First of all, this reverse counterfeiting has caused damage to trademark owners and society. The direct damage is the interests of the trademark owner. This kind of interest includes both the direct property interest embodied in the commodity and the intangible value embodied in the enterprise trademark. On the surface, trademark owners seem to realize the value of their goods by selling them. But in fact, its trademark interests have been infringed. Because from the above-mentioned investigation of the essential function of trademarks, trademarks can be transferred from their original function of distinguishing goods to an independent property right. This development history shows that the legislative purpose of trademark law has also changed, not only to protect the property interests of trademarks, but also to protect trademarks as an independent right. Trademarks, especially well-known trademarks, are full of the efforts and sweat of the creators, and the value of materialized carriers cannot be compared with them. ..... It is precisely because of the careful investment of creators that their intellectual achievements have been welcomed by the society and consumers, and intangible products materialized in tangible carriers have become bestsellers. "This is why the value of well-known trademarks is so great." The losses caused by the listing of a batch of fake goods, in addition to directly reducing the sales volume, will often cause a devastating blow to the market reputation of the trademark, as evidenced by the fact that the Shanxi liquor market has been weak since the 1998 Shanxi fake wine incident. "Therefore, protecting the latter is more important than the former.

Specifically, from the provisions of the Trademark Law on the scope and mode of use of registered trademarks, it can be seen that the essence of trademark infringement is an obstacle to the realization of trademark rights and interests. The scope of use of trademarks is limited to trademarks approved for registration and goods or services approved for use. The use of trademark right means to mark or mark the registered trademark on the approved goods or services. Trademarks are inseparable from goods or services. This is the exclusive right to use a trademark, also known as the exclusive right to use a trademark. Correspondingly, it is the trademark prohibition right, that is, any act that improperly hinders the use of the exclusive right to use a trademark constitutes an infringement of the trademark right, and the trademark owner has the right to prohibit or request the prohibition of such act. The act of removing a registered trademark by a party without the consent of the registered trademark owner is actually an infringement on the exclusive right of the registered trademark owner, which is manifested as obstructing the registered trademark owner's right to mark his trademark on his own goods, or "obstructing the registered trademark owner's business reputation and brand establishment, and damaging his business reputation to a certain extent." The law gives the trademark registrant the exclusive right to use its registered trademark, and the fundamental reason of trademark infringement is that this behavior makes the trademark lose its distinguishing function. The other party's behavior destroyed the indivisibility of goods and trademarks, resulting in the loss of the distinguishing function of trademarks and infringing on the plaintiff's exclusive right to use trademarks.

To achieve this goal, we must expand our understanding of the field of trademark protection. "Because the objects of intellectual property protection-intellectual achievements and business reputation are intangible, they are priceless in themselves." The protection of this right cannot be limited to the protection of property rights. Although the unlimited expansion of rights cannot be allowed, it cannot be restricted too much. If the obligee is not given enough protection, it will seriously hurt people's enthusiasm for creating knowledge and is not conducive to the creation of social wealth. At present, the protection of such intellectual property rights is not enough. Let's not talk about patent protection here for the time being. Let's talk about the protection of trademark rights. According to the theory of selling first, some people deliberately alter the trademark after buying the goods, or sell the goods with trademarks together with yellow goods, or put Nazi trident on the trademark of the goods. All these actions do not give adequate protection to trademark owners in trademark law. Although we can get rid of it in other ways, it is not enough. Here's a problem. After the goods are sold, does the trademark owner have the right to prohibit any third party from improper use of the trademark? The limitation of the exhaustion principle on trademark owners is a good aspect, but it should also give them an opportunity to give relief to other parties' unreasonable use of their trademarks or damage to their trademark rights. Therefore, the protection of trademark rights should be broken through, not limited to the first sale, but also included in the circulation field before entering the consumption stage. Only in this way can the obligee be better protected.

Secondly, there is a causal relationship between reverse counterfeiting and damage. The damage caused by trademark reverse counterfeiting has been mentioned above, but some people think that if the reverse counterfeit goods are only a small part, it will not have any impact on the trademark of the trademark owner at all, and only when the reverse counterfeit goods have accounted for more than half of the trademark owner's goods will it have an impact on the establishment of the trademark reputation of the trademark owner. Therefore, in the Maple Leaf case mentioned earlier, the shopping mall only bought dozens of pants, which did not constitute infringement. What we are going to discuss here is the essence of reverse counterfeiting. Of course, the degree of this behavior is different, and any behavior has this difference. However, the different degrees of behavior will not affect the characterization of this kind of behavior, just because the degree of behavior is relatively light, and its harm is not very obvious or obvious, so it is generally not investigated. There are two main points to determine the causal relationship of reverse counterfeiting: first, whether the actor has carried out reverse counterfeiting; Second, whether the trademark owner has suffered losses. The determination of loss adopts double standards. First, the loss of actual goods, that is, the sales volume of goods decreased and the price decreased; The second is the loss of trademark reputation, but this aspect can not usually be measured by an objective standard. It is generally believed that as long as this kind of behavior is implemented, it can be presumed that it constitutes damage to the trademark in this sense.

Finally, the infringer is at fault. Of course, not all trademark infringement requires the other party to have subjective fault. Generally speaking, the internationally accepted view also holds that direct infringement does not require subjective fault; For indirect infringement, there needs to be a clear intention. Reverse counterfeiting is an indirect infringement of trademark rights. The reasons are as follows: 1) The direct purpose of reverse counterfeiters is not to use trademarks, but to make profits from commodities. 2) The infringement of trademark by the actor is not a direct pursuit of intention, but a laissez-faire intention, which can only be said to be indirect intention. 3) Behavior is the basis of direct infringement. The actor of trademark reverse counterfeiting is subjective and intentional, with the purpose of obtaining illegitimate interests or profiteering and stealing the quality and reputation of other people's goods, so this behavior has actual or potential harm to the goodwill or economic interests of the original trademark owner.