The Law of Intellectual Property 1 知识产权法. 2 Intellectual property is, in essence, useful information or knowledge. Intellectual property is divided, for

1The Law of Intellectual PropertyThe Law of Intellectual Property

The Law of Intellectual The Law of Intellectual PropertyProperty

知识产权法知识产权法


Intellectual property is, in essence, useful information or knowledge. Intellectual property is divided, for the purpose of study and for establishing legal rights, into two principal branches:

Artistic property 艺术产权 : Artistic literary, and musical works, which are protected in most countries by copyrights and neighboring rights.

Industrial property 工业产权 : Inventions and trademarks, which are protected in a variety of ways ； the most common protection being in the form of patents, petty patents, and inventor’s certificates. Trademarks include “true” trademarks, trade names, service marks and etc., which are protected by trademark laws.

What is Intellectual Property ?What is Intellectual Property ?


Copyrights Copyrights 版权版权

Copyright is an incorporeal 无形的 statutory right that gives the author of an artistic work 艺术作品 , for a limited period, the exclusive privilege 专有权利 of making copies of the work and publishing and selling the copies.

版权 ( 即著作权 ) ，是指文学、艺术、科学作品的作者对其作品享有的权利（包括财产权、人身权）。版权是知识产权的一种类型，它是由自然科学、社会科学以及文学、音乐、戏剧、绘画、雕塑、摄影和电影摄影等方面的作品组成。


Works Protected under Copyright Works Protected under Copyright

版权保护的作品版权保护的作品 Literary works 文字作品； Musical works 音乐作品 , including any accompanying words

伴随文字 ; Dramatic works 戏剧作品 ,including any accompanying musi

c 伴奏音乐； Pantomimes and choreographic works 哑剧和舞蹈作品 ; Pictorial, graphic, and sculptural works 图画、绘画、雕刻作品 ; Motion pictures and other audio-visual works 电影和其它视听

作品 ; Sound recordings 录音作品 .


Rights of Copyright Owners 版权所有者的权利

Pecuniary right 经济权利 Right of reproduction 复制权 Right of distribution 发行权 Doctrine of exhaustion 权利穷竭原则 Right of performance 表演权 Moral rights 精神权利


，Doctrine of exhaustion 权利穷竭原则是指知识产权所有人或经其授权的人制造的知

识产权产品，在第一次投放到市场后，权利人即丧失了对它的进一步的控制权，权利人的权利即被认为用尽、穷竭了。

如何使知识产权保护在不损害权利人利益的情况下实现社会利益的平衡，保证商品的自由流通，即是研究该课题的意义所在。


,

moral rights moral rights 精神权利精神权利著作者的精神权利、人身权或人格权 , 是在欧

陆法系及部分普通法系中赋予创作者对自己原创作品享有独立于著作权的另一系列权利，换言之这个权利是不会因为原作者已经放弃其作品的复制或持有权（无法从其获得经济上的直接利益如版税）而丧失。

按不同地区的立法定义，精神权利的有效时间可以是永久或等同作品的著作权有效年期，而它保护的创作类型又会因地区而异，


,《保护文学和艺术作品伯尔尼公约》要求精神权利包含以下两类权利：

● 署名权（ Attribution (copyright) ）或识别权，除了实名外亦允许以假名对作品署名或拒绝署名；

● 保持原作品的完整，禁止作品在未得原作者同意下被他人修改或歪曲原意。


Neighboring Rights Neighboring Rights 邻接权邻接权 (( 又称作品传播者权作品传播者权）Copyright laws generally apply to most works of an artistic, lite

rary, musical, or scientific nature. Technology, however, has a habit of producing new kinds of works that fall outside of existing definitions.

Two recent examples are computer programs and semi-conductor chips 半导体蕊片 . Legislatures respond to these changes in different ways. Sometimes they make amendments to existing laws to incorporate 编入 these new works. Sometimes, new laws, parallel 并行的 but separate from existing copyright statues are enacted 颁布 . The rights created by such laws are called neighboring rights (neighbors to, but not part of , an author’s copyright).


