Chapter 5 Counterfeiting or Counterfeiting

In the process of transforming our country’s economic system from a planned economic system to a socialist market economic system, a competition mechanism has been introduced, and free competition has gradually developed and deepened. , in the market economy, the law of competition has played a very positive role in promoting the development of productive forces and optimizing the allocation of social and economic resources. On the other hand, driven by economic interests, various unfair practices have emerged for the purpose of pursuing high profits. competitive behavior. One of the most common forms of unfair competition is counterfeiting or counterfeiting, which we will talk about in this chapter. Counterfeiting or counterfeiting is intended to squeeze out competitors and preserve one's competitive advantage. Taking the fruits of others' labor to sell one's own products infringes upon the legitimate rights and interests of other operators and ultimately harms the interests of consumers. Therefore, it is extremely harmful to society.

Article 5 of my country's "Anti-Unfair Competition Law" stipulates four unfair competition behaviors:

(1) Counterfeiting other people's registered trademarks;

(2) Using the unique names, packaging, and decoration of well-known commodities without authorization, or using names, packaging, and decoration that are similar to those of well-known commodities, causing confusion with other people's well-known commodities and causing buyers to mistake them for the well-known commodities;

(3) Using other people’s business names or names without authorization, causing people to mistake them for other people’s goods;

(4) Forging or falsely using quality marks such as certification marks and famous quality marks on goods , falsify the place of origin, and make misleading false representations of product quality.

In this chapter, we mainly need to master these four types of unfair competition behaviors.

1. Definition of counterfeiting other people’s registered trademarks

The act of counterfeiting other people’s registered trademarks can be said to be a type of counterfeiting prohibited by the Anti-Law Act. The essence and function of trademarks It lies in indicating the origin of commodities and in distinguishing different commodities. Its power in the market economy is obvious to everyone. For example, the American Coca-Cola beverage is a household name all over the world, and the reason why it is so depends on its trademark worth 3 billion US dollars. In fact, trademark is an important intellectual property. Like copyrights, patents, etc., it is protected by intellectual property law. It is a special property created by operators who have put in hard work and capital in market competition and through honest management; at the same time, As an industrial property right, a trademark is a kind of material wealth just like a company's movable and real estate capital. It can be said that trademarks play an important role and are of great value, but in the fierce market competition, counterfeit trademarks are common.

According to statistics from the State Administration for Industry and Commerce, in the past 10 years, more than 100,000 cases of counterfeit trademarks have been investigated and dealt with nationwide, and even more cases have not been detected. As long as they are famous brand goods and famous trademarks, There is no escape. It can also be seen from the above examples that counterfeit trademarks have become a "public nuisance" to the whole society. Therefore, it has also become an unfair competition behavior that is focused on regulation under the Anti-Law Act. Next, let’s take a detailed look at the relevant provisions of the Anti-Law on counterfeiting of registered trademarks.

my country's "Anti-Unfair Competition Law" and "Trademark Law" have corresponding provisions on the behavior of counterfeiting other people's registered trademarks, so this part should be viewed in conjunction with the content of the "Trademark Law". Article 38 of the Trademark Law (page P87): Counterfeiting another person’s registered trademark refers to the act of using a trademark that is identical or similar to the registered trademark on the same or similar goods without the permission of the registered owner of the trademark. Article 5 of the "Anti-Law" mentioned earlier also stipulates that "counterfeiting other people's registered trademarks" is an act of unfair competition. Article 21 of the "Anti-Unfair Competition Law" stipulates: Operators who counterfeit the registered trademarks of others shall comply with the provisions of the "Trademark Law of the People's Republic of China and Domestic Products" and the "Law of the People's Republic of China on Domestic Product Quality" punishment.

2. The manifestations of counterfeiting other people’s registered trademarks

According to the concept of counterfeiting registered trademarks, we can also see that there are four manifestations of counterfeiting other people’s registered trademarks:

1. Using the same trademark as someone else’s registered trademark on the same product

Using it on the same product with the same name and pattern; this kind of counterfeiting can be said to be the lowest form of counterfeiting .

