Conflicts Of Rights And Coordination On Intellectual Property

This article, based on various cases of conflicts of rights in intellectual property, pays close attention to these cases from the case of " Wusong fighting a tiger " to the case of "Sanmao" even to the case of "Laoganma". More a few cases show us that the current practice of legislation and judicature related to the conflicts of rights in intellectual property, is not enough to construct a perfectly coordinated system of conflicts of rights. So it is urgent and necessary to make a research on the conflicts of rights, for its great importance in theory and practice.The appearance of the conflict of rights in intellectual property is not occasional. It originates in the intrinsic characters of intellectual property, such as the invisibility, timeliness and locality. The systematic reason of the conflict of rights in intellectual property is the current decentralized model of legislation in intellectual property. The essence of conflicts of rights is to fight for the relatively limited intellectual products of society, and is the conflict of interests and the adverse use of rights. According to the theory of reciprocity damage, the crux of the problem of conflicts of rights in legal form, does not lie in the formal equality protected by rights, but lies in who has qualification and capability of efficiently using these resources.With a view to the current practices of legislation and judicature designed to settle the conflicts of rights in intellectual property, the practices of legislation and judicature in our country still insist on the doctrine of protecting the prior rights with a prohibition remedy. It is contrary to the economic reason and the benefit principle from the view of economics; and in a view of jurisprudence, it is contrary to the individual equality and essence fairness. Therefore, it is necessary for us to reconstruct the coordinate systems of conflicts ofrights in intellectual property, in order to change the "black or white remedy approach".To construct the coordinate systems of conflicts of rights in intellectual property, the author advises to take the following three perspectives: removing conflicts of rights with a legislation way to distribute rights; setting the coordinate systems of conflicts of rights in intellectual property by introducing the complementary doctrine; establishing the affirming-right system of conflicts of rights in intellectual property on the basis of the replenish system.