. “ 邻接权邻接权”（ neighboring right ）是指与著作权著作权相邻近的权利权利，是指作品传播者对其传

播作品过程中所作出的创造性劳动和投资所享有的权利。

邻接权是在传播作品中产生的权利。作品创作出来后，需在公众中传播，传播者在传播作品中有创造性劳动，这种劳动亦应受到法律保护。

传播者传播作品而产生的权利被称为著作权的邻接权。邻接权与著作权密切相关，又是独立于著作权之外的一种权利。


。在我国，邻接权主要是指出版者的权利、表演者的权

利、录像制品制作者的权利、录音制作者的权利、电视台对其制作的非作品的电视节目的权利、广播电台的权利。

英美法系国家，著作权法很少引入邻接权的概念。例如英国著作权法，将录音制作者和广播电视组织的权利都视为著作权。在美国著作权法中，作者的权利、录音制作者的权利都属于著作权范畴。

只有在欧洲大陆法系国家，才严格区分著作权与邻接权的概念。


Duration Duration 版权保护期限版权保护期限

The common rule for the duration of a copyright was established in 1948 in a revision to the Berne Convention: A copyright lasts for fifty years following the author’s death.

The WTO’s newly adopted Agreement on Trade-Related Aspects of Intellectual Property Rights 《与贸易有关的知识产权协议》 follows this precedent 先例 , requiring WTO member states to provide copyright protection of at least fifty year.


Exceptions to Copyrights Protection Exceptions to Copyrights Protection 版权保护的除外版权保护的除外Copyrighted material can be used lawfully in at least some count

ries: (1)in a court or administrative proceeding 行政诉讼 , or by the p

olice should the material (such as a portrait) be needed to maintain public safety;

(2)for instructional purposes in schools;(3)for a purely private use(except that computer programs may n

ot be copied, regardless of the use involved);(4)in brief quotations in scholarly or literary works, or in review

s评论 ; (5)in extended quotations of newsworthy speeches 有报道价值

的讲话 or political commentaries政治评论 .


Patents Patents 专利专利Patents are one of the oldest recognized forms of intellectual pro

perty. It is an incorporeal非物质的 statutory right that gives an inventor, for a limited period, the exclusive right to use or sell a patented product, or to use a patented method or process.

Historically, two reasons have been given to justify the granting of patents:

Patents are a confirmation of the private property rights私有财产权 of the inventor.

Patents are a grant of a special monopoly to encourage invention and industrial development.


,专利专利（ patent) 专利一词来源于拉丁语 Litterae patentes ，意

为公开的信件或公共文献，是中世纪的君主用来颁布某种特权的证明，后来指英国国王亲自签署的独占权利证书。

专利是世界上最大的技术信息源，据实证统计分析，专利包含了世界科技技术信息的 90%-95% 。


，在我国，专利的含义有两种： 1 、口语中的使用，仅仅指的是“独自占有”。例如“这仅仅是我的专利”。

2 、知识产权中的三重意思，比较容易混淆。第一：专利权的简称，指专利权人对发明创造享有的

专利权，即国家依法在一定时期内授予发明创造者或者其权利继受者独占使用其发明创造的权利，这里强调的是权利。

专利权是一种专有权，这种权利具有独占的排他性。非专利权人要想使用他人的专利技术，必须依法征得专利权人的授权或许可。


，第二：指受到专利法保护的发明创造，即专利技术，

是受国家认可并在公开的基础上进行法律保护的专有技术。

“ 专利”在这里具体指的是技术方法——受国家法律保护的技术或者方案。（所谓专有技术，是享有专有权的技术，这是更大的概念，包括专利技术和技术秘密。某些不属于专利和技术秘密的专业技术，只有在某些技术服务合同中才有意义。）专利是受法律规范保护的发明创造，它是指一项发明创造向国家审批机关提出专利申请，经依法审查合格后向专利申请人授予的该国内规定的时间内对该项发明创造享有的专有权，并需要定时缴纳年费来维持这种国家的保护状态。


，第三：指专利局颁发的确认申请人对其发明创造享有的专利权的专利证书或指记载发明创造内容的专利文献，指的是具体的物质文件。


Patents and other Inventor’s GrantsPatents and other Inventor’s Grants专利及其他发明者授予专利及其他发明者授予

The primary method of protecting and rewarding inventors is the patent. To obtain a patent, an inventor must make an application, and the product or process must conform to certain legislative definitions of what is patentable.

