On June 5, 2008, the State Council officially released the "National Intellectual Property Strategy Outline" (hereinafter referred to as the "Outline"). The release of the "Outline" is of milestone significance in the history of my country's intellectual property development. From a strategic perspective, it puts forward the development goals for the creation, management, application and protection of my country's intellectual property by 2020. It will be a good and important step in promoting my country's intellectual property protection cause. The source of rapid development. In view of the current situation in which the public awareness of intellectual property rights in our country is still weak, market entities are not strong in the ability to use intellectual property rights, and the phenomenon of intellectual property infringement is still relatively prominent, the "Outline" proposes that "the intellectual property protection situation will be significantly improved in the next five years. Piracy, counterfeiting The short-term goal of "significantly reducing infringements, significantly reducing the cost of rights protection, and effectively curbing the abuse of intellectual property rights" and the long-term goal of "by 2020, building my country into a country with high levels of intellectual property creation, use, protection and management" . Strengthening the protection of intellectual property rights has been identified as a strategic priority. It is proposed to revise the laws and regulations that punish infringement of intellectual property rights and increase the intensity of judicial punishment. Improve rights holders’ awareness and ability to protect their rights. Reduce the cost of rights protection, increase the price of infringement, and effectively curb infringement. As an important intellectual property right, trademark rights are the most enduring among intellectual property rights and are most closely related to people's production and life. Protecting the exclusive rights of registered trademarks in accordance with the law can effectively protect the interests of producers, operators and consumers and promote the healthy development of the socialist market economy. As a trademark worker, the author has a brief understanding of the strategic focus of implementing the "Outline" and strengthening the protection of trademark rights, hoping to attract the attention of more knowledgeable people.

Further improve trademark laws and regulations

Since the reform and opening up 30 years ago, with the continuous deepening of the pace of economic reform and the continuous development of our country’s socialist legal system, our country’s trademark legal system has also continued to Rich and complete. The construction of my country's trademark legal system has taken more than 20 years, and it has completed the journey of hundreds of years in developed countries. It has provided a good legal guarantee for the healthy and rapid development of my country's trademark registration and management, and has provided a good foundation for maintaining the socialist market economic order and promoting the economy. Sustained, healthy and rapid development has laid a solid legal foundation. In 1982, in order to adapt to the needs of the economic development of reform and opening up after the Third Plenary Session of the Eleventh Central Committee, my country promulgated the Trademark Law, which was the first intellectual property law after my country's reform and opening up. In order to cooperate with the implementation of the Trademark Law, the State Council promulgated the "Detailed Implementation Rules of the Trademark Law" in 1983, and revised it for the first time in 1988. In 1993, in order to adapt to the needs of my country's market economic development and the need to protect trademark exclusive rights, my country revised the Trademark Law for the first time 10 years after its implementation. This revision included service marks into the scope of trademark protection, increasing the scope of trademark protection. The crackdown on trademark infringement and counterfeiting has been strengthened and the trademark registration procedures have been further improved. According to the revised Trademark Law, the Implementing Rules of the Trademark Law were revised for the second time to include collective trademarks and certification marks into the scope of trademark protection, and to add protection provisions for "trademarks well known to the public". In 2001, in order to meet the needs of joining the World Trade Organization, my country made a second revision to the trademark law that was inconsistent with the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), adding the requirement for natural persons to apply for registered trademarks. regulations; include three-dimensional trademarks and color combination trademarks into the scope of trademark protection; establish a judicial review system for trademark rights confirmation; increase protection provisions for well-known trademarks; at the same time, include geographical indications into the trademark law protection system; further increase the number of trademark infringement and counterfeiting regulations Strengthen the crackdown on trademark behavior: and strengthen the supervision of trademark registration, management, and review staff. In 2002, based on the revised Trademark Law, the State Council revised the Implementing Rules of the Trademark Law for the third time and promulgated the Implementing Regulations of the Trademark Law. It can be seen from the above situation that the process of continuous revision and improvement of my country’s Trademark Law is also a process of increasing the crackdown on trademark infringement and counterfeiting. At the same time, it is also a process of trademark law enforcement continuously escorting social and economic development.

