How to write the defense of copyright infringement is more professional. The following model defense of copyright infringement can be used as a reference.
defense of copyright infringement 1
respondent: Wang.
the respondent hereby submits the following defense for the case of (21x) Sui Tian Fa Zhi Min Chu Zi No.1153:
1. The respondent is a small self-employed, and this case sells a small traditional handicraft he bought from a stall in Nanma Town Garden Redwood Furniture City, Dongyang City, Zhejiang Province.
there is no trace that the small handicraft in this case is the plaintiff's work or a copy of it.
The respondent is engaged in legitimate business for a living, and the respondent is unable to make a judgment. The goods referred to by the plaintiff in this case are copies that infringe the plaintiff's copyright.
please ask the plaintiff to give lectures to the court and the respondent: What skills can determine that the goods in this case are copies of copyright infringement?
The image of the Milo Buddha in this case has a long history in China, and there are similar Buddha statues in many temples.
therefore, the image of Buddha is not the invention and creation of the plaintiff.
Just as there are thousands of varieties of orchids.
the baby image of the plaintiff in this case, or the goods (or products) similar to the plaintiff, are everywhere in China? Flowering? There should also be thousands of varieties.
please ask the court to examine the goods in this case. What is not on the goods? Someone made it? 、? Someone's work? 、? Made in China? 、? Made in America? Made in Japan? Yunyun?
May I ask the respondent, how can a self-employed person judge whether this commodity or article is an original or a copy of a master's work? Excuse me, can the judge have this judgment?
Suppose that the respondent has purchased a painting of running horses marked with Master Xu Beihong, can the plaintiff or the court specifically identify whether it is the original or a copy of Master Xu Beihong? Or was the respondent completely tricked into buying one? Flow?
how can a merchant do business under the guidance of an art expert? A way out?
besides, the goods sold by the respondent in this case are not marked with the place of production, manufacturer, producer, etc., how can they be associated with the plaintiff? Unless the plaintiff is the only one in China who creates this type of arts and crafts works.
second, the second paragraph of Article 2 of the Regulations on the Protection of Traditional Arts and Crafts stipulates: Those who produce or sell traditional arts and crafts works with fake signatures of China arts and crafts masters shall bear civil liability according to law; The relevant departments may impose administrative penalties in accordance with the provisions of relevant laws and administrative regulations. ? Suppose that the plaintiff's works in this case are strictly protected by the Regulations on the Protection of Traditional Arts and Crafts, because the goods sold by the respondent in this case are unsigned and there is no counterfeiting? Master? Works shall also be exempted from civil or administrative liability.
if it is within the scope of protection of China copyright law, any act of selling goods with the same or similar appearance as the so-called copyright works in this case must be sued by the copyright owner? Tribute? China's market with a population of more than 1.3 billion people is a dime a dozen (or similar) commodities in this case. Is it true that the plaintiff's wealth exceeds that of Hongkong and Li Ka-shing? Just around the corner? In this way, due to the plaintiff's copyright, the goods similar to this case in the China market are not the plaintiffs? Oligopoly? Business?
If the plaintiff in this case has a good way to make money, compared with the Copyright Law of China and the Trademark Law, the wealth of the copyright owner in China should be significantly greater than that of the trademark owner in China.
To sum up, the respondent asked the court to consider that business is difficult and people's livelihood is difficult in today's society, and to arbitrate according to law.
this is to
Tianhe District People's Court of Guangzhou
Respondent: Wang
October 14th, 21x
Reply of Trademark Infringement 2
Respondent: Xxx, male, Han nationality, born on X, 19XX, address: XX, Guangdong Province.
id number: XX.
Respondent: Guangdong Opal Mobile Communication Co., Ltd., domicile: Xx, Chang 'an Town, Dongguan City, Guangdong Province, and legal representative: XX.
because of the case number (21x) Dong Yi Fa Min Wu Chu ZiNo. XX of the respondent v. the respondent's trademark infringement dispute, we hereby make the following reply to the respondent's claim, and ask the court to adopt it.
The respondent disagrees with all the claims of the respondent, and the claims of the respondent have no basis. Please ask the court to reject all the claims of the respondent according to law.
first,? OPPO? Mobile phone trademark is not a well-known brand trademark.
according to the materials submitted by the respondent,? OPPO? The trademark was originally owned by Blue Sky Investment Co., Ltd. registered in Cayman Islands, and the registration period is from April 28, 2Xx to April 27, 218.
dongguan opal mobile communication co., ltd was transferred to blue sky investment co., ltd on December 28th, 28? OPPO? Registered the trademark and changed it to Guangdong Opal Mobile Communication Co., Ltd. on December 29th of the same year.
from August, 21x, the respondent Guangdong Opal Mobile Communications Co., Ltd. registered the trademark? OPPO? The use time of the trademark is less than one year, and the relevant public does not know much about this trademark.
therefore, from the respondent to? OPPO? The use time of mobile phone trademark can be inferred that it will not be a brand trademark in 21x.
2. The mobile phone sales involved in the case for which the respondent is sued have legal sources, and the respondent has no intention of infringement and does not need to bear tort liability.
The defendant's mobile phone involved in the lawsuit has a legal source, and the defendant purchased it from XX Taiping Electronic City through formal and legal channels. This fact has been disproved by the administrative punishment decision No.9xx (21x) of Dongguan Administration for Industry and Commerce submitted by the defendant.
in accordance with the provisions of article 56 of the trademark law, if you sell a commodity that you don't know is an infringement of the exclusive right to use a registered trademark, you can prove that the commodity was legally obtained by yourself and explain the supplier, and you will not be liable for compensation. ? Therefore, it can be seen that the respondent did not infringe upon the respondent? OPPO? Intention of the exclusive right to use a trademark does not require any tort liability.
as for the administrative penalty decision submitted by the respondent, it cannot be taken as the basis for determining the respondent's intention of trademark infringement.
administrative punishment is not made according to the subjective intention of the parties, while civil trademark infringement requires the subjective intention of the parties.
because the mobile phone involved in the case of the respondent has a legal source, the respondent has no intention of trademark infringement, so he does not have to bear the trademark infringement liability.
