1. Does a dealer’s sale of goods that infringe other people’s patent rights or trademark rights constitute infringement?

If a dealer sells goods that infringe on the patent rights or registered trademarks of others, it constitutes infringement.

Article 84 of my country's "Implementing Rules for Patent Law" stipulates: "The following acts are acts of counterfeiting patents as stipulated in Article 63 of the Patent Law: (1) Products or other products for which patent rights have not been granted. Mark the patent logo on the packaging, continue to mark the patent logo on the product or its packaging after the patent right has been declared invalid or terminated, or mark the patent number of another person on the product or product packaging without permission; (2) Sales (1) Products mentioned in the item; (3) In product instructions and other materials, the technology or design that has not been granted patent rights is called patented technology or patented design, the patent application is called patent, or the patent number of others is used without permission to use The public mistook the technology or design involved as patented technology or design; (4) Forged or altered patent certificates, patent documents or patent application documents; (5) Other technologies that confuse the public and have not been granted patent rights Or the design is mistaken for patented technology or patented design;..." It can be seen that the dealer's behavior of selling goods that infringe the patent rights of others constitutes patent infringement.

Article 57 of my country’s Trademark Law stipulates: “Article 57 Any one of the following acts shall be an infringement of the exclusive right to use a registered trademark: (1) Without the permission of the trademark registrant, Using the same trademark as its registered trademark on the same kind of goods; (2) Using a trademark that is similar to its registered trademark on the same kind of goods without the permission of the trademark registrant, or using the same or similar trademark as its registered trademark on similar goods Trademarks that are likely to cause confusion; (3) Selling goods that infringe the exclusive rights of registered trademarks; (4) Forging or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks; (5) Without trademark registration The person agrees to change his or her registered trademark and put the goods with the changed trademark back into the market; (6) Intentionally providing facilities for infringement of other people’s trademark rights and helping others to infringe trademark rights; (7) Giving others "The exclusive right to use a registered trademark causes other damage." It can be seen that the dealer's behavior of selling goods that infringe the registered trademark of others constitutes patent infringement.

2. What is the difference between the tort liability of "malicious infringement" and "bona fide infringement"?

The infringement behavior of dealers who infringe other people's patent rights and registered trademarks can be divided into "malicious infringement" and "bona fide infringement" based on their subjective will.

The so-called "malicious infringement" refers to the infringement behavior in which a dealer "knows or should know" that the goods he distributes infringe the patent rights or registered trademarks of others and sell them. For example: knowingly selling "copycat" goods and knowingly knowing that they are "pirated" goods.

The so-called "bona fide infringement" refers to the infringement of dealers not knowing that the goods they distribute infringe other people's patent rights or registered trademarks and sell them.

my country's "Patent Law" and "Trademark Law" stipulate different infringement liabilities for "malicious infringement" and "bona fide infringement" on the basis of distinguishing the subjective wishes of dealers.

1. For "malicious infringement", dealers must not only stop sales, but also bear civil liability and even criminal liability.

Article 63 of my country’s Patent Law stipulates: “Anyone who counterfeits a patent shall, in addition to bearing civil liability in accordance with the law, be ordered to make corrections and make an announcement by the department managing patent affairs, and the illegal gains shall be confiscated and may be punished concurrently with the illegal gains. A fine of not more than four times; if there is no illegal income, a fine of not more than 200,000 yuan may be imposed; if a crime is constituted, criminal liability shall be pursued in accordance with the law."

Article 67 of my country’s Trademark Law stipulates: “If the use of a trademark identical to the registered trademark on the same kind of goods without the permission of the trademark registrant constitutes a crime, in addition to compensating the losses of the infringed party, , criminal liability shall be pursued in accordance with the law. If a person forges or manufactures a registered trademark logo without authorization, or sells a registered trademark logo that has been forged or manufactured without authorization, and this constitutes a crime, in addition to compensating the losses of the infringed party, criminal liability shall be pursued in accordance with the law.

Anyone who knowingly sells goods with counterfeit registered trademarks constitutes a crime. In addition to compensating the losses of the infringed party, he will also be held criminally responsible in accordance with the law.

2. For "bona fide infringement", dealers only have to bear the responsibility for stopping sales. There is no need to bear civil liability or criminal liability for infringement liability.

