Analysis and answers

Infringement of clothing trademarks will be subject to the following administrative penalties:

1. Order to stop selling immediately;

2. Collect and destroy the infringing trademark marks;

3. Eliminate infringing trademarks on existing commodities;

4. Collect the molds, printing plates and other crime tools directly used for trademark infringement;

5. If the first four measures are not enough to stop the infringement, or if the infringing trademark is difficult to separate from the commodity, it shall be ordered and supervised to destroy the infringing goods;

6. according to the circumstances, impose a fine of less than 5% of the illegal business amount or less than five times of the profits from infringement;

7. The person who is directly responsible for the infringement of the exclusive right to use a registered trademark may be fined not more than 1, yuan according to the circumstances.

Legal basis

Article 57 of the Trademark Law of the People's Republic of China

Any of the following acts is an infringement of the exclusive right to use a registered trademark:

(1) Using a trademark identical to its registered trademark on the same commodity without the permission of the trademark registrant;

(2) without the permission of the trademark registrant, using a trademark similar to its registered trademark on the same commodity, or using a trademark identical to or similar to its registered trademark on similar commodities may easily lead to confusion;

(3) selling goods that infringe upon the exclusive right to use a registered trademark;

(4) Forging or unauthorized manufacturing of registered trademark marks of others or selling forged or unauthorized registered trademark marks;

(5) changing its registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark on the market again;

(6) intentionally providing convenient conditions for the infringement of the exclusive right to use a trademark of others and helping others to commit the infringement of the exclusive right to use a trademark;

(7) causing other damage to the exclusive right to use a registered trademark of others.

article 6 if any of the acts listed in article 57 of this law infringes on the exclusive right to use a registered trademark and causes a dispute, the parties concerned shall settle it through consultation; Unwilling to negotiate or failing to negotiate, the trademark registrant or interested party may bring a suit in a people's court or request the administrative department for industry and commerce to handle it.

when the administrative department for industry and commerce finds that the infringement is established, it shall be ordered to immediately stop the infringement, confiscate and destroy the infringing goods and tools mainly used for manufacturing infringing goods and forging registered trademark marks. If the illegal business amount is more than 5, yuan, a fine of less than five times the illegal business amount may be imposed. If there is no illegal business amount or the illegal business amount is less than 5, yuan, a fine of less than 25, yuan may be imposed. Whoever commits trademark infringement twice or more within five years or has other serious circumstances shall be given a heavier punishment. The administrative department for industry and commerce shall order the sale of goods that are not known to infringe on the exclusive right to use a registered trademark, and can prove that the goods are legally obtained by themselves and explain the supplier.

in case of a dispute over the amount of compensation for infringement of the exclusive right to use a trademark, the parties concerned may request the administrative department for industry and commerce to mediate, or they may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of the People's Republic of China. After mediation by the administrative department for industry and commerce, if the parties fail to reach an agreement or fail to perform the mediation after it takes effect, the parties may bring a suit in a people's court in accordance with the Civil Procedure Law of the People's Republic of China.

article 61 the administrative department for industry and commerce has the right to investigate and deal with acts that infringe upon the exclusive right to use a registered trademark; Suspected of committing a crime, it shall be promptly transferred to judicial organs for legal treatment.

Article 62 The administrative department for industry and commerce at or above the county level may exercise the following functions and powers when investigating and dealing with acts suspected of infringing upon the exclusive right to use a registered trademark of others on the basis of the suspected evidence or reports obtained:

(1) Ask the relevant parties to investigate the situation related to the infringement of the exclusive right to use a registered trademark of others;

(2) consulting and copying the contracts, invoices, account books and other relevant materials related to the infringement activities of the parties;

(3) conducting on-site inspection of the places where the parties are suspected of engaging in activities infringing upon the exclusive right to use registered trademarks of others;

(4) inspecting articles related to infringement activities; Articles that are proved by evidence to infringe upon the exclusive right to use a registered trademark of others may be sealed up or detained.

when the administrative department for industry and commerce exercises the functions and powers stipulated in the preceding paragraph according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct.

in the process of investigating trademark infringement cases, if there is a dispute over trademark ownership or the obligee brings a trademark infringement lawsuit to the people's court at the same time, the administrative department for industry and commerce may suspend the investigation of the case. After the reasons for suspension are eliminated, the procedure for investigating and handling cases shall be resumed or terminated.

article 63 the amount of compensation for infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement; If it is difficult to determine the loss of the obligee or the benefit of the infringer, it shall be reasonably determined by referring to the multiple of the trademark license fee. For malicious infringement of the exclusive right to use a trademark, if the circumstances are serious, the amount of compensation may be determined at least one time but not more than five times the amount determined according to the above method. The amount of compensation shall include the reasonable expenses paid by the obligee to stop the infringement.

in order to determine the amount of compensation, the people's court may order the infringer to provide the account books and materials related to the infringement when the obligee has tried his best to provide evidence and the account books and materials related to the infringement are mainly in the hands of the infringer; If the infringer fails to provide or provide false account books and materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided.

if it is difficult to determine the actual losses suffered by the obligee due to infringement, the benefits gained by the infringer due to infringement, and the license fee for registered trademarks, the people's court will award compensation of less than 5 million yuan according to the circumstances of the infringement.

when trying trademark disputes, the people's court shall, at the request of the obligee, order the goods with counterfeit registered trademarks to be destroyed, except in special circumstances; Materials and tools mainly used for manufacturing commodities with counterfeit registered trademarks shall be ordered to be destroyed without compensation; Or under special circumstances, it shall be ordered to prohibit the aforementioned materials and tools from entering commercial channels without compensation.

goods with counterfeit registered trademarks shall not enter commercial channels after only removing the counterfeit registered trademarks.

article 64 where the exclusive right to use a registered trademark requests compensation and the accused infringer raises a defense by claiming that the exclusive right to use a registered trademark has not been used, the people's court may require the exclusive right to use a registered trademark to provide evidence of the actual use of the registered trademark in the previous three years. If the owner of the exclusive right to use a registered trademark cannot prove that the registered trademark has actually been used in the previous three years, nor can he prove that he has suffered other losses due to infringement, the accused infringer shall not be liable for compensation.

anyone who sells a commodity that he doesn't know is an infringement of the exclusive right to use a registered trademark and can prove that the commodity was legally obtained by himself and explain the supplier shall not be liable for compensation.

Article 5 of the Regulations for the Implementation of the Trademark Law of the People's Republic of China

commits one of the following acts, which belongs to the infringement of the exclusive right to use a registered trademark as mentioned in Item (5) of Article 52 of the Trademark Law:

(1) misleading the public by using the same or similar mark as another person's registered trademark on the same or similar goods;

(2) Deliberately providing convenient conditions such as warehousing, transportation, mailing and concealment for infringement of the exclusive right to use a registered trademark of others.

article 51 anyone may complain or report to the administrative department for industry and commerce about the infringement of the exclusive right to use a registered trademark.

article 52 the amount of fine for infringement of the exclusive right to use a registered trademark shall be less than 3 times the amount of illegal business; If the amount of illegal business cannot be calculated, the fine shall be less than 1, yuan.