Case Analysis of Intellectual Property Law Painter Zhang and photo lover Yang are good friends. Zhang gave Yang more than 50 paintings before and after, and Zhang died of illness. Yang selected 30 paintings from Zhang and published them in Zhang's name. Zhang's children learned that Zhang's paintings were published without authorization, which infringed their and Zhang's copyright, so they negotiated with Yang. Yang believes that since the painting was given to himself, it has already obtained the ownership including copyright, and the painting was published in the name of Zhang, and there is no infringement of copyright.

Q: Did Yang's behavior infringe the copyright of Zhang and his children, and why? Article 10 Copyright includes the following personal rights and property rights: (1) the right of publication, that is, the right to decide whether a work is made public; (2) the right of signature, that is, the right to indicate the identity of the author and sign his name on the work; (5) the right of reproduction, that is, the right to make one or more copies of a work by means of printing, photocopying, rubbing, audio recording, video recording, reproduction or reproduction; (6) the right of distribution, that is, the right to provide the original or duplicate of a work to the public by way of sale or gift; (8) The right to exhibit, that is, the right to publicly display the original or duplicate of an artistic work or photographic work; 2. Article 18 The transfer of the original ownership of works such as fine arts shall not be regarded as the transfer of the copyright of the works, and the right to display the original works of fine arts shall be enjoyed by the original owner. Article 19. If the copyright belongs to a citizen, after the death of the citizen, his rights specified in Items (5) to (17) of the first paragraph of Article 10 of this Law shall be transferred in accordance with the provisions of the Inheritance Law within the protection period specified in this Law.

4. Article 46 Anyone who commits one of the following acts of infringement shall, according to the circumstances, bear civil liabilities such as stopping the infringement, eliminating the influence, making an apology and compensating for the losses: (1) publishing his work without the permission of the copyright owner; (three) did not participate in the creation, in order to seek personal fame and fortune, signed other people's works; He violated many rights of the copyright owner and the copyright law of People's Republic of China (PRC) (PRC).

2. Seek a case of intellectual property rights because we are going to do a mock trial and are not interested in ordinary case teachers.

Li Ming, a teacher in a school, invented a teaching instrument "ball instrument" through his own independent research during the teaching process, and passed the internal appraisal of the provincial education commission system.

Later, Li Ming applied for a utility model patent for the invention of "ball equipment" and obtained the patent right granted by the State Patent Office. Later, Li Ming signed a patent licensing contract with the local teaching instrument factory.

Later, Li Ming, the patentee, found that the "ball equipment" bought by a middle school was exactly the same as his own invention, but it was not produced by the factory licensed to manufacture the patented product. After investigation, the manufacturer of "ball equipment" was organized by a local school-run factory, which signed a production license contract with the teaching equipment factory.

Excuse me: 1. Who is the lawbreaker in this case? Explain why. 2. Is the school setting up a factory an act of counterfeiting patents? Why? 3. How does Li Canming protect his patent right? .

3. Several Issues on Intellectual Property Law

1. 1. No infringement. According to the sixth paragraph of Article 22 of the Copyright Law, published works are translated or copied in small quantities for the use of teaching or scientific research personnel, but they may not be published.

This behavior should be characterized as fair use, so it is not infringing. 2. infringement. The TOEFL test questions are divided into four parts: listening, grammar, reading and writing, and ETS is responsible for the development and design. As far as the design and creation process is concerned, each test question needs many people to go through multiple steps and pay creative labor to complete. It is an original work in the sense of China's copyright law and should be protected by law in China. The whole set of test questions compiled from this should also be protected by our laws.

Without the permission of the copyright owner ETS, New Oriental School copied and distributed TOEFL test questions in the form of public sale for the purpose of commercial operation. The use of works has gone beyond the scope of reasonable use in classroom teaching. The plagiarism and public sale of TOEFL test questions by New Oriental School has infringed the copyright of ETS and should bear corresponding legal responsibilities. 3. No infringement. Although ETS legally registered the trademark of TOEFL in publications and audio tapes, New Oriental School highlighted the word "TOEFL" in "TOEFL series textbooks" and "TOEFL listening tapes", but the use of "TOEFL" in New Oriental School is descriptive or narrative.

Its purpose is to explain and emphasize that the contents of the publication are related to the TOEFL test, so as to facilitate readers to understand the contents of the publication, not to indicate the source of the publication, and not to cause readers to misunderstand and confuse the source of the goods. Second, 1, infringement, infringement of the manufacturing right and sales right in the patent right; Whether to bear the liability for compensation is judged according to whether the parties have subjective fault, that is, whether they know or should know that they have engaged in tort.

