Infringement of intellectual property damages issues
|School||Southwest University of Political Science|
|Keywords||Infringement of intellectual property rights Tort damages Rights holders Infringer Liability for damages Intellectual property infringement The amount of compensation Compensation for moral damage The amount of damages Tort law|
The encroaching of intellectual property right and compensation for damageis a great focus and difficult point in theory circle and trial practices at present.With the swift and violent development of science and technology, the rate ofintellectual property right arises constantly in economy and trade domain. Butbecause of characteristics of intellectual property right are invisible, exclusive,regional, the phenomenon to encroach right in actual life is apt to happen. Andwith the economic development, progress of science and technology, torts arecommon in actual life; the cases of torts tend to arise constantly. But because of theobjects of intellectual property right are intellectual achievements that have notmaterial forms, the right range is relatively wide, the forms of expression of tortsare complicated and various, which make it difficult to calculate the compensationfor damages. It is very important for the social development to set up unified andaccurate intellectual property right torts and assert the standard and perfectcompensation system.The article is divided into five chapters.The first chapter differentiates and analyzes the features of intellectualproperty violating behavior and explicit the meaning of the compensation forintellectual property damages. Have belonging to the principal matter of theresponsibility and carrying on the discussion of compensation for damage at first. Ido not think the particularity of the intellectual property right can become andadopt the reason without fault responsibility; Suitable fault responsibility principleof compensation for damage of the intellectual property right in the world. So, theintellectual property right of our country torts compensation for damage belongs tothe suitable fault responsibility principle.The second chapter analyzes the principles and the scope of the indemnity.The principles make the difference of full compensation for mental hurt clear. Itpoints out that the compensation responsibility should obey the principles of totaland complete compensation. At the same time, the thesis carries on the study ofhow to modify the rule of balance. The scope of the indemnity arguing thatpointing out the range of loss is the key to compensate the loss of the owner. The loses of property consists of direct and indirect forms, and is the mainindemnification scope. It also carries on the study of the reasonable compensation.The third chapter studies the nature of intellectual property infringementindemnity. After comparing the "repairing compensation" and "punishingindemnification" in the judicatory practices of our country, I put forward to theidea that it is not proper to introduce the punishing indemnity into our country. Weshould try to make repairing indemnity that comes close to actual damage of thevictim.The fourth chapter is also an important part of this thesis. Its aim is to solvethe difficult problem of how to decide the sum of compensation. The existingmethods of indemnity are summarized in this part. The method of calculation isspecified according to some economic theories. They are intended to be just andfair in senses of quality and quantity.The fifth chapter introduces defects of the legal compensation system for tortsof intellectual property right, and submits legislative proposals for it. The authorhas also put forward to one’s own suggestion in perfecting our legal compensationsystem further. Still there are some defects in the legal compensation system that Ithink our system has, such as in current "copyright law", trademark law andjudicial explanation about the patent by the Supreme People’s Court of our country,the regulation about legal compensation is not uniform. So it is necessary to perfectthe legal compensation system of intellectual property fight of our country, I haveput forward some my own opinions on this.