliers and lessees. Shopping malls and supermarkets generally do not produce products. Their infringement of third party intellectual property rights is mainly through sales and promises to sell suppliers. The infringing products may be caused by the lessee selling or promising to sell the infringing products. Depending on the intellectual property rights infringed, the legal basis for shopping malls and supermarkets to bear infringement liability is different. The general legal basis is Article 2 of the Tort Liability Law of the People's Republic of China, which stipulates that "infringement of personal and property rights such as copyrights, patent rights, trademark rights, etc. shall bear infringement liability in accordance with this law." The legal basis for bearing criminal liability is stipulated in Section 7 of the Criminal Law of the People's Republic of China on the crime of infringement of intellectual property rights. The main crimes against sellers are: the crime of selling goods with counterfeit registered trademarks in Article 214, Article 216 of the crime of counterfeiting someone else’s patent, and Article 218 of the crime of selling infringing copies. The specific legal provisions based on the different intellectual property rights infringed are as follows: 1. Selling works counterfeiting the signature of others and infringing the copyright of others, according to Article 48 of the Copyright Law of the People's Republic of China: shall be based on the following provisions: circumstances, bear civil responsibilities such as stopping the infringement, eliminating the impact, making an apology, and compensating for losses; if the interests of the public are harmed at the same time, the copyright administrative department may order the infringement to cease, confiscate the illegal gains, confiscate and destroy the infringing copies, and Fines may be imposed. 2. Anyone who, without the permission of the patentee, promises to sell or sell his patented products, or promises to sell or sell products directly obtained according to his patented method, thereby infringing upon the patent rights of others, shall be liable according to Article 1 of the Patent Law of the People's Republic of China. Article 60 stipulates: The matter can be resolved through negotiation between the parties; if the parties are unwilling to negotiate or the negotiation fails, the patentee or interested party may bring a lawsuit to the People's Court or request the patent administration department to handle the matter. 3. For products or packages for which patent rights have not been granted, continue to mark products or packages with patent marks after the patent rights have been declared invalid or terminated, or mark products or product packages without permission. According to Article 84 of the "Implementing Rules for the Patent Law of the People's Republic of China", this sales behavior is an act of counterfeiting a patent. According to Article 63 of the Patent Law of the People's Republic of China: Anyone who counterfeits a patent shall, in addition to bearing civil liability in accordance with the law, be ordered to make corrections and make an announcement by the patent management department, and the illegal gains shall be confiscated and may be punished for illegal acts. A fine of not more than four times the income; if there is no illegal income, a fine of not more than 200,000 yuan may be imposed; if a crime is constituted, criminal liability shall be pursued in accordance with the law. 4. Selling goods that infringe the exclusive rights of registered trademarks and infringing the exclusive rights of registered trademarks. According to Articles 53 and 59 of the Trademark Law of the People's Republic of China: It can be resolved through negotiation between the parties; if the parties are unwilling to negotiate or the negotiation fails, the trademark registrant or interested party may file a lawsuit in the People's Court. , or you can request the industrial and commercial administration department to handle it. Anyone who knowingly sells goods that are counterfeit registered trademarks constitutes a crime. In addition to compensating the losses of the infringed party, he will also be held criminally responsible in accordance with the law. 5. If you use the unique name, packaging, or decoration of a well-known commodity, or use a name, packaging, or decoration that is similar to that of a well-known commodity, causing confusion with other people's well-known commodities and causing buyers to mistake them for the well-known commodities, according to the "People's Republic of China" Article 5 of the Anti-Unfair Competition Law of the People’s Republic of China stipulates that it is an act of unfair competition. According to Articles 20 and 22 of the Law: If an operator violates the provisions of this Law and causes damage to the offended operator, he shall be liable for damages, and the supervision and inspection department shall order him to stop the illegal act and confiscate the illegal gains. , a fine of not less than one time but not more than three times the illegal income may be imposed depending on the circumstances; if the circumstances are serious, the business license may be revoked; if the sale of counterfeit and inferior goods constitutes a crime, criminal liability shall be pursued in accordance with the law. 2. How to handle relationships with suppliers and lessees to avoid the resulting legal risks of intellectual property infringement claims. Since most intellectual property infringements by sellers such as shopping malls and supermarkets are “imported infringements” rather than Intentional infringement.

