At present, there are two parallel ways to protect intellectual property rights in China, one is judicial protection, the other is administrative protection. Judicial protection is mainly achieved by filing an infringement lawsuit, because at present, the court pursues the principle of "not suing and ignoring", so if you want to crack down on trademark infringement through judicial channels, you must file a lawsuit with the court and make a judgment. The way of administrative protection is to file an administrative investigation with the relevant administrative department, and the administrative department will make an infringement judgment and ban it.
Zhongwang believes that judicial rights protection requires a relatively long litigation period, and the first-instance litigation period of trademark infringement cases is about 6-9 months. General enterprises want to know as soon as possible, and don't want to delay too long. In addition, the litigation cost is relatively high. In addition to the legal fees paid to the court, it also bears the expenses of investigation and evidence collection, travel expenses, attorney fees and so on. Where an application for pre-litigation injunction, evidence preservation or property preservation is made, the corresponding property guarantee shall also be provided. Therefore, for the protection of trademark rights, Zhongwang thinks it is more convenient and advantageous to use administrative protection.
The Trademark Law gives the administrative department for industry and commerce the power to order the infringer to stop the infringement, especially the power to order the infringer to destroy the molds and infringing products. At the same time, infringement cases can be handled by the county-level industrial and commercial departments in the jurisdiction, and only trademark cases with large subject matter and great influence will be submitted to the municipal administrative department for industry and commerce, so that it is more convenient for the obligee to file administrative complaints and find them. Moreover, the trial period of administrative protection is generally short, which is conducive to the obligee to stop the infringement quickly and timely. Third, in the process of implementing administrative protection, the administrative organ is not only the referee role of the "judge", but also has the administrative responsibility to stop the infringement. Fourth, the obligee does not need to pay legal fees or provide evidence preservation guarantee when conducting administrative investigation. The convenience of administrative investigation can generally meet the requirements of the obligee to stop the infringed act as soon as possible, so it is more convenient and beneficial to choose administrative protection to protect the trademark from infringement. Of course, if the infringement has caused huge economic losses and requires more compensation, we still have to take judicial protection.
Article 69 of the Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on the Standards for Public Security Organs to Jurisdicte Criminal Cases for Filing and Prosecuting stipulates: [Case of Counterfeiting a Registered Trademark (Article 213 of the Criminal Law)] If a trademark identical to its registered trademark is used on the same commodity without the permission of the registered trademark owner, it shall be filed for prosecution under any of the following circumstances:
(a) the amount of illegal business is more than 50 thousand yuan or the amount of illegal income is more than 30 thousand yuan;
(2) Counterfeiting two or more registered trademarks, with an illegal business amount of more than 30,000 yuan or an illegal income of more than 20,000 yuan;
Article 70 [Case of Selling Goods with Counterfeit Registered Trademarks (Article 214 of the Criminal Law)] Anyone who knowingly sells goods with counterfeit registered trademarks and is suspected of any of the following circumstances shall file a case for prosecution:
(a) the sales amount is more than fifty thousand yuan;
(two) has not been sold, the value of more than one hundred and fifty thousand yuan;
(3) The sales amount is less than 50,000 yuan, but the sum of the sold amount and the unsold amount is more than 150,000 yuan.
Therefore, for trademark infringers, it may lead to criminal responsibility, so it is quite powerful for trademark infringement to obtain relevant infringement evidence through administrative investigation.