What is the act of counterfeiting a registered trademark?
According to China's criminal law and the relevant provisions of the NPC Standing Committee, counterfeiting registered trademarks refers to the act of using other people's registered trademarks on goods for the purpose of counterfeiting other people's goods, as well as the preparatory act to achieve this goal.
Generally speaking, the acts of counterfeiting a registered trademark include the following acts: (1) using the same trademark on the same commodity without the permission of the registered trademark owner; (2) selling goods that are knowingly counterfeit registered trademarks; (3) Counterfeiting the registered trademark of another person or selling goods with the registered trademark of another person.
If the circumstances of counterfeiting another person's registered trademark are serious, which constitutes a crime, the criminal responsibility of the relevant personnel shall be investigated.
Counterfeiting a registered trademark not only plagiarizes the reputation of the registrant's goods, but also harms the interests of consumers. Therefore, all countries regard counterfeiting registered trademarks as a criminal act and impose criminal sanctions on criminals. China's criminal law also makes the following provisions.
(1) It is a crime to use the same trademark as the registered trademark on the same commodity without the permission of the registered trademark owner, and the illegal income is relatively large or there are other serious circumstances. He shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined. If the amount of illegal income is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
(2) Whoever knowingly sells goods that are counterfeit registered trademarks, and the illegal income is relatively large, also constitutes the crime of counterfeiting registered trademarks, and shall be punished by applying mutatis mutandis the above provisions.
(3) Whoever forges or makes a registered trademark logo of another person without authorization or sells a forged or made registered trademark logo without authorization, and the amount of illegal income is relatively large or there are other serious circumstances, shall be punished by applying mutatis mutandis the above provisions.
It can be seen that the act of counterfeiting registered trademarks stipulated in the criminal law is more specific and more realistic. It is not only easy to implement, but also makes the protection of trademark exclusive right more sufficient and powerful. At the same time, the criminal law increases the maximum sentence of the crime of counterfeiting registered trademarks from 3 years to 7 years, which undoubtedly increases the deterrent to criminals who counterfeit registered trademarks.
In order to break the local protection in cracking down on counterfeiting registered trademarks, the supplementary provisions also stipulate that criminals who fail to perform their duties and cover up counterfeiting registered trademarks shall be investigated for criminal responsibility, that is, criminal responsibility shall be investigated with reference to the provisions of Articles 399 and 402 of the Criminal Law.
It is worth pointing out that in order to protect the interests of the registrant, Article 40 of the Trademark Law stipulates that if the crime of counterfeiting a registered trademark is constituted, in addition to being investigated for criminal responsibility according to law, the infringee shall also be compensated for the losses. In view of the fact that the revised Criminal Procedure Law allows the infringed party to directly sue the people's court for trademark counterfeiting, when the infringed party directly sues or requests to deal with trademark crimes to the people's court or people's procuratorate, he can file a civil lawsuit for damages and demand the actor to compensate for economic losses.
Criminal law regulation of trademark reverse counterfeiting
Trademark reverse counterfeiting refers to the act of changing a registered trademark without the permission of the exclusive owner of the trademark and putting the goods with the changed trademark back on the market (hereinafter referred to as reverse counterfeiting). What is the criminal law regulation of trademark reverse counterfeiting? Please see the following for your detailed introduction:
(A) the basis for criminal law to regulate reverse counterfeit trademarks
First, reverse counterfeiting is extremely harmful to society. As mentioned above, reverse counterfeiting is a kind of harmful behavior with multiple properties, and its harmful results are also varied. Considering that Article 52 of the Trademark Law lists four kinds of trademark infringements with roughly equal harm, the author thinks that on the whole, the infringement of trademark reverse counterfeiting on legal interests is hard to be lower than other trademark crimes. Specifically:
First of all, this behavior leads to the loss of intangible assets established by the original trademark owner's huge manpower, material resources and intelligence (brand value-added opportunities, market share and market interests are slowly lost);
Secondly, this kind of behavior will confuse and misunderstand consumers, increase the cost of searching and identifying commodity information, make consumers pay higher consideration, and bear the risk of not being able to obtain direct after-sales service from real manufacturers, so as to achieve the ultimate goal of the infringer using other people's goods to establish his own brand and goodwill;
Finally, reverse trademark counterfeiting disturbs the fair competition order of the market, encourages the monopoly of the market, and increases the incompleteness of market information and transaction costs. In practice, with the development of China's economy and the deepening of opening to the outside world, the forms of trademark infringement will become more and more diversified and the degree will become more and more serious. The criminal law protection of trademark rights has become an important part of a fair intellectual property market order.
