论知识产权侵权警告的法律属性及其规制——兼评最高人民法院两个典型案例

The Legal Nature of IP Infringement Warning Notice and Its Regulation:With Reviews on Two Typical Cases by the Supreme Courts

知识产权侵权警告貌似自力救助行为,但与其有本质上的差异,当前理论和实践中将其作为自力救助的惯常认识并不正确。根据知识产权侵权警告的特性和实际,应当将其定性为权利行使或者维权行为,据此不再受自力救助行为的严格限制,而具有相对宽松的行为空间。侵权警告行为本属于权利行使或者维权行为,但可能被用于市场竞争而构成不正当竞争,为此应根据侵权警告的发送意图、发送对象和内容的准确性等多种因素综合判断其属性。应当根据其具体特点,构建规制侵权警告的利益平衡机制。

IP infringement warning notice is normally perceived as a way of self- help, but they are essentially different. And such a kind of perception is incorrect. According to the nature of IP infringement warning notice,it should be defined as an exertion or assertion of rights, and is therefore exempted from the strict restriction of self-help and enjoy a broader scope for its employment. Issuing infringement warning notice is essentially an act of right exertion or assertion, however, it maybe improperly applied for market competition, and constitute unfair competition. Consequently,a judgment of the nature of the warning notice should be based on a comprehensive understanding of its purpose, recipient and accuracy of description, and to establish interests-balancing mechanism of warning notice of intellectual property inJfringement on the ground of its specific feature.