□ Our reporter Liu Zhiyue
□ Liu Huan, a trainee reporter of this newspaper
□ Cai Lei, correspondent of this newspaper
Intellectual property is one of the core competitiveness of modern enterprises.
In recent years, Hubei courts have always adhered to the rule of law thinking and used the rule of law to comprehensively strengthen the protection of scientific and technological innovation achievements. In 2021, the province's courts will accept a total of 19,464 intellectual property cases (including 708 existing cases), and close 16,744 cases, with a settlement rate of 86.03%. .
Recently, the Higher People's Court of Hubei Province released ten typical cases of judicial protection of intellectual property rights.
The reporter of Rule of Law Daily selected 4 cases to sort out, in order to further promote the judicial openness of intellectual property trials through case-based explanations, and strive to create a good atmosphere in which the whole society respects knowledge, advocates knowledge, and protects intellectual property rights.
Malicious competition to seize patents
Clarify tenure to protect innovation
Wuhan Guangxun Technology Co., Ltd. (hereinafter referred to as Wuhan Guangxun) and Henan Shijia Photonics Technology Co., Ltd. (hereinafter referred to as Henan Shijia) are both well-known enterprises in the field of optical communication in my country.
In mid-September 2017, Wuhan Guangxun arranged for Zhou to replace Hu, who was on maternity leave, to participate in the design of his "two industrial-grade AAWG compensation schemes", and was mainly responsible for the experimental verification of "wavelength compensation" in the scheme.
On September 12 of the same year, Hu sent an email with the subject of "Recent Work" to Zhou, and the attachment included a PDF file named "AAWG-CIENA4X Secondary Compensation Structure Design".
On November 17 of the same year, Zhou resigned to work in Henan Shijia.
On May 7, 2018, Henan Shijia applied to the State Intellectual Property Office for an invention patent titled "A Wide Temperature and High Stability Temperature Adaptive Flattening Compensation Device", and the inventors were recorded as: Zhou Mou, Zhang Mou, An Mou , Zhong Mou, Wu Mou.
Wuhan Guangxun believed that Zhou's application for the patent for the invention involved in the case as the first inventor was essentially a service invention-creation made by Zhou when he was working in Wuhan Guangxun, and the right to apply for the patent for the invention involved should belong to the company. file a lawsuit.
Henan Shijia and Zhou and other third parties argued that the patent application for the invention involved was formed on the original technology of Henan Shijia and was further developed by the inventors who participated in the research, and did not belong to Zhou's position when he was working in the plaintiff's company. invent.
After hearing, the collegial panel held that the evidence submitted by the defendant Henan Shijia and the third party did not reflect the substantive features of the patent application involved, and could not prove that the defendant and the third parties made substantial contributions to the patent application for the invention involved.
Regarding whether the patent application for the invention involved in the case is a service invention-creation, the collegial panel compared the "two industrial-grade AAWG compensation plans" developed by Wuhan Guangxun with the patent application for the invention involved, and believed that the two were highly related.
At the same time, in light of the fact that Wuhan Guangxun arranged for Zhou to participate in the research and development of "two industrial-grade AAWG compensation plans" and had access to relevant technical documents, and that Zhou left from Wuhan Guangxun for less than a year, the collegial panel believed that the patent application involved belonged to Zhou A service invention-creation completed by the plaintiff who performed the task assigned by the plaintiff and made use of the plaintiff's technical data finally supported Wuhan Guangxun's claim and ruled that the right to apply for the invention patent involved belongs to Wuhan Guangxun.
It is reported that after the first-instance judgment in this case, both parties accepted the verdict.
Disregarding Judgment of Repeat Infringement
Punitive damages applied
The "RT-Mart" trademark of Cannes Investment (China) Co., Ltd. (hereinafter referred to as Cannes) is a well-known trademark.
On November 14, 2017, Cannes Company sued Gucheng RT-Mart Trading Co., Ltd. (now renamed Gucheng Wangheng Trading Co., Ltd.) to Xiangyang Intermediate People's Court due to trademark infringement and unfair competition disputes. The alleged infringement was the defendant's unauthorized use of the "RT-Mart" trademark logo and the use of the word "RT-Mart" as the enterprise name registration in the supermarket operation in July 2017.
However, although Gucheng Wangheng Trading Co., Ltd. changed its name after losing the lawsuit, it still continued to use the word "RT-Mart" in its business activities, and stopped using it until the case was prosecuted again. The "RT-Mart" logo on WeChat accounts and other places has been removed and replaced.
