On Verwirkung Of Intellectual Property Right

In the knowledge economy era, intellectual property right hasbeen given more and more attention and it is more and more easilyinfringed as well. As one of the remedies to stop the infringement,the right of stopping the infringement is not bound by the limitationof action. Hence, if the ACTS of intellectual property infringementin sued continues, the People’s court shall decide the defendant tostop infringing. This led to a consequence that more and more "waterfish" phenomenon appears. This phenomenon runs contrary to thepurpose of intellectual property law. This paper will introduce theVerwirkung system in civil law so as to regulate the exercise ofintellectual property rights. The structure of this paper is asfollows:Part One is to introduce the source of Verwirkung system. Thereare not statutory regulations on Verwirkung. This system is formedin the judicial practice in Germany. This part describes the relatedcases in Germany, Japan and Taiwan area, and then it gives the conceptand applicable scope of Verwirkung. Part Two is to introduce the legal effect of Verwirkung. Itfirstly describes three theories about the legal effect of Verwirkung,which are "the right of defense owned by the opposite party" doctrine," the extinguishment of substantive right" doctrine and"trennungsprinzip" doctrine, and then it will compare the abovethree theories. By comparison, this paper holds the second doctrine.Part Three is to discuss the legal basis of Verwirkung. It pointsout the legal basis of Verwirkung is the principle of good faith.The aim of Verwirkung is to supervise the intellectual propertyholders to exercise their rights in time and honestly, preventingthe abuse of rights.Part Four is to describe distinctiveness of Verwirkung inintellectual property. In this part, it will compare the differencesof Verwirkung in intellectual property right and real right, and thenit comes to the conclusion: Verwirkung in intellectual property hasa special nature, which makes this research necessary.Part Five is to discuss the constitutive requirements and legaleffect of Verwirkung in intellectual property. It points out thatthe constitutive requirements of Verwirkung in intellectual property are the following three: first, the holders of intellectual propertydo not exercise their rights within a period; second, theintellectual property holders do not exercise their rights withina period made the relative person “invest trustfully” because ofthe reasonable reliance which is inspired by the IP holder’sbehavior; third, if the holders of intellectual property claim theright again, it will violate the principle of good faith and unbalancethe interests the parties concerned. The legal effect of Verwirkungin intellectual property is that the rights from Public domain willreturn to Public domain.Part Six is to discuss the necessity of Verwirkung inintellectual property. By way of the comparison among Verwirkung,extinctive prescription, and scheduled period, it holds that it isnecessary to bring in Verwirkung system in intellectual property.The Verwirkung system that can improve our theoretical system ofintellectual property protection is favorable for relieving theinflexible system of the limitation of action, shaking off the narrowscope of extinctive prescription and avoiding the injustice to therelative person because of the over-supporting way of stopping infringement in judicial practice. At the end, it puts forward somesuggestions for the legislation of Verwirkung system.