W company's unauthorized use of H company's patent is of course intentional and should bear the corresponding liability for compensation. 2. Infringement, infringement of the right to sell in the patent right; The same as the above problems, the behavior is subjective and intentional, and it is liable for compensation; Can not continue to sell, because its behavior belongs to infringement, sales belong to continued infringement, which will further damage the legitimate rights and interests of H company. 3. Infringement, infringement of the right to use the patent; There is no subjective fault in behavior and no liability for compensation; If you can't continue to sell, you must stop the infringement, and the same is true. (See Article 33 of the Measures for the Administrative Enforcement of Patents) III. 1. To judge whether the trademarks are similar, the general attention of the relevant public should be the standard first; Secondly, make "isolated observation and comparison", "significant part comparison" and "overall observation and comparison" on trademarks to judge whether they are similar; Finally, the significance and popularity of trademarks.

Personally, I don't think "Hua Biao" and "Deng Hua" in this case will be confused in cognition, because the pronunciation and font are different, so I don't think they are similar. 2. The decoration of the trademark infringes the trademark right of Deng Hua; Reason: Paragraph 1 of Article 50 of the Regulations for the Implementation of the Trademark Law: It is an infringement of the exclusive right to use a registered trademark to mislead the public by using the same or similar mark on the same or similar goods. 3, should bear tort liability; Reason: 1. This behavior violates the exclusive right of a registered trademark. Paragraph 2 of Article 50 of the Regulations for the Implementation of the Trademark Law: Whoever intentionally provides convenient conditions such as storage, transportation, mailing and concealment for the infringement of the exclusive right to use a registered trademark belongs to the infringement of the exclusive right to use a registered trademark as stipulated in Item 5 of Article 52 of the Trademark Law.

As long as it is infringement, it must bear the responsibility of stopping the infringement and returning the infringement income; Second, Beijing Winery sent a letter to the storage company, and the storage company ignored it, regardless of whether it was intentional before. From this moment on, it can be determined that it was intentional. Because it is subjective and intentional, it is necessary to bear the liability for compensation (note that legal liability and liability for compensation are different). 4. Should bear tort liability; Reason: 1. This kind of behavior is an infringement. Paragraph 2 of Article 52 of the Trademark Law stipulates that the sale of goods that infringe upon the exclusive right to use a registered trademark is an infringement of the exclusive right to use a trademark. As long as it is infringement, it must bear the responsibility of stopping the infringement and returning the infringement income; 2. Beijing Winery sent a letter to the shopping mall, which ignored it. Whether it was intentional before or not, from this moment on, it can be regarded as intentional. Because it is subjective and intentional, it should be liable for compensation.

Fourth, 1. 1. Analysis of student L's behavior: L's translation behavior violates the translation right in S's copyright without S's permission, that is, others may not translate the work into other languages without the authorization of the author. The translation right of the original work is the property right of the original copyright owner.

Translators enjoy copyright in their translated works, but when exercising copyright, they shall not damage the copyright of the author of the original works. In other words, the translation of L in magazines must also be approved by the original author S, otherwise it is infringement.

2. Leisure behavior: Its defense is untenable. According to the Copyright Law of China, one of the conditions that foreigners' works can enjoy copyright in China is that their works can be protected by China's copyright if they are published in the States parties to international treaties to which China is a party.

The United States is a signatory to the TRIPs Agreement, so S's articles published in American newspapers are protected by China's copyright law. Second, copyright includes not only personal rights, but also property rights. It is obviously unreasonable for leisure to refuse to pay compensation on the grounds that its translation is S.

3. The defense of "after meals" is not fully established. 1. Translation is indeed within the legal permission, and L shall be paid remuneration. 2.l's translation is based on S's articles, which are derivative works. So reprinting the translation is also equivalent to reprinting S's works. Based on the legal license, S shall be paid the corresponding remuneration.

I have been on the phone for over an hour. .. I hope I can help you.

4. Case study of intellectual property law

1. Criminal cases of infringement of intellectual property rights 1, cases of counterfeiting registered trademarks and other public prosecution organs: People's Procuratorate of Mianzhu City, Sichuan Province Defendants:, Chang, Zhang Huijian, Chang, Qiu Lunfu, Chang Chunrong, Wen Yong: Counterfeiting registered trademarks: (2003) Sichuan Mianzhu Criminal Zi No.66, and was sentenced by People's Procuratorate of Mianzhu City, Sichuan Province on May 26, 2003.

The People's Court of Mianzhu City, Sichuan Province found through trial that the defendant and the defendant often verbally agreed to provide the original wine and often organized packaging materials and trademarks to jointly produce counterfeit famous wines. Later, the defendant Wen Yong was often hired to transport Mianzhu Daqu, Jiangkouchun, Jianzhuang and LU ZHOU LAO JIAO CO.,LTD Erqu from the liquor wholesale department opened in Chengdu Huafeng Food City to the rented houses in Zhonghe Town of Chengdu and Huayang Town of Shuangliu County. The defendants Chang and Zhang Huijian organized Jian Nanchun and Quanxing, and hired the defendants Chang, Qiu Lunfu and Chang Chunrong to clean the bottles and turn over the wine, and pasted 648 "Jian Nanchun" trademarks and "Hua Yang" trademarks.