Secondly, it does not violate the modesty spirit of criminal law to stipulate reverse counterfeiting as a crime. According to the principle of modesty in criminal law, it is generally believed that only when civil and administrative legal means and measures are still insufficient can the state use the method of criminal law, that is, it is stipulated as a crime through criminal legislation, and a certain penalty is imposed, and then it is solved through corresponding criminal judicial activities. For illegal acts in the economic field, based on the consideration of modesty or leniency of criminal law, academic circles generally do not advocate raising illegal acts at the market level to the regulation of a legally prescribed punishment for a specified crime. However:
First, the above analysis reveals that trademark reverse counterfeiting has serious infringement of legal interests, and civil and administrative regulations are not enough to fully punish this behavior. Therefore, it does not violate the modesty spirit of criminal law to criminalize trademark reverse counterfeiting.
Second, the light punishment does not rule out the criminalization of market behaviors that have considerable legal interests, and even increase the statutory punishment for some criminal acts according to the crime situation. Therefore, light punishment is only a trend, not a principle. Because the legal interests of trademark reverse counterfeiting have reached a serious level, lighter punishment is not the reason why criminal law ignores this behavior. Of course, as the most severe sanction, we should be cautious.
Too big a blow is not conducive to the maintenance of economic order. Only when it reaches the severity specified in the standard can it be called a crime. If it fails to meet the standards, it will be regulated by economic law, civil law and administrative law. Therefore, after defining a certain behavior as a crime, the criteria for conviction can be balanced, including raising the threshold of crime appropriately.
Thirdly, from a comparative point of view, it is also a common practice in many countries to make reverse counterfeiting a crime. Many countries in the world have criminalized reverse counterfeiting, including Australia, Italy, France, Portugal, Spain, Canada, the United States, Britain, France and Hong Kong. For example, Article 148 of the Australian Trademark Law stipulates that it is a criminal offence to change a registered trademark on another person's goods without permission, or to sell such goods after changing the trademark.
(B) criminal law to regulate the realization of trademark reverse counterfeiting.
First, design related clauses.
To study the provisions of the current criminal code, it is advisable to add an article after Article 2 13 of the criminal code: without the permission of the registered trademark owner, remove the registered trademark used on the commodity or replace it with another trademark and sell it. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
Second, the interpretation of the relevant provisions.
First, from the object of infringement: first, reverse counterfeiting is an infringement, which directly infringes the trademark ownership of the registered trademark owner; Secondly, reverse counterfeiting is an unfair competition. Selling other people's goods without trademarks or replacing other people's trademarks with other trademarks (including their own and legally obtained third-party trademarks) not only hinders consumers from increasing their trust in the original commodity producers, but also improperly expands the visibility of their own trademarks; Finally, reverse counterfeiting is also a violation of consumers' rights and interests, the most obvious of which is the violation of consumers' right to know, and in the long run, it is also a violation of consumers' economic interests. In addition, it should be noted that the object of reverse counterfeiting is the products produced by others, not the registered trademarks of others, because the essence of this behavior is to steal or degrade the reputation of other people's products.
Second, from the objective aspect of behavior: reverse counterfeiting behavior includes the following contents:
(1) Remove the registered trademark of another product or replace the original trademark of the product with another trademark;
(2) removing or replacing the registered trademark without the permission of the owner;
(3) Putting the processed commodities on the market for sale;
(4) Meet the criteria of serious circumstances. It should be noted that the actor must have the behavior of reselling. If only the trademark is removed and it is not put into the market again, then the social harm of the act is minimal and cannot be punished as a crime. At the same time, if only the products produced by others are not sold by changing the trademark, then their social harm is much less, and certain administrative or civil sanctions can be imposed accordingly.
Thirdly, from the subjective aspect of behavior, the actor must be intentional in carrying out targeted counterfeiting, and his motive is mainly to steal other people's high-quality products to build his own brand and seek improper benefits. The interests here are mainly long-term interests. Counterfeiters buy high-quality brand-name products at high prices and sell them at low prices, which will lose money in the short term, but when their trademarks gain high popularity, they begin to gain improper benefits. Nor does it rule out that a few actors intend to negatively reduce the reputation of other people's products by removing other people's trademarks, so as to achieve the purpose of crowding out competitors.
Fourthly, from the perspective of actors, reverse counterfeiters belong to general subjects, including natural persons and units. Generally, it is a producer who produces the same kind of goods as the counterfeiter, which is determined by the characteristics of the object, objective and subjective aspects of the behavior. However, in some cases, sellers can also become reverse counterfeiters. For example, some dealers have obtained the license to use trademarks, bought other people's goods and then replaced their own trademarks, which still constitute reverse counterfeiting as their own goods. If the seller only sells after removing the trademark, it does not constitute reverse counterfeiting. Because in this case, there is generally no motivation to create brands or belittle other people's products. In addition, if the seller replaces the trademark of the original product with an illegally obtained registered trademark of a third party for sale, it constitutes the crime of counterfeiting a registered trademark and does not belong to reverse counterfeiting.
The above are the regulations on trademark counterfeiting provided by Bian Xiao, hoping to help you.
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