What aspects should be paid attention to when handling trademark infringement cases?

1. Be carefully prepared for on-site inspections

For trademark infringement cases, the cases are generally reported by registered trademark holders or authorized persons, and administrative enforcement will often be adopted. Therefore, before arriving at the scene, law enforcement officers must carefully study the situations that may occur during on-site inspections, and must carefully plan, prepare carefully, and make emergency plans. First, the division of labor among personnel must be clear. For example, which law enforcement officers do the following: 1. Disperse the flow of people, maintain order, and ensure the personal safety of law enforcement officers; 2. Contact the lessor of the venue; 3. Contact the parties, stabilize the parties, and prevent the parties from contacting other people? What if the person involved is not at the scene? What should I do if the parties concerned do not cooperate? etc.; 4. Assist and cooperate with the appraisers in conducting appraisals; 5. Make on-site inspection records and extract evidence as soon as possible; 6. Take on-site photos and video throughout the entire process (pay attention to the angle of the photo and the integrity and completeness of the video); 7. Prepare and issue administrative enforcement measures documents and contact with the custody of relevant property. The second is to do a good job in seizing and keeping the items involved in the case. When law enforcement officers seize goods suspected of trademark infringement, they must carefully inventory and record the specifications, serial numbers, weights, unit prices and other characteristics of the goods, prepare on-site inspection records, issue a decision on administrative enforcement measures and a list of property, pack and package the goods involved, Affix a seal and take photos after signing and confirming by law enforcement officers and parties involved. For bulk commodities or other commodities that require the custody of professional institutions, it is necessary to promptly contact and entrust a third party with custody qualifications for custody.

2. Calculation of illegal business volume

When investigating and handling trademark infringement cases, the issue of calculation of illegal business volume is usually involved. However, the new Trademark Law and Trademark Law The Implementing Regulations and other regulations do not provide specific provisions on the "calculation of illegal business volume", so how to calculate the illegal business volume in trademark infringement cases?

First, the basis for calculating illegal business volume. According to the "Reply on Whether Administrative Agencies Can Directly Apply Judicial Interpretations" (Industrial Trademark Zi [2004] No. 14) of the State Administration for Industry and Commerce, "Judicial interpretation refers to the specific application of legal issues made by the country's highest judicial authority in the process of applying the law. The interpretation is binding on how judicial organs at all levels apply the law. Administrative agencies can refer to relevant judicial interpretations when handling cases, but it is not appropriate to directly apply the provisions of judicial interpretations. The author believes that it defines illegal operations under the new Trademark Law. Well, you can refer to the relevant provisions of the following laws, judicial interpretations or normative documents: 1. Article 72 of the "Product Quality Law"; 2. "Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement" ( Article 12, Paragraph 1, Fa Shi [2004] No. 19; 3. Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement (Fa Fa [2011] No. 3), Article 7; 4. State Administration for Industry and Commerce "Reply on Issues Concerning Infringing Goods" (Gongshizi [2003] No. 99); 5. Article 9 of the "Opinions on Several Issues Concerning the Protection of Service Marks" issued by the Trademark Office on March 30, 1999.

The second is the circumstances included in the calculation of illegal business volume. The term "illegal business volume" as mentioned in the new Trademark Law shall refer to the value of manufacturing, storing, transporting, selling infringing and illegal goods and the value of providing infringing and illegal services during the course of committing trademark infringement and illegal acts, specifically including the following types: Situation: 1. The value of the infringing and illegal goods sold is calculated based on the actual sales price. The value of manufactured, stored, transported and unsold infringing and illegal goods shall be calculated based on the actual average sales price of the identified infringing and illegal goods. However, if the listed price of unsold infringing and illegal goods is lower than the actual average sales price, the value shall be calculated based on the listed price. . If the actual sales price cannot be ascertained, the price will be calculated according to the price if there is a price tag, and the middle price of the market for the infringed goods or the middle price of goods similar to the illegal goods will be calculated if there is no price tag. 2. When calculating the value of infringing and illegal goods that are manufactured, stored, transported and unsold, the value of semi-finished products and packaging labels with infringing and illegal trademarks attached shall be included in the illegal business volume based on the actual cost of the semi-finished products and packaging labels; the production has been completed However, if there is sufficient evidence to prove that the goods will infringe the registered trademark rights of others for goods that have not yet been attached (including affixed) with the infringing trademark logo, their value will be included in the illegal business volume.

