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1. Legal liability of trademark owners in product liability

1. Product defect liability With the development of market economy, social products are extremely In Dafu, product liability cases caused by people using defective products have become common in recent years. For example: pressure cooker explosions and injuries, water heater poisoning, cosmetic disfigurement, traffic accidents caused by car design, parts quality and other issues, etc. These are caused by defects in the production process, substandard products manufactured by unscrupulous manufacturers, illegal production, and illegal production. A series of accidents caused by counterfeit and shoddy products have seriously violated consumers' personal rights and property rights. According to Article 41 of my country's Tort Liability Law: The producer shall bear compensation for personal injury and damage to other property other than the defective product (hereinafter referred to as other people's property) caused by defects in the purchased product itself. responsibility. The meaning of product liability is the liability for compensation for personal and property damage caused to consumers due to problems such as non-conformity and defects in the product itself. It reflects the equality between commodity operators and consumers due to infringement. Civil relations for damages and compensation. So, after a product liability case occurs, which subject should be liable for the victim's losses is an issue worth exploring. This article aims to focus on the product defect liability of trademark owners in accordance with the provisions of Fa Interpretation [2002] No. 22.

2. The trademark owner who is the responsible party

(1) Analysis based on three theories

In July 2002, the Supreme People’s Court issued a ruling on the trademark owner’s products The judicial interpretation of liability includes trademark owners into the category of "producers", which not only expands the scope of product liability subjects, but also increases the liability of trademark owners. Producer is a vague concept, and our country's laws do not provide a clear explanation for it. When consumers purchase consumer products, they face huge transaction risks and potential safety hazards caused by the products. According to the hazard liability theory, producers at the beginning of the production chain are the best suited to control such hazards. According to the compensation liability theory, producers who profit from the production of products should bear liability for damages when an accident occurs to the product. The author believes that in order to facilitate victims to assert their rights, the definition of producers should be based on the perspective of consumers. When purchasing products, consumers generally judge the production information of the product based on the outer packaging of the product and the labeling of the product itself. However, this production information is provided by manufacturers and operators. As long as consumers are accustomed to it, By using a specific trademark as a symbol of product quality, he will be sure that the products he buys with this trademark are of consistent quality. According to the theory of reliance liability, if the damage is caused by such reliance, the producer or operator should bear all liability for damages. In addition, if a certain entity is not the direct producer of the product, but the name, trademark, or other identifiable mark on the product is used to indicate the relationship between the product and the producer, according to the relevant laws of our country According to regulations, as long as a certain entity licenses its trademarks, names, etc. to other producers, in addition to collecting trademark usage fees, it should also assume the responsibility of supervising production. Therefore, the trademark owner should bear product liability for product defects.

(2) From the analysis of the functions of trademarks, it is well known that trademarks, as signs that identify oneself and distinguish others, have identification functions, quality assurance functions, and advertising functions. First of all, producers put the reputation of their products on their trademarks to attract consumers to buy. Consumers can recognize the trademark and make purchases. The trademark owner is almost the producer of the product and therefore should also bear the responsibility for the product. Secondly, Article 7 of the Trademark Law clearly stipulates that “trademark users shall be responsible for the quality of the goods on which their trademarks are used.” That is, as long as the trademark owner participates in the production and sales process of the product, affects the quality of the product, and derives benefits from it, according to the compensation liability theory, the trademark owner should bear product defect liability

Finally, in modern consumption and modern sales models, trademarks have become the most effective, typical and direct advertising tool. They represent a certain degree of credibility, stimulate, maintain and expand public consumer demand. In this sense, the advertising function of trademarks and the theory of reliance liability complement each other, thus effectively proving the theory that the trademark owner should bear product liability.

(3) Based on the comparative law analysis based on the three theories and the analysis of the functions of trademarks, it is known that the trademark owner benefits from marking his trademark on the products and causes consumers to have a negative attitude towards the goods. Reasonable trust in quality, thereby making it clear that the trademark owner is the subject of product responsibility. Moreover, our country has already issued a judicial interpretation that stipulates that trademark owners be included in the category of producers. In addition, we can also learn from the comprehensive regulations related to this in many countries and regions.

II. Principles of product liability of trademark owners

Article 41 of the Tort Liability Law stipulates: “If a defective product causes damage to others, the producer shall bear the infringement liability. Liability. "That is to say, the producer's product liability is not predicated on his subjective fault. As long as there is fact of damage, the producer shall bear tort liability. Our country's laws stipulate that producers bear responsibility and implement the principle of strict liability for two reasons: on the one hand, during the product design, trial production, production and manufacturing processes, producers have the ability to control product defects and minimize losses from product accidents. On the one hand, it is in a more favorable position than the buyer, allowing it to bear no-fault liability, which can prompt it to implement technological updates and take measures to prevent accidents; on the other hand, the producer is more capable than the buyer of bearing losses, and it can Spread risks and costs through product liability insurance and increased product prices.