Another device for rewarding inventors, which is used in communist countries (i.e. China, Cuba, North Korea and Vietnam), is the inventor’s certificate 发明者证书 . An inventor’s certificate verifies the authorship of an invention and establishes the exclusive right of the state and the state’s agencies to use the invention without special authorization. In addition, the state pays the inventor compensation; but it is more in the nature of a premium酬金 or award奖赏 than a royalty （专利权的）使用费 .


Differences Between Inventor’s Certificates and PatentDifferences Between Inventor’s Certificates and Patent

s s 发明者证书与专利的区别发明者证书与专利的区别 An inventor’s certificate, unlike a patent, does not give

the inventor the exclusive right to use the invention or to license others to do so. The certificate, in this regard, is more of a monetary reward than a legal right or privilege.

Inventors’ certificates also differ from patents in the kinds of discoveries they recognize. While patents generally do not apply to discoveries or inventions of basic scientific ideas or to products or processes with no industrial application, inventors’ certificates do.


Other Methods for Protecting Inventor’s Rights Other Methods for Protecting Inventor’s Rights

保护发明者权利的其它方法保护发明者权利的其它方法 petty patent 小专利 A statutory right given to the authors of m

inor inventions小发明 . confirmation patents 确认专利 They are issued for inventions

already patented in another country. patents of addition 专利的补充 They cover improvements on al

ready patented inventions. precautionary patents 预告专利 They are issued for short peri

ods of time to an inventor who has not completely perfected an invention, so that he will be notified when any other inventors apply for a patent on the same invention, and so that he will have the opportunity to object to their applications.


Inventions that Qualify for Patent Protection Inventions that Qualify for Patent Protection 受专利保护的发明受专利保护的发明

Patents may be obtained for inventions in every field of technology, whether products or processes, so long as they are “new”, involve an inventive step, and capable of industrial application.

An invention is new if no other inventor has obtained a patent for the same invention; it involves an inventive step if the subject matter or an invention was not obvious at the time of the invention’s making to a person having ordinary skill in the art to which said subject matter pertains 属于，适合 ; and it is capable of industrial application if the product or process of an invention can be used in industry or commerce.


Filing for Patent Protection Filing for Patent Protection 专利的注册专利的注册

In order to obtain patent protection, the inventor must apply to the Patent and Trademark Office (PTO) 专利与商标办公室 .

The application procedures followed vary from country to country. These range from a simple review of the application form to an extensive search of cosmetic and foreign materials to determine if the product or process is both novel and inventive.

See Exhibit 8-1in the textbook.


Inventions Excluded from Patent Protection Inventions Excluded from Patent Protection 不受专利保护的发明不受专利保护的发明 (1)(1)

Patents may be denied to inventions:

(1)that do not meet the basic definitional requirements of patentability of being new, involving an inventive step, and being capable of industrial application.


Inventions Excluded from Patent Protection Inventions Excluded from Patent Protection 不受专利保护的发明不受专利保护的发明 (2)(2)

(2)because they violate basic social policies the Agreement on Trade-Related Aspects of Intellectual Property Rights, for example, allows a WTO member state to deny a patent to an inventor in order “to protect public order 公共秩序 or morality” so long as the state also forbids the commercial exploitation of the invention.

(3) in order to protect the lives or health of humans, animals, or plants, or to protect the environment from serious injury.


Duration of Patents Duration of Patents 专利的期限专利的期限

With the coming into force of the Agreement on Trade-Related Aspects on Intellectual Property Rights on January 1, 1995, the minimum term of protection for patens has now been set at twenty years for the member states of the World Trade Organization. Previously, the terms that countries had established varied widely, ranging from three to twenty-six years (including extensions).


