"Intellectual Property Law" Formative Assessment Book Assignment 1
1. Explanation of terms (2 points for each question, ***20 points)
1 Intellectual property law: Intellectual property law is a general term for the legal norms that regulate various social relationships arising from the creation and use of intellectual achievements, and the process of early identification, protection and formal governance of the intellectual property rights of the owners of the achievements< /p>
2. Product decoration: refers to the decoration on the product or its packaging, containers and other attachments.
3. Product trademark: refers to the trademark used on goods. According to different users, it is divided into manufacturing trademarks and sales trademarks.
4. Certification trademarks: also called guarantee trademarks, are controlled by an organization with the ability to detect and supervise certain goods or services, and are used on goods or services by people other than them. A trade mark or service mark that certifies the origin, raw materials, manufacturing methods, quality, precision or other specific qualities of the goods or services.
5. Registered trademark: a trademark approved and registered by the national trademark authority.
2. Short answer questions (10 points for each question, maximum 40 points)
1. Please define the concept of intellectual property according to your understanding.
Answer: Intellectual property rights are the sum of various civil rights that owners and users of management results enjoy in accordance with the law for their intellectual achievements, including copyrights, trademark rights, patent rights, valve coils, and invention rights. and other rights to scientific and technological achievements. Intellectual property is a concept that continues to expand and deepen with the development of science, technology, literature and art
2. Please describe the legal nature of intellectual property.
Intellectual property is an intangible property right and a special civil right. This is the legal nature of intellectual property.
3. Please describe the scope of intellectual property rights.
The scope of intellectual property rights has two broad and narrow meanings.
The broad scope of intellectual property rights is defined by two major international conventions for the protection of intellectual property rights.
First: The World Intellectual Property Organization Convention signed in 1967 states that intellectual property rights should include the following rights: 1. rights regarding literary, artistic and scientific works; 2. rights regarding performing artists’ performances, recordings and The right to broadcast; 3 the right to human inventions in all fields; 4 the right to scientific discoveries; 5 the right to industrial designs; 6 the right to trade marks, service marks, trade names and other commercial marks; 7 Regarding the right to suppress unfair competition; 8. All other rights arising from intellectual creative activities in the fields of industry, science, literature, and art.
Second: The scope of the Trade-Related Aspects of Intellectual Property Rights Agreement of the World Trade Organization (WTO) established on January 1, 1995, includes: 1. Copyright and neighboring rights 2. Trademark rights 3. Geography Logo rights 4 Industrial design rights 5 Patent rights 6 Integrated circuit layout design rights 7 Exclusive rights to undisclosed information, mainly trade secret rights.
At present, these two are basically used internationally. The scope defined in an agreement is the scope of intellectual property rights.
Intellectual property in a narrow sense refers to intellectual property in the traditional sense, namely patent rights, trademark rights, and copyrights. Excellent people community
o4. What functions do you think intellectual property laws have (at least four articles).
Answer: (1) It provides legal protection for the rights and interests of people who have completed intellectual achievements, and mobilizes people's enthusiasm and creativity in scientific and technological research and the creation of literary and artistic works. (2) It provides a legal mechanism for the promotion, application and dissemination of intellectual achievements, transforms intellectual achievements into productive forces and applies them to production and construction, generating huge economic and social benefits. (3) Provide legal guidelines for international economic, technological, trade, cultural and artistic exchanges, and promote the progress of human civilization and economic development. (4) As an important part of modern civil and commercial law, the intellectual property legal system is of great significance to improving our country's legal system and building a country ruled by law.
3. Case (40 points)
A company has newly produced an environmentally friendly pure natural mineral water. After trial sales, customers responded very well and sales continued to rise. In order to prevent others from counterfeiting and establish a market image and gain credibility, the company decided to apply for trademark registration. The company wants to register its trademark "Shenyi", but it is afraid that others will use the law to infringe its trademark rights, and it is not clear how to register it.
If you were a trademark attorney, what suggestions would you make and provide registration consulting services?
Requirements: Write a consultation opinion (including how to register, what the procedures are, how to prevent rights and interests from being infringed, and what solutions can be taken.)