3. Legislative suggestions for improving my country’s product liability

(1) Formulate an independent Product Liability Law

Currently, our country has not yet formed an independent The "Product Liability Law", and the product-related liability rights and responsibilities are included in the "General Principles of Civil Law", "Product Quality Law" and "Consumer Rights and Interests Protection Law". The legislative system has caused many incoherent factors between laws and made people mistakenly believe that product liability and product quality liability are the same. This is a misunderstanding. In fact, when product quality problems arise, what must be resolved is the legal obligations arising from civil law, criminal law, etc. arising from whether the product meets quality standards. Some quality standards are from our country, some are international, and some are from some alliances. However, the focus of product liability refers to the physical, mental, property and other damages caused to users due to product defects, emphasizing the civil liability caused by product damage between commodity operators and buyers. Therefore, product quality liability and product defect liability are different contents but are stipulated in one legal document, which makes it easier for everyone to have ideological misunderstandings and confused concepts. At this point, we should learn from the practices of European and American countries and formulate independent product liability laws to clarify liability issues for buyers who suffer damage due to product defects, and use independent legal documents to stipulate liability principles, scope of compensation, constituent elements and other related content , with legal support, consumers who suffer from product defects can get reasonable and timely remedial measures.

(2) Improve the identification standards and scope of product defects

Article 46 of the "Product Quality Law" stipulates: "The defects recognized in this law are mainly defects that the product will cause to others. There are national standards and industry standards for causing danger to personal safety and property safety, and harming the personal safety and property safety of others. If it does not meet the standards, it does not meet the standards. "According to this legal interpretation, it can be seen that the determination of product defects under Chinese law is. If there is no uniformity, the two different standards will bring about blurred standards. Therefore, when a product actually damages the personal and property safety of consumers, it is controversial which standard to adopt. General double standards will inevitably lead to omissions in identifying product defects, and ultimately lead to the lack of protection of consumer interests. The author believes that my country’s identification of product defects can follow the advanced regulations of foreign countries and use unreasonable danger as the only identification criterion, abandoning the original two standards. Because "unreasonable danger" is an abstract concept, it is necessary to determine in legislation or legal interpretation that unreasonable danger is actually the unreasonableness of a product that endangers the personal and property safety of consumers.

(3) Further clarify the responsible subject of product liability

The determination of the responsible subject in our country's product liability legislation is not clear enough. The lack of clarity is caused by the coverage it points out. The content is vague. There are two parties responsible for product liability in our country: product producers and product sellers, but the law does not provide a detailed explanation of the concepts and scope of product producers and sellers.

The rights holders of product liability in our country are victims and infringed persons. However, the law does not provide a detailed explanation of the specific scope of victims and infringed persons. As a result, there are no legal provisions to define the occurrence of product liability. This leaves some people who should be legally liable The responsible party avoids or escapes actual responsibility, and the victims and others are not allowed to receive reasonable compensation in accordance with the law. Therefore, in terms of legislation, we must refer to the provisions of Articles 1 and 3 of the European General Product Liability Directive. Producers include: "Manufacturers, including finished product manufacturers, raw material manufacturers and parts and components manufacturers; Quasi-manufacturer,

That is, the person who indicates on the product that he is the producer of the product; Importer, refers to the person who imports the product for the purpose of selling, leasing or other forms of distribution in the course of commercial activities** *People in the same market; suppliers,

If the producer cannot be determined, the supplier of the product is deemed to be the producer. ”

(4) Improve the attribution of product responsibility. Liability Principle

Article 42 of the "Product Quality Law"

stipulates: "If a product is defective due to the fault of the seller, causing damage to persons or property of others, the seller shall bear compensation Liability. If the seller cannot identify the manufacturer of the defective product or the supplier of the defective product, the seller shall be liable for compensation." It can be seen that in terms of the principle of product liability, the "Product Quality Law" imposes on the manufacturer. Different principles are adopted for sellers,

that is, the principle of no-fault liability applies to producers,

the principle of fault liability and the principle of presumption of fault liability applies to sellers. There is a contradiction in this provision. If the seller is not at fault, according to Article 42 of the Product Quality Law, the victim's claim for rights will not be supported by the court. According to Article 43, the victim can obtain compensation. In view of this, in order to better protect the rights and interests of consumers, the author believes that our country should learn from the legislation of developed countries in product liability legislation, stipulating that producers and sellers uniformly apply the principle of no-fault liability to provide consumers with better protection , while also avoiding conflicts and contradictions between laws and achieving coordination with the "General Principles of Civil Law".

(5) Improve the damage compensation system for product liability. The scope of product liability compensation under my country’s current legislation is too narrow and the amount of compensation is low. The author believes that the scope of product liability damages should be expanded from property damage compensation and personal injury compensation to mental damage compensation. At the same time, we draw lessons from an important system of the US product liability law to establish a punitive damages system for product liability. As we all know, there are currently a large number of food safety problems in our country. Some producers, driven by profit, produce a large number of substandard goods and even products that seriously endanger personal safety. Simply requiring producers to bear liability for compensation is no longer enough to deter them from continuing to produce inferior products. Therefore, our country should establish a punitive damages system as soon as possible to severely punish product infringements.

Hope it helps you and hope you will adopt it