Counterfeiting a registered trademark, according to the provisions of Article 213 of the Criminal Law, refers to using the same trademark as its registered trademark on the same commodity without the permission of the registered trademark owner. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
With people's recognition of trademark value and the enhancement of enterprise's awareness of brand creation, driven by strong economic interests, counterfeiting other people's trademarks? Hitchhiking? Behavior is also accompanied, and this kind of behavior is increasing day by day, and some new forms have appeared. In the face of increasingly serious and complicated acts of counterfeiting registered trademarks, criminal law, as an important part of trademark legal protection, has limited crackdown on such acts, which is extremely unfavorable for protecting the exclusive right to use trademarks, safeguarding the legitimate rights and interests of consumers and maintaining the normal order of market economy.
analysis of existing circumstance
The scope of the current criminal law in China to crack down on counterfeiting registered trademarks is obviously too limited, not only the object of protection is too narrow, but also the registered service trademarks with the same legal status as registered commodity trademarks are not included in the criminal law's protection vision, and the provisions on counterfeiting registered trademarks are too simple, which is obviously not conducive to protecting the interests of trademark owners and consumers. This is undoubtedly not conducive to effective control of such behavior. No wonder some people think so? At present, the infringement and criminal acts against some trademarks are still rampant. The reasons are not only economic benefits, but also relatively backward legislation in criminal law, weak law enforcement measures and poor awareness of intellectual property protection. In order to intensify the criminal law's crackdown on counterfeiting registered trademarks, improve the crime of counterfeiting registered trademarks, effectively prevent and control trademark crimes, and fully implement the TRIPS Agreement.
How to identify the crime of counterfeiting registered trademarks?
The crime of counterfeiting a registered trademark refers to a serious act of using the same trademark on the same commodity without the permission of the registered trademark owner in violation of the national trademark management regulations.
1, the boundary between this crime and non-crime behavior
In the distinction between this crime and non-crime, we should mainly pay attention to the following two standards: (1) subjective standard. The subjective aspect of this crime is intentional. If it is due to negligence, I don't know that a trademark has been registered by others, or the trademark I used first is not registered, but others registered first, and I continue to use it without knowing it, it does not constitute the crime of counterfeiting a registered trademark. (2) the standard of the circumstances of the crime. The crime of counterfeiting a registered trademark is a plot crime. The actor has the subject and subjective aspects of this crime and implemented it? Using the same trademark on the same commodity without the permission of the registered trademark owner? Behavior, but also to achieve? Serious circumstances? Degree, can constitute a crime. With regard to the specific standards of serious circumstances, the provisions of the standards for the prosecution of economic crime cases are stipulated.
2. The boundary between one crime and several crimes
In practice, producers and sellers of fake and shoddy goods use the same trademarks as others' registered trademarks from time to time in order to successfully sell fake and shoddy goods for profit. In this regard, on April 9, 20001year, 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 Producing and Selling Fake and Inferior Commodities, in which Article 10 clearly stipulates:? Whoever commits the crime of producing and selling fake and inferior commodities, and at the same time constitutes other crimes such as infringement of intellectual property rights and illegal business operations, shall be convicted and punished in accordance with the provisions of heavier punishment. ? Specifically, the above situation belongs to implicated offense and should be based on? From felony to heavier punishment? In principle, the crime of producing and selling fake and inferior products and the crime of counterfeiting registered trademarks should be convicted and punished.
How to prevent trademark generalization?
I. Provisions on common names
1. When registering a trademark: Only the common name of a commodity may not be registered as a trademark. (Article 1 1 of the Trademark Law)
2. After the trademark is registered: the registered trademark becomes the common name of the goods approved by it, and anyone can apply for cancellation. (Paragraph 2 of Article 49 of the Trademark Law)
3. After the trademark is registered: the registered trademark contains the common name of the commodity, and the obligee has no right to prohibit others from using it properly. (Article 59 of the Trademark Law 1)
Second, the legal judgment of trademark generalization
1, time node (Article 8 of Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization Confirmation)
(1) trademark registration procedure: The people's court will examine and judge whether the disputed trademark belongs to a generic name, which is generally based on the factual state when the trademark registration application is filed. If it is not a generic name at the time of application, but the disputed trademark has become a generic name at the time of approval and registration, it shall still be recognized as the generic name of the commodity; (2) Trademark revocation procedure: In the case of Yin Junmei, the Beijing Higher People's Court broke through the actual situation when the Trademark Review and Adjudication Board ruled that Yin Junmei's trademark constituted a generic name and its registration violated the provisions of the Trademark Law. (3) Trademark infringement litigation: since it does not involve the examination of whether a trademark can be registered or revoked, the time node of judgment is whether the trademark has become a common name when the infringement occurs; Does not comply with the provisions of Article 8 of the judicial interpretation.
