A Study On The Claim For Restitution Of Unjust Enrichment By Infringe The Intellectual Property Rights

Intellectual property rights are civil rights. The claim for restitution of unjustenrichment is an important part of the civil remedy systems; certainly the claim issuitable for intellectual property. However, seldom Chinas’ academic circle isresearching on the claim of unjust enrichment of intellectual property. The legislationdid not pay full attention to the system, and even misread the system. For example,when it is difficult to calculate the loss of the intellectual property holder, the unjustenrichments are referred to the amount of damages. But the infringer’s unjustenrichment is not completely equal to the holder’s loss, and the applicable conditionsof return profit and compensation for loss are different. Current legislation confusesthe liable principles and the applicable conditions of restitution and compensation.Facing with the no-fault infringer, the intellectual property holder can do nothingagainst them. Faced with this dilemma, it is necessary to set some separate provisionsabout the claim of unjust enrichment in the area of intellectual property.This paper is divided into six parts:In the introduction part, the author quests current legislation which is presumedthe infringer’s profits to the intellectual property holder’s loss and point out the lackof such provisions. A system of claim for unjust enrichments shall be established toprotect the interests of the intellectual property holder better.In the first part, the author describes the meaning，the elements and the types ofclaim for unjust enrichments.The claim has three unique elements, including theprofits to the infringer, the damages to others and lack of legal basis.The second part mainly analyzes the differences and the concurrence of theclaim for unjust enrichment and the claim for compensation. There are mainly fourdifferences between them, including the purposes, the constitution elements, the legaleffect and the limitation periods. There are two kinds of views about the concurrence,that is auxiliary and coincidence. This article is in favor of coincidence, and advocatesin the event of concurrence people can freely choose to exercise of the rights todefend their rights better.The third part mainly analyzes the legal effect of the claim for unjust enrichment. The effectiveness mainly shows as to determine who the claimant is, andwho the debtor is, and then confirm the number of the debt. On the claim for unjustenrichment of infringement of intellectual property, the debtor is the infringer whogets some profits, and the claimant is the owner of intellectual property, as well as thelicensee who gets the exclusive license to use the intellectual property. The subject ofthe return of unjust enrichment is the beneficiary interests, including positiveenrichment and negative enrichment. The positive benefit is the increased property bythe unauthorized use of intellectual property rights of others. The negative profit is theunpaid licensing fees, which should be paid to the owner of intellectual property. Therange of the return of unjust enrichment is due to the subjective state of the debtor.The goodwill beneficiaries bear the return of the scope of existing interests, and oncethe interest does not exist, the debtor should not to return. The malicious beneficiariesshall return the present interests and the additional benefits based on interest, as wellas the relevant interest.The forth section analyzes the claim for unjust enrichment of intellectualproperty is insufficient both in the areas of legislation and judicature. Then the authorproposes to perfect the relevant legislation. The unjust enrichment of infringement ofintellectual property is an important non-payment of unjust enrichment and it is animportant part of the system of unjust enrichment. To build and improve its legislation,the first is to build and perfect the entire system of unjust enrichment, so that theclaim for unjust enrichment of intellectual property can be transformed into specificlegal norms, and to be applied in judicial practice.The last section is to summarize the main points of this article.