Further improve trademark laws and regulations
In the past 30 years of reform and opening up, with the deepening of economic reform and the continuous development of China's socialist legal system, China's trademark legal system has been continuously enriched and improved. China's trademark legal system construction has gone through more than 20 years and hundreds of years in developed countries, which provides a good legal guarantee for the healthy and rapid development of China's trademark registration and management, and lays a solid legal foundation for maintaining the order of socialist market economy and promoting sustained, healthy and rapid economic development. 1982, in order to meet the needs of economic development after the Third Plenary Session of the Eleventh Central Committee, China promulgated the Trademark Law, which is the first intellectual property law after China's reform and opening up. In order to cooperate with the implementation of the Trademark Law, the State Council promulgated the Detailed Rules for the Implementation of the Trademark Law on 1983, and revised it for the first time on 1988. 1993, in order to meet the needs of the development of China's market economy and the protection of the exclusive right to use trademarks, China revised the trademark law for the first time after the implementation of 10. This revision brought service trademarks into the scope of trademark protection, intensified the crackdown on trademark infringement and counterfeiting, and further improved the trademark registration procedures. According to the revised Trademark Law, the Detailed Rules for the Implementation of the Trademark Law was revised for the second time, and collective trademarks and certification trademarks were included in the scope of trademark protection, and the protection provisions for "well-known trademarks" were added. In 200 1 year, in order to meet the needs of China's accession to the World Trade Organization, China revised the contents inconsistent with the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization for the second time, and added the provisions for natural persons to apply for registered trademarks. Incorporate three-dimensional trademarks and color combination trademarks into the scope of trademark protection; Establish a judicial review system for trademark confirmation; Strengthen the protection of well-known trademarks; At the same time, geographical indications should be included in the protection system of trademark law; Further intensify the crackdown on trademark infringement and counterfeiting: strengthen the supervision of trademark registration, management and examination personnel. In 2002, according to the revised Trademark Law, the State Council revised the Detailed Rules for the Implementation of the Trademark Law for the third time and promulgated the Regulations for the Implementation of the Trademark Law. From the above situation, we can see that the process of continuous revision and improvement of China's trademark law is also a process of intensifying the crackdown on trademark infringement and counterfeiting, and it is also a process of trademark law enforcement constantly escorting social and economic development. At present, China has formed a modern trademark legal system based on trademark law, which is relatively complete in content, sound in system and in line with international rules, including laws, administrative regulations, rules, normative documents and judicial interpretations. However, the trademark legislation in China, like all other superstructure legal systems, still needs to be enriched and improved with the development of socialist market economy. Especially since the 20th century, trademark protection has become an important topic in international trade and even international politics. The registration, application, protection and management of trademarks have become the yardstick to measure a country's competitiveness. 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 revised their trademark laws in light of their own economic development characteristics, and actively advocated and participated in the international coordination of trademark legislation. An important part of the revision of trademark law in developed countries is to strengthen the punishment of trademark counterfeiting, and some countries have even formulated special anti-counterfeiting strategic plans. In 2006, the World Intellectual Property Organization formulated the Singapore Treaty on Trademark Law, which marked the official start of a new round of international harmonization of trademark legislation. China has signed the Singapore Treaty on Trademark Law, so it is urgent to amend China's trademark law in time to meet the needs of internationalization of trademark legal system. At present, the revision of the Trademark Law is in full swing. The main principles of the amendment are: first, shorten the registration application period; The second is to optimize procedures and improve efficiency; The third is to provide convenience for the parties; Fourth, strengthen the protection of trademark rights; Fifth, link up with international trademark law treaties; Sixth, 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, so as to reduce the cost of rights protection, increase the cost of infringement, effectively curb trademark infringement and maintain the order of market economy.
Further improve the dual-track system of trademark administrative protection and judicial protection.
The most prominent feature of China's trademark legal system is the dual-track trademark protection system of administrative protection and judicial protection. The Trademark Law stipulates that the Trademark Office of the State Council Administration for Industry and Commerce is in charge of the national trademark registration and management, and the management function of the Trademark Office is mainly reflected in the guidance of investigating trademark infringement. This system is very different from foreign countries. Most foreign trademark protection relies on judicial protection, and its administrative protection is limited to the investigation and punishment of import and export infringing goods by the customs, and its trademark office is only responsible for the confirmation of trademark application registration. China's 1982 Trademark Law clearly stipulates the administrative protection and judicial protection of trademark rights for the first time, and defines the organ exercising administrative protection of trademark rights as the administrative department for industry and commerce at or above the county level. Article 39 of the law stipulates: "In case of any of the acts listed in this law that infringe on the exclusive right to use a registered trademark, the infringed party may request the administrative department for industry and commerce at or above the county level where the infringer is located to handle ... If the exclusive right to use a registered trademark is infringed, the infringed party may also bring a lawsuit directly to 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 Trademark Law of 1993 and Article 53 of the Trademark Law of 200 1 all abide by the above provisions without exception. With the continuous development of China's trademark legal system, the "dual-track" trademark protection system has also been consolidated and strengthened, the trademark law enforcement team has been growing, and the level of trademark protection has been continuously improved.