Trademarks Trademarks 商标商标

Five marks to identify 识别 ,鉴定 themselves and their products:

trademarks (true trademarks)确切的商标 trade names 商号 service marks服务标志 collective marks 集体标志 certification marks 证明商标


True Trade Marks True Trade Marks 确切的商标确切的商标

A true trade mark is “any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.”


Trade Name Trade Name 商号商号A trade name is a mark or symbol used to identify a manufa

cturer or merchant.

商号商号即厂商字号厂商字号，或企业名称企业名称。商号作为企业特定化的标志，是企业具有法律人格的表现。商号经核准登记后，可以在牌匾，合同及商品包装等方面使用，其专有使用权不具有时间性的特点，只在所依附的厂商消亡时才随之终止。在一些生产厂家中，某种文字、图形，既是商号，又用来作为商标。但对于大多数生产厂家来说，商号与商标是各个不同的。一般而言，商标必须与其所依附的特定商品相联系而存在，而商号则必须与生产或经营该商品的特定厂商相联系而存在。

PepsiCo 百事集团 is the well-known trade name of PepsiCo, Inc, a company which manufactures and sells products under trademarks such as Pepsi Coke and Kentucky Fried Chick.


Service Mark Service Mark 服务标志服务标志A service mark is a mark or symbol used to identify a person who

provides services. （服务标志又称服务商标或劳务标志，是指提供服务的经营者为将自

己提供的服务与他人提供的服务相区别而使用的标志。与商品商标一样，服务商标可以由文字、图形、字母、数字、三维标志、声音和颜色组合，以及上述要素的组合而构成。它一旦被服务企业所注册，该企业也就拥有了对该服务商标的独占专有使用权，并受法律的保护。

PepsiCo, Inc, uses the service marks of Kentucky Fried Chicken and Pizza Hut to identify its service establishments.

As the examples indicate, a mark can be used for more than one purpose. Thus, Kentucky Fried Chicken is both a trademark and a service mark. Similarly, Coca-Cola is used as both a trade name and a trademark .


Collective Marks Collective Marks 集体标志集体标志

A collective mark is a mark or symbol used by a group to identify itself to its members.

（集体标志集体标志是指以团体、协会或者其他组织名义注册，专供该组织成员在商事活动中使用，以表明使用者在该组织中的成员资格的标志。）

Examples:

the identifying names and insignias 勋章 , 徽章 of the American Greek letter fraternities 互助会 and sororities 妇女联谊会 ;

the uniforms or cookies of Boy Scouts 童子军 and Girl Scouts女童子军 .


Certification Marks Certification Marks 证明商标证明商标A certification mark is a mark used exclusively by a lice

nsee 获许可的人 or franchisee 受许商 to indicate that a product meets certain standards. Unlike true trademarks, trade names, and service marks, a certification mark may not be used by the licensor or franchisor 特许商 .

证明商标证明商标指能够证明商品达到一定品质质量标准的标志，又称“保证商标”。有些国家又称之为“担保商标”或“统一质量标志”。通常是由具有一定权威的商会、机关或其他团体申请注册，申请人对使用证明商标的商品具有鉴定能力并负保证责任，证明商标权归申请人所有。

　　证明商标和其他商标的显著区别，即所有权和使用权的分离。


，

Champagne 香槟酒 , Roquefort 罗克福尔色拉调味酱 , and Scotch ( 一烈酒名 ), which indicate places of origin 原产地 ; the Underwriters’ Seal of Approval, which attests 证明 to certain standards of quality.


Acquiring Trademarks Acquiring Trademarks 商标权的取得商标权的取得

Trademarks are acquired by use and by registration.

In a few countries, registration is not available.

In two countries---Canada and the Philippines --- a trademark can be registered only if it has already been put into use.

In the rest of the world, a mark can be registered even if it has never been used in commerce.


Registration Registration 注册注册The registration process commonly begins with an examination

done by an official in the Trademark Office 商标办公室 to determine a mark ’s suitability for registration.

In most countries this consists simply of an examination of the application form for compliance with statutory definitions and an examination of the Office’s own records to insure that the mark has not been previously registered.

