On Claim Of Intellectual Property

The claim of intellectual property is the protection effect of intellectual property. It is essential to keep the absolute and dominative character of intellectual property. Though our legislation and judicature have established the system related to it, such as stopping infringing patent right, trademark right and copyright before lawsuit, the cognition of the claim of intellectual property is still in a fragmentary and scattered situation in general which has not formed a common and specific system. Because the system of our tort law is confused and theories have not come to an agreement in addition, which makes many scholars think mistakenly that infringement liability principles should be applied to all of tortuous liabilities, the forms of liabilities belonging to the claim of intellectual property are considered the executive result of the claim of creditor's rights. The claim of intellectual property is applied to tort law. The mistaken brings about the difficulty and disunity of legal application during the course of judicial trial; Bring about the academic controversy in the field of intellectual property; Disturb the function of the claim of intellectual property to bring into play. On this purpose, the article will discuss the claim of intellectual property by using theories of law. The author expects that it can benefit theories and practices of the system of intellectual property and enrich laws of intellectual property. The article has four parts. Each part is a chapter. Chapter one primarily argues whether the claim of intellectual property exists or not. Firstly, exploring the root of claim of intellectual property in existence. It origins the essential attribute of intellectual property. The intellectual property is a kind of absolute and dominative right. Owners of intellectual property has the right to implement it without anyone else's action. It must be protected absolutely. If the right is a kind of absolute right, it should be awarded absolute claim by law. When it is jus ad rem, the absolute claim is known as claim of jus ad rem. When it is intellectual property, the absolute claim is named as the claim of intellectual property. Then, the article investigates two aspects of doctrine and legislation in Germany, in Japan, in Taiwan of China. The author thinks that the existence of claim of intellectual property is objective and certain in these above countries and areas. Even there is not a formal concept of claim of intellectual property, but it actually exists at least. It should be a question need not to be argued. At the end of chapter one, the paper has introduced the current research situation in our country on claim of intellectual property. Now, quite a few of scholars have realized its existence, including its important meaning for protecting intellectual property. They have put forward the Concept of claim of intellectual property clearly. Chapter two mainly discusses the necessity of establishing claim of intellectual property. Firstly, Establishing the system helps to strengthen the protection of intellectual property. Claim of intellectual property do not need to wait for damage happens actually, so it can prevent imminent infringement effectively. Prevent trouble before it happens. Secondly, establishing the system helps to clarify confusions of infringement law of our country. The paper thinks that liability principles of Infringement refers only to damage compensation. When the owner of right exercises the claim of intellectual property including stopping infringing, excluding hindering, dispelling danger etc, the liability principle matter does not be involved in. Then point out that the claim of intellectual property and the claim of infringement indemnity have different nature and composition conditions, their functions and effects can not be substituted by each other. Wemust distinguish them. Thirdly, establishing the system is favorable to follow the mode of thinking of basis of claim. In the case of infringing intellectual property, the claim of intellectual property, the claim for restitution of unjust enrichment and claim for damages are the main relief means that the party can quote. Obviously, in the inspection order of the basis of claim, the claim of intellectual property is in the same position as the claim of jus ad rem, which should be prior to the claim for restitution of unjust enrichment and claim for damages to check. Chapter three mostly describes the basic system content of the claim of intellectual property. Including the nature, basic contents, composition conditions, the subject and terms of exercising. In nature, it is a independent right though it depends on intellectual property, it is not creditor's rights and different from the intellectual property itself too. It is happening constantly during the existing and continuing of intellectual property in order to keep the satisfactory state of intellectual property and does not eliminate because of prescription. In content, it is different from jus ad rem. The claim of restitution can not be applied to it. It consists of claim of stopping infringing, dispelling danger, discarding and removing. The composition condition includes: Firstly, infringement behaviors. This behavior can be a realistic infringement behavior which is happening and also can be a potential infringement behavior that will take place soon; Secondly, the behavior has violated the law. the realistic damage result and actor's faults are unnecessary. Enforcement persons of the claim of intellectual property should be owners of intellectual property and interested parties of a certain limit. The article thinks when the infringement behavior of illegal actor makes the common permission user suffer interest losses, he has the right to exercise claim of intellectual property too.