China IP has launched the offline activities of "IP Judges Forum" series since 2016, aiming to set up a professional platform for exchanges and interactions between the judicial practice circle and industry scholars, experts and the industrial circle, conduct professional discussions on hot and difficult topics in IP industry to guide the industry to develop in a more benign and orderly way. The 9th China IP International Annual Forum and 2019 Annual Conference of In- House IP Managers in China also set up the "IP Judges Forum" with the theme of "Exploration and Research on Judicial Frontier Issues", inviting more than ten well-known domestic judges and scholars to carry out the spark of wisdom around the most popular frontier topics in the IP Judiciary.

 

Two discussion topics were set up in IP Judges Forum, namely, "Copyright and Unfair Competition" and "Increase the Judicial Protection of Infringement Damages". Su Chi, President of Beijing IP Law Association, Li Yang, Professor of School of Law, Sun Yatsen University, Deng Hongguang, Professor of Southwest University of Political Science & Law, Qin Yuanming, Presiding Judge of Civil Adjudication Tribunal No.3 (IPR Division), SPC, Su Zhifu, Presiding Judge of the IP Tribunal of Beijing Higher People's Court, Song Jian, Deputy Inspector and Member of the Judicial Committee of Jiangsu Higher People's Court, Wang Jing, Presiding Judge of Civil Adjudication Tribunal No.3 (IPR Division), Guangdong Higher People's Court, Yao Bingbing, Presiding Judge of Nanjing IP Tribunal, and Jiang Ying, Vice President of Beijing Internet Court participated in this forum as guest speakers and discussion guests.

 

In this part , Qin Yuanming and Jiang Ying made keynote speeches respectively. Qin Yuanming firstly pointed out that "the anti-unfair competition right is not one kind of IP, but the anti-unfair competition law is one part of the entire IP legal system" . Therefore, in the cases of the concurrence of copyright and unfair competition, the judge must consider the relationship between copyright law and antiunfair competition law reasonably.

 

He also expressed his opinions on the issues such as the identification of concurrence of articles of law, law understanding and clause application of the law applicable to the copyright law and unfair competition law, and deeply analyzed the connotation of legal concepts such as concurrence of articles of law, concurrence of liabilities, and concurrence of imagination. Finally, Qin Yuanming also expressed his opinions on the hot issue of the application of the Copyright Law and the Anti-unfair Competition Law in the Internet environment. He emphasized that while the new types of IP rights emerge continuously, the corresponding changes in the legal attributes, constitutive requirements, types of rights and scope of protection of IP should adhere to the principle of statutory rights and be prudent. The trial of cases involving new types of IP rights and the application of Article 2 of China's Anti-unfair Competition Law would be a great challenge to test the wisdom of Chinese judges at present and in the future.

 

Jiang Ying made a speech on the theme of "copyright protection in Internet trial mode". As the vice president of Beijing Internet Court, Jiang Ying firstly introduced the outstanding achievements and experience of the trial of copyright cases after the establishment of Beijing Internet Court from the aspects such as advantages of organizational structure, trial mode of "network government by network", electronic litigation process, and over all conclusion of the cases. She mentioned that since its establishment, 79% of the cases received by Beijing Internet Court were copyright ones, and the judgment acceptance and no-appeal rate reached as high as 98.6%. Jiang Ying also analyzed the changes brought by the Internet trial mode to the trial of copyright cases and the protection of copyright owners' rights: the first is that the trial mode of online litigation of the whole process provides great convenience for the parties; the second is that using the blockchain technology to carry out the evidence preserving service can assist the electronic litigation platform to match evidence automatically, quickly and safely; the third is that the online multi-mediation mechanism is promoted, facilitating the parties' rapid rights protection. Finally, Jiang Ying also introduced some new practices of Beijing Internet Court to explore the rules of Internet trials and strengthen the role of judicial guarantees by combining specific cases.

 

After the keynote speech, Li Yang, as the host, participated in the discussion with judges Su Chi, Qin Yuanming, Song Jian, Wang Jing and Jiang Ying together. Su Chi firstly talked about the independence issues of the trade secret clauses in the Antiunfair Competition Law, and called for the separate development of the trade secret law as soon as possible.

 

Song Jian pointed out that civil issues were more complicated than criminal ones, and whether the concurrence theory of criminal laws had reference significance for the concurrence issues in civil cases needed further study. Wang Jing pointed out that attention must be paid to different provisions of different laws on the constitutive requirements of un-lawful acts, and the basic question of whether the concurrence really exists should be considered carefully. Jiang Ying clearly advocated that in the case of failure to constitute the protection of rights in the department law of IP, the supplementary protection of the anti-unfair competition law could be realized by means of code of conduct.

 

Qin Yuanming gave his opinions on the actual conflict between the principle of statutory rights and the desire of the judges to create rights during the actual trial. Finally, Li Yang summarized the opinions of the guests and reviewed the important changes in the anti-unfair competition laws of various countries in recent years.

 

In this pa r t , Su Zhifu and Yao Bingbing made keynote speeches respectively. Su Zhifu's speech mainly focused on three aspects of the disputes and p robl ems that existed in the determination of damages, the certification of damage facts and the calculation of the amount of compensation.

 

He pointed out that from the perspective of individual cases, the real problem of determining damages for IP infringement lay in how the protection effect of IP matched the loss of the innovation subject, and how to reflect the real market value of IP to achieve "in case it is high, it shall be high; in case it is low, it shall be low; and high and low shall contribute to each other while the compensation shall make up for the loss". Su Zhifu also pointed out in combination with specific cases that it was necessary to take the "full realization of market value" as the guidance, explore and establish litigation evidence rules that conform to the characteristics of IP cases, reasonably determine the proof standards, actively apply the evidence interference rules, play the evidence preservation system and court investigation and evidence collection functions and effectively reduce the burden of proof on the right holder; In terms of the calculation of the amount of compensation, the statutory c a l c u l a t i o n method s h o u l d b e correctly applied, the accuracy and rationality of the calculation should be distinguished, and the parties should be encouraged to apply the economic analysis methods such as the market hypothesis method, the comparable price method and the industry average method.

 

Yao Bingbing made a speech on the topic of "The Application of Punitive Damages in Trademark Infringement Cases". He firstly introduced the application of the current punitive damages system in domestic trademark infringement cases as a whole, and pointed out the problems such as inconsistent reasoning standards and unclear calculation methods. Then, combined with specific cases, Yao Bingbing discussed how to distinguish the two concepts of "malicious" and " serious circumstances" in trademark infringement cases. In conclusion, he said that, the judicial practice circle should clearly distinguish statutory damages and punitive damages, and the latter should be superior to the former; the standards for the right holder's proof and the discrimination rules for "malicious" and "serious circumstances" should be clarified and the applicable scope of punitive damages and non-punitive damages should be clarified.

 

In her comments, judge Song Jian focused on the issues such as delicacy judgment of the calculation of compensation amount, judgment of IP rights, and order rules of tort compensation. She also pointed out that in order to promote the implementation of punitive damages system, the judicial practice circle must form the "basic idea of forcing the right holder to participate in the litigation substantively" .

 

In professor Deng Hongguang 's comments, he discussed the main problems of the punitive damages system existing in China's judicial practice from both theoretical and practical levels. He said that the judicial practice circle should face up to the "gap between the ideal and reality" of IP protection and properly handle the issues such as the reasonable calculation of damages and the rational allocation of evidence liabilities.

 

This "IP Judges Forum" continues the previous high level in terms of guests, depth of thought and breadth of topics, and has obtained good discussion effects, which has positive reference significance for the study of China's current judicial frontier issues.