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A Study on Unjust Enrichment of Intellectual Property Infringement

Author: DuRuo
Tutor: DingShaoKuan
School: East China University of Political Science
Course: Law
Keywords: unjust enrichment infringer profit return interests damage compensation
CLC: D923.4
Type: Master's thesis
Year: 2013
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Abstract


In the traditional academic study, the resolution of intellectual property disputemainly relies on tort theory, which is always an important way for the obligee topursue the infringer’s damages responsibility. However, maybe it does not play a rolein certain circumstance, which is that according to the existing constitutiverequirements of damages compensation, the infringer’s subjective fault is essentialcondition. But in some case of intellectual property rights infringement, the infringeris actually not at fault or the fault could not be proved. So the obligee can not pursuethe infringer’s liability for damages. But the infringer benefits immensely because ofinfringement. It is unfair for the infringer to keep the benefit. In addition, the liabilityof damages compensation aims to make up for the loss.However the loss can beestimated by the infringer profit, which is contrary to the basic idea for covering theloss. Both achieving the benefits transferring from the no fault infringer to the obligeeand explaining the rationality of infringer profit depend on certain theory. Unjustenrichment system aims to take the interests which have no legal reasons and thesubjective fault of the infringer is not the essential elements, so it is the effectivemeans for the obligee. The first chapter combined with the characteristics of intellectual propertyclarifies that owing to the defects of damages compensation, it is necessary tointroduce a new path which is unjust enrichment path. In the second chapter, theauthor describes the historical evolution and the constituent elements of unjustenrichment, then points out unjust enrichment path just can make up the defects ofdamages compensation because of different attention point. Unjust enrichment alsocan explain the rationality of infringement profit, whose nature is unjust enrichment.The third chapter is based on the analysis of previous chapter, and discuss the issuesabout the claim of unjust enrichment, including two questions: should the obligeehave the dependent claim rights for unjust enrichment? If it has, what is therelationship between the claim of damage compensation and unjust enrichment? Therelationship is concurrence or auxiliary? About the first question, the author usedhistorical analysis and combined with other national legislation and judicial practicein China, thinks that the obligee should be given the right of unjust enrichment claims;about the second question, the author clarifies from three perspectives, which arebasic theory of civil law, the difference return scope between damages compensationand unjust enrichment, the conclusion is that their relationship is concurrence. Thefourth chapter discusses how unjust enrichment applies in the situation when theinfringers’ subjective is not at fault. To answer this question the author defines therange of the no-fault infringement through interpreting the relevant provisions of theTRIPS Agreement and exploring the original intention of the legislation.To return theimproper benefits is one of the aims of unjust enrichment system, so it is veryimportant. The last chapter mainly discuss how to calculate the interests of unjustenrichment.

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CLC: > Political, legal > Legal > Chinese law > China and France > Intellectual property rights
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