3. If the perpetrator uses the infringing and illegal trademark for advertising during the course of committing trademark infringement and illegal acts, the advertising expenses shall be included in the illegal business revenue. 4. The business income (including business income receivable but not collected) generated by the perpetrator when using the infringing and illegal trademark to provide business services shall be included in the illegal business volume; if the charging standard for the infringing and illegal services is not marked, the charging standard shall be the same as in the local market. Calculation of fair market price for services. The value of the service facilities, supplies, and signs with the infringing trademark attached that the infringer mainly uses for infringing services shall be included in the illegal business volume based on the actual cost, but the part that has been included in or shared the value of the infringing service will not be counted twice. 5. If someone intentionally provides facilities for infringement of other people's trademark rights and helps others commit acts of infringement of trademark rights, the illegal business turnover shall be the illegal income from helping others commit acts of infringement of trademark rights.

The third is the choice of calculation method for illegal business revenue of unsold infringing products. Article 12 of the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement" (Fa Interpretation [2004] No. 19) of the Supreme People's Court and the Supreme People's Procuratorate stipulates that the "amount of illegal business operations" referred to in this interpretation refers to The value of the perpetrator’s manufacturing, storage, transportation, and sales of infringing products during the course of committing intellectual property infringement. The value of the infringing products sold is calculated based on the actual sales price. The value of manufactured, stored, transported and unsold infringing products shall be calculated based on the marked price or the actual average sales price of the identified infringing products. If the infringing product has no price tag or its actual sales price cannot be ascertained, the calculation shall be based on the market median price of the infringed product. There are three methods for determining the value of "unsold infringing products": price tag, actual average sales price of identified infringing products, and calculation of the market median price of the infringing products. The first two determination methods and the third determination method have a sequential and hierarchical relationship. Only when the first two methods cannot be determined, the third method can be applied for confirmation. There is a parallel selection relationship between the first two determination methods, which can be selected and applied according to the specific circumstances of the case. When "unsold infringing products" only have a price tag, and the actual average sales price cannot or is difficult to ascertain, the price will be calculated directly based on the price tag; when "unsold infringing products" do not have a price tag, but the actual average sales price can be ascertained, the actual average sales price will be calculated based on the actual price. Average sales price calculation. When “unsold infringing products” have a price tag and the actual average sales price can be ascertained, how should one choose to apply it? This is the difficulty in choosing an appropriate determination method at this level. The author believes that the actual average sales price should be used first for calculation. First, from the perspective of legal principles, calculating the illegal business volume of infringing goods in stock based on the actual average sales price can objectively evaluate the actual situation of the infringing goods in stock not causing social harm, which is consistent with the principle of proportionate punishment. Second, from the perspective of the degree of social harm, in comparison with criminal crime theory and legal provisions, the infringing goods that have been sold are the completion of harmful acts and harmful results, while the unsold infringing goods are the completion of harmful acts and the attempted harmful results. In most cases, based on commercial interests, the actual sales price is often lower than the listed price. If the unsold infringing goods are calculated based on the listed price, the illegal business volume violates the principle of proportionate penalties. In the rare cases where parties use low bid prices to evade legal sanctions, calculation based on the actual average sales price can better reflect the legislative intent of the Trademark Law to protect the legitimate rights and interests of registered trademark holders.

Fourth is the determination of the mid-market price of the infringed product. The mid-market price of the infringed product can be investigated and confirmed by the industrial and commercial authorities, such as directly investigating and collecting evidence from the infringed party, conducting market surveys, or entrusting the price certification center established by the price authority at or above the county level to authenticate. As for the application of the two determination methods, the author believes that two principles should be grasped: First, the industrial and commercial authorities can choose either method, or they can use both methods together; second, when the two methods are used together to obtain different results, they should follow the principle that is beneficial to the parties concerned. In accordance with the principle, the lower result shall be used for determination.