In judicial practice, the determination of "legitimate source" in trademark infringement cases is also the focus and difficulty of case trial.

Article 56, paragraph 3, of my country’s Trademark Law stipulates that if you sell goods that you do not know infringe the exclusive rights of a registered trademark, and you can prove that you obtained the goods legally and explain the supplier, you will not be sold. Bear liability for compensation? This paragraph stipulates that trademark infringers who can provide the legitimate source of goods are exempt from liability for compensation. What is a legal source? Current laws and regulations lack detailed provisions. In judicial practice, the determination of "legitimate source" in trademark infringement cases is also the focus and difficulty of case trial.

Specifically, "legitimate sources" need to be considered from the following aspects:

1. The defense subject must be legal

At this stage, the phenomenon of counterfeiting in our country More rampant. In trademark infringement litigation, the right holder’s claims are generally directed against the producers and operators of the infringing goods. For producers of infringing goods, unless others entrust them with processing, litigation is mostly caused by their active infringement, and the producer has the subjective intention to actively pursue the infringement results, which falls into the category of malicious intent. You cannot be a third party with good intentions. Therefore, the only person who can claim that the infringing goods sold have legal origins is the operator, that is, the seller of the goods.

2. Subjectively, operators need to be in good faith

The subjective goodwill of infringing operators means that sellers of infringing goods subjectively do not know that the goods they distribute are infringing. There are two forms of knowledge, namely, "impossible to know" and "should know but do not know due to negligence". If a business operator knows that what he is selling is a product that infringes upon the trademark rights of others and still sells it, he is acting in bad faith and shall be liable for infringement compensation. However, how to determine whether the operator is "impossible to know" or "should know" but is ignorant due to negligence is the difficulty in trademark infringement cases in practice.

You should know that merchants in my country, especially small and medium-sized merchants, generally lack the ability to distinguish the authenticity of goods and whether they are infringing. If it is simply presumed that the operator is negligent, it will inevitably lead to The expansion of business operation risks has caused operators to be timid in the business process.

3. The source must be objectively legal

Lawful sources are the basis for determining that goods have legal origins. In the judicial practice of trademark infringement, it is generally presumed that the goods sold by the dealer do not have legal origin. However, this is only a legal presumption at this time. If a distributor does not want to be liable for infringement compensation, it must provide evidence that the products it distributes come from legal sources, that is, the distributor obtained the products through legal channels. In terms of evidence, it generally has the following aspects:

1. There is a legal contract. Distributors must have a sales contract when acquiring goods from producers. However, this is not necessary to prove that the source of the dealer's goods is legal, for two reasons:

(1) Permitted by law. The law allows the existence of oral contracts between the parties to the transaction, and the Contract Law also specifically provides some provisions for oral contracts. As a distributor, it does not violate the law to obtain goods through an oral contract.

(2) Requirements for business transaction efficiency. In real business transactions, due to the efficiency of business transactions and common practices, there are a large number of oral contracts, and operators can often obtain distributed goods through a phone call.

2. Reasonable price. Reasonable price is one of the core elements in legally determining whether the source of a distributor's goods is legal. If the price difference of the goods is large, the distributor should be clearly aware of it, and the distributor should make further decisions on whether the goods are infringing, etc. Awareness of discrimination and careful verification.

3. Have legal commercial invoices. The commercial invoice is an important piece of evidence proving the source of the goods sold by the dealer. In actual operations, there are also cases where some operators do not issue commercial invoices for purposes such as tax evasion. This kind of behavior is based on illegality. Once the goods sold by the dealer are infringing and cannot provide other evidence to prove that the source of the goods is legal, the dealer cannot be exempted from liability for compensation.

4. Have complete daily business records. In actual operations, some dealers often do not establish sales records for purposes such as tax evasion. Such illegal behavior does not exempt them from their legal obligations.

When other evidence that the source of the goods is legal cannot be provided, business records are important evidence to determine whether the infringing goods have a legal source. Otherwise, the dealer will bear the burden of proving the inability to prove it.

To sum up, the identification of "legitimate source" in trademark infringement requires a comprehensive judgment based on multiple factors such as product price, commercial invoice, and business records. So, in specific cases, based on what standards and principles should various factors be considered?

Article 66 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates:? All evidence in a case shall be comprehensively reviewed and judged from the aspects of the degree of correlation between each evidence and the facts of the case, the connection between each evidence, etc. The author believes that the determination of "legitimate source" in trademark infringement should follow the judgment rules of "high probability" of evidence in civil cases, and based on the probative power of the evidence and the degree of correlation with the facts to be proved, and in accordance with the judgment standard of "high probability of evidence", the facts involved in the case Make a comprehensive and holistic identification. Judgment standards should not be fixed or rigid, nor should they stick to a single form of evidence.