3. There is no basis for the respondent to sue the respondent for compensation of RMB 5,, and it should not be supported by the court according to law.
on the one hand, according to article 2 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings: What are the facts on which the parties' claims against themselves are based? Have the responsibility to provide evidence to prove it. If there is no evidence or the evidence is not enough to prove the facts of the parties, the parties with the burden of proof shall bear the adverse consequences. ? Article 76 stipulates? If the parties only state their own claims and cannot provide other relevant evidence, their claims will not be supported. ? .
The respondent asked the respondent to pay 5, yuan for the infringement loss, but did not provide any basis to explain how the loss compensation was calculated. Therefore, he should bear the adverse consequences of failing to prove his claim, and the loss compensation of 5, yuan should not be supported by the court because there is no basis.
on the other hand, according to Article 56 of the Trademark Law, the respondent can't prove the losses he claimed to have suffered because of the respondent's trademark infringement, so the amount of trademark infringement compensation should be compensated according to the benefits that the respondent thinks the respondent has gained from the infringement.
according to the contents shown in the administrative penalty decision (No.XX (21x) of Dongguan Administration for Industry and Commerce) submitted by the respondent, the purchase price of the 21 mobile phones involved was 45 yuan/Taiwan, but the price was only 52 yuan/Taiwan, and only three mobile phones involved were sold, with a sales income of only 1,56 yuan and a profit of only 21 yuan.
Therefore, even if the respondent really constitutes the sale of a mobile phone that infringes on the exclusive right to use its trademark, the respondent's infringement benefits are only 21 yuan, and according to the provisions of the Trademark Law, the respondent's infringement compensation amount is only 21 yuan.
However, the respondent is talking nonsense, and the unreasonable demand for 5, yuan for infringement compensation is entirely for the purpose of profiteering by means of litigation.
In order to make huge profits, the respondent even copied the administrative penalty information claiming to be Dongguan Administration for Industry and Commerce a year ago as evidence to sue trademark infringement, and sued mobile phone retailers in the Pearl River Delta and other regions on a large scale. Obviously, the respondent's so-called rights protection is just a cover, and its real purpose is to collaborate with others to maliciously protect rights, so as to make huge profits.
Therefore, we request the court to reject the unreasonable demands of the respondent according to law.
4. The respondent's request for the respondent to publish the so-called apology statement containing a promise not to infringe again in Dongguan Daily and Southern Metropolis Daily is unfounded.
As mentioned above, the respondent did not infringe the respondent's trademark at all, so it does not need to bear any tort liability.
If it constitutes infringement, the circumstances of infringement are very minor, and it has not affected the respondent's reputation. Apologizing belongs to the scope of personal infringement, and this case does not constitute personal loss at all.
The respondent does not need to publish the so-called apology statement in Dongguan Daily and Southern Metropolis Daily, which contains a promise not to infringe again.
to sum up, the respondent's claim is also groundless.
The respondent is just a small individual industrial and commercial household. Now, his business is very bleak, and he is almost in a state of closure. The value of the whole store is only a few tens of thousands of yuan, and he simply can't stand any slight economic impact.
Therefore, the court is requested to comprehensively consider the above facts and build a harmonious society, and reject all the claims of the respondent according to law.
To the First People's Court of Dongguan
Respondent: Guangdong Shangzhihe Law Firm: Lawyer Tian Fayuan
March, 21x
Example 3 of Civil Pleadings
Respondent: _ _ _ _ Development Co., Ltd.
Address: _ _ _ _ _ _ _ _ P > Legal representative: _ _ _ _ _ _ _
Tel: _ _ _ _ _ _ _
Because the plaintiff _ _ _ _ Renai Education Research Institute sued our company for copyright infringement, we hereby submit the following defense:
Our company should not be the defendant in this case.
The first and second paragraphs of Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Copyright Civil Disputes stipulate:? If a publication infringes the copyright of others, the publisher shall bear civil liability for compensation according to its fault, the degree of infringement and the consequences of the damage. ? Publishers who fail to pay due attention to the authorization of their publishing behavior, the source and signature of the manuscript, the contents of the edited publication, etc., shall be liable for compensation according to the provisions of Article 48 of the Copyright Law. ? According to this regulation:
First, our company is not a publisher: this publication is published by _ _ _ _ People's Publishing House, which should be a publisher and our company is only a seller;
Secondly, our company has no legal obligation to examine whether the contents of publications are infringing: publishers should exercise reasonable care, and our sales unit has no legal obligation to examine whether the contents of publications are infringing;
thirdly, our company is not at fault: our company is qualified to sell books, and through formal channels and legal procedures, we purchased 2 copies of the book "Three-dimensional Optimization" sued by the plaintiff from Tianze Yongli Bookstore Co., Ltd., which was entrusted by _ _ _ People's Publishing House and qualified to sell publications, at a discount of 4%, and then sold it to the plaintiff at a discount of 65%. Our company only made a profit in 75 yuan.
to sum up, our company is not an infringer of publications, and should not be liable for copyright infringement.
Your institute is required to find out the facts, reject the plaintiff's claim and make a fair judgment according to the relevant provisions of the Copyright Law.
To the Chaoyang District People's Court of
______ _
Respondent: _ _ _ _ Development Co., Ltd.
Legal Representative: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
2. Seven copies of evidence.