In wealthier countries with the resources to maintain a large library and staff, the examination can include the examination of records from other countries, or records of the states of a federal or economic union 经济同盟 , or private materials, such as newspapers, magazines, or trademark association 商标协会 reports.


Registration Criteria Registration Criteria 注册标准注册标准

The common statutory definitional criteria that appear in all trademark laws possess a unique design which distinguishes a product from other similar products.

In sum, to register a trademark, it must not infringe on another mark and be distinctive.


Refusing Registration Refusing Registration 商标注册的拒绝商标注册的拒绝 (1)(1)

A mark or name will be denied in the United States if it:

(1) does not function as a trademark to identify the goods or services as coming from a particular source 特定来源 ; for example, the matter applied for is merely ornamentation;

(2) is immoral, deceptive虚假的 , or scandalous 诽谤性的 ;

(3) may disparage 毁谤 or falsely suggest a connection with persons, institutions, beliefs 信仰 , or national symbols 国家标志 , or bring them into contempt or disrepute 不光彩 ;

(4) consists of or simulates the flag or coat of arms 军旗或盾徽 or other insignia 徽章 of the United States, or a state or municipality 自治区 , or any foreign nation;


Refusing Registration Refusing Registration 商标注册的拒绝商标注册的拒绝 (2)(2)

(5)is the name, portrait, or signature of a particular living individual, unless he has given written consent; or is the name, signature, or portrait of a deceased President of the USA during the lifetime of his widow, unless she has given her consent;

(6) so resembles a mark already registered in the patent and trademark office as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive;

(7) is merely deceptive or deceptively misdescriptive of the goods or services; is primarily geographically descriptive or deceptively misdescriptive of the goods or services of the applicant;

(8) is primarily merely a surname.


Registration Review Registration Review 注册审查注册审查In America, once a Trademark Office official determines that a m

ark is suitable for registration, the mark will be published in the office’s official gazette官方公报 . Opponents to the registration then have a period of time---typically thirty to ninety days---in which to oppose the registration or to ask for an extension to do so. An “opposition” hearing 受理 is then held before a review board 评审委员会 of the Trademark Office . If no opposition is filed, or if the review board rules裁决 in favor of the applicant, a registration will issue.


The Term of Registered Trademarks The Term of Registered Trademarks 注册商标的保护期限注册商标的保护期限

The newly adopted Agreement on Trade-Related Aspects of Intellectual Property Rights 《与贸易有关的知识产权协议》 requires World Trade Organization member states to protect trademarks for terms of at least seven years.

Additionally, it provides that trademarks are to be indefinitely renewable .


Usage Requirements Usage Requirements 使用要件使用要件

After a trademark is registered, many countries require the holder to present proof, upon the renewal of registration, that the mark was actually used within the country during the prior term.

A few countries require the owner of a trademark to make an interim proof 中期证据 of use before the term expires.

Example:

Mexico requires the holder to present evidence of usage at the end of the third year, and the United States requires it at the end of the sixth year.


Know-how Know-how 专有技术专有技术

Know-how is practical expertise 实用专门技术 acquired from study, training, and experience.

Unlike other forms of intellectual property, know-how is not protected by specific statutory enactments but, rather, by contract, tort and other basic legal principles.

When know-how is kept secret, it is protected in some countries by trade secrecy laws.


Nature of Know-how Nature of Know-how 专有技术的要素专有技术的要素

be secret 秘密性

have commercial value 商业价值 because it is a secret

have been reasonably protected from disclosure 披露 by its owner


Owners’ Rights in Know-howOwners’ Rights in Know-how专有技术所有者的权利专有技术所有者的权利

The owner of know-how may prevent an assignee 受让方 , licensee 获许可的人 , or employee from disclosing secret know-how to third parties and may require these same people to pay for the training or assistance or use of know-how they acquire from the owner.


Protection of Know-how Protection of Know-how 专有技术的保护专有技术的保护

Unlike other forms of intellectual property, know-how generally is not protected by specific statutory enactments 颁布 but, rather, by contract, tort, and other basic legal principles. When know-how is kept secret, it is protected in some countries by trade secrecy laws 商业秘密法 .

