Trademarks are intangible assets of enterprises, especially well-known trademarks, which can not only bring huge profits to enterprises, but are also a commodity and a kind of wealth in themselves. Precisely because trademarks can bring huge profits, there are more and more illegal and criminal activities involving counterfeit trademarks. The number of counterfeit trademark cases investigated and dealt with by the national industrial and commercial administration authorities is on the rise year by year. Especially in recent years, in order to make huge profits, criminals have committed trademark crimes that have become more and more intense, and are characterized by intelligence, complexity, and concealment. In practice, they are often entangled with trademark civil infringements and are easily confused. It is necessary to According to the provisions of the law, the boundaries between crime and non-crime should be drawn clearly in theory and practice.
According to the provisions of Articles 213, 214 and 215 of the Criminal Law, anyone who uses the same trademark as the registered trademark on the same kind of goods without the permission of the owner of the registered trademark, the circumstances are serious. ; Selling goods that are knowingly counterfeit registered trademarks, and the sales amount is relatively large; Forging or manufacturing registered trademarks of others without authorization, or selling forged or unauthorized registered trademarks, if the circumstances are serious, shall constitute the crime of counterfeiting registered trademarks and selling counterfeit registered trademarks respectively. Commodity crimes and illegal manufacturing and selling of illegally manufactured registered trademarks. According to Article 38(1) of the Trademark Law, any of the following circumstances shall constitute an infringement of the exclusive right to use a registered trademark: using the same or similar goods on the same or similar goods without the permission of the owner of the registered trademark. Registering trademarks with the same or similar trademarks; selling goods that are knowingly counterfeit registered trademarks; forging or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks; causing other damage to others’ exclusive right to use registered trademarks.
Trademark crime and general trademark infringement can be defined from the following aspects.
1. Define the subjective state of mind of the perpetrator from the subjective intention of the perpetrator
The crimes of counterfeiting registered trademarks, selling counterfeit registered trademarks, and illegally manufacturing and selling illegally manufactured registered trademarks All must be intentional, and the subjective aspect of the crime of counterfeiting a registered trademark must also be direct intentionality.
That is, the perpetrators of these three crimes are criminals knowing that their actions will have harmful consequences of infringing on the exclusive rights of others to register trademarks, and the perpetrators of the crime of counterfeiting registered trademarks must also hope to harm the results. occurrence. If the perpetrator is subjectively negligent, the infringement should be treated as a general trademark infringement. How to understand "knowingly" is an issue related to the crime and non-criminality of trademark crimes. For the crime of counterfeiting registered trademarks, in practice, as long as the perpetrator has the fact of using the same trademark as another’s registered trademark without authorization, the perpetrator should be deemed to have the element of “knowledge” subjectively; for the crime of selling counterfeit registered trademark goods, in practice, As long as the perpetrator has a clear understanding of the fact that the goods he sells have counterfeited registered trademarks of others, that is, the perpetrator knows that what he is selling is fake. However, knowing clearly does not mean "certain knowledge". Even if you do not know for sure who the counterfeit registered trademark belongs to and the circumstances of the counterfeiting, as long as you have recognized that the goods may be counterfeit registered trademarks and there is no basis to psychologically deny it, That falls into the category of knowing. For the crime of illegally manufacturing and selling illegally manufactured registered trademarks, as long as the perpetrator knows that he does not have the legal conditions to print registered trademarks but still prints others' registered trademarks, the fact should be deemed as knowing knowledge. Only when it is determined that the perpetrator is indeed "knowingly" and meets the other constituent elements of a trademark crime, can it be determined to be a trademark crime. Otherwise, it can only be punished as legitimate behavior or general trademark infringement.
2. Distinguish by the object of the act
The objects of the crimes of counterfeiting registered trademarks, selling goods with counterfeit registered trademarks, and illegally manufacturing and selling illegally manufactured counterfeit trademarks and logos are respectively It is a trademark that has been registered by others, goods that have registered trademarks by others, and trademark logos that have been registered by others. The criminal targets of the first two crimes are limited to commodity trademarks, and service trademarks are not the criminal targets of the first two crimes. Because Article 213 of the Criminal Law clearly stipulates that the crime of counterfeiting registered trademarks is "the use of a trademark identical to the registered trademark on the same kind of goods without the permission of the registered trademark owner, and the circumstances are serious", and the crime of selling counterfeit registered trademark goods stems from The crime of counterfeiting registered trademarks, so the criminal targets of these two crimes are limited to commodity trademarks.
