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Intellectual Property and Commercial Court


2014 Xing Zhi Shang Yi Zi No. 74

Decision No. 2014 Xing Zhi Shang Yi Zi No. 74
Date November 26, 2014
Decision Highlight

I.An employer’s guidance and supervision of an employee refers to the latter’s performance of an act related to his duties according to an employer’s instructions, and the employer in return gives rewards to the employee for the service provided by him. Supervision means general supervision which is directed or arranged regarding the method, time and place of practice. The employer is not required to have the same professional knowledge or abilities as the employee.

II.Considering the mentioned relationship between the respondent and the complainant, objectively…the respondent company directed or arranged the practicing way and time in which the complainant provides his services. The complainant practiced his duties for the respondent’s company, and the duties of the computer programs are assigned by the company. The complainant cannot freely make decisions as to whether to assume the duties or not, and was under the management and supervision of the company. The relationship between the complainant and respondent is thus not independent work. Even though the legal representative or staff of the company did not have professional knowledge about computer programs and information technology, the complainant still provided his specialty and converted it to the disputed computer program under the guide of the company. The complainant practiced his duties for the company, and the matters of general guide and supervision should exist. So one cannot say that the complainant was not guided or supervised by the company for the disputed program merely because he understood computer software.

III.After considering the content and status of duties which the complainant practiced, the fact that the company guided and supervised the duty practicing objectively, and the relationship between the income received from the company and his exchange of labor, it is evident that the offer of the complainant’s service is not independent from the company. In addition, the payment of the work doesn’t require the work to be accomplished. As a result, the legal relation between the parties is an employment relationship. The disputed computer program work were completed during the time the complainant was hired by the company and under the company’s guidance and supervision. So it is a work made within the scope of employment.


Work Made for Hire, Guide and Supervision of Employer

Relevant statutes Article 11 Paragraph 1, 2, Article 91 Paragraph 1, Article 100, Article 101 of the Trademark Act
  • Release Date:2020-11-13
  • Update:2020-12-03