Interview with the President of the Supreme People's Court of the Three Tribunals: Judicial interpretation of punitive damages related to intellectual property has been approved
Surging news reporter Lin Ping
During the two sessions in 2020, Hu Shihao, President of the Third Chamber of the Supreme People's Court, revealed in an exclusive interview with Peng Mei News (www.thepaper.cn) that the current judicial interpretation involving the intellectual property penalty compensation system has been established, and the protection of intellectual property will be further enhanced.
It is worth noting that, around the frequent occurrence of malicious intellectual property litigation, in recent years, the People ’s Courts have explored and promoted the establishment of a punitive compensation system for intellectual property rights, and through the combination of boxing regulations to maliciously register trademarks, passed the judicial direction of a firm crackdown.
However, in judicial practice, how to determine the subjective infringer's malicious and intentional intent according to law is still a realistic challenge. Hu Shihao bluntly said that whether the infringer is "malicious" and whether it constitutes a "serious plot" still needs to be explored. At the same time, for the punitive compensation liability for malicious complaints, the amount of compensation should be judged according to the specific case.
The judicial interpretation of the punishment compensation system related to intellectual property has been established, and the trial of intellectual property related to epidemic has been strengthened
Surging News: At present, the relevant patent and copyright laws intend to strengthen punitive damages for infringement, so as to increase the protection of intellectual property rights. What is the current application of the punitive compensation system for infringement of intellectual property rights?
Hu Shihao: In 2018, General Secretary Xi Jinping proposed the introduction of a punitive compensation system in the keynote speech at the opening ceremony of the first Import Expo. In 2019, the report of the Fourth Plenary Session of the Nineteenth Central Committee of the Party further proposed to "establish a punitive compensation system for intellectual property rights." In November 2019, the "Opinions on Strengthening the Protection of Intellectual Property Rights" issued by the General Office of the CPC Central Committee and the General Office of the State Council clearly stated that "accelerating the introduction of punitive compensation systems for infringement in patents, copyrights, and other fields", and further emphasized the need to " Strengthen civil judicial protection and effectively implement the punitive compensation system. "
Judging from the current situation, China's trademark law, anti-unfair competition law and seed law already have punitive damages in terms of legal norms. Applying the punitive compensation system according to law and reasonably determining the amount of compensation of the infringer has become one of the effective means to solve the difficulties of proof, long period, high cost and low compensation faced by intellectual property rights holders in the process of defending their rights.
In recent years, the People ’s Court has continuously explored and promoted the establishment of a punitive compensation system for intellectual property rights. The Outline of Judicial Protection of Intellectual Property Rights (2016-2020) takes “promoting the provision of a punitive compensation system in copyright laws, patent laws, and anti-unfair competition laws and other laws, and increasing the amount of legal compensation for intellectual property infringement” as “constructed to fully The key content of this important measure to realize the intellectual property value-oriented infringement compensation system. In practice, the people's courts have applied the relevant laws and regulations strictly in accordance with the law in civil cases related to the protection of intellectual property rights, accurately grasped the applicable standards of punitive damages, and concluded a number of exemplary intellectual property cases.
Taking 2019 as an example, in the case of infringement and unfair competition disputes involving the well-known trademarks of Xiaomi, Jiangsu High Court deliberately imitated the well-known trademarks of Xiaomi in many fields against infringer. The malicious infringement was obvious, the infringement plot was bad, and the amount of infringement was huge. For the actual situation where the infringement consequences are serious, punitive damages are applied in accordance with the law. On the basis of calculating the infringer ’s profit, a three-fold punishment range corresponding to the subjective malicious infringement, bad circumstances, and severity of infringement consequences is determined. The claim for compensation of the right holder of 50 million yuan embodies the severe crackdown on serious malicious infringement, a significant increase in infringement costs, and the strictest protection of the value orientation of intellectual property rights.
Of course, because the relevant laws provide comparative principles for the punitive compensation system for infringement of intellectual property rights, we must grasp whether the infringer has “maliciousness” in specific cases and whether the infringement constitutes a “serious plot”, which is an important content related to the application of punitive compensation It also requires continuous exploration of judicial practice; in addition, the grasp of the "base" and "multiple" of punitive damages, as well as the coordination of punitive damages and other legal liabilities, also need to be further clarified.
At present, the relevant judicial interpretation work of the Supreme People's Court has been formally established. It is believed that with the revision and improvement of intellectual property laws such as patents and copyrights and the introduction of relevant judicial interpretations, the punitive compensation system for infringement of intellectual property rights will be further improved, and the protection of intellectual property rights will be further enhanced.
Surging News: During the New Coronary Pneumonia epidemic, malicious trademark registrations related to the epidemic have received much attention. How to strengthen the judicial protection of epidemic-related intellectual property?
Hu Shihao: Since the outbreak of the New Coronary Pneumonia epidemic, the People ’s Court has identified work integration points and entry points to give full play to the role of adjudication. Recently, the Supreme People's Court issued the "Guiding Opinions on Proper Trial of Several Issues Concerning the Civil Cases Concerning New Coronary Pneumonia Epidemic Cases", proposing a series of specific measures.