2. Use a trademark that is similar to someone else’s registered trademark on the same product.

Also on the same product, use the same trademark pattern, similar name, or even use the same trademark as someone else’s trademark. Homophones, homophones, etc.

3. Use the same trademark as someone else’s registered trademark on similar goods (the same name and pattern are used on different but similar goods);

4. Use on similar goods Use a trademark that is similar to someone else’s registered trademark on your goods.

Used on different but similar goods, the pattern or color of the pattern is slightly changed, and the name is different.

These four counterfeiting methods all take advantage of consumers' failure to carefully identify trademarks to achieve the purpose of deceiving. The four specific forms also have the same constituent elements: first, the trademarks are the same or similar; second, the goods using the trademarks are of the same type or similar, and these two conditions are indispensable.

Note that the "Trademark Law" and "Anti-Law" protect registered trademarks. According to the provisions of the "Trademark Law", trademarks are divided into two types: one is a registered trademark, and its symbol is "registered trademark" " words or pictures; one is a temporary trademark, which only has the trademark itself, but does not have the words and pictures of "registered trademark".

3. Counterfeiting or counterfeiting the unique names, packaging and decoration of well-known commodities

The act of counterfeiting or counterfeiting the unique names, packaging and decoration of well-known commodities is also an act of counterfeiting or counterfeiting the unique names, packaging and decoration of well-known commodities. Unfair competition prohibited by Article 5. Like trademarks, the unique name, packaging and decoration of goods have the function of distinguishing the source of goods and marking different goods. Therefore, the infringement of the unique name, packaging and decoration of goods is also an important form of counterfeiting or counterfeiting. form.

(1) The objects of counterfeiting or counterfeiting mainly refer to the unique name, packaging, and decoration of goods

Our country's "Anti-Law" defines the name, packaging, and decoration of goods. There are no clear legal provisions, which can be interpreted based on the "Several Provisions on Prohibiting Unfair Competition Acts of Counterfeiting the Unique Names, Packaging, and Decoration of Well-known Products" issued by the State Administration for Industry and Commerce in July 1995. According to the "Several Provisions on Prohibition of Counterfeiting of Well-known Goods", the unique name of well-known goods refers to the trade name that is unique to well-known goods and is significantly different from the common name, except that the trade name has been used as a trademark. For packaging, regulations: refer to the auxiliary materials and containers used on commodities for the purpose of identifying commodities and facilitating carrying, storage and transportation. Decoration refers to the words, graphics, colors and their arrangement and combinations attached to the product or its packaging in order to identify and beautify the product.

(2) Identification of well-known goods

Being well-known is a necessary condition, and Article 5, Paragraph 2 of the "Anti-Law" stipulates the protection of well-known goods, because unknown goods Otherwise, others cannot take advantage of its competitive advantages. Even if it is counterfeited, it will not affect the order of competition and harm the interests of consumers. Moreover, the protection of commercial marks under the Anti-Unfair Competition Law is often to expand the scope of protection of registered trademarks to non-similar goods, or to grant monopoly rights to unregistered commercial marks. In this case, failure to seek fame may result in commercial marks being abuse and improper protection.

What you need to pay attention to is not to protect well-known products, but the unique names, packaging and decoration of well-known products, because no matter how well-known the products are, they are distinguished by these.

In "Several Provisions on Prohibiting Unfair Competition from Counterfeiting the Unique Names, Packaging and Decoration of Well-Known Goods": Well-known goods refer to goods that have a certain reputation in the market and are known to the relevant public. .

In the specific identification, the first thing to consider is the regional nature. Many foreign countries have geographical restrictions on goods with the name of a country, that is, they are protected within a certain geographical range, and no protection is given beyond that. Secondly, we must consider the relevant public and have a certain consumer group. This consumer group is related to the region.

