国际知识产权法双语教学.doc

国际知识产权法双语教学 试卷和参考答案International Intellectual Property LawTests and Answers武汉大学法学院Wuhan University School of Law聂建强教授Prof. Dr. NIE Jianqiang试卷一一、 选择题1. Copyright protects only the original idea, not the original expression of that idea.a) Trueb) False2. The minimum duration of copyright as specified under the Berne Convention is:a) 20 years from the creation of the work.b) 50 years from the end of the year in which the author dies.c) 70 years from the end of the year in which the author dies.d) 50 years from the date of creation of the work.3. Which of these rights remains with the author after the economic rights have been transferred?a) Rights of reproductionb) Rights of communication to the publicc) Moral rightsd) Rights of performance4. All of the following are covered by possible limitations or exceptions from the rights, except which one?a) Three quoted passages (less than 3 paragraphs) from a nonfiction book, contained within a review of the book for the book review section of a literary magazine.b) Videotaping your absolute favorite movie on a cassette which never leaves your TV shelf.c) Taking a copy of a visual image from an Internet Website that you want to use within your new commercial Website.d) Making an audiotape copy of your newest CD to use in your cars tape player.5. Given that an infringer has been selling within your own country (Country A) her domestically-produced illegitimate copies of your Number One selling song, which one of the following four choices would normally be the first action you would take to enforce your copyright?a) Seek in civil court an action for economic injury against the infringer.b) Approach the TRIPS Council for registering an infringement.c) Where available, demonstrate to the proper judicial authorities that an infringement has occurred and that provisional measures be taken, without notice to the infringer, to prevent further entry of the infringing goods into commerce.d) Request from neighboring countries D and J that they institute border controls to stop importation from country A of the infringing items.6. Which one of the following does not qualify as a public performance?a) A play presented in a free open air theatre in the park.b) A musical work being played by the composer in front of her family at an all-family gathering of 50 people.c) A jazz CD being played over a restaurants music system.d) A cinema showing a newly-released film to people who have paid for their tickets.7. You have developed an idea for a new system of financial record-keeping, you can become rich. This idea is so simple; all you have to do is to express that idea by writing a book, which protects you through copyright. Success comes to you; millions buy and read the book. Then start the problems. From the following list choose which one of the problems is the single infringement you may pursue.a) It appears that bookkeepers are making a copy of your book at the library for their own use.b) A competitor has taken your great idea and written another book which simplifies the instructions and reverses the format of your idea on record-keeping.c) A non-profit Internet Website offers free downloads of your book.d) You find your book in second-hand book stores at prices 50 % below retail.8. A right of distribution is granted under the law of your country. In a second hand bookshop, you find a copy of a novel written by you which is now out of print. In which case can you normally NOT take action against the shop owner for infringing your distribution right?a) It is a copy of the book that you signed for an admirer at a promotion arrangement when the book was published.b) It is not the book itself that is on sale, but your handwritten manuscript which you thought your mother threw out, but actually was taken by your brother.c) It is a pirated copy of your book.d) It is a photocopy of the book which was made by a library under a provision in the law permitting such copying when the book is not otherwise available. Later the library obtained a secondhand copy of the book and sold the photocopy.9. Related rights are those which relate to:a) Patentsb) Copyrightc) Trademark10. Which groups of people or organizations do NOT normally benefit from related rights?a) Performing artistsb) Phonogram producersc) Internet content providersd) Broadcasting organizations11. The duration of protection of related rights under the Rome Convention is:a) 50 years from the end of the year of the performers death.b) 50 years from the end of the year performance took place.c) 20 years from the end of the year the performance took place.12. Expressions of folklore:a) Can obtain some protection under related rights.b) Are not, as such, protected under related rights.13. In addition to words, letters, names, abbreviations, and logos, what other examples are considered trademarks?a) 3 dimensional things, such as packagesb) hologram marksc) smell marks or scentsd) all of the above14. An example of a deceptive trademark is:a) a label that includes the name of a region when the product is not really from that regions (i.e. Bordeaux).b)an image that does not accurately depict the product (i.e. Apple for computer).c)a name that describes the product (i.e. Mootel for portable cowsheds).15. One of the 2 main requirements under the Madrid Agreement is:a) a trademark must be distinctive and should not be deceptive.b) a trademark should describe the goods or services it represents.c) a trademark must be registered by the World Commission of Trademark Registration (WCTR).16. A