In order to protect bona fide parties, relevant laws provide for exemption from compensation under certain conditions for non-malicious infringement of intellectual property rights. For example, Article 56 of the Trademark Law of the People's Republic of China stipulates that if you sell goods that are not known to infringe the exclusive rights of a registered trademark, and you can prove that you obtained the goods legally and explain the supplier, you will not be liable for compensation. . Article 52 of the Copyright Law of the People's Republic of China and Article 70 of the Patent Law of the People's Republic of China have similar provisions. It can be seen from this that there are two conditions for exemption of compensation despite infringement: first, it is not knowingly, that is, there is no subjective malice. If the seller knows that the product it is selling is an infringement, but it has agreed with the supplier that the supplier shall bear the liability for infringement if the rights holder pursues the infringement. According to the theory of privity of contract, the agreement is only binding on the supplier and cannot resist the infringement claims of the intellectual property right holder. The second is to be able to provide that the product has a legal source, so that the rights holder can find the infringer from the source and pursue his infringement liability. According to the above-mentioned legal provisions, shopping malls and supermarkets can start from the following aspects to effectively avoid intellectual property infringement claims brought by suppliers and retailers. 1. Shopping malls and supermarkets must establish and improve intellectual property protection systems, designate persons in charge of intellectual property management, standardize intellectual property management behaviors, establish an intellectual property infringement risk prevention mechanism, establish a review system for product intellectual property rights and their legal status, and product labeling intellectual property rights. A physical examination system for marks and logos, and a search for the intellectual property legal status of goods that may cause disputes. Notify suppliers and lessees of information related to intellectual property protection regularly or irregularly, and dynamically monitor the intellectual property status of goods on sale to ensure that intellectual property rights are not infringed. Complete purchase and sales records, and promptly record the intellectual property status necessary for suppliers to provide goods and lessees to sell goods. 2. Sign an intellectual property protection contract with suppliers and lessees, and require them to provide the following legal and valid certification documents for intellectual property rights before purchasing goods; those who accept third-party authorized operations must have valid authorization documents; if they are indeed unable to provide them, all necessary documents must be provided. Documents proving the legal origin of the goods being sold. 1). If the goods are marked with a registered trademark, the supplier should be required to provide intellectual property certification documents including but not limited to the trademark registration certificate (original or a copy with its official seal), trademark authorization contract (original or a copy with its official seal) photocopy) etc. 2). If the product is marked with a patent logo, the supplier should be required to provide supporting documents for intellectual property rights, including but not limited to a copy of the patent register, a patent authorization contract (original or a copy with its official seal), etc. 3). If the product involves copyright, the supplier is required to check the intellectual property rights of the product and obtain relevant ownership certificates or obtain relevant commitments from the supplier in the form of a written contract. During the performance of the contract, the supplier may be required to supplement corresponding documents according to circumstances. If the supplier is found to have errors in the intellectual property marking or labeling of the goods provided, the supplier can be required to make corrections within a specified period. 3. When receiving a complaint, it shall handle it promptly and require the supplier to provide corresponding supporting documents in a timely manner; and it is agreed that if the goods provided by the supplier infringe the intellectual property rights of others or provide false supporting documents, resulting in losses to the shopping mall or supermarket, the supplier shall bear liability for compensation. 4. In order to avoid the risk of intellectual property infringement claims brought by lessees, shopping malls and supermarkets should make an agreement with them, requiring them to strictly abide by the relevant rules and regulations on intellectual property management formulated by shopping malls and supermarkets, and improve their own intellectual property protection systems. Cooperate with the intellectual property protection work of shopping malls and supermarkets, and jointly maintain the order of intellectual property protection in shopping malls. Ensure that the goods it sells have legal sources and do not infringe the intellectual property rights of others. And ensure that shopping malls and supermarkets have the right to inspect the intellectual property status of the goods they sell, and can require lessees to provide relevant supporting documents within a reasonable period according to the circumstances. When the lessee is unable to provide the legal source of the product and relevant evidence, or has no objection to the alleged infringement of the goods, it should agree with it that it has the right to require it to stop selling the allegedly infringing goods.