In China's judicial practice, cases of intellectual property rights being infringed are often seen. Intellectual property rights are relatively easy to be infringed. Although China's relevant legislation protects them, the current punishment mechanism is still not complete. So what is the imputation principle of intellectual property infringement liability? The following is a compilation of relevant legal knowledge to answer your questions. First, the principle of imputation of intellectual property infringement liability 1. The application of the principle of fault liability. Intellectual property, as a new and special civil right, is open and easy to copy, which determines that it is difficult for the infringed to adduce evidence of the infringer's infringement to determine whether the infringer is subjectively reprehensible or reprehensible. It is difficult to identify the infringement of intellectual property rights in judicial practice. 2, the application of the principle of presumption of fault. Simply applying the principle of fault liability will affect the efficiency and level of intellectual property protection. Therefore, in many intellectual property cases, fault presumption of liability can be adopted.

2. Elements of intellectual property infringement 1. Damage facts. Damage fact refers to the actual damage consequences, including property loss or mental pain. In this regard, China's intellectual property law has the following provisions: (1) Article 47 of the Copyright Law stipulates that copying and assembly without the permission of the copyright owner, and Article 46 stipulates that recording without the permission of the performer is an infringement. If the infringer only copies, assembles and records, and neither uses it, nor sells it or gives it away, of course, it will not cause damage consequences. According to the compensatory characteristics of civil legal relationship safeguard measures, it should not bear civil liability for damages. However, it is clear that these acts are tort in nature. (2) Article 11 of the Patent Law stipulates that the patentee has the right to manufacture and promise to sell. If the infringer only manufactures or promises to sell the patented product, and neither uses it, nor sells it or gives it away, similarly, he should not bear civil liability for damages. However, Article 57 of the Patent Law clearly defines it as an act of patent infringement. (3) Article 49 of the Copyright Law, Article 61 of the Patent Law and Article 57 of the Trademark Law respectively make it clear that immediate infringement is an infringement and should bear civil liability. As we know, the essence of immediate infringement is an act that is likely to cause harm, but it has not caused harmful consequences, but it still constitutes an intellectual property infringement. As can be seen from the above, from the perspective of China's intellectual property legislation, the constitution of intellectual property infringement is not based on damage to facts. 2. Subjective fault. Some scholars believe that the infringement of intellectual property rights is a general infringement and advocate the application of the principle of fault liability; Some scholars believe that this kind of tort has many attributes, including general tort, infringement, nuisance, embezzlement and other behaviors, and advocate that the principle of fault liability and the principle of no-fault liability should be applied respectively according to the different nature of the behavior; Some scholars advocate the introduction of the principle of no-fault liability. The author thinks that compared with the tort in tort law, intellectual property infringement does have many attributes, including both the general tort with fault and the so-called tort without fault. For example, according to Article 63, paragraph 2, of the Patent Law and Article 56, paragraph 3, of the Trademark Law, acts of using and selling in good faith still constitute infringement. If it can be proved that they have a legal source, they can be exempted from the liability for compensation (only the liability for compensation is exempted), and at the same time, it is stipulated that "they should bear the legal responsibility for stopping the infringement". Obviously, not only the tort mentioned here does not need to take the fault of the actor as the constitutive element, but also it does not need to take the fault of the actor as the constitutive element to bear the legal responsibility of stopping the tort. Therefore, to sum up the constitutive requirements of all intellectual property rights infringement, subjective fault should not be included, otherwise the extension of intellectual property rights infringement will be improperly narrowed, such as no-fault infringement will be excluded from intellectual property rights infringement.

Third, compensation for intellectual property infringement

1. Stop the infringement. As long as it constitutes an infringement of intellectual property rights, it also constitutes a civil liability to stop the infringement. Here, the elements of infringement and tort liability are the same. In addition, China's Trademark Law, Copyright Law and Patent Law all make similar provisions on imminent infringement: when the obligee or interested party has evidence to prove that others are about to commit acts infringing on their intellectual property rights, if they are not stopped in time, their legitimate rights and interests will be irretrievably damaged, they can apply to the people's court for measures to order them to stop the relevant acts and preserve their property before prosecution. For the obligee, this is similar to the right to claim for the prevention of nuisance in the claim for real right. For the obligor, as long as his behavior is illegal, it constitutes infringement, that is, he should bear civil liability for stopping the infringement.

2. Eliminate the influence and apologize. In the current legislation, only the copyright law stipulates these two forms of liability, and there is no clear stipulation on their constitutive requirements. It seems that as long as it constitutes copyright infringement, it should bear the civil liability of eliminating the influence and apologizing. In my opinion, there are at least the following omissions in the current legislation: first, about eliminating the influence. In fact, not only in the field of copyright law, but also in the field of trademark law and patent law, there are also problems that have adverse effects on obligees due to infringement, such as the destruction of goodwill and misleading consumers. Article 59 of China's Patent Law stipulates: "In addition to bearing civil liability according to law, the patent administrative department shall order it to make corrections and make an announcement." I understand that the "announcement" stipulated here is of course an administrative punishment measure in nature, but its purpose is to eliminate the influence, which is undoubtedly a civil liability that should be borne by the infringer. With regard to the elements of eliminating the influence, the author thinks that in addition to the illegality of the act, it should also include objectively causing adverse effects, and there is a causal relationship between the tort and the adverse effects. Second, about apologizing. There is no doubt that the basis of this form of liability is the need to protect personal rights and interests. We know that in intellectual property rights, except for trademark rights, copyright and patent rights all include personal rights.