trademark, which has not been registered, is only covered under trademark protection if:a) a national court of law recognises the trademark as original.b) substantial time has passed which gives the trademark a certain distinctiveness and reputation in the market.c) the product it represents is a food or beverage item.17. The symbol of a horse to represent a brand of sailboat is considered:a) distinctiveb) descriptivec) deceptive18. The owner of a trademark has the right to exclude others from using ita) Trueb) False19. Which of the following would most likely NOT be eligible for protection as an industrial design?a) A cork screwb) A CD holderc) A logod) A chaire) A particular type of finish on the surface of a plastic object20. To be protected, the industrial design must be three-dimensional.a) Trueb) False21. The minimum length of protection specified in the TRIPS Agreement for an industrial design is:a) 5 yearsb) 10 yearsc) 15 yearsd) 20 years22. What is the name of the international agreement covering the international deposit of industrial designs?a) The Paris Agreementb) The Geneva Agreementc) The Amsterdam Protocold) The Hague Agreement 23. What is the purpose of a geographical indication?a) To promote commerce by informing the customers of the origin of goodsb) To provide a cheap way to get a trademarkc) To protect an industrial processd) To give copyright on a logo24. Choose the geographical indicators from the following.a) Fordb) Legoc) Bordeaux wined) Coca Colae) France25. Choose from the list the name of the WIPO administered treaty that is concerned with the protection of appellations of origin.a) The Hague Agreementb) The Madrid Agreementc) The Lisbon Agreementd) The Rome Agreement 26. Which of the following would be of most assistance in estimating the value of a biotechnology invention:a) Use of existing valuation software packages to predict valuesb) A dynamic regulatory environment with a range of agencies responsible for different aspects of IP protection in the fieldc) Flexible interpretations of the meaning of inventor and novelty of inventiond) Maturity in the biotechnology sector27. Which treaty offers to parties that are filing patent applications in a member country, a grace period within which patent applications can be filed in other member countries.a) Trademark Law Treatyb) The UPOV Conventionc) The Paris Convention for the Protection of Industrial Propertyd) TRIPS28. Which treaty must contain “a request, a description of the invention, one or more claims, one or more drawings (where required) and an abstract”.a) The Paris Convention for Protection of Industrial Propertyb) The Berne Conventionc) The Trademark Law Treatyd) The Patent Cooperation Treaty29. Which treaty offers protection to every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression?a) TRIPSb) The Berne Conventionc) The Lisbon Agreementd) The Budapest Treaty30. Which treaty provides for the international registration of marks (both trademarks and service marks).a) Patent Cooperation Treatyb) The UPOV Conventionc) Trademark Law Treatyd) The Madrid Agreement二、 名词解释 1. copyright2. trademark3. patent4. moral right三、 判断题 (写对或错) 1. The protection of industrial property under the Paris Convention includes patents, utility models, industrial designs, trademarks, services marks, works, trade names, indications of source or appellations of origin, and repression of unfair competition ( )2. Industrial property shall apply not only to industry and commerce proper, but also to agricultural and extractive industries and to all manufactured or natural products ( )3. a country of the Paris Union may set forth requirement as to domicile or establishment in the country where nationals of any other countries of the Union claim for protection of their industrial property ( )4. the national treatment under the Paris Convention means nationals of any country of the Union shall as regards the protection of industrial property enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant to nationals ( )5. domicile or real and effective industrial or commercial establishments in the territory one of the countries of the Paris Union is another legal base to claim for the national treatment under the Paris Convention ( )6. a right of priority can be claimed for all industrial property protection under Paris Convention ( )7. By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application ( )8. the legal effect of a right of priority is that any subsequent filing in any of the other countries of the Paris Union before the expiration of the period of the right of priority shall not be invalided by reason of any acts accomplished in the interval, in particular, another filing, the publication or exploitation of the invention, the putting on sale of copies of the design, or the use of the mark, and such acts cannot give rise to any third-party right or any right of personal possession ( )9. The period of the right of priority shall be twelve months for patents, utility models and industrial designs, six months for trademarks and service marks ( )10. where an industrial design is filed in a country by virtue of a right of priority based on the filing on a utility models, the period of priority shall be the same as that fixed for the utility model ( )11. patents obtained with the benefit of priority shall in the various countries of the Paris Union have a short term of protection than those patents which granted without benefit of priority ( )12. if the sale of a patented product or of a product obtained by means of a patented