2. Judgment criteria (Article 7 of the Supreme People's Court's Opinions on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization Confirmation)
The judgment of common names in trademark infringement litigation refers to the judgment standard of trademark administrative procedure, that is, when judging whether a disputed trademark is a common name, it should be examined whether it belongs to a legal or established commodity name. (1) According to the provisions of laws, national standards and industry standards, if a commodity belongs to a generic name, it shall be recognized as a generic name. (2) If the relevant public generally believes that a certain name can refer to a certain kind of goods, it shall be recognized as a common name established by convention. The commonly used generic names are judged by the common understanding of the relevant public in the country. (3) those listed as commodity names by professional reference books and dictionaries can be used as a reference for identifying established common names. (4) For commodities with relatively fixed relevant markets due to historical traditions, local customs, geographical environment and other reasons, the common names in the relevant markets can be identified as common names.
Three. Judicial practice
Sina Parker trademark infringement case: the court thinks that the plaintiff may be registering? Shoot customers? This word has a certain meaning, but it is not the original of the plaintiff, but the crystallization of the wisdom of netizens. Because this word is widely used by netizens, the trademark meaning of this word is obviously weakened. Can it be recognized? Shoot customers? Has become a common vocabulary, and others use it in a common range? Shoot customers? Words, rather than being used as trademarks, should not be regarded as infringement of trademark rights unless they cause confusion to the relevant public.
Yin Junmei's trademark administrative case: Beijing High Court thinks? According to the relevant evidence provided by Zhengshan Tea Company and Mu Tong Tea Company, it is enough to prove that Yin Junmei? As the trade name of black tea, it has been recognized and treated by the relevant public, and has become the common name of some kinds of black tea products. Therefore, based on the actual situation when the ruling No.53056 was made, it should be considered that the application for registration of the objected trademark violated the provisions of Item (1) of Paragraph 1 of Article 11 of the Trademark Law.
The case of revocation of USB flash drive trademark: the Trademark Review and Adjudication Board thinks that from the disputed trademark? U disk? From the meaning of Chinese characters themselves, it is a direct description of the quality, function and use of the designated ninth type of computer memory, lacking the obvious characteristics of trademarks. Lonco itself has always been? U disk? Being used as a commodity name has objectively played a role in further diluting or even eliminating it? U disk? The function of words as a distinctive feature of trademarks. At the same time, many operators and consumers in the same industry also generally put? U disk? As a new type of computer, it uses mobile storage of commodity names. Therefore, it can be concluded that the disputed trademark has become a common name for its designated use of the computer memory of goods.
Fourth, how to prevent trademark generalization?
1, choose a meaningful logo.
If the meaning of a trademark is closely related to the characteristics and uses of the goods it refers to, it will easily become a common name of the goods if it is improperly used. Moreover, trademarks with weak distinctiveness are easily used by others on their own goods on the defense of fair use. Therefore, when applying for registration, we should choose a trademark with strong distinctiveness to prevent it from being diluted.
2. Correct use of registered trademarks.
(1) The obligee shall correctly use the registered trademark and use it as a trademark. Take USB flash drive as an example, USB flash drive is commonly known because Netac improperly uses USB flash drive as a commodity name. (2) When launching trademarks and new products at the same time, we must correctly distinguish between commodity names and trademarks. Because at the beginning of new products, it is easy to name goods with trademarks, which leads to the gradual generalization of trademarks. (3) The obligee should especially prevent the trademark from being listed as a commodity name in national standards, industry standards, reference books, dictionaries and other documents. This situation is particularly prominent in the case of conflict between drug names and trademarks.
3. Implement proactive rights protection actions.
If the obligee finds that another person uses its registered trademark as a commodity name or other descriptive description, he shall immediately start the action of safeguarding rights, demand that the improper use be stopped immediately, and even publish an announcement in newspapers and periodicals. Creditors' rights protection must be timely, so as not to lose their rights relief. Further conniving at the improper use of others will lead to the fait accompli of trademark generalization, and it is too late to mend it. Like what? Shoot customers? Keith? U disk? Keith.
The above is provided by Bian Xiao. I hope everyone will like it!
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