In terms of intellectual property trials, the Supreme Law strengthened the judicial protection of intellectual property rights related to epidemic prevention, severely sanctioned trademark squatting, counterfeit trademarks, commercial slander, false propaganda and other acts that disrupted market order, and strengthened criminal penalties for intellectual property rights Deterrent effect. For example, recently the local court quickly concluded some cases of masks producing counterfeit trademarks, effectively curbing related criminal acts and effectively maintaining the order of epidemic prevention and control.
In addition, the People's Court has also strengthened investigations on IPR trial work related to epidemic prevention and control. Pay close attention to new situations and new problems that arise in the research and development of new coronary pneumonia prevention and control research, and strengthen research on the judicial policy in an emergency. How to protect intellectual property rights and protect people's health, not only to ensure the correct application of the law, but also to help resume production To achieve the unification of legal and social effects.
Cases clarify referee standards and resolutely combat malicious litigation
Surging News: In recent years, malicious litigation around intellectual property rights has occurred frequently, and some rights holders have deliberately filed lawsuits through false statements, forged credentials, and malicious squatting of trademarks in order to make profits illegally. In judicial practice, how to determine that the infringer is subjectively vicious and intentional?
Hu Shihao: "Disputes over liability for damages caused by intellectual property litigation due to malice" is a newly added case in the "Civil Case Regulations" amended in 2011. The malicious filing of intellectual property lawsuits not only infringes on the legitimate rights and interests of relatives and disrupts the normal market order, but also seriously affects the construction of a social credit system. The People ’s Court, while increasing the protection of intellectual property rights holders in accordance with the law, must severely crack down on malicious litigation of intellectual property abuse and protect the market ’s honest operation.
In recent years, with the vigorous development of e-commerce, lawsuits involving e-commerce platforms have increased rapidly year by year. Article 36 of the Tort Liability Law and the relevant provisions of the Electronic Commerce Law and the Regulations on the Protection of the Right to Disseminate Information on the Internet constitute an important liability rule system for cyber tort liability in China. The Supreme Court issued the "Opinions of the Supreme People's Court on Comprehensively Strengthening the Judicial Protection of Intellectual Property Rights" during the 4.26 Intellectual Property Protection Week this year. Effectively respond to rights holders ’rights protection claims on the e-commerce platform, while smoothing online rights protection channels, emphasizing the proper review of online intellectual property infringement disputes and malicious complaints of unfair competition disputes. To urge and guide the e-commerce platform to actively fulfill its legal obligations and promote the healthy development of e-commerce, but also to pursue the legal responsibilities of perpetrators such as abuse of rights and malicious complaints, and balance the interests of all parties reasonably.
At the same time, the people's courts have given full play to the exemplary leading role of typical cases, clarified the judgment standards through individual cases, and stepped up the crackdown on malicious litigation. In the first malicious complaint case after the implementation of the Electronic Commerce Law, Hangzhou Internet Court (2018) Zhejiang 8601 Minchu 868 Plaintiff Wang Mou v. Defendant Jiang and the third-party Taobao Company's unfair competition disputes, the defendant Jiang forged a seal 1. Misappropriating the name of the trademark owner, using false identity materials and trademark certificates, and complaining to Taobao about related commodities imported by other operators ’platforms, was ordered to compensate 2.1 million yuan in damages.
During this year's IPR propaganda week, Tencent Inc. v. Tan Fawen, a top ten typical case of intellectual property rights in 2019 and 50 typical cases issued by the Supreme People's Law v. Tan Fawen, filed a dispute over the liability for intellectual property damage due to malicious intent, the defendant knew that the QQ image was Tencent. Works and trademarks with intellectual property rights are still maliciously applied for design patents. After Tencent claimed the rights, the defendant reached a settlement with Tencent and promised to withdraw the design patent application. Later, the defendant not only failed to fulfill the settlement agreement, but also sued Tencent for infringing its design patent to the court, claiming 900,000 yuan. In this regard, the People's Court found that its subjective maliciousness was obvious and sentenced it to compensate Tencent for RMB 500,000. Through the trial of a series of cases, the people's court passed a judicial direction that firmly cracked down on malicious litigation and vigorously advocated honesty and trustworthiness.
Define malicious complaints according to law and promote the healthy development of e-commerce
Surging News: After the implementation of the "E-Commerce Law", how to determine the fault of the platform operator in the trial of intellectual property cases involving e-commerce platforms and how to regulate malicious complaints have attracted much attention. At the judicial level, how to regulate malicious complaints and litigation?
Hu Shihao: With the rapid development of the network information technology and e-commerce industry, especially after the implementation of the e-commerce law, the governance measures of e-commerce platforms are becoming more standardized, and the channels for complaints are becoming increasingly smooth. Compared with the more convenient online complaint method, the rights holder's rights protection is more quickly and effectively guaranteed, but at the same time, malicious complaints and lawsuits can be taken advantage of. Without effective regulation, malicious complaints may have a serious impact on the business ecology of the e-commerce platform, and the People's Court is very concerned about this.