Article 70 of my country’s Patent Law stipulates: “Use, offer for sale or sale for production and business purposes without the permission of the patentee. If you manufacture and sell patent-infringing products and can prove that the products are of legal origin, you will not be liable for compensation." Article 84 of the "Patent Law Implementing Rules" stipulates: "Selling products that are not known to be counterfeit patents and can prove that the products are legal If the source of the product is not known, the patent administrative department shall order it to stop selling, but shall be exempted from fines.

Article 64 of my country’s Trademark Law stipulates: “Sales of goods that are not known to infringe the exclusive rights of registered trademarks shall be exempted from fines.” If you can prove that you obtained the goods legally and explain the supplier, you will not be liable for compensation."

3. How can dealers prove that they have indeed committed "bona fide infringement" in cases where they are accused of patent or trademark infringement? ?

As mentioned above, if a dealer is accused of patent infringement or trademark infringement, in order to exempt the dealer from civil liability, the dealer is obliged to provide sufficient evidence to prove that it is indeed a "bona fide infringement". And the products are "from legal sources"

If the goods being distributed are indeed infringing goods, the dealer can provide evidence from the following aspects to prove that it is indeed a "bona fide infringement":

1. Subjectively: “I don’t know” or “should not know”.

When dealers sell infringing goods, their subjective understanding can generally be divided into three types: First, the dealer “knows”. "is an infringing product and sells it in bad faith; second, the dealer "should know" that the product it sells is an infringing product, but fails to realize it due to its own fault and sells it; third, the dealer really does not know and should not know that it is an infringing product. The goods being sold are infringing goods.

If the dealer violates its reasonable duty of care when purchasing goods, it can be determined that it "should have known but did not." "Know". If it has fulfilled its reasonable duty of care, it should be deemed that it "did not know or should not have known".

In judicial practice, dealers accused of infringement can prove themselves from the following aspects: The reasonable duty of care has been fulfilled:

(1) Provide the court with the production and operation license, certification mark, famous quality mark and other quality mark use rights, inspection report, and certificate of conformity of the manufacturer or other supplier. , trademark registration certificate, patent certificate, authorized distribution certificate, etc.;

(2) The difference between the price the dealer collects from the supplier and the market price is within a reasonable range;

( 3) The dealer’s cognitive ability of patents and registered trademarks;

(4) The popularity and distinctiveness of the right holder’s registered trademark;

(5) The popularity of the right holder’s patented products and distinctiveness;

(6) The source of the dealer’s goods;

(7) Whether the product supplier has applied for industrial and commercial registration;

(8) The dealer Whether the supplier received a lawyer's letter or warning letter from the right holder before the lawsuit, and whether the supplier received a lawyer's letter or warning letter from the right holder;

(9) Whether the supplier has been subject to infringement of products before Administrative agencies impose penalties and make them known to the public through the media...

2. Objectively: the source of the goods is legal and the purchase documents are sufficient.

In judicial practice, a dealer accused of infringement can prove that the "source of goods is legal" from the following aspects: (1) The dealer must be able to explain the provider of the goods, the name of the supplier, Address and contact information; (2) The dealer must be able to provide purchase channels, purchase contracts, delivery documents, payment vouchers, tax invoices or value-added tax invoices, witness testimony, etc.

(3) Provide the court with the production and operation license of the manufacturer or other supplier, the right to use the certification mark, the famous mark and other quality marks, inspection reports, certificates of conformity, trademark registration certificates, patent certificates, authorized distribution certificates, etc.; ( 4) The difference between the price the dealer collects from the supplier and the market price is within a reasonable range; (5) Relevant evidence of non-smuggled goods...

4. Advice to dealers - standardize purchase Procedures and preservation of original evidence

In cases where dealers are accused of patent or trademark infringement, many dealers are often unable to provide sufficient purchase evidence to prove that their "goods originate from a legal source" and are ultimately judged to bear compensation. The reason for the responsibility is mostly due to "irregular purchase procedures, poor preservation of original evidence, and inability to prove the legal origin of the goods."

It is hereby suggested that dealers should standardize purchase procedures and properly collect and preserve original relevant evidence, so that when accused of infringement, they can prove their innocence and be exempted from liability for compensation. To this end, dealers should try their best to do the following: (1) Purchase and sale contracts should be signed with suppliers; (2) The purchase and sales contract should indicate the model, product name, trademark, and specifications of the purchased products; (3) The final It is best for both parties to sign and confirm the photos or drawings of the products; (4) After payment, the supplier is required to issue a formal invoice; (5) The supplier is required to provide a copy of the industrial and commercial business license, etc. (6) Keep original documents such as supplier delivery notes and warehousing orders.