According to my country's Trademark Law and related regulations , as a trademark agent, I would like to issue the following advisory opinions on your company's application for a registered trademark of "Shenyi" brand mineral water:
1. How to apply for a registered trademark and application procedures.
my country’s Trademark Law stipulates that domestic applicants in my country can apply for trademark registration through two channels. One is that the applicant entrusts a trademark agency to handle the registered trademark application on his behalf, and the other is that the applicant handles it directly. Your company can choose one of them for processing. If you choose to entrust it, your company should first pay attention to choosing a trademark agency with trademark agency qualifications, negotiate with it on agency matters, sign an agency contract, issue a power of attorney, and pay the agency fee and your company's legal person business Copies of valid documents such as licenses. If you choose to apply directly, you should go directly to the Trademark Office to apply for a registered trademark with your company's letter of introduction, corporate business license and relevant application documents. No matter which channel is used, a unified "Application for Trademark Registration" must be filled out and submitted to the Trademark Office, and a copy of the trademark drawing and the applicant's ID card must be submitted. After receiving a trademark registration application, the Trademark Office will conduct a formal review and substantive review of the application in accordance with the law. After review, if the application complies with the regulations, it will make a preliminary review and make an announcement. If there are no objections within three months from the date of announcement, the registration will be approved. Those that do not comply with the regulations will be rejected. If the applicant is dissatisfied, he or she may apply to the Trademark Review Board for review within 15 days from the date of receipt of the rejection notice. If you are dissatisfied with the reexamination result, you may file a lawsuit in the People's Court within 30 days from the date of receipt of the reexamination result notice.
II. Measures to prevent damage to your company's legitimate rights and interests
The essence of this question is what measures your company should take once it obtains the registered trademark of "Shenyi" brand mineral water issue of protection. Regarding trademark protection, my country's laws provide that there are two main methods: administrative protection and judicial protection. Administrative protection means that the trademark management agency investigates and handles trademark infringements in accordance with the law through administrative procedures to protect the exclusive right to use a trademark. Once your company discovers that its registered trademark rights and interests have been damaged, such as counterfeit products appearing on the market, it should report it to the trademark management authority in a timely manner, actively collect relevant evidence, and cooperate with the trademark management authority to crack down on anyone's infringement of the legitimate rights and interests of your company's registered trademark. infringement. Judicial protection means that judicial organs try trademark infringement cases in accordance with the law through judicial procedures, sanction trademark infringers, and crack down on the crime of counterfeiting registered trademarks to protect the exclusive right to trademarks. If necessary, your company will directly file a lawsuit with the People's Court and request judicial protection in accordance with the law. In addition, your company should also strengthen self-protection of registered trademarks, including enhancing trademark protection awareness through learning, deploying trademark management personnel, taking various preventive measures, and promptly requesting administrative protection and judicial protection after infringement occurs.
╳╳Trademark Office
Trademark Agent: ╳╳╳
Year, Month, Day
Formative of the Intellectual Property Law Reference answers to assignment 2 in the assessment book
Wang, in Qiqihar City, Heilongjiang Province, submitted several utility model application documents titled "Thermal Insulation Shoes" to the China Patent Office on April 1, 1990. The postmark date was 1990 On April 1, 2017, the acceptance office of the China Patent Office received the application documents on April 6, 1990. Li directly submitted a patent application document for the same invention as Wang to the China Patent Office's Acceptance Office in Beijing on April 2, 1990, also called a utility model patent application for "insulation shoes".
Q: How to deal with it? Why?
Answer: The test point of this question is to determine according to law who is the first applicant of the patent, Wang or Li, and who should own the right to apply for the patent.
my country's "Patent Law" stipulates that if two or more inventions and creations with the same theme are applied for separately to the patent administrative department, the first-to-file principle shall apply. That is, whoever is the first applicant is the claimant. The determination method is to use the application date as the criterion for judging the filing time. The date when the patent administration department of the State Council receives the patent application documents is the application date. However, if the application documents are mailed, the postmark date is the application date.
In this question, Wang applied by mail, and the postmark date was April 1, 1990. Therefore, his application date should be determined as April 1, 1990 according to law. Li applied through direct submission. The submission time was April 2, 1990, and the application date was April 2, 1990. It can be seen that Wang is the first applicant of the patent, so the State Patent Office should determine that the right to apply for the patent belongs to Wang.