At present, our country has formed a modern trademark legal system that includes laws, administrative regulations, rules, normative documents and judicial interpretations, is based on the Trademark Law, is relatively complete in content, has a relatively sound system, and is in line with international rules. However, my country’s trademark Legislation, like all other legal systems serving as superstructure, still needs to be continuously enriched and improved with the development of the socialist market economy. Especially since the beginning of the 21st century, trademark protection has become an important topic in international trade and even international politics. The registration, use, protection and management of trademarks have become a yardstick for measuring the competitiveness of a country. In order to adapt to the new trend of economic globalization, developed countries and regions such as the European Union, the United States, and Japan have successively revised their trademark laws based on their own economic development characteristics, and actively advocated and participated in international coordination activities on trademark legislation. An important part of the revision of trademark laws in developed countries is to strengthen the punishment of trademark counterfeiting. Some countries have even formulated special anti-counterfeiting strategic plans. In 2006, the World Intellectual Property Organization formulated the Singapore Treaty on Trademark Law, marking the official launch of a new round of international coordination activities on trademark legislation. Our country has signed the Singapore Treaty on the Law of Trademarks, and it has become an urgent task to revise our country’s trademark laws in a timely manner to meet the needs of the internationalization of the trademark legal system. Currently, the revision of the Trademark Law is in full swing. The main principles of the revision are: first, shortening the application and registration cycle; second, optimizing procedures and improving efficiency; third, providing convenience to parties; fourth, increasing the protection of trademark rights: fifth The first is to connect with international trademark law treaties; the sixth is to adapt to the needs of social and economic development. In terms of system design, the new law will focus on improving protection procedures, increasing penalties, and increasing the amount of compensation to reduce the cost of rights protection, increase the cost of infringement, effectively curb trademark infringement, and maintain market economic order.

Further improve the dual-track system of administrative and judicial protection of trademarks

The most prominent feature of my country’s trademark legal system is the implementation of a “dual-track” trademark protection system of administrative and judicial protection of trademarks. The Trademark Law stipulates that the Trademark Office of the Industrial and Commercial Administration Department of the State Council is responsible for the registration and management of trademarks nationwide. The management functions of the Trademark Office are mainly reflected in the guidance of investigating and handling trademark infringements. This system is very different from that abroad. Most foreign trademark protection relies on judicial protection, and its administrative protection is limited to customs investigation and prosecution of imported and exported infringing goods. The function of its trademark office is only responsible for the confirmation of trademark applications and registrations. my country’s 1982 Trademark Law clearly stipulates the administrative and judicial protection of trademark rights for the first time, and clarifies that the agency that exercises the administrative protection function of trademark rights is the industrial and commercial administrative department at or above the county level. Article 39 of the Law stipulates: “If there is any infringement of the exclusive right to a registered trademark as listed in this Law, the infringed party may request the industrial and commercial administration department at or above the county level where the infringer is located to handle... , the infringed party can also file a lawsuit directly with the People's Court." Since then, although the Trademark Law has been revised several times, the provisions on the parallel administrative protection and judicial protection of trademark rights have never changed. Article 39 of the 1993 Trademark Law and the 2001 Trademark Law. Article 53 follows the above provisions without exception. With the continuous development of China's trademark legal system, the "dual-track" trademark protection system has been continuously consolidated and strengthened, the trademark law enforcement team has been continuously expanded, and the level of trademark protection has been continuously improved.

Trademark administrative protection is characterized by proactive and flexible investigation and handling of cases, low investigation and handling costs, high efficiency, and diverse means. The industrial and commercial administrative organs can either "investigate and handle cases on their own initiative in accordance with their powers" or "handle cases based on complaints." In terms of case handling, administrative law enforcement agencies can take administrative coercive measures such as inquiry, inspection, investigation, sealing or seizure, and can order immediate Administrative penalties such as cessation of infringement, confiscation and destruction of infringing goods and tools specifically used to manufacture infringing goods and counterfeiting of registered trademarks, as well as fines, are conducive to timely discovery and suppression of crimes, and trademark administrative enforcement does not charge fees to the parties, which is conducive to reducing costs. Rights protection costs, therefore, are often chosen more by rights holders.

