This judicial interpretation, which came into effect on December 22, 2004, lowered the standards for conviction of intellectual property infringement crimes, clarified some professional terms in intellectual property infringement crimes, and significantly improved the relevant criminal law provisions. The operability, compared with the previous provisions related to the crime of trademark infringement, is specifically reflected in the following aspects:

(1) The standards for conviction and sentencing of crimes of trademark infringement have been lowered. The "Interpretation" sets the penalty standard for the crime of counterfeiting registered trademarks and selling goods with counterfeit registered trademarks as the illegal business amount (sales amount) is more than 50,000 yuan, and sets the penalty standard for the crime of illegally manufacturing and selling illegally manufactured registered trademarks. The standard is set as the illegal business amount is more than 50,000 yuan or the illegal income is more than 30,000 yuan; and in the "Economic Crime Prosecution Standards", the penalty standard for the crime of counterfeiting registered trademarks and selling goods with counterfeit registered trademarks is the illegal business amount. The (sales amount) is more than 100,000 yuan, and the penalty standard for the crime of selling illegally manufactured registered trademarks is that the illegal business amount is more than 200,000 yuan.

(2) Other serious circumstances have been added to the crime of counterfeiting registered trademarks. The "Interpretation" stipulates that counterfeiting two or more registered trademarks with an illegal business amount of more than 30,000 yuan or an illegal income of more than 20,000 yuan also falls under the "serious circumstances" stipulated in Article 213 of the Criminal Law.

(3) The sentencing standards for individual crimes and unit crimes are separately stipulated, narrowing the gap in the amount of sentencing between the two. In the Criminal Law and the Interpretation of Counterfeit and Substandard Products Cases, there is no distinction between "individuals" and "units" in trademark infringement crimes. In the "Economic Crime Prosecution Standards", the conviction and sentencing standard for unit crimes is five times that of individual crimes. . According to the provisions of Article 14 of the "Interpretation", if an entity commits infringement of intellectual property rights, including infringement of trademark rights, it shall be convicted and sentenced at three times the conviction and sentencing standard for the corresponding individual crime stipulated in the "Interpretation".

In practice, in order to avoid criminal prosecution, many of the same criminals have set up multiple legal entities to engage in counterfeiting and selling activities. Some even set up different companies to carry out counterfeiting on different production lines in the same production workshop. , in order to avoid or reduce punishment. In this regard, the boundary between individual crimes and unit crimes should be strictly distinguished. If an individual establishes a company, enterprise, or institution to carry out illegal and criminal activities to commit a crime, or if a company, enterprise, or institution is established to commit crimes as its main activity, it shall not be punished as a unit crime; if others use the name of the unit to commit a crime, If the illegal proceeds are divided privately by the individual who committed the crime, he shall also be convicted and punished in accordance with the provisions of the criminal law on individual crimes. [2]

(4) Clarify the principles of punishment for different crimes. Article 13 of the "Interpretation" stipulates that if you commit the crime of counterfeiting a registered trademark as stipulated in Article 213 of the Criminal Law and sell the goods with the counterfeit registered trademark, which constitutes a crime, you shall comply with the provisions of Article 213 of the Criminal Law. To be convicted and punished for the crime of counterfeiting a registered trademark; if a person commits the crime of counterfeiting a registered trademark stipulated in Article 213 of the Criminal Law, and sells goods with a counterfeit registered trademark knowingly knowing that they belong to others, which constitutes a crime, he shall be punished for several crimes together.

(5) Clarify the concept of “identical trademark”. Paragraph 1 of Article 8 of the "Interpretation" stipulates that the "identical trademark" prescribed in Article 213 of the Criminal Law refers to the registered trademark that is exactly the same as the counterfeited trademark, or is basically visually indistinguishable from the registered trademark that is counterfeited. A trademark that is sufficiently different to mislead the public. This is an expanded interpretation of “identical trademarks”. In its application, it should be noted that the so-called “basically no difference visually” means that the differences can only be discovered when the counterfeit trademarks and registered trademarks are put together and carefully compared. There is a difference between "visually indistinguishable" trademarks and "similar" trademarks. The former can constitute a crime of trademark infringement, while the latter is just a general trademark infringement. To judge the difference between the two, an overall comparison and trademark The method of combining the comparison of significant parts is to make a comprehensive judgment based on various aspects such as the glyphs, pronunciations, meanings of the trademark and registered trademark words used by the perpetrator, or the composition and color of the graphics, as well as the overall structure of the words and graphics, and consider whether it is "sufficient". misleading the public.”

Specifically, we can consider the following aspects:

1. Except for the distinctive parts of the two trademarks, other minor features are also basically the same, so they are "visually indistinguishable"; although the distinctive parts are the same, However, if other minor features are different, it is considered "similar";

2. Observe the trademark as a whole. If the combined effect of the salient part and other small features is largely the same, it is regarded as "basically no difference visually"; if the combined effect is the same but the difference is obvious, it is regarded as "approximate".

