intellectual property rights include industrial property rights and copyrights. Industrial property rights mainly include patent rights, trademark rights and geographical indications. I. Overlap of industrial property rights and copyrights 1. Overlap of industrial property rights and copyrights mainly refers to the overlap of trademark rights, design patents, trade secrets and trade name rights and copyrights in industrial property rights on the same object. It usually includes two situations: one is the concurrence of industrial property rights and copyright, at this time, there is only one right holder, and the object of rights belongs to both works in copyright law and industrial property rights are produced according to law; Second, there is a conflict or confrontation between industrial property rights and copyright. At this time, different civil subjects enjoy industrial property rights and copyright respectively for the same intellectual property object. Property right 2. Overlap of trademark right and copyright Trademark right and copyright are also called "exclusive right to use a trademark" in China's current laws, which refers to the exclusive right of a registered trademark owner to his registered trademark according to law. The object of trademark right is registered trademark. According to the law of our country, a registered trademark can be composed of words, figures or their combinations. In this way, the object of trademark right overlaps with the written works, artistic works, photographic works and design drawings in the object of copyright, which provides the possibility for the overlapping of trademark right and copyright right on the same object. Following the basic spirit of copyright law, words or patterns used as trademarks can become the objects of copyright law protection as long as they are original. In this way, the overlap of trademark rights and copyright has occurred on the same object. The procedures for producing copyright and trademark rights for the same text or pattern are not consistent. Once the text or pattern used as a trademark is created (original), it will produce copyright without any formalities. However, if the same text or design wants to produce trademark rights, it must be reviewed, announced and approved by the Trademark Office after the creation is completed. Copyright and trademark rights generated on the same object can be enjoyed by the same civil subject or by different civil subjects respectively. When the two rights are enjoyed by the same civil subject, it will lead to such a legal question: Is this object protected by both the Copyright Law and the Trademark Law? Some scholars argue that the same text or design can only be protected by one kind of law, and the copyright comes into being before the trademark right, and both rights belong to the category of intellectual property, so once the object is registered as a trademark after examination and approval by the Trademark Office, its copyright will cease to exist. Some scholars also argue that although the two rights overlap, they are essentially independent of each other, and no one can absorb the other. When the copyright and trademark rights on the same object belong to different civil subjects, it is bound to form a conflict or confrontation of rights, and the complex plot of the case of Wu Song Killing a Tiger is typical. 2. Overlap of patent right and copyright of design In patent law, design refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or their combination of products. Through the combination of modeling and pattern, modeling and color, and pattern and color, it forms the modeling design or two-dimensional graphic design of the three-dimensional space of the product appearance. Comparing the object of design patent right with the object of copyright, it is not difficult to see that they also overlap, that is, design often constitutes art works in the object of copyright at the same time. That is to say, if the design used for patent application is original, it will constitute a work of art in the sense of copyright law from the time of its creation, and it will be protected by copyright law; After the obligee applied for and obtained the patent right of design, it became the object of patent right again. The overlapping of design patent right and copyright on the same object causes the same legal problems as the overlapping of trademark right and copyright mentioned above: whether the two rights can be protected by double laws when they are controlled by the same civil subject, and the rights conflict when they are controlled by different civil subjects. |3. The overlapping of trade secret right and copyright. Trade secret refers to the technical information and business information that is not known to the public, can bring economic benefits to the obligee, is practical and has been kept confidential by the obligee. The technical information and business information here include design, procedure, product formula, production technology, production method, management know-how, customer list, source information, production and marketing policy, pre-tender price in bidding and tender content. Comparing the information content of trade secrets with the types of works protected by copyright law, it is not difficult to see that some trade secrets can constitute works in copyright law. Product design drawings and engineering design drawings in trade secrets can constitute works protected by copyright law if they are original. Similarly, the product design, engineering design drawings and their descriptions in works protected by copyright law can constitute trade secrets protected by the Anti-Unfair Competition Law if they are practical, secret and confidential. In a word, the right of trade secret overlaps with copyright when trade secret enjoys copyright. When famous titles and role names in copyrighted works are registered as business names of enterprises, there will also be overlapping of two rights (business name right and copyright) on the same object. The overlapping of industrial property rights and copyright on the same object will become more complicated in some cases. For example, if the copyright owner applies for both trademark registration and design patent for his artistic works, the right holder will become the subject of copyright, trademark right and design patent right, and the question of how much protection the law should give the right holder will become more prominent. If the copyright, trademark right and design patent right on the same object belong to different civil subjects, including the copyright owner authorizing multiple civil subjects to register the same work as trademarks of different kinds of goods or services, the rights conflict or confrontation between the obligees will become more complicated. Second, the legal issues arising from the overlap of industrial property rights and copyrights overlap on the same intellectual property object, and there are two legal issues worthy of in-depth discussion. First of all, when the industrial property right and copyright on the same object are held by the same civil subject, can the obligee be protected by the industrial property right law and the copyright law at the same time? If only one law can be applied, which law should be used to claim rights; If it can be protected by multiple laws, what is the legal basis? Can the obligee claim multiple rights at the same time in the same infringement case? Secondly, when the industrial property right and copyright on the same object are held by different civil subjects, on the one hand, whether the industrial property right obtained on the works with the permission of the copyright owner, such as applying for trademark