key component
1, the subject of this crime is the general subject, that is, it can be any unit or individual;
2. The object of infringement is the legal right of others' exclusive right to use registered trademarks and the national trademark management order;
3. Subjectively, it must be intentional, that is, knowing that the goods are counterfeit registered trademarks. If the perpetrator does not know, it does not constitute this crime;
Objectively speaking, you must have the behavior of distributing counterfeit registered trademark goods, and the distribution amount is relatively large. Distribution includes wholesale, retail and consignment. Determining whether a criminal suspect knows when selling goods with counterfeit registered trademarks should be based on the objective facts of the case. As long as he can prove that he knows or should know that he is selling counterfeit goods, he can be regarded as knowing.
Object element
The object of this crime is the national trademark management system and the exclusive right of others to register trademarks. The exclusive right to use a trademark is the exclusive right of the trademark owner to use his registered trademark according to law, which constitutes the main content of China's trademark management system. China's Trademark Law clearly points out that the exclusive right to use a trademark should be protected. Infringement of the exclusive right to use a trademark is manifested in the production or manufacture of counterfeit trademarks, while others are manifested in the sale of counterfeit trademarks. In actual production, more goods are sold that are known to be counterfeit trademarks, and the exclusive right to use registered trademarks is violated without exception. Moreover, the sale of goods that are known to be counterfeit trademarks objectively causes a large number of counterfeit, shoddy and inferior products to be put into the market, which has an impact on famous and famous products and other similar products, causing consumers to be confused and deceived, and even worse.
Selling goods with counterfeit registered trademarks, although they do not produce goods with counterfeit registered trademarks, makes the goods with counterfeit registered trademarks directly flow to consumers, which harms the interests of consumers. At the same time, it supports criminals who counterfeit other people's registered trademarks economically and strengthens criminals psychologically. Therefore, Article 38 of the Trademark Law of People's Republic of China (PRC) [1] clearly stipulates the sale of goods that are knowingly counterfeit registered trademarks. The object of this crime is goods with counterfeit registered trademarks, mostly counterfeit, inferior, inferior or even harmful goods. The so-called counterfeit registered trademark goods must be goods that use the same trademark as the registered trademark on the same kind of goods without the permission of the registered trademark owner. If the goods deliberately sold are goods with counterfeit registered trademarks, or they are not exhibited in the same category as the goods with registered trademarks, it cannot constitute the crime of deliberately selling goods with counterfeit registered trademarks.
Objective elements
Objectively, this crime is manifested as the behavior of the actor illegally selling goods that are knowingly counterfeit registered trademarks, and the sales amount is relatively large.
The so-called sales refers to the act of selling goods to others by buying, selling, selling or peddling, including wholesale and retail, asking people to sell them on a commission basis, and entrusting sales. No matter what form the actor takes, as long as the sales amount reaches a large amount, it constitutes this crime. It is worth noting that the goods sold here should not be the goods produced, manufactured and processed by themselves. The goods sold are not counterfeit goods with registered trademarks of others, such as goods without trademarks, goods with trademarks but without registered trademarks, goods with registered trademarks but without registered trademarks of others but with their own registered trademarks, or goods with registered trademarks of others but not used on the same goods, which does not constitute this crime. If the actor sells his own goods after counterfeiting the registered trademark of others, which constitutes a crime, he commits two crimes respectively, and there is an absorption relationship between them, so he should choose a felony and be given a heavier punishment. But judging from their legal punishment, it is hard to say who is lighter or heavier. Considering that the act of selling goods that counterfeit others' registered trademarks is the follow-up and extension of their trademark counterfeiting, it is appropriate to convict the act of selling counterfeit trademarks after counterfeiting, and the punishment should be heavier, and several crimes cannot be punished simultaneously. If you collude with criminals who counterfeit registered trademarks in advance and sell goods with counterfeit registered trademarks in their name afterwards, you should also be punished as a crime of counterfeiting registered trademarks, which constitutes a crime of counterfeiting registered trademarks.
