Thinking On Infringement Liability Attribution Of Intellectual Property Rights

The debate on how to use the Infringement Liability attributionof Intellectual Property Rights has never intermitted both intheory and in practice. It is Imminent to solve this problem onchina's entry into WTO. Strengthening the studies on theInfringement Liability attribution of Intellectual PropertyRights will enhance our understanding of the character and thefunction of TRIPS, at the same time give us the demonstration onhow to draft China's counterpart and set up the IntellectualProperty Rights protection system of our own. chapter I—— basic theoretic analysis part, the authorregards that the major causation of the abovementioned debate lieson the disagreement on the basic concepts among scholars, thereforehe gives importance to the analysis of the basic concepts, suchas and its Composing elements, the differences between theinfringement liability and tort liability, liability attribution,and the relations between property claim and intellectual propertyclaim. Moreover, the author puts forward the following ideas: first,infringement action means the action which has damaged or be goingto damage others legitimate right without any legal excuse; second,we can decide to use which liability attribution principle uponthe request of the right holder; third, intellectual property claimshould be governed by non-negligent liability principle. Chapter II—analysis of the provisions of Trips. First, theauthor restate the damage in the aspect of imminent infringement;Second, through the analysis of relative provisions of TRIPS, hefinds the grounds for non-negligent liability principle in TRIPS;Third, he makes it clear that the principle in second paragraphof Article 45 is equity attribution rather than non-negligentliability. Chapter III ---the legal theory supporting the non-negligentliability attribution in intellectual property claim. First, thecomparability between the intellectual property right and theproperty right, and the nature defined as information and time,which decide the application of the non-negligent liabilityattribution in intellectual property claim; Second, the authoranalyses the function of improper profit system in a legal-economicway; third, according to the comparative laws, most of westerncountries apply the non-negligent liability attribution inintellectual property claim, and apply the negligent liabilityattribution in damage claim. At last, this thesis give an account on the development of thechina's intellectual property law, and points out the defects ofthe current laws. In addition, the author discusses the developmentand significance of the imminent infringement system in china.