In addition to Wuliangye, the defendant often hired the defendant Wen Yong to transport the wine to the liquor wholesale department opened by the defendant in Chengdu Southwest Food City for sale. The People's Court of Mianzhu City, Sichuan Province held that the defendants, Chang and Zhang Huijian illegally used the trademarks and packaging of Jiannanchun, Wuliangye, Quanxing and Luzhou Laojiao Tequ without the permission of the registered trademark owner, and the circumstances were serious, and their actions all constituted the crime of counterfeiting registered trademarks.

Defendants Wen Yong, Chang, Chang Chunrong and Qiu Lunfu knew that the above-mentioned defendants had committed acts of counterfeiting registered trademarks and provided them with transportation and other assistance. His behavior should be treated as an accomplice in the crime of counterfeiting registered trademarks. Defendants, Chang and Zhang Huijian played a major role in the crime and were the principal offenders. Defendants Wen Yong, Chang and Qiu Lunfu play a secondary role and are accomplices, which can be mitigated according to law; Defendant Chang Chunrong played a minor role and was an accessory. He participated in the act of counterfeiting registered trademarks for a short time and the circumstances were minor, so he was exempted from punishment according to law.

Within five years after being released from prison, the defendant often hopes that his family will commit crimes again, which is a recidivist and should be severely punished. On August 20, 2003, the People's Court of Mianzhu City, Sichuan Province sentenced the defendant Chang in accordance with the provisions of Articles 2 13, 25, 1, 26, 1, 4, 27, 1, 2, 64 and 65 of the Criminal Law of People's Republic of China (PRC). The defendant Zhang Huijian was sentenced to 3 years and 6 months in prison and fined 1000 yuan; Sentenced the defendant to fixed-term imprisonment 1 year and 6 months, and fined 2000 yuan; The defendant Wen Yong was sentenced to fixed-term imprisonment of 1 year and fined 2000 yuan; The defendant Qiu Lunfu was sentenced to fixed-term imprisonment 1 year and fined 2000 yuan; Defendant Chang Chunrong was exempted from criminal punishment.

After the verdict was pronounced in the first instance, seven defendants, including Wayne Huang, did not appeal, nor did the procuratorate protest, and the verdict became legally effective. 2. The public prosecution agency for the case of selling goods with counterfeit registered trademarks by Britain and others: Xihu District People's Procuratorate, Hangzhou City, Zhejiang Province. Defendants Ying, Gu and Feng Shengwei. Case: Commodity sales counterfeit registered trademarks. CaseNo.: (2004) Zi Chu Zi No.336 of Xixi Criminal in Hangzhou, Zhejiang Province On July 5, 2004, the People's Procuratorate of Xihu District, Hangzhou, Zhejiang Province filed a case with (2004) Criminal Chu Zi No.285.

The People's Court of Xihu District, Hangzhou City, Zhejiang Province found through trial that the defendant Feng Shengwei was a staff member of Guangzhou Sheng Da Integrated Marketing Communication Agency in Hangzhou. During the period from the beginning of June, 5438 to February, 23 of the same year, in order to make illegal profits, knowing that the shampoos provided by Chen Dawei and Zhuang Ni in Guangzhou were products with counterfeit registered trademarks such as Rejoice, Head & Shoulders and Pan Ting produced by Procter & Gamble (China) Co., Ltd., they sold the counterfeit shampoos with the above registered trademarks produced by Procter & Gamble (China) Co., Ltd. and the value was about 1.5 million yuan to the former Guangzhou Procter & Gamble Company for external employment seven times. In the same period, the defendant should and Gu sold shampoo to Huang, a distributor of daily chemical products, for the purpose of making illegal profits, knowing that shampoo was a counterfeit product. The defendant should and Gu made illegal profits of 6.5438+0.5 million yuan.

After the incident, the defendant Feng Shengwei surrendered himself. The Xihu District People's Court of Hangzhou held that the defendants Feng Shengwei, Ying and Gu sold goods that they knew were counterfeit registered trademarks, and the sales amount was huge, which constituted the crime of selling goods with counterfeit registered trademarks.

Defendant Feng Shengwei voluntarily surrendered himself and truthfully confessed his crimes, which should be considered as surrender and can be given a lighter punishment according to law. On August 3, 2004, the Xihu District People's Court of Hangzhou sentenced the defendant to three years' imprisonment in accordance with the provisions of Articles 2 14, 67 1, 25 1, 64, 72 and 73, paragraphs 2 and 3 of the Criminal Law of People's Republic of China (PRC). The defendant Gu was sentenced to 3 years in prison, suspended for 5 years and fined 50,000 yuan; The defendant Feng Shengwei was sentenced to 3 years in prison, suspended for 4 years and fined 50,000 yuan.

After the verdict was pronounced in the first instance, the defendant did not appeal and the procuratorate did not protest. The judgment has taken legal effect. 3. Public prosecution agency for Wang Hongxing and Zhao Kun's case of copyright infringement: Beijing Haidian District People's Procuratorate Defendants: Wang Hongxing and Zhao Kun's case:No. of copyright infringement: (2003) Jinghai Law Punishment Zi Chu Zi No.2434, 2003 165438+ 10. On 3 October, Beijing Haidian District People's Procuratorate took (2003)