| Cessation of infringement is the natural scope of intellectual property relief.Based on the intangible nature of intellectual property,cessation of infringement is usually the primary remedy.With the development of society,civil liability should adapt to people’s diversified needs and develop gradually.Although the cessation of IP infringement liability has initially showed preventive and the traditional position regarding the cessation of IP infringement in China,higher requirements have been put forward for the application of the cessation of IP infringement liability,whether based on the judicial reality of China or compared with other law system countries.At present,the general view is that the cessation of infringement liability is still an Ex post relief,and the judicial practices in China basically deny its preventive function,and China’s existing restriction system on the cessation of IP infringement liability also has great limitations,which leads to the judicial phenomenona that the judges lack of legal provisions related to copyright and trademark law,lack of the recognition of public interests and the application of alternative measures is confused when restricting the cessation of IP infringement liability.To improve the system of the cessation of IP infringement liability in China,on the one hand,the cessation of IP infringement liability should have the preventive function,which is the requirement of the return of intellectual property to civil law and the expansion of property rights.Based on the consistency of applicable objects,the court should refer to the preconditions of intellectual property bahavior preservation.On the other hand,we should improve the restriction system of the cessation of IP infringement liability.Based on the particularity of patent,when China constructs the system of noncessation of infringement in the field of copyright and trademark,the restriction standard can be raised moderately,with the exception of film works and architectural works;Secondly,based on China’s judicial practices and American precedents,it can be divided into four types mainly: the development needs of culture and economy,public safety concerns,concrete mass interests and saving social resources;Finally,it is necessary to increase the provisions of alternative measures in the field of copyright and trademark law and enrich the connotation of alternative measures of non-cessation of IP infringement. |
