The act of counterfeiting certification marks can constitute the crime of counterfeiting registered trademarks. The main reasons are as follows:

First of all, if legislators believe that "commodity trademarks, service marks, collective trademarks, and certification marks" There is a parallel relationship between them. According to Chinese wording habits, the word "和" should be placed before the last listed item, that is, "certification mark", rather than in the middle. In addition, when filling out the "Application for Trademark Registration", in addition to stating the category and name of the goods or services, the applicant must also check "General Trademark", "Collective Trademark" or " Certification trademarks", which shows that commodity trademarks and service marks can be further divided into general trademarks, collective trademarks and certification marks. It can be seen that certification marks are only a re-distinguishing of commodity trademarks or service marks with special functions. A certification mark must first be a commodity trademark or service mark, and secondly, it must indicate that the goods or services for which it is approved have certain specific qualities. A certification mark registered on goods is both a certification mark and a commodity mark.

Secondly, with the development of social economy, the scope of registered trademarks stipulated in the Trademark Law is in a process of dynamic evolution. According to the method of literal interpretation, the scope of registered trademarks in the crime of counterfeiting registered trademarks should be determined and adjusted in accordance with the provisions of the Trademark Law, and cannot be mechanically understood to determine the crime of counterfeiting registered trademarks based on the scope of registered trademarks when the criminal law was enacted. Adjust objects. What's more, the State Administration for Industry and Commerce promulgated the "Registration and Management Measures for Collective Trademarks and Certification Marks" as early as 1994, which clarified that the relevant provisions of the Trademark Law also apply to certification marks. It can be seen that before the revision of the Trademark Law in 2001, certification trademarks were actually protected as registered trademarks. The subsequent revisions only included the existing certification trademarks in the Trademark Law through the expression of legal provisions and were not new creations.

Finally, from the perspective of foreign legislation, it is universal to include certification trademarks within the scope of protection of criminal law. For example, Article 716-9-1 of the French Intellectual Property Code of 1996 stipulates that infringement of the rights conferred by trademark registration and the prohibitions derived therefrom, copying, imitating, using, affixing, deleting or modifying a trademark, collective mark or certification mark , sentenced to 2 years' imprisonment and a fine of 1 million francs. Another example is Section 92(1) of the British Trade Marks Act 1994, which stipulates that any person who has the intention of obtaining the goods for himself or for others, or has the intention of causing losses to others, and without the consent of the trademark owner, will be associated with a certain person. If a mark that is identical to a registered trademark, or a mark that is likely to be mistaken for a registered trademark, is used on goods or their packaging, it shall constitute a criminal offense and shall be punishable by imprisonment for a term not exceeding six months or a fine not exceeding the maximum statutory amount. At the same time, Article 1(2) of the Law stipulates that trademarks referred to in this Law include collective trademarks and certification marks.

(Author’s unit: Shanghai People’s Procuratorate)