Reference answers to Assignment 3 of the "Intellectual Property Law" formative assessment book
Key points of case answers:
Regarding the case of the dispute between the State Council and a publishing house in the Palace Museum, What is assessed is the ability to analyze and solve problems. It is required to write an attorney opinion as the plaintiff's attorney and a defense opinion as the defendant's attorney. There is no standard answer to this question, as long as it is reasonable, can be justified, and can be used effectively
Reference points for agency opinions: I was entrusted by a certain lawyer firm to serve as the agent of the plaintiff Palace Museum. Now, in accordance with the "Civil Law "General Principles" and the "Copyright Law" and other laws and regulations, based on facts and taking the law as the criterion, the following agency opinions are issued:
1. The Palace Museum photographed and measured more than 900 sets of precious cultural relics. Write text to form a work and publish it through "two publishing houses", thereby enjoying the copyright of the work. Reasons: (1) The 790 pictures of the plaintiff illegally used by the defendant were produced by the plaintiff's Palace Museum taking photos of cultural relics and writing texts. The plaintiff enjoys the copyright of the photographic works for each picture. (2) The plaintiff added text to more than 900 pictures, organized and edited them, and owned the copyright to the publication, which was a compilation of 900 sets of pictures and texts.
2. The publishing house has infringed the copyright of the Palace Museum, which constitutes an infringement of rights. It should apologize and compensate for losses. Reasons: (1) The publishing house's unauthorized use of the plaintiff's pictures without the plaintiff's permission is not only an infringement of plagiarism, but also an infringement of copying and distributing the plaintiff's works for profit without the permission of the copyright owner. Combined with the content on page 283 of the textbook. The defendant's behavior infringed the plaintiff's right to use and was not considered fair use under copyright law. Based on the content of textbooks 314-316 (2) the defendant compiled 790 pictures without the plaintiff's consent, infringing the plaintiff's right of compilation of reproduction and interpretation rights. Discuss based on the content on page 288 of the textbook. (3) The defendant violated the plaintiff’s right to integrity of the work. The plaintiff used 790 pictures without authorization to compile the book "Illustrated Book of Song and Qing Porcelain", which was a tampering of the plaintiff’s published work containing 900 pictures. Based on the content on page 281 of the textbook (4), the defendant violated the plaintiff’s right to receive remuneration. The plaintiff rented the picture materials to the public for a copyright fee of 400 yuan and a processing and production fee of 400 yuan. The defendant used the pictures without authorization, causing economic losses to the plaintiff
3. According to the provisions of the Copyright Law and other regulations, the defendant should immediately make a public apology Apology, compensation for losses and other civil responsibilities. The plaintiff's works are precious cultural relics, so the defendant should pay compensation at the rate of RMB 800 x 2 for each piece, which is *** yuan.
Reference points for the defense: I accept a certain law firm as the defender of the defendant publishing house in the case of the Palace Museum suing the publishing house for copyright infringement. The defense is as follows:
1. Publishing Since the person has not infringed the copyright of the Forbidden City, he is not liable for compensation. The plaintiff’s reasoning is flawed. (Please refute the above plaintiff’s representation opinion from four aspects, elaborate on your personal reasons, and discuss it based on your own understanding based on the relevant content of the textbook).
2. The book has an author, and the publisher only publishes other people’s works. The publisher does not infringe the copyright of the book. The author illegally used 790 pictures of the plaintiff. It was a professor from Tianjin who infringed the copyright of the plaintiff. He should bear corresponding civil liability for this and the publisher should not be borne by it. The plaintiff should sue the author for infringement
3. The Palace Museum enjoys the copyright of the work, but the plaintiff’s proposal to compensate the Palace Museum at the rate of 800 yuan per piece multiplied by 2 has no legal basis. The amount of compensation is obviously different from that of my country. Contrary to legal provisions. The defendant's defender believes that this method of compensation should not be established. As far as compensation is concerned, the price should not be calculated in this way. Relevant laws and regulations do not stipulate the doubling algorithm. As for the scope of compensation losses, the Copyright Law stipulates that it is limited to the actual losses of the victim.
Reference Answers to Assignment 4 of the "Intellectual Property Law" Formative Assessment Book
1. Glossary:
1. Intellectual Property: It is the owner and owner of governance results. The sum of all civil rights that users enjoy in accordance with the law for their intellectual achievements, including copyrights, trademark rights, patent rights, valve coils, invention rights and other scientific and technological achievement rights. Intellectual property is a concept that continues to expand and deepen with the development of science, technology, literature and art
2. Trademark rights: According to the relevant provisions of my country’s Trademark Law, trademark rights can also be called trademark exclusive rights. Refers to the rights enjoyed by trademark registrants over their registered trademarks.