The characteristics of trademark administrative protection are active and flexible investigation, low investigation cost, high efficiency and various means. The administrative department for industry and commerce can "investigate and deal with cases on its own initiative" or "handle cases according to complaints". In handling cases, administrative law enforcement organs can take administrative coercive measures such as inquiry, inspection, investigation, sealing up and seizure, and can impose administrative penalties such as ordering the immediate cessation of infringing acts, confiscating and destroying infringing goods and tools specially used for manufacturing infringing goods and forging registered trademark marks, which is conducive to timely finding and stopping crimes. Trademark administrative law enforcement does not charge the parties. For a long time, China Administration for Industry and Commerce has been the main force of trademark law enforcement in China, playing a "main force" role in investigating all kinds of trademark violations and cracking down on trademark counterfeiting and infringement. At present, the national industrial and commercial system has a five-level trademark enforcement system at the national, provincial, prefectural (city), county and industrial and commercial levels, among which there are more than 2,800 industrial and commercial bureaus above the county level, and more than 24,000 industrial and commercial enterprises, with a total industrial and commercial team of nearly 450,000 people. With a nationwide law enforcement cooperation network, it has unique advantages in trademark law enforcement. According to statistics, from 1983 to 2007 (after the implementation of the trademark law), the trademark management departments of the industrial and commercial administrations at all levels in China investigated and dealt with 7 10600 cases of trademark violation, including 439 1000 cases of trademark infringement and counterfeiting, which were transferred to judicial organs for criminal responsibility, effectively protecting the registered trademarks of Chinese and foreign enterprises. Practice has proved that the "dual-track" trademark exclusive right protection system, in which administrative protection and judicial protection run in parallel and complement each other, conforms to China's national conditions and practical needs and has been widely praised by the international community. It is necessary to give further play to the advantages of the system and constantly enrich and improve it in practice.
Administrative protection has the characteristics of simple procedure and quick handling of cases, which can stop infringement in time; Judicial protection has the advantages of rigorous procedure and strong punishment, which can effectively curb crime. In recent years, with the increasing international calls to crack down on intellectual property infringement, the state regards strengthening criminal judicial protection of intellectual property as an important task. In 2004, the Supreme People's Court and the Supreme People's Procuratorate promulgated the Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights, which greatly lowered the conviction and sentencing standards for criminal crimes of infringement of intellectual property rights, and many cases that were originally under the jurisdiction of administrative law enforcement organs were transferred to judicial organs, which increased the judicial punishment for cases of infringement of intellectual property rights. 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 Infringement of Intellectual Property Rights (II), which supplemented and improved the judicial interpretation in 2004, further lowered the threshold of conviction and sentencing for crimes of infringement of intellectual property rights, and further intensified the judicial crackdown on crimes of infringement of intellectual property rights. In 2008, the number of trademark cases accepted by the court system increased significantly, and the protection advantage of the "dual track system" was further exerted. According to statistics, during the five years from 2002 to 2006, local courts nationwide accepted and concluded 5432/kloc-0 and 52437 cases of civil first instance intellectual property rights, which increased by 145.92% and 17 cases respectively compared with 55438+0 cases in the first five years of 2006. * * * Accepted and concluded intellectual property civil cases of second instance 13 170 and 12700, with an average annual increase of 8.93% and 9.55%, and the judicial punishment for trademark infringement is getting stronger and stronger. As a bridge between trademark administrative law enforcement and trademark criminal trial, the investigation of economic crimes by public security organs has played an important role in the judicial protection of trademark rights. The administrative departments for industry and commerce at all levels closely cooperate with the public security organs, vigorously strengthen the transfer of suspected trademark crimes and actively promote the judicial punishment of trademark crimes. In 2006, the State Administration for Industry and Commerce and the Ministry of Public Security jointly issued the Interim Provisions on Strengthening Cooperation in Combating Trademark Infringement Crimes, which made clear and specific provisions on the scope of cooperation, cooperation projects and the establishment of cooperation and cooperation mechanisms between the two sides. In recent years, the number of cases transferred by the industrial and commercial system and the number of people transferred have increased year by year, which has effectively deterred trademark criminals.
