The Analysis Of Problems On Intellectual Property Right Concerning With "Shanzhai" Culture

With various "Shanzhai" products put on the stage and numerous "Shanzhai" phenomenon emerging, "Shanzhai" has evolved from a kind of economic conduct into a brand new culture phenomenon of society—"Shanzhai Culture", which triggers heated debates among people. What is the "Shanzhai" culture on earth irrating the world? Why is it so tenacious of life and aggressive? Is it strolling on the edge of the law or already breaking the bottom line of the law? What is the relationship between the "Shanzhai" culture and the property rights and which problems does the "Shanzhai" refer to the intellectual property rights? Those problems will be discussed in the paper.In the first part of this paper, the term "Shanzhai" and its connotation has been interpreted, the way by which it has donned the cloak of culture has been set forth, its root has been analyzed, and the Shanzhai products has been classified with those false eliminated.Based on the above classification, the relationship between Shanzhai Culture and intellectual property rights such as copyright, patent rights and trademark right has been discussed in the second part, by taking the parodies and Shanzhai handsets for examples, combining the current situation and the representative events in China. Firstly, the imitation, a leading feature of the Shanzhai Culture, can be legally allowed, only if it is limited to such an extent as the legitimate rights are not be infringed upon. Secondly, the parody, for example, contradicting with the copyright in view of the copyright law, can only be legally permitted, if the principle of legitimate use has been complied with. Thirdly, taking the Shanzhai handset for instance, the way to deal with the contradiction between the Shanzhai Culture and patent rights under the patent right law is to regulate the Shanzhai Culture in accordance with the principle of overall cover, that is, the principles of literal infringement and equivalence. And at last, the relationship between the Shanzhai Culture and the trademark right has been discussed. The existing infringement of trademarks of Shanzhai products has to be resolved by delimitating the legal confine of the mimetic trade mark used by Shanzhai products under the guidance of theoretical basis, upon which the infringement has been identified.Provided that the relationship between the Shanzhai culture and the intellectual property rights has been hereto made clear, the author at last dissertates the way to regulate the Shanzhai Culture and make it play an active role, as well as figured out that the way out for the Shanzhai Culture lies in the innovation.