(3) Determination of similar use:

The difference between misidentification and trademark misidentification is whether it is a misidentification of the goods or a misidentification of the trademark. The misidentification of the goods means that the goods are similar when viewed as a whole. Or misrecognition under basically similar circumstances, misrecognition of a trademark or misrecognition of a trademark graphic. When it comes to individual cases, specific identification and specific analysis are required.

4. The act of impersonating another person’s business name or name

The content stipulated in the third paragraph of Article 5 of the "Anti-Law".

1. What does the conceptual provision refer to? A company name, also known as a trade name, is a logo or name used to distinguish different manufacturers, that is, to distinguish this company from another company. A well-known business name is also a huge intangible asset of the enterprise, such as: Tongrentang, Guanshengyuan, etc. The company name is similar to the trademark, that is, both have identification functions. The difference is that the company name has a single expression and can only be used The text indicates that patterns cannot be used, and the company name is used to distinguish the company, not to distinguish the goods sold and services provided by different companies. The above is about the company name.

Let’s take a look at the name. The name refers to the personality right of a natural person to set, change and use the name. Natural persons have the right to decide, use and change their names, and have the right to prohibit others from interfering, misappropriating or counterfeiting.

2. Requirements for the act of impersonating another person’s business name or name

1) The object being impersonated is the name of the business, and the purpose is to obtain economic benefits. The fraudulently used company names or names are relatively well-known and can generate economic benefits.

2) Fraudulent use causes consumers to misunderstand. The purpose is also to cause consumers to mistakenly believe that this product is the same as the counterfeit product, causing confusion. A necessary requirement.

3) There is intentionality subjectively. The "Anti-Law" also stipulates that unauthorized use of other people's business names or names can cause misunderstandings and constitute unfair competition. Unauthorized use means that there is no permission from others and there is subjective intention. These three are indispensable.

5. Counterfeiting or fraudulent use of quality marks and origin marks

The quality marks stipulated in my country's "Anti-Law" refer to certification marks and famous quality marks

(1) Certification mark refers to a product quality certification mark, which refers to a mark that is issued a certification certificate to an enterprise that meets the certification requirements after being certified by an authoritative international or domestic quality certification agency, and is allowed to use it in accordance with regulations. At present, the certification marks approved and issued by my country's State Bureau of Technical Supervision include the Fangyuan mark, the Great Wall mark and the PRC mark. The Fangyuan mark is divided into a conformity mark and a safety certification mark; the Great Wall mark is a special certification mark for electronic products.

(2) The famous quality mark is an honorary mark for high-quality products, usually issued by relevant organizations or departments. It is divided into two levels. The first level is national level, with gold medals and silver medals; the other level is ministerial and provincial level, with the "Excellent" logo.

(3) Origin mark is a mark placed on goods to indicate that the goods originate from a specific country or region. It is essentially a geographical indication.

6. Conditions for counterfeiting

Whether the perpetrator’s behavior constitutes counterfeiting should be determined from two aspects:

(1) The perpetrator of counterfeiting is subjectively intentional

Article 5 of the "Anti-Law" uses the word unauthorized, and its general meaning refers to "use without consent", that is, the subjective state of intentionality. The subjective element is intentionality.

(2) Sufficient to cause confusion to consumers

This is an objective requirement, that is, it objectively creates a state of confusion for consumers. First of all, it is the subject of the goods. Mixing, that is, deliberately mixing one's own products with other people's products. Among the four behaviors stipulated in Article 5 of the "Anti-French Law", the first three are this kind of confusion of subjects, which is a serious form of unfair competition. This behavior directly deceives consumers and harms their interests. It undermines the normal order of market competition. Secondly, there is confusion about the quality of goods, that is, the fraudulent use of quality marks such as certification marks and famous quality marks and the forgery of origin, causing misunderstandings among consumers and ultimately infringing the interests of operators.

In addition, my country recognizes that the identification of confusion includes both the confusion that has actually occurred and the confusion that may be caused. actual and potential.