The “Supreme People ’s Court Opinions on Comprehensively Strengthening Judicial Protection of Intellectual Property Rights” just issued by the Supreme Law requires that people ’s courts at all levels should properly hear intellectual property cases involving e-commerce platforms, and both urge and guide platform operators to actively fulfill their legal obligations, Promote the healthy development of e-commerce activities; in addition, we must pursue the legal responsibility of the perpetrators for abuse of power and malicious complaints, and balance the interests of all parties reasonably.
In addition, the Anti-Unfair Competition Law also plays a role in regulating acts that violate the principles of good faith and disrupt the order of market competition. All these provide a clear legal basis for the regulation of malicious complaints. If, in addition to the complaint, the malicious complainant abuses his rights by filing a malicious lawsuit against the platform operator, and causes losses to the platform operator, the injured party may also file “information of malicious knowledge” to the people ’s court. Disputes over damages in property rights litigation ", safeguarding its own legitimate rights and interests.
Surging News: In your opinion, how to prevent the abuse of punitive damages?
Hu Shihao: Regarding the issue of compensation, the E-commerce Law clearly stipulates that for malicious complaints, such as causing losses to operators on the platform, the complainant will face punitive liability for compensation. However, the determination of the amount of compensation should also be based on the specific circumstances of the case to prevent the abuse of punitive compensation. Among them, it is necessary to consider not only the reduction of sales profits of the operators in the platform caused by the necessary measures taken by the relevant links, but also the promotion costs that they need to invest in restoring the link to the pre-complaint state and the store due to the measures taken. Loss of credit points and other goodwill.
Combine boxing to regulate malicious squatting of trademarks, and study to include dishonest people into the credit information system
Surging News: Some scholars have suggested that the law should clarify the behavior of malicious squatting as soon as possible, and even recommend that the relevant administrative and criminal responsibilities be investigated. What do you think?
Hu Shihao: "Malicious cybersquatting" of trademarks usually refers to the act of cybersquatting the trademarks, trade names, names, portraits and other objects obtained or legally obtained by others through legal channels. Malicious squatting is not only an infringement on the prior rights of others, but also an infringement on the goodwill and market value carried by the trademark. Malicious registration of trademarks seriously violates the principle of good faith and disrupts the order of trademark registration and market order. In recent years, the People's Court has taken five measures to strike a set of combined punches and strictly regulate malicious registration of trademarks.
One is to regulate through case refereeing. In 2019, the People's Court concluded a number of cases of malicious registration of trademarks, so that the parties of malicious registration of trademarks would lose both lawsuits and lose money. Violation of the law would have to pay costs and resolutely maintain the order of trademark registration.
The second is to formulate judicial interpretations for regulation. In March 2017, the Supreme Court promulgated the "Provisions on Several Issues Concerning the Trial of Administrative Cases Concerning Trademark Authorization and Confirmation" to further improve the applicable standards of trademark authorization and confirmation laws. Among them, Article 25 stipulates that the people's court shall judge whether the applicant for the trademark in dispute "registers maliciously" well-known trademarks of others, and shall comprehensively consider the popularity of the cited trademark, the reasons for the applicant for the trademark in dispute, and the use of the trademark in dispute. To determine their subjective intentions. If the cited trademark is well-known and the applicant for the trademark dispute has no valid reason, the people's court may presume that its registration constitutes a "malicious registration" within the meaning of Article 45, paragraph 1, of the Trademark Law. In addition, the aforementioned "Opinions on Comprehensively Strengthening the Judicial Protection of Intellectual Property Rights" further emphasizes the full use of legal rules to explain discretionary legal standards that are not conducive to malicious squatting and hoarding of trademarks, and promote the normalization and standardization of the order of trademark registration .
The third is to regulate through value leadership. Adhere to the value orientation of "Trademarks are for use, not for speculation", malicious registration of trademarks and transfer of profits are not protected according to law, from malicious applications to malicious transfers, full-chain governance is carried out, so malicious registration is not profitable Figure.
The fourth is to regulate through case guidance. For example, the “Jordan” trademark dispute case concluded by the Supreme People ’s Court in previous years and the typical case of “Aopu” trademark infringement case released this year demonstrate the firm attitude and positive effect of the People ’s Court against malicious squatting of trademarks, allowing malicious squatting Retreat from difficulties.
Fifth, regulation is through joint construction and governance. Further smooth the information exchange and sharing mechanism with the State Intellectual Property Office and other relevant departments, strengthen the monitoring of malicious squatting trademark applicants, agents and related enterprises, study the integration of dishonest litigation actors into the national credit reporting system, and form a joint construction The deterrent power of governance.
The Trademark Law, amended in November 2019, added the provision that “applications for malicious trademark registration that are not intended for use should be rejected”, providing a more effective legal basis for combating malicious cybersquatting.