The recently adopted multilateral Agreement on Trade-Related Aspects of Intellectual Property Rights requires the member states of the World Trade Organization to protect what the Agreement calls “undisclosed information” . That is, natural and legal persons must be given the others without their consent in a manner contrary to honest commercial practice.


WIPO WIPO 世界知识产权组织世界知识产权组织 (1)(1)

WIPO is an intergovernmental organization responsible for administering the principal international intellectual property conventions.

It’s responsible for administering the Paris and Berne Unions as well as several new conventions establish since its creation and generally for the promotion of intellectual property rights.


WIPO WIPO 世界知识产权组织世界知识产权组织 (2)(2)

Its promotional activities include the sponsoring and hosting of conference for the development of new intellectual property rights agreements: the Patent Cooperation Treaty, for example, was the result of a WIPO initiative.

WIPO also studies new legal and technological developments and regularly reports the results through monthly journals and occasional reports.

One of WIPO ‘s more important tasks is to facilitate the transfer of technology ,especially to and among developing countries.


Council for TRIPS Council for TRIPS 与贸易有关的知识产权理事会与贸易有关的知识产权理事会

Council for Trade-Related Aspects of Intellectual Property Rights is an organ of the World Trade Organization responsible for administering the Agreement on Trade-Related Aspects of Intellectual Property Rights.

The Council is responsible for monitoring WTO member state compliance with the Agreement on TRIPS for helping members consult with each other on trade-related aspects of intellectual property rights, and for assessing members in settling disputes.


International Conventions on Protection of Intellectual PropertyInternational Conventions on Protection of Intellectual Property保护知识产权的国际公约保护知识产权的国际公约

Intellectual property rights are protected and regulated internationally by both bilateral treaties and multilateral conventions.

Bilateral treaties, the original means of preventing illegal copying, were once quite commonplace. With the growing popularity of multilateral conventions in the mid-nineteenth century, their use has diminished. Today, most bilateral intellectual property treaties are used by states, which are not parties to the multilateral conventions. This does not mean that parties to multilateral agreements are prevented from entering into bilateral arrangements.


Berne Convention Berne Convention 伯尔尼公约伯尔尼公约

The Berne Convention for the Protection of Literary and Artistic Works 《保护文学艺术作品伯尔尼公约》 , was adopted in Paris in 1886 and came into force 生效 in 1887.

Its nine original member countries have now grown to eighty-four. Four basic principles underlie the members’ obligations:

The principle of national treatment国民待遇原则 Nonconditional protection principle 自动保护原则 Common Rules Principle最低保护标准原则


Universal Copyright Convention Universal Copyright Convention 世界版权公约世界版权公约Universal Copyright Convention went into effect in 1950, which

would be loose enough for all nations to sign, but that would not contravene违反 the rights of anyone under the Berne Convention. It was revised, along with the Berne Convention, in 1971. Today 93 nations have signed either the 1952 or 1971 version of Universal Copyright Convention.

This document differs from the Berne convention primarily by allowing members to establish formalities for protection, by making exceptions to common rules as long as the exceptions are not inconsistent with the essence of the treaty, and by not requiring signatory countries 签署国 to protect author’s rights.


Rome Convention Rome Convention 罗马公约罗马公约Rome Convention is the international convention for the Protecti

on of Performers producers of phonograms, and Broadcasting Organizations 保护表演者、录音制品制作者和广播组织者的国际公约 .

Artists are protected from the unauthorized recording of their original performances, and from the use of authorized recordings for a purpose other than what the artist consented to.

Producers of phonograms are protected form the direct or indirect reproduction of their works.

Broadcasters are protected from the unauthorized recording, rebroadcasting, and use of their broadcasts.


Phonogram Piracy Convention Phonogram Piracy Convention 反录音制品盗版公约反录音制品盗版公约

The convention for the protection of producers of phonograms against unauthorized duplication 未经授权复制 of their Phonograms was signed in 1971 at Geneva. It provides that member states must protect producers of phonograms from the unauthorized reproduction and importation of their works for a period of not less than twenty years. In the common law countries, including the UK and the USA, protection is provided through copyright legislation. Most of the countries of Continental Europe use neighboring rights laws. Japan provides protection with penal sanctions刑事制裁 .


