A Study On The Parties' Gathering Evidences

Established by the Civil Procedure Law of China〝who advocates,who burden of proof〞principle.Evidence,as the parties to safeguard their legitimate rights and interests of important documents,as a judicial referee cases of real materials,has a pivotal role in the proceeding of any case.However, in judicial practice, a lot of people do not know that and do not attach importance to the collection of evidence on the behavior.When a dispute has arisen,they often fail to prosecute, because there is no evidence,but not talk to win the lawsuit.The trademark infringement litigation is a special kind of litigation,So, in the trademark infringement suit, the evidence collection's characteristic and the question have the model representation in all infringement suit.The evidence is the core position in an infringement lawsuit,and the favorable evidence can protect the legitimate rights and interests effectively. Therefore, In the infringement proceedings,that the parties collect the evidence of infringement whether comprehensive, accurate,full,not only related to the judge determine whether it is an infringement and calculate its damages,but also directly related to the judge's conclusion on the facts of the whole case and referees.The purpose of this paper is to overcome three problems in the proceedings ofthe lawsuits about the infringement,which one is the difficulty of collecting the evidence,the second is the difficulty of prosecution, and the last is to discuss the problem why it is so difficult to win a lawsuit,and then to look for an effective operational guidelines on the cases of the infringement lawsuits. These problems not only include the parties themselves gather evidences, but also include the parties ask the lawyer,the court,the notary and other departments for investigations and evidence collections.The evidence is always the core problem of the trademark infringement lawsuits.When the evidence issue has been satisfactorily solved ,the judge can make out a very clear judgment on the case, and the parties may also save a lot of litigation costs.The methods of argument of this article main include the contrast argument method, the causal argument method, the theoretical analysis method, the writer then make out a comprehensive and objective analysis by combining with the specific cases.The writer discuss those problems such as the method of gathering evidences, the scope of gathering evidenes, the strategies of gathering evidences, and the needing attentions in the process of gathering evidence from reality of lawsuit between the Provview Shenzhen Co.Ltd.,the Wuhan Proview Co.Ltd.and the EMC Co.Ltd.United States,and on the base of"The Trademark Law of the People's Republic of China".This paper make a preliminary discussion through the effective in combination with the trademark laws,the litigation laws and the evidence laws of our country.The result of analysis shows that it is Feasible to make an operational guidelines of the infringement cases on the basis of the practice.