The Xiangyang Intermediate People's Court held that Gucheng Wangheng Trading Co., Ltd. failed to perform the effective judgment of the people's court. The effective time of the judgment was two and a half years after the plaintiff discovered the infringement again, and continued to use the "RT-Mart" logo in its business activities. , this behavior is a repeat infringement, which again infringes the plaintiff's exclusive right to use a registered trademark, and has obvious intention to continue to infringe, and punitive damages can be applied in accordance with the law.
Taking into account factors such as the defendant's fault and the seriousness of the infringement, the plaintiff's request to calculate the total compensation amount at 1.5 times is in line with the law.
Accordingly, the court ordered the defendant to compensate the plaintiff for economic losses of 300,000 yuan.
Gucheng Wangheng Trading Co., Ltd. refused to accept and appealed.
The Hubei Provincial Higher People's Court rejected the appeal in the second instance and upheld the original judgment.
According to the judge handling the case, this case is a punitive damages case in which the defendant commits the same trademark infringement again after being held liable by the court for the infringement, and the Interpretation of the Supreme People's Court on the Application of Punitive Damages in the Trial of Civil Cases Infringing Intellectual Property Rights.
The court applied punitive damages to the illegal acts of continuous infringement due to refusal to perform the effective judgment of the people's court, thus effectively safeguarding the legitimate rights and interests of the trademark owner.
Unauthorized erection of private servers
Penalty fines for recovering proceeds
Anzhenbao Information Technology Co., Ltd. (hereinafter referred to as Anzhenbao Company) obtained "The Legend of Mir II" (hereinafter referred to as "Mir II", Chinese name: "Legend") from Shengqu Games on January 1, 2019 in mainland China Related copyright rights and rights protection authorization.
From January to November 2019, Tong and others set up a "Legendary Private Server" publishing station through the Internet in Yipu Network Technology Co., Ltd. located in the Times International Center, Yuancheng District, Heyuan City, Guangdong Province. Without authorization, "Legendary Private Server" still spreads the infringing works through the publishing station and profits from it.
During the period, the publishing station received a total of 34,400,738.12 yuan of funds involved in the case. After deducting related expenses, Tong and others made a total of 12,250,422.27 yuan.
After the incident, Tong and others refunded 3,394,477.02 yuan of stolen money.
After investigation, from January to November 2019, Yu and others developed and operated a total of 9 legendary private server games in the private server game studio located in Zhoushan City, Zhejiang Province, and none of them were authorized by Anzhengbao Company.
In the process of developing and operating these 9 legendary private server games, Mr. Yu is in charge, Zhou is responsible for the research and development of the studio's legendary private server games and the daily maintenance of the server, and Hu and Xu act as customer service of the studio's private server games.
During this period, Yu received a total of 14,419,836.74 yuan of funds involved in the case. After deducting related expenses, Yu and others made a profit of 292,534,226.07 yuan.
After the incident, Zhou returned 111,440 yuan of illicit money, and Hu returned 68,000 yuan of illicit money.
Tong and others refunded the loss of 10 million yuan to the victim company Anzhengbao Company, and obtained the understanding of the victimized unit; Yu reached a settlement with Anzhengbao Company on the refund and obtained the understanding of the victimized unit; the case was settled by the People's Procuratorate of Honghu City, Hubei Province Prosecuted to the Honghu City People's Court according to law.
The Honghu Court held that, for the purpose of making profits, without the permission of the copyright owner, Yu Mou, Tong Mou and others set up a "Legendary Private Server" server and operated and disseminated other people's online game works, which should be regarded as Criminal Law No. 217 The act of "reproduction and distribution" in the crime of copyright infringement, and the amount of illegal income is huge, its behavior has constituted the crime of copyright infringement.
Therefore, the verdict: 10 defendants, including Yu and Tong, were guilty of copyright infringement, and were sentenced to fixed-term imprisonment and fined respectively; computers, mobile phones and other criminal tools seized by the public security organs were confiscated according to law and turned over to the state treasury.
According to the judge handling the case, this case is a typical case of copyright infringement by copying online game software, involving a large number of people, huge funds involved, and bad social impact.
During the trial, the defendants all pleaded guilty and accepted punishment.
The result of the judgment of this case reflects that the people's court implements the criminal justice policy of combining leniency and strictness in the trial of intellectual property criminal cases, and at the same time pays attention to the adoption and imposition of fines, confiscation of illegal gains, criminal tools and other measures and means to deprive criminals of their illegal interests and ability to re-offend. To protect the good operating environment of the cultural market.
