Some scholars believe that infringement of intellectual property rights is a general tort and advocate the application of the principle of fault liability; some scholars believe that such torts have multiple attributes, including general torts, infringements, acts of potential nuisance, and embezzlement, and advocate the application of the principle of fault liability and the principle of no-fault liability according to the different natures of the acts; some scholars advocate the introduction of the principle of no-fault liability.
Compared with the torts in the Tort Law, intellectual property infringements do have multiple attributes, including general torts where the actor is at fault, and so-called infringements where the actor is not at fault. For example, according to Article 63, paragraph 2 of the Patent Law and Article 56, paragraph 3 of the Trademark Law, bona fide use and sales still constitute infringement, and if it can be proved that they have a legitimate source, their liability for compensation can be exempted (only the liability for compensation is exempted), and it is also stipulated that “the legal liability for stopping the tortious behavior should be borne”.
It is very obvious that not only does the tort mentioned here not require the actor’s fault as a constituent element, but also the “legal liability for stopping the tortious behavior” does not require the actor’s fault as a constituent element. Therefore, the common elements of all intellectual property infringements should not include subjective fault, otherwise the scope of intellectual property infringement will be inappropriately narrowed, and faultless infringement will be excluded from intellectual property infringement.
According to the above brief analysis, the fact of damage and subjective fault in the “four elements” have been excluded, so the causal relationship between illegal acts and the fact of damage has no room for application, so the only element left is the illegality of the act. In other words, when we study tort law, we usually do not consider acts of infringement, acts of potential interference, and acts of misappropriation, which are not considered to be torts, as acts that may constitute infringement in the field of intellectual property.