Item (6) of Article 57 of the Trademark Law stipulates the indirect infringement of auxiliary trademarks, that is, deliberately providing business premises, transportation, storage and other convenient conditions for others to commit trademark infringement. Market promoters deliberately provide convenience for merchants to sell goods with counterfeit registered trademarks, which constitutes indirect infringement of helping people's trademarks according to law.
Item (6) of Article 57 of the Trademark Law clearly defines the subjective elements of indirect infringement liability of trademark for help as "intentional". Intention means that the actor knows the existence of the tort and pursues or lets it happen. Therefore, the premise of "intentional" is "knowing". However, there are many controversies about the interpretation of "knowing". As far as the standard of "knowing" is concerned, it includes "knowing", "should know" and "having reason to know", and the content of "knowing" also includes "generally knowing" and "specifically knowing".
1. The standard of knowing: "know" instead of "should know" or "have reason to know"
Knowingly, it means that the actor clearly knows the existence of infringement facts. Knowing is different from knowing and having reason to know. The so-called "should know" means that according to the foreseeing ability and scope of the actor, if the infringement should be foreseen, but the duty of care and caution of the "reasonable and rational person" is not fulfilled, the damage consequences will occur or expand. Having reason to know means that if a "reasonable person" will know the facts by performing the duty of reasonable care, then the actor is considered to know the facts. It can be seen that both knowing and having reason to know set a duty of care for the actor. When performing the duty of care, the actor should be aware of the existence of infringement facts. If he fails to fulfill this obligation, he has a fault that he should know but doesn't know.
From the perspective of legal interpretation, the subjective intentional "knowing" that constitutes indirect trademark infringement should not include knowing and having reason to know: First, the internal structure of intention and negligence is different. Both of them are composed of "cognitive factors" and "will factors". Intentional "cognitive factor" means knowing that one's actions will lead to harmful results, while "will factor" means hoping or letting harmful results happen. The "cognitive factor" of negligence is to foresee the possible harmful consequences of one's own actions, and the "will factor" is to be negligent and not to foresee or believe that the harmful consequences can be avoided. The "cognitive factors" and "will factors" of the two are obviously different and cannot be confused and misused. We should know and have reason to know that the duty of care is set for the actor, and the judgment is based on the actor's foresight ability and scope, so it belongs to the cognitive factor of negligence. If we take what we should know and have reason to know as the subjective elements to judge the indirect infringement liability of trademarks, it is equivalent to embedding the cognitive factor of negligence into the intentional will factor, which is untenable in legal logic. Secondly, in the indirect tort liability of trademark, the duty of care should not be set for the actor. Danger is the source of duty of care, and the manufacturer or controller of danger should bear the obligation of damage prediction or damage prevention. However, the implementers of indirect trademark infringement, such as marketers, are not the direct implementers of trademark infringement, nor the manufacturers and managers of infringement risks, and have no obligation to manage and control infringement risks.
2. What do you know: "specific knowledge" instead of "general knowledge"
The specific content of knowledge can be divided into "general knowledge" and "specific knowledge". We should not take "general knowledge" or "general knowledge" as the standard to judge the subjective intention of the actor, but adopt the standard of "specific knowledge", that is, the actor knows the actual infringement facts exactly, which is also the proper meaning of "knowing"
First of all, the actor can only take measures to stop the infringement if he "specifically knows". "Specific knowledge" and "general knowledge" are different descriptions about the cognitive object. The object of "specific knowledge" is specific, and we can know exactly what kind of infringement the direct infringer has carried out on the trademark right of the obligee, while "general knowledge" is only a general cognition of the infringement. When the marketer knows which business sells which goods infringes whose trademark rights, it constitutes "specific knowledge". If he only knows that counterfeit goods are sold in his market, but he doesn't know the specific merchants, it belongs to "general knowledge". Knowing the specific infringement, marketers can take measures to stop the infringement. At this time, if he does not take measures to stop it, it can be understood as intentional indirect infringement.
Secondly, "specific knowledge" conforms to the original intention of the establishment of indirect trademark infringement system. At the moment when technology and commerce are very developed, the direct infringement of trademarks has developed from centralization and specialization to decentralization and amateurism. In the face of numerous and scattered trademark infringers, the "indirect infringer" and the "direct infringer" are required to bear joint responsibility for the damage consequences, so that the trademark owner can get timely and effective relief by suing the more powerful "indirect infringer". Indirect tort system effectively solves the problems of search cost and litigation cost of obligee, which is undoubtedly a system design biased towards obligee. However, this prejudice must be limited, otherwise it will inappropriately expand the rights of trademark owners and cause damage to competition. If the standard of "general knowledge" is adopted, whether the actor knows the existence of a specific infringement or not, he may bear the responsibility of indirect infringement, which will further expand the rights of trademark owners. Violation of the indirect tort system is only the theoretical basis for appropriately expanding the relief scope of the obligee, and it will also harm the interests of the public.
Finally, "general knowledge" is contrary to the theory of substantive non-infringement use. The conditions for the indirect infringer to help the direct infringer include technology, storage and business premises. These help conditions have two aspects: legal use and infringing use. Market promoters open markets for the purpose of not exclusively or mainly selling fake goods. Therefore, we should give the market room to survive. If it is generally speculated that there may be infringement by merchants in the market, it is presumed that the market promoters have the subjective intention to help the infringement, which undoubtedly increases the legal responsibility of the market promoters.
References:
http://rmfyb . China court . org/paper/html/20 16-09/08/content _ 1 16284 . htm？ div=- 1