6 april 2021 at 08:30 #1043
Proving evidence intellectual property litigation
Difficulty in obtaining evidence and proving evidence
Because of the intangible characteristics of intellectual property rights object, coupled with the judgment of infringement requires professional technical knowledge.Therefore, it is much more difficult to prove the infringement of tangible property in intellectual property litigation whether the parties provide factual evidence of infringement or persuade the evidence provided.The emergence of this phenomenon makes the distribution of burden of proof in litigation put forward higher requirements for judges. Only by flexibly and accurately applying the transfer and inversion rules of burden of proof can judges better reflect the principle of fairness in litigation.
In addition, the proof scope of intellectual property litigation is more complicated than that of general infringement litigation, because it is different from the infringement litigation of tangible property.In intellectual property litigation, for the plaintiff, the first thing to do is to provide evidence of the court’s jurisdiction.Second, it is necessary to prove not only that the defendant has a tort, that he has damage consequences and that there is a causal relationship between the two, but also that he has legitimate sources of effective intellectual property rights and the scope of his intellectual property rights.
Take copyright infringement litigation as an example. Under normal circumstances, the plaintiff should first prepare the following evidence according to the different situations of his own copyright source:
1) Work registration certificate;In the absence of registration, the original work or the copyright page of the published work should be provided;
2) If it is a commissioned work, a commissioned creation contract shall be provided;
3) If the work is a legal person, it shall provide proof that the work was created according to the will of the legal person and the legal person shall bear the responsibility;
4) If it is a work performed on duty, evidence of completion of the work performed on duty shall be provided;
5) If it is a cooperative work, the original copy and other evidence shall be provided;
6) If it is a work of inheritance or assignment, proof of right inheritance or assignment shall be provided;
7) In addition, the plaintiff shall provide evidence of infringement by the defendant, such as infringing works;
8) If the property loss is claimed, evidence of the calculation method of the loss shall also be provided;
9) If a claim is made for mental loss, evidence of mental damage shall also be provided.
The scope of the evidence, and the degree to which it is proved, varies from case to case and requires the client (the lawyer) or the judge to weigh and decide.Cost of IP Litigation
You must be logged in to reply to this topic.