Curricula vitae:
Liu quilin, graduate of the university of central north, master's degree, is currently a full-time lawyer at the honolulu law firm in shanxi。
Areas of expertise: intellectual property litigation such as patents, trademarks, copyrights, trade secrets, corporate legal advisers and other civil and commercial litigation such as civil borrowing disputes。
During practice, 18 patent cases for inventions, 26 trademark cases, 8 copyright cases and more than 70 other civil and commercial cases were processed。
In the conduct of the legal profession, faithful to the facts, faithful to the law, diligent and competent, always put the legitimate interests of the person in the forefront, courageously and conscientiously, defending the legitimate interests of the person concerned with greater ability and good professionalism。
In judicial practice, the frequency of intellectual property infringement litigation in everyday life is increasing. This phenomenon is strongly related to the relatively low level of legal awareness and awareness of violations。
As retailers, the selection of a product tends to focus only on the size of its profits and other relevant factors, with few concerns about the risk of infringement of intellectual property rights. In the event of a tort suit, these retailers often do not produce strong evidence to justify non-violation, except for claims that they do not know. This can lead to a situation where accountability is difficult and retailers fall back。
How can intellectual property rights be avoided? On 27 october, a reporter from the shanxi evening newspaper interviewed liu ki-lin, a full-time lawyer from the shanxi hongxi law firm。
All the information about the product
It is common for products, whether sold by traditional physical stores or online generators, to have the manufacturer's information marked on the product that is not real. In other words, the name and address of the company indicated on the product does not exist at all. Once this is found, there is a suspected infringement of intellectual property rights. This has become a common tactic used by some illegal traders to avoid liability under the law. Retailers must therefore be careful to find that such products must be refused sales. Counsel reminds the public of the use of the national business credit information publicisation system, which is available for business information, as well as software such as check-ups, sanctuaries and eye-checks。
At the same time, retailers need to look at the overpacking of a product, the product itself and the instructions when they represent a product. It must be determined that the above products are not non-products if they are marked with such information as the date of production, the site of the manufacturer and the supporting documentation such as a quality certificate。
You have to be licensed by the right-holder. Business
Owing to the abundance of market products, retail products generally require several hands to reach consumers. Intermediaries include provincial and municipal agents, wholesalers, retailers, etc. As a retailer, it is necessary to verify whether his or her superior is a licensed dealer authorized by the rights holder。
The patent law of our country sets out the principle of exhaustion of the rights of the rights holder, also known as the exhaustion of rights, which is a unique principle of intellectual property law. This principle means that, once the intellectual property owner or licensee has lawfully placed the intellectual property product in circulation, some or all of the original intellectual property owner's exclusive rights have been exhausted. But this means that the principle can only be used if the distributors legally acquire the patented product. If the original patented product was not legal, then the subsequent business would be less legal。
As network technology continues to develop, many industries have competed for entry into the electricity industry. Common types of products can search for corresponding sales information online. As retailers, if it is found that the prices of incoming goods provided by the home are well below market prices, it is important to note that the product provided by the home is likely to involve products that violate intellectual property rights。
At the same time, the most effective way of checking whether a product has been tort is to check online whether it has any relevant information. If there is legal information on the product available online, unless the legal instrument in force for non-violation has been issued, the product is generally given up decisively in order to avoid involvement in tort disputes。
It should be noted that the above-mentioned act deals with patented products, while patented tort products do not apply。
The preservation of evidence is necessary
Under the relevant legal provisions, the use, promise or sale of a patented tort product for the purpose of production business without knowledge that it was manufactured and sold without the patentee's licence, and proof of its lawful origin, may constitute a defence of lawful origin。
This is the well-known legitimate source defence. Legitimate sources are used extensively as an important defence in trademarks and patent infringement cases, but in judicial practice some of the alleged infringers treat legitimate sources as “freedom gold” for non-violation, even wrongly believing that a mere indication of the origin of the product does not constitute a violation. The defence of these legitimate sources requires two conditions at the same time: first, that they are unaware of the patented tort product, in which the term “not known” means that they are not actually known and should not be known. It is important to note here that, if the product is non-existent, it does not constitute a legitimate source defence, whether or not the retailer has been in contact with the product, since it does not fulfil its basic duty of care and should be known; and that, secondly, it must be proved that there is a legal source, which refers to the acquisition of the product by normal commercial means, such as legal distribution channels, normal trading contracts, etc。
As retailers, it is important to preserve evidence such as purchase and sale contracts, trade papers, documents of exchange of goods, invoices, etc., to be used as a legitimate source defence in case of tort litigation. Otherwise, retailers are left to take the fall when they do not provide business information。