Selling goods with counterfeit registered trademarks of others constitutes a crime only if the sales amount reaches a large amount. Although there are acts of selling goods with counterfeit registered trademarks of others, the sales amount is not large, which does not constitute this crime. The so-called sales amount refers to the total illegal income of the seller from selling goods with counterfeit registered trademarks, without deducting costs and taxes. It is different from illegal income, which is the actual profit after deducting the cost, which is different from the business amount. The actor completely sells goods with counterfeit registered trademarks of others, and the sales amount is the business amount. If it is not sold, it will be seized. There is only business amount but no sales amount. There is no sales amount or although there is a sales amount, the amount is not large. Generally, it cannot be treated as a crime, but it is not absolutely impossible to treat it as a crime. If the circumstances of the crime are bad, such as repeated admonitions, or once the sales amount will be extremely huge and the harm is serious, criminal responsibility shall be investigated for attempted crime. However, it should be pointed out that it has been sold, but the buyer has not paid the sales amount for various reasons, so it is not that there is no sales amount, which constitutes a crime. It should be accomplished, not attempted.
Theme element
The main constituent elements of this crime are the general subject. Both natural persons and units can constitute the subject of this crime. As far as natural persons are concerned, as long as the actor reaches the age of criminal responsibility and has the ability of criminal responsibility, it can constitute the crime of deliberately selling goods with counterfeit registered trademarks. If a unit commits this crime, it shall implement the system of two penalties, impose a fine on the unit, and investigate the criminal responsibility of the directly responsible person in charge and other directly responsible personnel in accordance with the provisions of this article.
subjective factor
Subjectively, this crime can only be manifested as intentional, that is, knowingly selling goods with counterfeit registered trademarks to others. Negligence cannot constitute this crime. Right? Do you know? The scope of should not be too narrow. Do you know? Doesn't mean. Are you sure? As long as actors should know that they are selling fakes. This is because the circulation of counterfeit registered trademarks is in an illegal state, and operators often get news at the time of trading, and there is no need to express it. In addition, some lawless elements can escape legal sanctions on the pretext that they don't know that the goods with counterfeit registered trademarks are. Appraisal in judicial practice? Do you know? The criteria are: (1) There is evidence to prove that the actor was told to sell goods with counterfeit registered trademarks; (two) the purchase price and quality of the goods sold are obviously lower than those with counterfeit registered trademarks in the market; (3) According to the actor's own experience and knowledge, we can know that he sells goods with counterfeit registered trademarks.
What are the characteristics of counterfeit trademarks?
Counterfeiting trademarks has become a serious problem in modern economic life. Fake trademark products once flooded the market, and fakes were almost everywhere, which seriously interfered with the legitimate competition of enterprises to create high quality, protect brands and establish trademark reputation. Trample on well-known trademarks, infringe on the legitimate interests of trademark registrants, deceive consumers, hinder consumers from using goods normally, and some even threaten consumers' health and life safety. In foreign trade, because the reputation of famous brands has been destroyed, some of them have lost their markets, which has also brought international disputes and affected China's international reputation.
How to prevent counterfeit trademarks?
To prevent trademark counterfeiting and curb trademark infringement requires the joint efforts of the whole society. There are many departments, levels and links involved, which can be said to be a systematic project. We should do a good job in the following aspects:
1, continue to increase the publicity of trademark laws and regulations, and gradually enhance citizens' brand concept of trademarks, so as to provide an ideological basis for preventing the crime of counterfeiting trademarks.
2, industry and commerce, quality inspection, public security law enforcement departments closely cooperate, strengthen the coordination mechanism, and form a joint force of rectification. Are you online? Fake? During the activity, it is necessary to investigate and deal with the manufacture and sale of counterfeit and shoddy products, and resolutely investigate and deal with trademark counterfeiting.
3. Strengthen the dynamic management of the printing industry, advertising industry and signage industry, especially the individual and contracting enterprises in these industries, and completely intercept, crack down and ban illegal printing and forgery of registered trademarks and trademark marks from the source.
4. Owners of registered trademarks, especially well-known trademarks, should strengthen their awareness of self-protection. Generally, the following protective measures can be taken:
Pay attention to let your registered trademark cover similar goods, try to avoid similar trademarks being registered by others, and domestic registered trademarks being registered by others abroad;
When establishing a branch factory, a joint venture factory or a joint venture, the exclusive right to use a trademark is allowed to be used or transferred, or when the exclusive right to use a trademark is used to offset the capital contribution, the procedures should be complete and legal, and the scope of allowing others to use it should be appropriately controlled;
When you find that your registered trademark has been counterfeited, you can not only collect the evidence yourself, but also bring a lawsuit to the court to stop the infringement and get compensation. But you should also sue the public security department in time and use criminal law to protect your legitimate rights and interests from infringement.
The above is the crime of selling counterfeit goods provided by Bian Xiao, and I hope it will help everyone.
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