Satellite Transmission Convention Satellite Transmission Convention 卫星传播公约卫星传播公约

The convention relating to the distribution of program-carrying signals载有节目信号的 transmitted by satellite was sponsored jointly by WIPO and UNESCO联合国教科文组织 , and concluded in Brussels in 1974.

It requires member states to take “adequate measures” to prevent the unauthorized distribution on of from their territory of any program-carrying signal transmitted by satellite. As with the Agreement on Phonogram Piracy反录音制品盗版协议 , the means of implementing this convention is left up to each member state.


Paris Convention Paris Convention 保护工业产权巴黎公约保护工业产权巴黎公约

The International Convention for the Protection of Industrial Property (Paris Convention) 《保护工业产权巴黎公约》 , was drafted in 1880 and ratified by eleven states in 1883.

It came into effect in 1884. Since then the number of participants has grown more than nine fold, to 99 members.

Three basic principles in the Convention are:

national treatment国民待遇原则 right of priority优先权原则 common rules最低保护标准原则


Patent Cooperation Treaty Patent Cooperation Treaty 专利合作条约专利合作条约

Patent Cooperation Treaty, agreed to in 1970, establishes an international mechanism that allows inventors to make a single application for patent protection that is equivalent to making a filing in all of the member states.

The treaty’s goal is to eliminate unnecessary repetition by both patent offices and applicants.


Convention to Protect Plant Varieties Convention to Protect Plant Varieties 植物种类保护公约植物种类保护公约The Convention for the Protection of New Varieties of

Plants, adopted in Paris in 1961, creates the Union for the Protection of New Plant Varieties (UPOV 植物种类保护联盟） to provide international protection equivalent to that of a patent for the breeders 培育者 of new plant varieties 植物种类 .

Like the Union of Paris, the UPOV provides for national treatment, the right of priority, and common rules.


Agreement on Registration of Marks Agreement on Registration of Marks 商标注册协议商标注册协议

The Madrid Agreement Concerning the International Registration of Marks 《国际商标注册的马德里协定》 , adopted in 1881, establishes a mechanism for registering marks with WIPO, which then handles the filing in the individual member states where registration is sought.


Agreement on Sources of Goods Agreement on Sources of Goods 商品来源协议商品来源协议

The Madrid Agreement for the Repression of False or Deceptive Indications of Sources of Goods 《制裁商品来源虚假或欺骗性标志的马德里协定》 , drafted in 1981, requires its members to either deny importation to, or confiscate 没收，充公 at the time of importation, any goods bearing false of deceptive indications about their source.


Agreement on Appellations of Origin Agreement on Appellations of Origin 农产品产地协议农产品产地协议

The Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration 《保护原产地名称及国际注册的里斯本协定》 , adopted in 1958, provides protection for geographic names used to designate agricultural products such as wines, spirits, cheeses.


Agreement on Industrial Designs Agreement on Industrial Designs 工业设计协议工业设计协议

The Hague Agreement Concerning the International Deposit of Industrial Designs 《外观设计国际保存海牙协定》 , agreed to in 1925, sets up a mechanism for registering industrial designs with WIPO, which then handles individual filings in member states.


Agreement on TRIPS Agreement on TRIPS 与贸易有关的知识产权协议与贸易有关的知识产权协议

Agreement on Trade-Related Aspects of Intellectual Property Rights (Agreement on TRIPS) 《与贸易有关的知识产权协议》 is an annex to the Agreement Establishing the World Trade Organization, came into effect with the WTO in 1995. (Please note: This agreement’s coverage is discussed in Chapter 7)


Enforcement of Intellectual Property LawsEnforcement of Intellectual Property Laws知识产权法的实施知识产权法的实施 (1)(1)

（ 1 ） Having intellectual property laws is not enough. They have to be enforced. This is covered in Part of TRIPS. Ⅲ

The agreement says governments have to ensure that intellectual property rights can be enforced under their laws, and that the penalties for infringement are tough enough to deter阻止 further violations.