3. Based on the ordinary recognition ability of ordinary consumers, most consumers who often use a certain product cannot find the difference between the two trademarks unless they carefully compare them, which is regarded as "visually basic". "No difference"; as long as you compare or pay a little attention when comparing, you can find that the difference is "approximate". Some experts believe that in the following situations where ambiguity is likely to occur, the perpetrator’s use of a trademark does not constitute the crime of trademark infringement:

1. The perpetrator uses a trademark that is only missing one letter in its spelling. ;

2. The perpetrator only used part of the combined trademark;

3. The trademark owner did not use its registered trademark correctly, and the actual trademark used was not exactly the same as the registered trademark. , the perpetrator counterfeits the trademark actually used.

(6) Clarify the concept of “use”. Paragraph 2 of Article 8 of the Interpretation stipulates that "use" as stipulated in Article 213 of the Criminal Law refers to the use of registered trademarks or counterfeit registered trademarks on commodities, commodity packaging or containers, product instructions, and commodity transaction documents. , or use registered trademarks or counterfeit registered trademarks for advertising, exhibitions, and other commercial activities. This article refers to the provisions of Article 3 of the Trademark Law Implementation Regulations. Therefore, any use of a trademark identical to its registered trademark in aspects other than the product itself without the permission of the trademark registrant shall also be punished as a crime of counterfeiting a registered trademark if the circumstances are serious.

(7) Clarify the identification standard of "knowingly" in the crime of selling goods with counterfeit registered trademarks. Paragraph 2 of Article 9 of the Interpretation stipulates that anyone who has any of the following circumstances shall be deemed to be "knowingly" as stipulated in Article 214 of the Criminal Law: (1) Knowing that the registered trademark on the goods he sells has been altered or exchanged or covered; (2) Having been subject to administrative penalties or bearing civil liability for selling goods with counterfeit registered trademarks, and selling the same goods with counterfeit registered trademarks; (3) Forging or altering the authorization document of the trademark registrant or knowing the document Counterfeited or altered goods; (4) Other situations where the goods are known or should be known to be counterfeit registered trademarks.

This provision uses an endless list to stipulate three circumstances in which the perpetrator can be determined to be "knowingly aware", but whether other circumstances can be determined to be "knowingly aware" needs to be comprehensively considered. judge the overall circumstances of the case. In judicial practice, the following factors should be considered:

(1) Background factors of the perpetrator. The length and scale of the seller's sales activities, the time and quantity of specific commodities sold, and the seller's experience, knowledge, and level of understanding.

(2) Factors of the product itself. It depends on whether the counterfeiting of a certain product's registered trademark is rampant within a certain period of time, whether the registered trademark of a certain product is also a well-known trademark, whether a certain registered trademark has been heavily publicized and has become widely known, etc.

(3) Factors before and after sales behavior. Whether the perpetrator purchased the goods through normal channels and whether the procedures were complete, whether the other party gave high rebates and lacked formal invoices and receipts from the manufacturer of the goods with registered trademarks, and whether the perpetrator was in an abnormal time and place. If the product is sold at an abnormal price, whether the product has a corresponding quality guarantee, instruction manual, etc. [3] For example, the purchase price and quality of the goods sold are significantly lower than the purchase price and quality of the goods with counterfeit registered trademarks; based on the perpetrator’s own experience and knowledge, he knows that he is selling goods with counterfeit registered trademarks; sales The goods are obtained from abnormal channels, and in practice most of these abnormal goods are fake and inferior products. These can be used as reference factors to determine that the perpetrator is "knowingly".

(8) The method of using pieces (sets) to determine the crime of illegally manufacturing and selling counterfeit registered trademarks in the "Economic Crime Prosecution Standards" has been cancelled, and "pieces" have been uniformly used as the standard for conviction, and it has been clarified that " "Part" refers to a logo with a complete trademark pattern. The so-called "set" refers to two or more copies of the same product marked with a complete trademark pattern at different locations. According to the "Economic Crime Prosecution Standards", for a bottle of beer with a counterfeit registered trademark, the trademark on the bottle, bottleneck and cap can constitute a set of logos. It would constitute a crime to illegally manufacture and sell 20,000 sets of such logos. According to the "Interpretation" ", these marks will be counted as pieces respectively. As long as the total number of all these marks reaches 20,000, it will constitute a crime. This is also a manifestation of the "Interpretation" lowering the starting point for the crime of manufacturing and selling counterfeit registered trademark marks. In case of trademark infringement, the Industrial and Commercial Administration and the Customs have the right to conduct administrative investigation and punishment; however, if it constitutes a crime, the jurisdiction shall be under the jurisdiction of the people's court where the infringement is committed, where the infringing goods are stored or seized, or where the defendant is domiciled. If the Industrial and Commercial Bureau and the Customs have filed a case, the relevant case should be transferred to the public security agency for investigation. According to the process of criminal cases, the People's Court will make the final judgment or ruling.