Equal protection of Chinese and foreign subjects
Presumptive infringement of prejudice
TEKLA software is a professional application software in the field of steel structure engineering, and Tianbao Solutions Company (hereinafter referred to as Tianbao Company) is its copyright owner.
The photo advertisement released by Hubei Fuxin Heavy Steel Structure Engineering Co., Ltd. (hereinafter referred to as Fuxin Company) shows that its company technicians operate TEKLA software.
Since Fuxin Company had never purchased genuine software from Tianbao Company's agents in China, Tianbao Company deduced that Fuxin Company may have installed pirated software, and then filed a lawsuit with Wuhan Intermediate People's Court, requesting that the defendant stop the infringement and compensate for economic losses. , and applied to the court for evidence preservation of the installation of TEKLA software on the computer of the defendant company to verify whether TEKLA software was installed.
When the court enforced the preservation, Fuxin Company refused to provide inspection of all computers on the grounds that the employees had resigned and they did not know the power-on passwords of the computers in the office.
The court comprehensively analyzed the job recruitment information released by Fuxin Company and the on-site evidence preservation situation, etc., and confirmed that the computer in Fuxin Company's office used TEKLA software.
At the same time, because the defendant refused to cooperate with the evidence preservation work and the actual version of the TEKLA software installed on the computer was unknown, the plaintiff claimed that it was based on the higher-priced version of TEKLA 21.0 to claim the rights and demanded that the infringement compensation be calculated accordingly.
The court ordered the defendant to compensate the plaintiff for economic losses of 351,000 yuan based on the selling price of the plaintiff's genuine software and the number of computers the defendant refused to cooperate with the inspection.
The judge handling the case introduced that this case, as a foreign-related intellectual property infringement case, is a typical case in which the infringer obstructed the court’s enforcement of evidence preservation and ordered the perpetrator to bear the civil liability for the infringement.
Tianbao is a Finnish company. China and Finland are both parties to the Berne Convention for the Protection of Literary and Artistic Works. Tianbao, as the copyright owner of TEKLA software, is also protected by the Copyright Law of the People's Republic of China.
The timely and fair trial of this case fully demonstrated the good image of Chinese courts in protecting the legitimate rights and interests of Chinese and foreign intellectual property rights holders on an equal footing in accordance with the law.
Criminal Law
Article 217 Whoever, for the purpose of making profits, commits any of the following violations of copyright or copyright-related rights, and the amount of illegal gains is relatively large or has other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years, and concurrently or exclusively Fines; if the amount of illegal gains is huge or there are other particularly serious circumstances, the sentence shall be fixed-term imprisonment of not less than three years but not more than 10 years, and a fine:
(1) Without the permission of the copyright owner, copying, distributing, and disseminating to the public their written works, music, art, audio-visual works, computer software and other works stipulated by laws and administrative regulations;
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Several Provisions of the Supreme People's Court on Evidence of Intellectual Property Civil Litigation
Article 13 If a party refuses to cooperate or obstructs the preservation of evidence without justifiable reasons, so that the evidence cannot be preserved, the people's court may determine that the party shall bear the adverse consequences.
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Article 25 Where a people's court requires a party to submit relevant evidence in accordance with the law, and if it refuses to submit without justifiable reasons, submits false evidence, destroys evidence, or commits other acts that make the evidence unusable, the people's court may presume that the other party has proved the evidence involved in the evidence. The claim of the matter is established.
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Lao Hu's Comments
Intellectual property rights are the ownership of intellectual achievements produced by people through creative intellectual work, generally including copyrights, trademarks and patents.
According to the provisions of the law, the intellectual property owner not only enjoys the exclusive personal rights, but also the exclusive property rights over the intellectual achievements produced by his intellectual creation.
In recent years, the protection of intellectual property rights in my country has been continuously strengthened. However, under the temptation of huge interests, some enterprises and individuals are still willing to take risks and use illegal means such as plagiarism and counterfeiting to wantonly infringe on the intellectual property rights of others, and some enterprises are being investigated and punished. During the process, they refused to cooperate with law enforcement and evaded responsibility.
The judiciary shall strictly investigate and punish the violations of intellectual property rights, especially the repeated violations, resistance to inspection, huge amount, and vile circumstances, increase the cost of illegal crimes, and effectively play the role of the main channel of intellectual property protection. , to further promote the in-depth promotion of the national intellectual property protection strategy, and stimulate the innovation and creativity of market players.
Hu Yong