In my country’s intellectual property law system, which is mainly composed of the Trademark Law, the Copyright Law and the Patent Law, the main liability forms for infringement are to stop infringement, compensate for losses, eliminate impacts, and apologize.
Stop infringement. It means that the patent infringer should immediately stop the ongoing patent infringement according to the handling decision of the department in charge of patent work or the judgment of the people’s court.
Compensate for losses. The amount of compensation for infringement of patent rights shall be determined according to the losses suffered by the patent owner due to infringement or the benefits obtained by the infringer; if the losses suffered by the infringed party or the benefits obtained by the infringer are difficult to determine, it can be reasonably determined by referring to the multiples of the patent license fee.
Eliminate impact. When the infringer’s infringement damages the reputation of the patented product in the market, the infringer shall adopt appropriate means to bear the legal responsibility for eliminating the impact and admit his infringement to eliminate the adverse effects on the patented product.
As mentioned above, illegality is the only constituent element of infringement, but different forms of liability have different constituent elements under the premise of illegality. The following is a brief analysis of stopping infringement, eliminating the impact, and making an apology.
(1) Stop infringement. As long as an intellectual property infringement is constituted, it also constitutes civil liability for stopping infringement. Here, the constituent elements of the infringement and the tort liability are the same. In addition, my country’s “Trademark Law”, “Copyright Law” and “Patent Law” have made similar provisions for imminent infringement: when the right holder or interested party has evidence that others are about to infringe their intellectual property rights, if they are not stopped in time, their legitimate rights and interests will suffer irreparable damage, they can apply to the People’s Court for an order to stop the relevant behavior and take measures to preserve property before filing a lawsuit. For the right holder, this is similar to the right to prevent interference in the property right claim; for the obligor, as long as his behavior is illegal, it constitutes infringement, and he should bear the civil liability for stopping the infringement.
(2) Eliminate the impact. In the current legislation, only the “Copyright Law” stipulates this form of liability, and there is no clear provision for its constituent elements. It seems that as long as it constitutes copyright infringement, the civil liability of eliminating the impact and making an apology must be borne.