For a long time, China’s industrial and commercial administration authorities have been the main force in trademark law enforcement in China, playing a “main force” role in investigating and handling various trademark violation cases and combating trademark counterfeiting and infringement. At present, the national industrial and commercial system has a five-level trademark enforcement system at the national level, provincial level, prefecture (city) level, county level, and industrial and commercial offices. Among them, there are more than 2,800 industrial and commercial offices at the county level and above, while industrial and commercial offices have There are more than 24,000, and the entire industrial and commercial team has nearly 450,000 people. It has a nationwide law enforcement cooperation network and has unique advantages in trademark law enforcement. According to statistics, from 1983 to 2007 (counting after the implementation of the Trademark Law), the trademark management departments of industrial and commercial administrative agencies at all levels across the country investigated and dealt with 710,600 cases of various types of trademark violations, of which 439,100 cases of trademark infringement and counterfeiting were investigated and dealt with , transferred 2,273 people to judicial organs for criminal prosecution, effectively protected the exclusive rights of registered trademarks of Chinese and foreign enterprises, effectively safeguarded the legitimate rights and interests of consumers, and effectively rectified and standardized the socialist market economic order. Practice has proved that the "dual-track" trademark protection system in which administrative protection and judicial protection operate in parallel and complement each other is in line with China's national conditions and practical needs. It has been widely praised by the international community. Its institutional advantages should be further utilized and implemented in practice. Continuously enrich and improve.

Administrative protection has the characteristics of simple procedures and fast case handling, and can promptly stop infringements; while judicial protection has the advantages of rigorous procedures and strong punishment, and can effectively curb crimes. In recent years, with the increasing international calls for greater efforts to crack down on intellectual property infringements, the country has included strengthening the criminal judicial protection of intellectual property rights as an important task. In 2004, the Supreme People's Court and the Supreme People's Procuratorate The "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement" was published, which significantly reduced the standards for conviction and sentencing of criminal cases of intellectual property infringement. Many cases that were previously under the jurisdiction of administrative law enforcement agencies were changed to the jurisdiction of judicial agencies, and increased Strengthen judicial punishment for cases of intellectual property infringement. In 2007, the Supreme People's Court and the Supreme People's Procuratorate issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement (II)", which supplemented and improved the 2004 judicial interpretation and further reduced the risk of intellectual property infringement. The threshold for criminal conviction and sentencing has further intensified the judicial crackdown on intellectual property violations and crimes. In 2008, the number of trademark cases accepted by the court system increased significantly, and the advantages of "dual-track" parallel protection were further brought into play. According to statistics, in the five years from 2002 to 2006, local courts across the country accepted and concluded 54,321 and 52,437 first-instance intellectual property civil cases, an increase of 145.92% and 141.99% compared with the previous five years from 1997 to 2001, respectively. The average annual growth rate is 17.06% and 19.29%; the country has accepted and concluded 13,170 and 12,700 second-instance intellectual property civil cases, with an average annual growth rate of 8.93% and 9.55%, and judicial penalties for trademark infringement and illegal acts are becoming increasingly intense. The economic crime investigation work of the public security department, as a bridge between trademark administrative law enforcement and trademark criminal trials, plays an important role in the judicial protection of trademark rights. The industrial and commercial administration agencies at all levels cooperate closely with the public security agencies to vigorously strengthen the investigation of suspected trademark cases. Transferring criminal cases and actively promoting judicial punishment of trademark violations and crimes. In 2006, the State Administration for Industry and Commerce and the Ministry of Public Security jointly issued the "Interim Provisions on Strengthening Coordination and Cooperation in Combating the Crime of Trademark Infringement", which requires both parties to Clear and specific provisions have been made on the scope of cooperation, cooperation matters and the establishment of cooperation mechanisms. In recent years, the number of cases and the number of people transferred by the industrial and commercial system have increased year by year, which has effectively deterred criminals involved in trademark violations.

Improve the regional joint law enforcement and cooperation system, eliminate local protectionism, form a joint force to combat trademark infringement and counterfeiting, and enhance the effectiveness of law enforcement cooperation.

After 30 years of reform and opening up, my country’s trademark laws and regulations system has gradually improved, and the level of trademark enforcement has continued to improve. However, we must see that my country’s trademark enforcement work cannot fully adapt to the comprehensive, coordinated, and comprehensive social and economic development. In order to meet the objective needs of sustainable development, there are still many problems, highlighted by: insufficient trademark law enforcement, weak grassroots administrative law enforcement, uneven law enforcement levels in various regions, local protectionism still exists, and regional inter-department coordination mechanisms need to be strengthened. There are still many problems in the transfer of trademark cases. We must further increase the protection of the exclusive rights of registered trademarks, give full play to the enthusiasm of trademark rights holders to proactively safeguard their rights, increase the deterrent effect of criminal penalties, effectively curb the proliferation of counterfeiting and infringement, and strive to achieve the strategic goals set forth in the "Outline" as soon as possible , provide strong support for building an innovative country, actively promote the sound and rapid development of the national economy, and promote the construction of a harmonious socialist society.

(Author’s unit: State Administration for Industry and Commerce of the People’s Republic of China)