Legitimate source defense is one of the common defenses in intellectual property infringement litigation,which is based on the principle of reliance protection,the bona fide third-party theory,and the principle of fault liability.The legitimate source defense is a restriction on the right to claim damages for infringement.In order to balance the interests of the variety right holder and the bona fide infringers,its application boundaries should be clarified in terms of the types of acts,subjective elements and objective elements.If the legitimate source defense is established,the infringer shall cease infringement and pay reasonable expenses.The application of cessation of infringement should be replaced by such remedial means as payment of reasonable expenses,post-facto licenses,and obtaining infringing objects,and the amount of reasonable expenses should be determined in accordance with the requirements of reasonableness,truthfulness and relevance.The return of benefits obtained by bona fide infringers should be limited to the existing benefits.China should draw on the legislation in other intellectual property fields,relevant legislation and judicial practice in other countries,so as to improve the defense system of legitimate source of infringement of variety rights.
variety rightlegitimate source defensebona fide infringementcessation of infringementreasonable expense
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