Zhongxin.com, June 15: The Supreme People's Court recently publicly commented on "Opinions on Increasing Sanctions for Intellectual Property Infringement (Draft for Comment)". The consultation draft pointed out that the registration of trademarks mainly engaged in the infringement of intellectual property rights, counterfeit rescue and disaster relief, epidemic prevention materials and other commodities during the specified period, as well as the violation of commercial secrets for foreign institutions, organizations and personnel, shall not be applied in accordance with law. probation.
The consultation draft mentioned that since the 18th National Congress of the Communist Party of China, intellectual property protection has received unprecedented attention. Problems such as frequent infringement of intellectual property rights and difficulties in protecting rights of rights holders have been further resolved, but there are still some outstanding issues. In order to increase the sanctions against intellectual property infringements, effectively curb intellectual property infringements, and promote the creation of a good legal environment that does not dare to infringe, and is unwilling to infringe, in light of the actual intellectual property trial, the following opinions are proposed.
One is to strengthen the application of security measures.
—— For infringement or imminent infringement of intellectual property rights involving core technologies, well-known brands, hot programs, etc. and infringement or imminent infringement of intellectual property rights at exhibitions, the people’s courts shall increase the application of behavior preservation in accordance with law.
——Where the intellectual property rights holder applies for the pre-judgment to stop the infringement and the preservation of conduct at the same time in the intellectual property rights infringement lawsuit, the people's court may examine them together according to law.
——Where renewal is required after the property preservation measures are taken, an application should be filed with the people's court that is hearing the case of intellectual property disputes.
——The holder of intellectual property rights has preliminary evidence to prove that there is a violation of intellectual property rights and the evidence may be lost or difficult to obtain. When applying for evidence preservation, the people's court shall promptly review and take preservation measures according to law. Evidence preservation involving strong professional technical issues can be participated by technical investigators or technical experts in related fields.
——If the infringed person damages or transfers the infringed product that has taken precautionary measures without authorization, so that the infringing fact cannot be ascertained, the people's court may presume that the right holder's claim on the proof matter involved in the evidence is established. If it belongs to a situation that hinders litigation as prescribed by law, compulsory measures shall be taken according to law.
The second is to stop infringement according to law.
—— For the manufacture and sale of infringing products and other infringements of intellectual property rights, the people's court should generally rule to stop the infringement. If the violation of law is not ordered to stop infringement due to public health and environmental resource protection, alternative measures such as economic compensation shall be taken.
——If the infringement facts are clear and the infringement can be determined, the people's court may first decide to stop the infringement and stop the infringement in a timely manner.
——For counterfeit and pirated commodities and materials and tools mainly used to produce or manufacture counterfeit and pirated commodities, if the right holder proves the existence of the above-mentioned items in civil litigation and requests immediate destruction, the people's court shall support it except in special circumstances. Under special circumstances, materials and tools mainly used to produce or manufacture counterfeit and pirated goods may be disposed outside commercial channels. If the infringer requests compensation, the people's court will not support it.
——If the infringer has infringed the same intellectual property rights in the same way again after the execution of the effective judgment has been completed, the right holder can apply for execution again according to the judgment of the judgment to stop the infringement; if the right holder sues in accordance with the law, the people’s court shall accept it in time .
The third is to increase compensation in accordance with the law.
——Fully utilize the system of obstruction of evidence, investigation and evidence collection, evidence preservation, professional evaluation and other systems to guide the parties to actively, comprehensively, correctly and honestly provide evidence, improve the scientificity and rationality of the calculation of the amount of damages, and fully compensate for the loss of intellectual property rights owners.
—— Actively use the relevant data shown in the industrial and commercial tax department, third-party business platform, infringer website or company to disclose the documents according to law and the average profit rate of the industry, etc., to determine the profit status of infringement according to law.
——The people's court ordered the respondent infringer to provide the evidence of infringement profit held, but if it refuses to provide it without justifiable reasons, the people's court may determine the amount of compensation based on the claim of the intellectual property right holder and the evidence on record.
—— Correctly grasp the determination standard of punitive compensation, support the punitive compensation request of intellectual property rights holders according to law, and give full play to the deterrent effect of punitive compensation on infringement.
—— Comprehensively consider factors such as the type of intellectual property rights to be protected, the height of innovation and market value, the subjective fault of the infringer, the nature and scale of the infringement, and the severity of the consequences of damage, and reasonably determine the amount of legal compensation. If the infringer intentionally infringes and the circumstances are serious, the statutory compensation amount shall be determined by approaching or reaching the maximum limit.
——If there is one of the following situations, it can be determined that the “plot is serious” of infringement of intellectual property rights: multiple infringements, mainly infringements, long duration of infringements, infringements involving a wide range of areas, and infringers making huge profits Infringements cause significant economic losses to intellectual property rights holders. Infringements may endanger personal safety or seriously damage public interests.
——If the intellectual property right holder requests in the follow-up lawsuit to include the new reasonable expenses paid to stop the infringement into the compensation amount, the people's court may examine it together.
——Considering the subjective intention of the infringer and the complexity of the case, the professionalism and intensity of the work, the actual payment amount, industry practice, local government guidance price and other factors, based on the evidence provided by the intellectual property rights owner, the claimant’s claim for compensation is reasonably determined Lawyer fees.
——If the company commits infringement of intellectual property rights and the right holder requests the shareholder, actual controller, affiliated company and joint liability of the company, the people's court should consider whether the shareholder and actual controller know the existence of others' intellectual property rights The account collects the company's infringing product payment, whether the infringing infringement logo, technical plan, etc. are provided by shareholders and actual controllers, as well as the related situation of property, employees, residence, contact information, etc., and legal liabilities are determined according to law.
——Knowingly or responding to the request for protection of intellectual property rights is the improper acquisition or lack of a substantial basis for the exercise of rights, but still file an infringement lawsuit or apply for preservation measures based on that right, which constitutes a malicious lawsuit, the other party may counterclaim and claim compensation for The legal fees, travel expenses, investigation and evidence collection fees and other reasonable expenses paid in response to the lawsuit and the economic losses suffered as a result.
Fourth, increase criminal crackdown.
—— Regarding registered trademarks of commodities mainly engaged in infringement of intellectual property rights, counterfeiting, disaster relief, and epidemic prevention materials within a certain period, as well as infringement of commercial secrets for overseas institutions, organizations, and personnel, severe penalties shall be imposed according to law, and suspended sentences shall generally not be applied.
- Strictly recover illegal income in accordance with the law, strengthen the application of fines, increase the application of prohibitions and prohibition orders, and deprive criminals of their ability and conditions to infringe intellectual property rights again.