Actively guide enterprises to implement trademark strategy
At present, the level of enterprise trademark registration, application, protection and management in China is still far behind that in developed countries. Take the number of trademark infringement cases investigated and dealt with by industrial and commercial authorities as an example. About 90% of the cases are investigated and dealt with by industrial and commercial authorities according to their functions and powers, and less than 10% of enterprises take the initiative to complain, which fully shows that the awareness of trademark rights protection of Chinese enterprises needs to be improved urgently. Therefore, all government departments, especially the administrative department for industry and commerce, should make great efforts to cultivate and enhance the trademark awareness of enterprises and the public, and create a strong social atmosphere of attaching importance to and caring for trademarks; It is necessary to guide enterprises to implement trademark strategy, enrich the connotation of trademarks, increase the added value of trademarks, improve the visibility of trademarks, and create famous trademarks and well-known trademarks; It is necessary to mobilize the enthusiasm and consciousness of enterprises to create and use independent trademarks, guide enterprises to use registered trademarks correctly, maintain the unity of trademark identification, maintain the purity of trademarks, strengthen the specific orientation of trademarks, and prevent trademarks from being differentiated, diluted and weakened. Encourage enterprises to realize the market value of trademark rights through trademark rights transfer, licensing and pledge, and take the road of intensive management with trademarks as the link. Help enterprises to improve the level of trademark management and protection, help enterprises to establish trademark value evaluation, statistics and financial accounting systems, formulate trademark information retrieval and early warning systems for major events, improve the trademark management system for foreign cooperation of enterprises, and improve their awareness of self-protection and ability to deal with trademark disputes. It is necessary to guide enterprises to actively carry out international trademark registration and encourage enterprises to use their own trademarks in international trade. Correctly guide and actively support enterprises' trademark rights protection, establish an incentive mechanism for trademark owners to protect themselves and a support mechanism to combat infringement, encourage enterprises to actively respond to overseas trademark disputes, and use local laws and international rules to combat overseas trademark cybersquatting and trademark infringement and counterfeiting. Establish a coordination mechanism for complaints about overseas trademark rights protection of enterprises, make full use of diplomatic channels, bilateral cooperation mechanisms in the field of trademarks, and negotiate with trademark authorities to help enterprises protect their rights overseas. It is necessary to improve the channels of infringement complaints, standardize the standards and procedures for filing cases, strengthen the supervision of handling cases, gradually publicize the results of law enforcement, and effectively protect the legitimate rights and interests of clients. Strengthen the contact between administrative law enforcement organs and trademark owners. While investigating trademark infringement cases according to law, administrative law enforcement organs should make full use of mediation mechanism to resolve contradictions and maintain social stability.
Actively explore the establishment of a long-term supervision mechanism for trademark administrative law enforcement
Accelerate the institutionalization, legalization, standardization and procedural construction of trademark administrative law enforcement, intensify trademark administrative law enforcement, maintain fair market order, and effectively protect the legitimate rights and interests of trademark owners and consumers. Regularly carry out special actions to protect the exclusive right to use registered trademarks, focusing on cracking down on repeated infringement, group infringement and large-scale trademark infringement and counterfeiting; Widely implement the system of authorized sales of trademarks, vigorously rectify the retail market of commodities, strengthen the supervision of trademark printing, curb trademark infringement and counterfeiting at the source, and increase the protection of special symbols such as World Expo symbols; Strengthen the supervision of intellectual property rights such as Canton Fair, South Expo, Northeast Asia Expo and other commodity fairs and exhibition trademarks; Strengthen the identification and protection of well-known trademarks, and severely crack down on violations of the rights and interests of well-known trademarks. Establish a national trademark supervision information publishing platform, broaden the communication channels between trademark administrative law enforcement organs and the public, carry out various forms of trademark publicity, increase the education of trademark law popularization, and vigorously carry forward the moral concepts of being proud of innovation, being ashamed of plagiarism, being proud of honesty and being ashamed of counterfeiting. We will continue to strengthen the administrative enforcement of the protection of the exclusive right to use trademarks at the entry and exit links, adopt various border management measures, fully implement the filing system for trademark customs protection, and effectively stop the import and export of goods infringing on the exclusive right to use trademarks.
Strengthen the construction of trademark administrative law enforcement system and improve the trademark law enforcement management system. The administrative departments for industry and commerce at all levels shall, according to the actual needs, establish special trademark management institutions and equip them with corresponding personnel. Strengthen the construction of grass-roots industrial and commercial offices and enrich the power of trademark administrative law enforcement. Establish an on-the-job training system for trademark staff, vigorously train front-line law enforcement personnel, and build a high-quality trademark administrative law enforcement team. Strengthen the guidance on the handling of local trademarks, establish a faster qualitative examination and approval mechanism for infringement and a communication mechanism for handling information. Improve the regional joint law enforcement 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, China's trademark laws and regulations system has been gradually improved, and the level of trademark law enforcement has been continuously improved. However, it must be noted that China's trademark law enforcement can not fully meet the objective needs of comprehensive, coordinated and sustainable social and economic development, and there are still many problems, such as insufficient trademark law enforcement power, weak grass-roots administrative law enforcement power, uneven law enforcement level in various regions, local protectionism still exists, the coordination mechanism between regional departments needs to be strengthened, and trademark cases are transferred. We should further strengthen the protection of the exclusive right to use registered trademarks, give full play to the initiative of trademark owners to safeguard their rights, increase the deterrent power of criminal punishment, effectively curb the rampant counterfeiting and infringement, strive to achieve the strategic objectives 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: State Administration for Industry and Commerce of the People's Republic of China)