7. Legal liability for counterfeiting or counterfeiting (details on page P102)

Penalties stipulated in the "Anti-Law", "Trademark Law" and "Product Quality Law" constitute a crime. be held criminally responsible in accordance with the law.

Chapter 6. Infringement of trade secrets

1. The origin and development of trade secret legislation

Trade secret protection emerged after the industrial revolution, mainly As the industry develops, the formulas of some products are unwilling to be leaked, and thus they obtain economic benefits that others do not have. The earliest protection of trade secrets occurred in the United Kingdom and the United States. In the United Kingdom, it was first determined through case law in 1851 (page 108 of the textbook, case) that it belongs to the act of leaking trade secrets in a contract. In the middle of the 19th century, it spread to the United States. This is a country with a common law system. Among countries with a civil law system, the earliest countries are Germany and Japan. Since the 20th century, investment in science and technology has increased, and many cases of loss of technological achievements have occurred. As a result, the protection of trade secrets has gradually received attention. In the 1960s, the International Chamber of Commerce first stipulated it as industrial property rights. Until now, trade secrets have gradually been As general property and intellectual property rights, the World Intellectual Property Organization also includes trade secrets within the scope of adjustment, which belongs to the content of intellectual property rights. It is also an important intellectual property in our country.

2. The legal basis for trade secret protection:

The legal basis for trade secret protection has always been a controversial issue. For example, it is said to be based on contractual relationships, and some say it is trust. Relations, unjust enrichment, or infringement and unfair competition. Despite this, it is not clearly stated in the TRIPS Agreement, but the relevant provisions imply that trade secrets are a kind of property right. Chinese scholars, experts and jurisprudence have not made much of this issue. In disputes, trade secrets are protected as intellectual property rights.

3. Characteristics of trade secrets:

When we study the protection of trade secrets, we must first know the characteristics of trade secrets. Different countries have different definitions of trade secrets. Generally speaking, they should have: novelty, practicality, value, and confidentiality (management, confidentiality).

1. Confidentiality - When confirming whether information is a trade secret, confidentiality is the most important factor and the primary factor. Secrecy can be understood as follows: First, objective secrets (which should not be well-known content, or easily accessible, knowledge in the public domain cannot become commercial secrets) secrecy exists objectively. Then there is the relative secret, not the absolute secret, which only certain people know. In addition, the compilation and combination of information in the public domain cannot be the basis for denying its confidentiality. Finally, reasonable confidentiality measures have been taken to protect the information. This is also an important factor in determining whether it constitutes a trade secret. The rights holder must First of all, the scope and content of trade secrets must be clarified, and the confidentiality obligations of the contract must be clarified. Confidentiality measures must be taken, whether in hardware or software, etc. It should be noted that the premise of trade secrets is secrecy, which is different from that in patent law. Patents must disclose technology.

2. Value - it is practical to bring economic benefits to the right holder. Practicality is the basis of value. Without practicality, there is no value, including actual value and potential. Value, both positive and negative information is acceptable, failure is acceptable, design drawings, customer lists, test reports, etc., market research materials. The most essential manifestation of value is that everyone retains a competitive advantage and can obtain economic value because they master trade secrets, rather than other values, such as spiritual value. Information without commercial value does not constitute a trade secret.

3. Practicality - refers to the objective usefulness of a trade secret, which is first reflected in certainty - that is, it is necessary to be able to define the specific content of the trade secret and draw clear boundaries. Uncertainty of the trade secret means that There is no protection. Secondly, it is reflected in concreteness - it can be transformed into plans or forms that can be implemented concretely, and cannot be abstract and vague ideas, principles and concepts.

4. Novelty - not known to the public, is the minimum component of a trade secret and the minimum requirement for novelty. Novelty is generally determined from the following aspects: A. Whether it is published in a public publication. Once published, it is no longer novel. It cannot be made public. B. Whether it has been used publicly. It has been widely used and is no longer novel. C. The information is made known to the public in other ways, such as speeches, reports, television stations, etc. In addition, information as a trade secret must be viewed as a whole. The novelty of the whole cannot be denied just because the constituent parts are not novel.

