Ipr Protection In China And The Convergence Of The Trips Agreement

China officially entered WTO on 11th December 2001. Although China had already fulfilled its commitment in intellectual protection as required by the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), it is still a developing country with comparatively short IP protection history. Therefore, China shows its special features on different IP protecting levels such as legislation, administration and judiciary in its implementation of TRIPS. As a judge of the intellectual property tribunal of Shanghai No 2 Intermediate People's Court, this author tried many intellectual property infringement cases, and witnessed the phylogeny of intellectual property protection before and after China's entry into WTO. Through comparison and demonstration, the author in this dissertation has analyzed some basic problems relating to judicial protection especially IP protection all-round and in the system. This dissertation takes the process of making Chinese IP protection in consistent with TRIPS as the core and lays stress on the deliberation of legislation and judicial practice of civil remedies in intellectual property protection. It not only elaborates TRIPS'background, major content and profound influences on Chinese IP legislation and judiciary but also disserted the difficulties and hotspots concerned much by judiciary such as cognizance of right, constitution of infringement, limitation to rights, right conflict, executive measure, etc by connection with TRIPS provisions. Meanwhile, the author proposed his own opinions and suggestions. Not many books or articles specially about judicial protective practice of intellectual property can be found presently, this author expects this research be helpful to form a general understanding on accomplishment, problems and direction of progress of China's IP protection and furthermore provide aid to Chinese IP protection about the system construction and development and perfect of judicial practice.The dissertation includes six chapters. Chapter 1 summarizes the cognizance of intellectual property. It elaborates the cause for problems of right-cognizance such as the legislation is too abstract and general and lacks maneuverability, the independent law item and its paralleled and disperse legislation mode and execution institution, the deficiency of right granting process and insufficiency of legislation preciseness. It emphasized problems related with property cognizance such as the right origin, production mode and definition of property scope of different types of IP, including copy right, patent, trademark, anti-unfair competition.The basis of right-protection is to ascertain infringement. In Chapter 2, the author compares and analyzes some important problems in legislation variance and justice practice, the formative characteristic, constitution and responsibility principle of intellectual property in China and position of infringement constitution in TRIPS and then brings forward the standpoint that responsibility on fault is the basis of intellectual property infringement and fault deduction and fairness are complementary. The author also points out the problems in the academic viewpoint that negligence liability principle should be established in intellectual property field. Furthermore, judicial assertion of intellectual property infringement default, the difference between tort establishment principle and tort liability responsibility principle, whether consumer can be a tortfeaser are also discussed in Chapter 2.In the case of clear tort responsibility, it is necessary for a judge to resolve the problem of how to decide the responsibility in the trial of intellectual property infringement. The third chapter is about the form of IP infringement liability. In this chapter, the author compares with injunction, damages and other remedies as provided in TRIPS with those in the related intellectual property rules in China. Also, he elaborated the remedies common in judicial practice such as stopping infringement, preventing real tort and damages in detail and put forward his own opinions about the owners'moral right infringement and punitive damages.One of the tenets of TRIPS requires not only the balance between right and duty, but also the prevention of IP abuse by the right-owner. Therefore, limitation of right and right conflict is a hotspot both in theory and in practice when IP is protected. In chapter 4 and chapter 5, the author analyzes the limitation of different IP right according to the prescripts in TRIPS and delved further into the fair use doctrine in copyright and trademark under digital technology and network. He considered that fair use would be defined according to the types and properties of information because of the challenge brought by the new technologies. Moreover, the excessive protection of trademark rights is not only contrary to the Trademark Law aiming at maintaining the whole social benefit, but also inconsistent with effective competition. Furthermore, it conflicts with the concept of effective competition and deviates some basic principles such as justice and good faith. Thus, trademark exclusive right is limited not only by the Trademark Law itself, but also by the principles of civil law and anti-unfair competition law. Having analyzed the reasons and types of IP conflicts according to typical cases, the author sums up the principles to solve right conflict judicially and proposes specific approach to solve the problems in administrative and judicial procedure.Right protection relies on the fair dispense of law finally. The particularity of civil remedies for IP lies in special protective measures adopted by court, where temporary restraining order is the most representative ones. Compared with TRIPS, the author comments on the law system about IP executive measures and points out that preliminary injunction should not just limit to copyright, trademark right and patent right. He also investigates and analyzes the implementation of temporary restraining order in judicial practice and puts forward his own views and suggestions about the way to determine the examination criterion in implementing temporary restraining order.