Legal subjectivity:

Regarding the calculation of illegal business volume in trademark infringement cases, reference should be made to the "Several Issues on the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement" by the Supreme People's Court and the Supreme People's Procuratorate "Interpretation" (Fa Interpretation [2021] No. 19). Paragraph 1 of Article 12 of the Interpretation stipulates, "The 'illegal business amount' referred to in this Interpretation refers to the value of the perpetrator's manufacturing, storage, transportation, and sales of infringing products during the process of committing intellectual property infringement. The value of infringing products is calculated based on the actual sales price. The value of infringing products that are manufactured, stored, transported and not sold is calculated based on the actual sales price of the infringing products that have been identified. If the infringing products have no price or cannot be identified. The actual sales price is calculated based on the mid-market price of the infringed product. "Therefore, in this case, although the party has sold the infringing goods and has not sold the infringing goods at the same time, the sales price is fixed, so it is illegal. The operating amount is calculated based on the actual sales price. Legal objectivity:

Illegal business volume is a very important concept in administrative law enforcement, especially in the protection of trademark exclusive rights. First of all, it is an important basis for the implementation of administrative penalties. The amount of fines for administrative penalties is based on the illegal business volume; secondly, it is an important basis for determining the crime or non-crime, that is, to hold the infringer administratively or criminally responsible. It is also Specific standards for determining whether the infringement is serious or particularly serious; thirdly, it is also a necessary condition for pursuing the civil liability of the infringer, especially for determining the amount of compensation. Regarding the concept of illegal business volume, there is rarely a clear definition in laws, regulations or research works, and there are large discrepancies in understanding and mastering it both in theory and in practice, especially in judicial and administrative law enforcement practice. Lack of clarity or even ambiguity has caused a certain degree of confusion, affected the fairness of law enforcement, and reduced the effectiveness of law enforcement. The author believes that illegal business volume should refer to the genuine or authentic value of goods that the trademark infringer produces, sells or provides infringing facilities such as warehousing, transportation, mailing, and concealment that infringe the exclusive rights of others’ registered trademarks. 1. The difference between illegal business volume, sales amount, illegal income and other concepts. (1) Generally speaking, sales amount is synonymous with sales revenue and case value. The concept of case value is neither a professional legal term nor a normative term for administrative law enforcement. It is just a historically formed idiom in administrative or judicial documents. Such a concept should not appear in . Compared with the sales amount, the illegal business volume is first of all different in concept. The sales amount refers to the economic amount obtained by the infringer from selling the infringing goods, including costs and pure profits; while the illegal business volume is defined as above. Secondly, the scope is different. The sales amount refers to the entire amount earned by the infringer from selling the infringing goods; while the illegal business revenue, in addition to the sales link, the trademark infringer produces or provides infringement facilities such as warehousing, transportation, mailing, concealment, and infringement of other people's registered trademarks. The value of the goods is included. (2) Illegal gains are also called illegal gains, which are synonymous with illegal income and illegal profits. Compared with illegal income, illegal business volume is firstly different in concept. Illegal income refers to the pure profit obtained by the infringer from producing or distributing infringing goods. Secondly, the calculation method is different. The difference between production cost and sales price or sales price and purchase price is different. That is illegal income. In addition, regarding the difference between illegal business volume, sales amount, and illegal income in terms of what constitutes infringement, illegal business volume is a necessary condition for trademark infringement, but sales amount and illegal income are not necessary conditions for trademark infringement. In other words, as long as the infringer commits trademark infringement There must be illegal business volume, but there may not be sales amount or illegal income. 2. Calculation standards and methods should be unified. Due to the inconsistent understanding of the concept of illegal business volume, there are three calculation standards, namely, the price of genuine goods, the sales price of infringing goods, and the cost price of counterfeit goods. Compare these three standards. The three calculation standards have their own characteristics: first, they have different starting points. The standard calculated based on the cost price of counterfeit goods only takes into account the lost interests of the right holder; the standard calculated based on the sales price of infringing items also takes into account the lost interests of the right holder. The vested interests of the infringer are taken into account; and the standard for calculating the genuine price takes into account not only the tangible losses caused to the right holder but also the intangible losses, where the tangible losses include both the lost interests of the right holder and the due interests of the right holder. , intangible losses refer to the depreciation of the value of the right holder’s registered trademark and the reduction of credibility.