These are the characteristics of a trade secret. Both are indispensable.

IV. The concept and constituent elements of trade secrets

(1) Concept The definitions of trade secrets vary from country to country. Let’s mainly look at our country’s definition of trade secrets. Our country's "Anti-Law" is also designed around the novelty, practicality, value and management of trade secrets. Article 10, paragraph 2, of the Anti-Law Regulations stipulates: Trade secrets refer to technical information and business information that are not known to the public, can bring economic benefits to the right holder, are practical, and have been kept secret by the right holder. It should be noted that trade secrets refer to business information and technical information, and the protection of business information reflects the broad scope of business secret protection.

(2) Constitutive elements It can be seen from the concept that the constitutive elements 1. Not known to the public, including the requirement of novelty, are different from the publicly known technology. The patent law also requires the technology to be novel. However, the novelty requirements for trade secrets are relatively low. The requirements for patents are relatively high. 2. It can bring economic benefits to the right holder and is practical. 3. The rights holder takes confidentiality measures. This condition emphasizes the confidentiality behavior of the right holder, as long as corresponding confidentiality measures are taken.

The above simple understanding of the concept and constituent elements of trade secrets is also something that everyone needs to focus on.

5. Forms of infringement of trade secrets (also something that everyone needs to focus on)

Article 10 of my country's "Anti-Law" stipulates that operators shall not use the following means to infringe trade secrets:

(1) Obtaining the right holder’s business secrets through theft, inducement, coercion or other improper means;

(2) Disclosing, using or allowing others to use the means obtained in the preceding paragraph The right holder's trade secrets;

(3) Violating the agreement or violating the right holder's requirements for keeping trade secrets, disclosing, using or

allowing others to use the trade secrets in its possession.

(4) If a third party knowingly or should have known about the illegal acts listed in the preceding paragraph, obtains, uses or discloses the business secrets of others, it shall be deemed as infringement of business secrets.

These articles can be summarized in the following forms: (1) The first article refers to the improper acquisition of business secrets. The main improper methods include theft, inducement and coercion. wait. (2) Improper disclosure and use of trade secrets refers to the act of spreading trade secrets to others, directly using them, or directly allowing others to use them. (3) Unfair competition that is legally held but violates obligations or requirements.

The trade secret has been obtained legally but used illegally; (4) A third party maliciously obtains, uses or discloses the secret. Among them, the first two can be summarized as the type of improper source, the third article

The type of legitimate source but improper use, and the fourth article can be summarized as the type of knowing that it is unfair but still acting

Type.

The above are the types of infringement of trade secrets listed in my country's "Anti-French Law". I hope everyone will focus on them.

Let’s look at the last question in this chapter: legal liability for infringement of trade secrets.

6. Legal liability for infringement of trade secrets

It is mainly stipulated from three aspects: civil liability, administrative liability and criminal liability.

(1) Civil liability mainly includes liability for breach of contract. This is when there is a contractual relationship and the contractual obligations stipulate the confidentiality obligations of the other party. If the other party fails to comply, the liability for breach of contract will be borne. There must be a contract. Then there is tort liability. When there is no contractual obligation, the elements are the same as general tort civil liability. The main ways to assume liability include stopping the infringement, apologizing, eliminating danger, compensating for losses, etc. (2) Administrative liability There are two main methods: ordering to stop and imposing fines.

(3) Criminal liability is a relatively severe punishment measure. Nowadays, the penalties for infringement of trade secrets in various countries are becoming more and more severe. Many countries have stipulated the crime of infringement of trade secrets. Our country’s Criminal Law Article 219 It is also stipulated in the law that this is a relatively severe punishment. Therefore, the infringement of trade secrets must cause heavy losses and is subjectively intentional to constitute the crime of infringement of trade secrets