On The Evidence Effectiveness Of Market Investigation Report In Intellectual Property Litigation

Whether a market investigation report,which forms according to modern social investigation theory,principle,method or technique,can be used as an evidence in the civil procedure or not;and under what kind of circumstances,it can be judged that it has achieved the purpose of proving that the trademark or commodity has caused confusion or misunderstanding,or has certain popularity or significance;as for these questions,we can not get the correct answer from Chinese present legislation,judicial practice or theoretical study.With the development of economic society,there is an increasing number of market investigation reports playing the role of evidence in the intellectual property litigation,and different variety of typical cases in judicial practice provide a empirical basis for the study of this thesis.On this basis,through legislation,judicial practice and theoretical study,the thesis analyzes and studies the effectiveness of the market research report with the evidence qualification and the proof force,in order to seek the solutions of the difficulties that market investigation report as evidence to appear in the intellectual property lawsuit should have the form and the substantive requirement or the evidence effectiveness identification rules and so on.In addition to the introduction and conclusion of this thesis,the text is divided into four parts,a total of 36,000 words:Part One: the definition of the basic scope of the evidence effectiveness of market investigation report in IPR litigation.As a new kind of evidence material appearing in judicial practice at present,market investigation reports exist in various forms,while there is no uniform appellation and definition,at the same time,the effectiveness of evidence also needs to be clarified its content,and the function of the market investigation report being used as evidence of the litigation is also an important fundamental content of this issue,.Therefore,the above problems should be clarified first.Part two: The present status of the confirmation of the validity of market investigation report in IPR litigation in China.For this particular problem,the relevant judicial rules in our country show that the legal norm orientation is not clear,and the trial experience formed in the local judicial practice can not form the effective influence on the present situation because of its non-mandatory and regional nature,meanwhile,in the judicial practice,the different courts treat the evidence effectiveness of the market investigation report totally differently.Although the academic circles have more positive opinions on the qualification of market investigation reports,there is still no consensus on the types of evidence and the rules of proving force.Part three: comparison and reference.The USA and the UK as the typical countries with rich institutional experience in the field of intellectual property judicial protection,provide a lot of references for our country's judicial status in the law orientation and the rule of evidence validity of market investigation report in IPR litigation,especially in the trial basis,attitude towards evidence effectiveness,location of evidence type,evidence qualification and proof force of the market investigation report.Part four: The perfection of the rule of evidence effectiveness of the market investigation report in IPR litigation in China.We should,without affecting the overall stability of the substantive law,actively better the guideline of the relevant substantive law on the effectiveness of the market investigation report as the evidence,and supplement the relevant judicial interpretation to provide a reliable operation;procedural law should regulate specifically the admissibility of market investigation report without barrier,the evidence types,the rules and standard of proof,as well as the rule of reinforcement of evidence;in judicial practice,promoting the judge's judgment thought,emphasizing the value of judicial proof,perfecting the judicial auxiliary system,preventing the prejudgment of the notarization and identification,which are the keys to implement the relevant legal provisions and rules,and to effectively guarantee the realize of the judicial protection of intellectual property.