The procedures must be fair and equitable 公平合理 , and not unnecessarily complicated or costly. They should not entail unreasonable time-limits or unwarranted delays. People involved should be able to ask a court to review an administrative decision or to appeal a lower court’s ruling.


Enforcement of Intellectual Property LawsEnforcement of Intellectual Property Laws知识产权法的实施知识产权法的实施 (2)(2)（ 2 ） The agreement describes in some detail how enforcemen

t should be handled, including rules for obtaining evidence, provisional measures, injunctions强制措施 , damages and other penalties.

It says courts should have the right, under certain conditions, to order the disposal or destruction of pirated or counterfeit goods. Willful故意的 trademark counterfeiting of copyright piracy on a commercial scale should be criminal offences. Governments should make sure that intellectual property rights owners can receive the assistance of customs authorities海关当局 to prevent imports of counterfeit and pirated goods 伪造商品和盗版商品 .


Enforcement of Intellectual Property LawsEnforcement of Intellectual Property Laws知识产权法的实施知识产权法的实施 (3)(3)

（ 3 ） TRIPS agreement also includes a substantial chapter on enforcement. This not only requires WTO members to make available certain legal procedures and remedies but also requires that these be such that right holders can secure the effective and expeditious enforcement of their rights while at the same time safeguarding against the abuse of these procedures as barriers to legitimate trade.

Civil judicial procedures 民事司法程序 and, where certain conditions are met, provisional measures must be available to right holders against any infringing act.


，Border enforcement procedures 海关实施程序 involving the customs administration must be available at least against imports of counterfeit trademark 仿冒商标 goods and pirated copyright goods. Criminal procedures and penalties 刑事司法程序与处罚 are to be applied at least against willful counterfeiting piracy on a commercial scale.

Administrative procedures and remedies are not an obligation under the TRIPS agreement but, if used, they must conform to principles equivalent in substance 实质上 to those set out in the TRIPS for civil judicial procedures and remedies and for provisional measures.


The International Transfer of Intellectual Property The International Transfer of Intellectual Property 知识产权的国际转让知识产权的国际转让

Five ways in which intellectual property rights are transferred from one country to another:

(1) the owner may work the property rights abroad.

(2) the owner may transfer or assign the rights to another

(3) the owner may license another to work them

(4) the owner may establish a franchise, or

(5) a government may grant a compulsory license 强制许可 so that a third party may exploit them.


Licensing Regulations Licensing Regulations 许可规则许可规则Grants of patents, trademarks, and copyrights create monopolies.

In free-market countries, these grants runs contrary to unfair competition laws反不正当竞争法 .

In centrally planned economies, they run contrary to the notion of state ownership 国家所有制 of the means of production. To balance the interests of consumers in free-market countries and the interests of the state in planned economy countries with the rights of intellectual property owners, most countries treat intellectual property rights as special exceptions to their general laws prohibiting monopolies.

As such, the rights held by patent, trademark, and copyright owners are strictly construed and limited to the narrow confines of the grant.


Key to the Questions ofKey to the Questions of Case 8-2Case 8-2 （ Page 22

2--224 ） 1. What is the appellee’s alleged infringement?1. What is the appellee’s alleged infringement?

The appellee reproduced a portion of the copyrighted book and published it as an advertisement. More seriously, it manufactured and sold the toy horse named Spark Plug, which was fashioned after the cartoon figure Spark Plug, a creation of the appellant’s employee.


2. If you are defending the appellee, what would you 2. If you are defending the appellee, what would you

do?do?

Try to prove that the design of the toy horse is original. Argue that the toy horse has little in common with the cartoon figure, and that manufacturing the toy horse is not “reproduction ” or “copying” within the meaning of the Copyright Law.


3. What does the law say concerning copyright 3. What does the law say concerning copyright

infringement, as embodied in this case?infringement, as embodied in this case?

Copying in a different medium is also an infringement on the copyright.

Documents

The Law of Intellectual Property 1 知识产权法. 2 Intellectual property is, in essence, useful information or knowledge. Intellectual property is divided, for