Article 215 of the Criminal Law does not limit registered trademarks to commodity trademarks, and the act of forging or unauthorized manufacturing of service trademarks has serious social harm. Therefore, the forgery, unauthorized manufacture or sale of service trademarks If the circumstances are serious, they will also be punished as illegally manufacturing and selling illegally manufactured registered trademarks. In practice, if the perpetrator uses someone else's unregistered trademark or a trademark that has expired, it is a legitimate act; if what is counterfeited or sold is someone else's service trademark, it constitutes a general act
Trademark infringement will not be punished as a crime.
3. Distinguish from the form and scope of use of registered trademarks
The crime of counterfeiting registered trademarks and the crime of selling counterfeit registered trademarks require the perpetrator to not only counterfeit others’ registered trademarks The same trademark is used on the same goods without the permission of the registered trademark owner. If the perpetrator has the permission of the registered trademark owner, it is a legitimate act. How to understand "the same trademark" and "the same product" is the key to distinguishing trademark crime from trademark infringement. Identical trademarks refer to trademarks that have the same pronunciation, meaning, and shape. In practice, as long as the sound, meaning, and shape are exactly the same or basically the same, they are "identical trademarks" under criminal law. The same product refers to products with the same performance, use, raw materials, etc. According to the "Commodity Classification (Group) Table" promulgated by the state, all commodities are classified into three levels: category, group and species. In practice, we only need to check whether the goods specified by the applicant when applying for registration and approved by the Trademark Office to use the registered trademark are the same type. If you use a trademark that is similar to someone else's registered trademark on the same kind of goods without permission, use the same trademark as someone else's registered trademark on similar goods, or use a trademark that is similar to someone else's registered trademark on similar goods, it is a violation of the law. Civil trademark infringement shall be handled in accordance with Article 39 of the Trademark Law.
4. Define it from the circumstances of the act
According to the Criminal Law, the crime of counterfeiting registered trademarks must be "serious" to constitute a crime; the crime of selling counterfeit registered trademarks must be "selling Only if the amount reaches a relatively large amount does it constitute a crime; the illegal manufacture and sale of illegally manufactured trademarks must be "serious" to constitute a crime. What are the “serious circumstances” of the crime of counterfeiting registered trademarks? The Supreme People's Court has yet to provide a clear judicial interpretation. With reference to the "Regulations on the Standards for Filing Crimes of Counterfeiting Registered Trademarks" issued by the Supreme People's Procuratorate on December 8, 1994 (hereinafter referred to as the "Regulations"), "serious circumstances" refer to: using a registered trademark on the same product without the permission of the owner of the registered trademark. For a trademark that is the same as a registered trademark, the amount of illegal income (i.e. sales revenue) is more than 20,000 yuan or the illegal business volume is more than 100,000 yuan; although the illegal income does not reach a larger amount, but one of the following circumstances shall also be considered The circumstances are serious:
(1) Being given two administrative penalties by the industrial and commercial administration department for counterfeiting someone else’s registered trademark and then counterfeiting someone else’s registered trademark;
(2) Counterfeiting someone else’s registered trademark Registered trademarks of pharmaceuticals for human use;
(3) Counterfeiting other people’s registered trademarks, causing adverse social impact and international impact.
What does the crime of selling counterfeit registered trademark goods mean "a large sales amount"? According to the "Regulations", sales with a large amount refer to those who knowingly sell goods with counterfeit registered trademarks and whose illegal income is more than 20,000 yuan. What is the "serious circumstance" of the crime of illegally manufacturing and selling illegally manufactured counterfeit registered trademarks? Referring to the "Regulations" refers to: counterfeiting, unauthorized manufacturing of other people's registered trademarks, or selling counterfeit, unauthorized manufacturing of other people's registered trademarks, with illegal income of more than 10,000 yuan; More than 20,000 pieces (sets) of registered trademarks and logos. Therefore, if the circumstances and amount of the above three behaviors do not reach the level of crime, they should be treated as general trademark infringement.