registration or patent right for design, will affect the copyright protection of the works of the copyright owner; On the other hand, how can the copyright owner fight against the industrial property rights that have come into effect and exceeded the statutory objection period if the works that others enjoy copyright are applied for and obtained industrial property rights without permission? In the case of concurrence of industrial property rights and copyright, whether the obligee can be protected by multiple laws is not the same in the relevant laws of various countries. Anglo-American law often tries to find a dividing line between industrial property rights and copyright from the legal level. For example, American copyright law only protects painting, engraving or sculpture features that can be distinguished from the practical aspects of articles, and excludes practical works of art whose artistic components are inseparable from practical components from the protection of copyright law and is protected by industrial property law. Article 52 of the British Copyright Act of 1988 stipulates that if an artistic work is used for industrial property rights with the permission of the copyright owner, its protection period is 25 years, instead of 7 years after the author's life and death. After the expiration of the 25-year protection period, the copyright of this work will not be infringed by copying this work in the form of any kind of articles, any behavior carried out for making any kind of articles and any behavior related to the articles so made. Many countries in the civil law system tend to implement multiple protections for the right holders in the case of industrial property rights and copyright competition. As clearly stipulated in Article 2 of German Copyright Law, this law protects practical works of art, and copyright protection and design protection are not mutually exclusive. Article 112 of the French Copyright Law of 1992 also stipulates that this law protects practical works of art.. Article 3 of Spain's copyright law in 1987 clearly stipulates that the author's rights are "compatible" with "the possible industrial property rights of the work". From the perspective of using legal weapons to fully protect the legitimate rights and interests of obligees, when industrial property rights and copyrights compete, obligees should be able to get multiple legal protections. Article 5 of China's General Principles of Civil Law stipulates: "The legitimate rights and interests of citizens and legal persons are protected by law. No organization or individual may infringe upon it. " Industrial property rights and copyright are parallel rights in the field of intellectual property rights, and they cannot be absorbed by each other. Therefore, it is not allowed to prohibit the obligee from claiming both industrial property rights and copyright on the same object. Effectively protecting the legitimate civil rights and interests of civil subjects is the basic principle of China's civil legal system. In the case that copyright and industrial property rights really compete, if the obligee is not allowed to claim both industrial property rights and copyright on the same intellectual property object, the legitimate rights and interests of the obligee will not be effectively protected. For example, according to the relevant provisions of Article 1 of China's Anti-Unfair Competition Law, the acts of infringing on trade secrets only belong to: (1) obtaining trade secrets by illegal means such as theft; (2) Malicious disclosure and use of trade secrets; (3) In the case of obtaining trade secrets in bad faith, the holder of trade secrets can seek legal relief according to law. However, if the holder of trade secrets is known to others due to personal carelessness or management negligence, how can the "legitimate civil rights and interests" of the holder be protected by law? If the owner of trade secrets is allowed to claim copyright for trade secrets that can constitute works in copyright law, then he can protect his legitimate rights and interests from the perspective of copyright. Another example is that according to China's Patent Law, the legal protection period of a design patent is 1 years, and when the period expires, it will enter the public domain. If this design is also a work of art in the sense of the Copyright Law, it is extremely unfair to the right holder that he can no longer claim copyright because the right holder has obtained the patent for this application, and the protection of his rights by law is not sufficient, because the protection period of copyright is much longer than that of the patent right of design. Although there is no explicit provision in China's intellectual property law to deal with the concurrence of industrial property rights and copyrights, we can draw corresponding conclusions from relevant legal provisions. Article 25 of the Detailed Rules for the Implementation of the Trademark Law stipulates that the Trademark Office will revoke the registered trademark in accordance with the law if it "infringes upon the lawful prior rights of others to register". The "legal prior rights of others" mentioned here obviously includes the copyright enjoyed by others in advance. This shows that copyright and trademark rights can be produced on the same object at the same time, but the premise is that the latter right cannot infringe on the prior rights of others. There is no explicit provision in the Patent Law that the patent right that infringes upon the prior rights of others will be revoked. However, Article 5 of this Law stipulates that "no patent right shall be granted to inventions that violate the national laws, social ethics or prejudice the interests of the public". The "law" in "violation of national laws" should include the provision in the Copyright Law that the works of others shall not be used without permission, that is to say, the patent right can be granted as long as it does not confront the prior rights. From the above analysis, it can be seen that when citizens and legal persons advocate industrial property rights, they should not violate the Copyright Law except the industrial property law. When claiming copyright, we should abide by the copyright law and not violate the industrial property law. Among them, there is no question of which law is preferred. By the same token, as long as a civil subject obtains industrial property rights and copyrights on the same object, as long as it conforms to the legal provisions, there is no problem that one right is superior to another right and one right excludes another right. The civil subject can get multiple legal protections when copyright and industrial property rights overlap on the same object. However, when his rights are infringed, in the same case, he can only choose a kind of law that is beneficial to him according to the specific case, and can't ask for the relief of both copyright law and industrial property law, otherwise it will conflict with the principles of protecting the legitimate rights and interests of civil subjects, fairness and reasonableness. For example, if a company applied for a design patent for his artistic design works, when he found that a company used its design patent without permission, he would either sue a company for patent infringement or copyright infringement, and he could not sue a company for compensation according to patent infringement and then compensate again according to copyright infringement in the same lawsuit. Of course, according to the evidence collected, the infringer's infringement behavior, the difference between patent law and copyright law in the amount of compensation, etc., A can choose the more favorable law as the basis for relief.