process is prohibited by the domestic law, the grant of the patent shall be refused and a patent shall be invalided in that country ( )13. the industrial property may be confiscated if the fees for the maintenance of the industrial property rights are not paid as prescribed ( )14. the country of origin of a trademark is the country of the Paris Union where the applicant has a real and effective industrial or commercial establishment, or if he has no such establishment within the Union, the country of the Union where he has his domicile, or, if he has no domicile within the Union but is a nation of a country of the Union, the country of which he is a national ( )15. according to the Paris Convention, a trademark may be refused to register or invalided if it infringes the prior third partys right, has no distinctiveness or is contrary to morality or public order ( )16. copyright protects idea other than expressions （ ）17. works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models ( )18. Publication includes the performance, the public recitation, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture ( )19. the term of protection of moral rights is same as that of economic rights ( )20. the term of copyright protection shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work ( ) 三、简答题1. the industry property and its objects 2. In what condition(s) can a member of the Paris Convention deny a registration of a trademark or invalidate a trademark?3. What border measures prescribed by the Paris Convention to oblige its members to protect against the goods unlawfully bearing a trademark or trade name? 4. What is the jurisdiction of the Berne Convention5. What is and how to determine the country of origin of a literary or artistic work?6. The term of protection of the anonymous or pseudonymous works under the Berne Convention四、翻译题“Copyright” is granted to authors and artists to protect expressive works against unauthorized reproduction or distribution by third parties. Expressive works are broadly defined, and include such things as books, films, music recordings and computer software. There is, in fact, no express limit on what material might be considered to embody protectible artistic expression. However, copyright does not extend to functional works and ideas. This principle is often referred to as the “idea-expression dichotomy”, with the “idea” excluded from copyright protection. Under the TRIPS Agreement, the minimum term of copyright protection is the life of the author plus 50 years. However, in a number of places, including the United States and the European Union, the duration of copyright has been extended to the life of the author plus 70 years. Copyright also extends to the rights of performers in the fixation of their unfixed performances, and to rights of producers of sound recordings and broadcasters. These latter rights traditionally were protected as “neighboring rights” in European law, but as a consequence of more recent treaty developments are generally now considered the subject of copyright. Copyright also protects the “moral”rights of authors and artists, the extent of protection varying among jurisdictions. Moral rights extend at least to right of the author to be identified with the work and not to suffer from the mutilation or distortion of the work with which he or she is identified. Copyright is considered a “soft” form of IPR because it does not preclude independent creation by third parties.Copyright is identified to benefit the public by encouraging authors and artists to create and disseminate their works. As with other forms of IP, it is difficult to assess the economic effects of copyright protection. It is not easy to measure how much creative expression is gained (or least) as a result of copyright, and what the economic value of that expression is. While movie and music producing companies routinely offer data regarding losses suffered as a result of inadequate enforcement of copyright protection, the figures typically do not reveal the extent to which the claimed losseswhich usually refer to lost opportunity costsshould be offset by the economic and social benefit to consumers of unauthorized copies, or of the economic gains/benefits to “pirates”. In the well-known Napster court battle between music producers and an online file-sharing service, economists had considerable difficulty estimating what the effect of nonenforcement of copyright protection was on music producers because of difficulties assessing the extent to which losses from uncompensated file-sharing were offset by gains from increased artist exposure and consequent CD sales.试卷一 参考答案一 选择题1. b 2. b 3. c 4. c 5. c 6. b 7. c 8. a 9. b 10. c 11. c 12. a 13. d 14. a 15. a 16. b 17. a 18. a 19. c, 20. b, 21. c, 22. d 23. a 24. c 25. c 26. d 27. c. 28. d 29. b 30. d二 名词解释 1、著作权过去称为版权。版权最初的涵义是copyright（版和权），也就是复制权。此乃因过去印刷术的不普及，当时社会认为附随于著作物最重要之权利莫过于将之印刷出版之权，故有此称呼。不过随着时代演进及科技的进步，著作的种类逐渐增加。世界上第一部版权法英国安娜法令开始保护作者的权利，而不仅仅是出版者的权利。1791年，法国颁布了表演权法，开始重视保护作者的表演权利。1793年又颁布了作者权法，作者的精神权利得到了进一步的重视。在中国，受著作权保护的作品，是指文学、艺术和科学领域内具有独创性并能以某种有形形式复制的智力成果。符合著作权保护条件的作品，通常是能以某种物质复制形式表现的智力创作成果，因此不排除对未被有形载体固定的口述作品的保护。而不像英美法那样要求作品必须固定在有形载体上。2、商标是指能够将不同的经营者所提供的商品或者服务区别开来，并且可为视觉感知的标记。包括文字、图形、字母、数字、三维标志或颜色组合，以及上述要素的组合，都可以作为商标申请注册。申请注册的商标，应当有显著的特征，便于识别，有助于消费者将一定的商品或者服务项目与经营者联系起来，使其与其他经营者的商品或者服务项目相区别，便于认牌购物，也便于经营者展开正当竞争。此外，注册商标不得与他人在先取得的合法权利相冲突。3、专利指受到专利法保护的发明创造，即专利技术，是受国家认可并在公开的基础上进行法律保护的专有技术。“专利”在这里具体指的是技术方法受国家法律保护的技术或者方案。专利是受法律规范保护的发明创造，它是指一项发明创造向国家审批机关提出专利申请，经依法审查合格后向专利申请人授予的该国内规定的时间内对该项发明创造享有的专有权，并需要定时缴纳年费来维持这种国家的保护状态