3. Patent rights: An invention is based on an invention. Through the method of applying for a patent, the technical content of one's invention and creation is disclosed. The exclusive right obtained after examination procedures is an exclusive right that the inventor has within a certain period of time. exclusive rights to their inventions.
4. Copyright: Also known as copyright, it refers to the legal rights enjoyed by authors in relation to the literary, artistic and scientific works they create.
5. Infringement of trade secrets: refers to the behavior of the perpetrator using improper means to obtain, disclose, and use the right holder’s trade secrets or violating the contract and allowing others to use other people’s trade secrets without authorization.
2. Fill in the blanks: 1. State Intellectual Property Office 2. Voluntary registration and compulsory registration 3. International trademark registration one by one country 4. Passive identification of case identification 5. Novelty, creativity and practicality 6. Shape, pattern and color 7 , Responsibility is regarded as the author 8. Agree to remuneration Agree to remuneration 9. A direct
3. Choice 1, AB 2, B 3, BCD 4, ABD 5, ABC 6, AD 7, D 8, ABCD
IV. Short answer
1. Conditions that the trademark applied for registration must meet
(1) The trademark applied for registration must have constituent elements; (2) The trademark applied for registration should be distinctive; (3) The trademark applied for registration must not use signs prohibited by law. (4) The trademark applied for registration shall not be identical or similar to the trademark that has been registered or preliminarily approved by others for the same or similar goods or services. (5) The trademark applied for registration shall not be identical or similar to a registered trademark that has been revoked or canceled for less than one year.
2. Substantive conditions for granting invention patents and utility model patent rights
Article 22 of my country’s Patent Law also stipulates: “Inventions and utility models for which patent rights are granted must possess novelty. , creativity and practicality”. (1) Novelty means that before the filing date, the same invention or utility model has not been published in domestic or foreign publications, has been publicly used in China, or is otherwise known to the public, and there is no identical invention or utility model. A utility model application is filed with the Patent Office by someone else and is recorded in the patent application documents published after the filing date. "(2) Paragraph 3 of Article 22 of the Chinese Patent Law stipulates: "Creativity means that compared with the existing technology before the filing date, the invention has outstanding substantive features and significant progress. The utility model has substantive features. and progress. "(3) Practicality includes practicality, reproducibility and usefulness.
3. What personal rights does the copyright owner enjoy?
Answer: According to Article 10 of the Copyright Law, the copyright Personal rights mainly include four personal rights: the right of publication, the right of signature, the right of modification, and the right to protect the integrity of the work.
The right of publication: the author’s right to decide whether to make the work public.
Right: the right of the author to mark his or her name on the works and copies they create.
Right of modification: the right to modify or authorize others to modify the work.
The right to protect the integrity of the work. : It is the right to protect works from distortion and tampering.
5. There is no standard answer to the discussion. Answer based on your own learning experience.
1. Reason: Consider: ( 1) Economic factors: For example, plagiarizing other people's new technologies can reduce development costs, without having to pay licensing fees for other people's new technologies, thus reducing the cost of products and gaining huge benefits. For example, one can improve the technical content of one's own products and update old products. Change generations, quickly occupy domestic and international markets, and win huge business opportunities and economic benefits. (2) Spiritual factors: By plagiarizing other people's new technologies, applying for patents first, becoming a patentee, and gaining spiritual satisfaction.
(As long as everyone analyzes the reasons from the perspective of "chasing fame and fortune")
2. Importance: (1) Protecting inventions and creations promotes technological innovation and mobilizes people's enthusiasm and creativity in patent development research. (2) Promote the promotion and use of new technologies, promote the transformation of intellectual achievements into productivity, and generate huge economic and social benefits; (3) Promote the disclosure and dissemination of new technologies, and promote the progress of human civilization. (4) Provide protection for foreign investment and promote international exchanges; (5) Provide guarantee for the rights and interests of persons who have completed intellectual achievements
3. Protection measures: (1) Self-protection (2) Judicial protection: administrative Relief and judicial relief (just expand it)