Secondly, from the perspective of the amount, the illegal business volume calculated based on the price of genuine goods is definitely higher than the illegal business volume calculated based on the sales price of infringing items. Similarly, the illegal business volume calculated based on the sales price of infringing items is definitely higher than that calculated on the basis of counterfeit goods. The illegal business volume is calculated based on the cost of goods. The penalty results or criminal liability consequences derived from the illegal business volume calculated according to three different standards will also be very different. So which standard should be adopted in the current protection of trademark rights? There is no doubt that the standard calculated based on the cost price of counterfeit goods is definitely not advisable; the standard calculated based on the sales price of infringing items is a compromise choice, so it is a good choice for most people. Accepted by most people (the latest judicial interpretation of intellectual property crimes also adopts this standard), it is also a strategy that is more realistic but difficult to eradicate chronic infringement problems, so it is often rejected by rights holders. There are at least two negative impacts of adopting this calculation standard: First, this calculation method objectively enables infringers to reduce production and sales costs, thus damaging both the vital interests and consumption safety of consumers and seriously damaging the trademark reputation of the right holder; Second, even if the infringer does not reduce production and sales costs, but uses marketing strategies such as ultra-low-price sales and sales channels such as occupying the middle and low-income consumer groups to squeeze out the rights holders in every possible way, he can still obtain huge profits, which also damages the rights. People's interests also obscure consumers' right to know. The standard of calculating the genuine price has at least three advantages: first, it is helpful to deter infringers from illegal activities and increase the intensity of punishing infringement; second, it is helpful to ensure the consumption safety of the whole society by cracking down on illegal crimes; third, it is to calculate The method is simple and clear, with low enforcement risk and high enforcement efficiency. The author believes that in order to get out of the vicious circle of intellectual property protection and purify the economic environment to a greater extent, it is urgent to adopt this calculation standard through legislation. Regarding the calculation method of illegal business revenue, the author advocates using the genuine product price as the calculation standard, that is, in a trademark infringement case, all infringing goods produced or sold by the infringer (including sold and inventory goods) are calculated based on the value of the same amount of genuine goods. . 3. When does "illegal business turnover cannot be calculated" apply? Article 52 of the "Regulations for the Implementation of the Trademark Law" stipulates that for acts that infringe on the exclusive right to use a registered trademark and the illegal business turnover cannot be calculated, the fine amount shall be less than 100,000 yuan. So how should we understand the "illegal business volume cannot be calculated" here? In some trademark infringement cases, some infringers usually adopt the method of not issuing purchase and sales receipts, leaving no purchase and sales records, warehouse inventory and sales site Separation, placing only a few samples of infringing goods at the sales site, concealing the true situation of infringement, setting up obstacles for administrative law enforcement, trying to circumvent the law and evade crackdowns. Therefore, to put it simply, "illegal business volume cannot be calculated" applies when the infringer fails to provide or fails to truthfully and effectively provide information that can be used to verify its illegal business volume, including documents, records, suppliers, etc. The trademark administrative law enforcement agency also The illegal business volume cannot be ascertained because the concept of "illegal business volume cannot be calculated" is too abstract and difficult to grasp in actual law enforcement. Therefore, the following points should be done when understanding and applying this concept: First, for If the alleged infringer fails to provide or truthfully and effectively provides information that can be used to verify its illegal business volume, it cannot be generally judged as a situation where the illegal business volume cannot be calculated. It should be comprehensively considered in conjunction with other circumstances. For example, whether the alleged infringer has any previous Records of infringement or repeated infringement, or proof from the product's upper-level suppliers, lower-level sellers or agents of whether they have produced or sold infringing goods; second, Article 5 of the "Trademark Law Implementation Regulations" empowers administrative enforcement The agency has certain discretionary power, but during the case investigation and handling process, it should still conduct thorough investigations, strictly collect evidence, try to verify the information on the suspected infringer’s illegal business volume, and do not easily judge that its illegal business volume cannot be calculated; thirdly, during the case investigation and handling process, As long as the administrative penalty decision has not been made, the information on illegal business volume will be used when it is discovered. 4. How to calculate illegal business revenue for repeated infringements Repeated infringements refer to the behavior of the same trademark infringer who is punished once by the administrative law enforcement agency and then continues to infringe on the exclusive rights of others' registered trademarks. Regarding the issue of repeated infringement and criminal liability, first of all, we have seen that the judicial interpretation of intellectual property rights has stipulated that the criminal liability of the infringer for counterfeiting someone else’s registered trademark can only be pursued if the illegal business volume reaches a certain amount. However, the judicial interpretation also stipulates that, Although the illegal business volume does not reach this standard, if the infringer has been subject to more than two administrative sanctions or criminal penalties and counterfeits other people's registered trademarks, he can still be held criminally responsible.

Here we can draw a preliminary conclusion that when considering the circumstances of the infringer's crime, generally speaking, reaching a certain amount of illegal business is one of the criteria for the seriousness of the infringement. However, if the perpetrator has more than two counterfeiting The act of registering a trademark by others, and the cumulative amount is relatively large, is still considered serious. Here, the quantity and amount of illegal business revenue for each infringement are still of substantial significance in determining the criminal liability of the infringer. Secondly, there is the issue of whether the illegal business revenue from repeated infringements can be calculated cumulatively. According to relevant legal provisions, for those who have repeatedly infringed on the exclusive rights of others' registered trademarks, as long as they have not been dealt with, their illegal business volume shall be calculated cumulatively. 5. The standards for illegal business volume that constitute intellectual property crimes should not distinguish between individuals and units. Some laws and regulations on trademark law enforcement have stipulated different illegal business volume standards for units and individuals in terms of the crime of counterfeiting trademarks, such as the amount of illegal business for units. It must be more than 500,000 yuan, and the amount of personal illegal business is more than 100,000 yuan. This provision is obviously unreasonable and difficult to operate in actual law enforcement activities. First of all, with the rapid development of the market economy, economic entities have become increasingly diversified and monolithic, and the concept of "unit" has been increasingly weakened and diluted. Secondly, the standard for distinguishing between units and individuals gives infringers an opportunity to evade legal sanctions by pretending to be an unit and committing infringements as individuals. We are pleased to see that the latest judicial interpretation of intellectual property crimes has clearly eliminated the distinction between units and individuals.