Research On The Applicable Law Of The Foreign-related Intellectual Property Infringement

The traditional private international law cannot adjust the relationship between foreign intellectual property, but given the important economic significance and social significance of the business service and literary and artistic creation. Modern civil and commercial legislation of all countries to strengthen the legal protection of intellectual property rights. As different countries has different traditions of the cultural and historical,the regulations is different from other countries. There are conflicts between each other,therefore, on the one hand, the sovereign countries have established the conflict of laws to resolve the conflict of the laws; on the other hand, the international community has concluded a series of international treaties on the protection of intellectual property rights.Although our country attend many treaties which aimed to protect intellectual property rights, such as Paris Convention on the Protection of Industrial Property ?Madrid Agreement Concerning the International Registration of Marks and Berne Convention for the Protection of Literary and Artistic Works. But for a long time, our country do not have the rule to solve the conflict of laws of international protection of intellectual property rights. The argument about the applicable law of the Foreign-related intellectual property infringement exists for a long time in our country, until the foreign-related civil relations of the People's Republic of China Law Applicable Law promulgated on October 28, 2010, we achieve a basic consensus. As the first law which makes clear a regulation about the solve of the applicable law of the Foreign-related intellectual property infringement through legislation, The law applicable law specified the Foreign-related intellectual property infringement by Article 50, but this law's legislative expression is inaccurate, it is controversial that the interpretation of the relevant law in the practice. In addition to, there is insufficient that introduce the Party, autonomy principle to the field of the Foreign-related intellectual property infringement. So this paper will take the article of the applicable law of the Foreign-related intellectual property infringement as the breakthrough point, by studying the traditional principles of applicable law of the Foreign-related intellectual property infringement and the emerging principles of applicable law of the Foreign-related intellectual property infringement, including the judicial practice of our country which is concerning the Foreign-related intellectual property infringement, our country should perfect the law of application of law concerning the solution of the Foreign-related intellectual property infringement, is proposed for suggestions, hoping to help our country to solve the problem of the applicable law of the Foreign-related intellectual property infringement.In addition to the introduction, the paper contains five parts as follows:The first part discusses the definition and characteristics of the foreign intelligence right itself, including the content of intellectual property. Intellectual property rights,usually refers to the right that the law give the applicant the patent?the registrant the trademark and the creator of the literary works and the art in a certain time and scope,which is the exclusive rights enjoyed by the intellectual product. This right has exclusiveness?invisibility?mandatory?regional?time limit?policy and many other features. Foreign-related intellectual property is the intellectual property right which subject? object? content and other factors has the foreign element. The content of the intellectual property rights typically include the patent right ? trademark right and copyright(copyright).The second part discusses the reasons and the types of the conflict of the laws of the Foreign-related intellectual property infringement. Besides the common causes of the conflict of laws of the international civil and commercial, the conflict of laws of the Foreign-related intellectual property infringement has many particularities. According to the content of the Foreign-related intellectual property, the conflict of laws of the Foreign-related intellectual property infringement mainly involving the conflict of laws of the Foreign-related patent infringement ? the conflict of laws of the Foreign-related copyright infringement and the conflict of laws of the Foreign-related trademark infringement.In the third part, the paper expounds the principles of the applicable law of the Foreign-related intellectual property infiingement including the traditional principles of applicable law of the Foreign-related intellectual property infringement and the emerging principles of applicable law of the Foreign-related intellectual property infringement.And having a further analysis of the new trend which emerges in the field of the Foreign-related intellectual property infringement in recent years. Then discuss the problems existing in the trial process of the Foreign-related intellectual property infringement. There is a new trend of the applicable law of intellectual property infringement in the network times.In the fourth part, taking a deeply analysis of the defect of the Article 50 of the law applicable law in our country. Although the provisions of the Article 50 involving the latest legislation and judicial practice of the international community about the Foreign-related intellectual property infringement, the law's legislative expression is inaccurate,it is difficult to definite "the law of the country where protection is claimed"and it is too strict to limit the field of the Party autonomy principle. Thus, the law about the provision of the applicable law of the Foreign-related intellectual property infringement liability needs further perfecting.The fifth part, the paper discuss the visualize of perfecting the provisions of the applicable law of the foreign-related intellectual property infringement. The author suggest to improve the foreign-related civil relations of the People's Republic of China Law Applicable Law as the following parts: perfecting the legislation, in order to reflect the legislative intention, we can make a clear legislative statement. We should clarify the legislative intent. we can perfect the institutional construct, we can expand the scope of the choice of party autonomy, from the single choice to the choice of the court law or tort law. "the law of the country where protection is claimed" should be made a necessary definition. To adhere to the "the law of the country where protection is claimed" as the applicable law, which conform to international community related to the trend of the legislation of the private international law and the practice. This can help to reduce the conflict of laws and the flexibility of the applicable law, which help to solve the foreign-related intellectual property infringement. And benefit the court judgment of recognition and enforcement of arbitral awards.