Article 59 If the use of a trademark identical to the registered trademark on the same product without the permission of the trademark registrant constitutes a crime, in addition to compensating the losses of the infringed party, criminal liability will be pursued in accordance with the law.
If a person forges or manufactures a registered trademark of another person without authorization or sells a forged or unauthorized registered trademark, which constitutes a crime, in addition to compensating the losses of the infringed party, criminal liability shall be pursued in accordance with the law.
Whoever knowingly sells goods that are counterfeit registered trademarks constitutes a crime. In addition to compensating the infringed party for their losses, he will also be held criminally responsible in accordance with the law.
1. Criminal liability for the crime of counterfeiting registered trademarks. The act of counterfeiting someone else's registered trademark not only seriously affects the reputation of others' goods and infringes upon the legitimate rights and interests of the trademark registrant, but also infringes upon the legitimate rights and interests of consumers and undermines the order of the socialist market economy. If the circumstances are serious, it shall be constituted in accordance with the relevant provisions of the Criminal Law. Anyone who commits a crime shall be held criminally responsible according to law. According to the provisions of Article 213 of the Criminal Law, the following conditions must be met to constitute the crime of counterfeiting a registered trademark: 1. The illegal actor uses another person’s registered trademark without the permission of the owner of the registered trademark. That is, the perpetrator uses someone else’s registered trademark without the oral or written consent of the owner of the registered trademark. This is a prerequisite for this crime.
2. The illegal perpetrator has objectively used the same trademark as his registered trademark on the same kind of goods. If a perpetrator uses a trademark that is similar to someone else’s registered trademark on the same kind of goods, or uses a trademark that is the same as someone else’s registered trademark on similar goods, or uses a trademark that is similar to someone else’s registered trademark on similar goods, it is considered an infringement of the registered trademark. exclusive rights, but does not constitute a crime.
3. This crime will only be constituted if the above-mentioned behavior of the illegal perpetrator is serious. The so-called serious circumstances mainly refer to the large amount of illegal profits, large losses to the trademark registrant, multiple infringements, long duration or other serious circumstances.
According to the provisions of Article 213 of the Criminal Law, using the same trademark as the registered trademark on the same product without the permission of the trademark registrant, if the circumstances are serious, constitutes the crime of counterfeiting a registered trademark. Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be fined.
2. Criminal liability for the crime of illegally manufacturing and selling illegally manufactured registered trademarks. This paragraph stipulates two types of behavior. One is the act of illegally manufacturing registered trademarks, that is, the act of forging or unauthorized manufacturing of registered trademarks of others. Counterfeiting refers to the act of manufacturing according to the trademark logo style of the trademark registrant without permission. Unauthorized production refers to the behavior of a trademark printing unit printing trademark logos without authorization beyond the amount specified in the trademark printing contract. Trademark logo refers to a logo that is affixed or printed on the product itself or on the packaging of the product, and includes the product's trademark and other words, colors, graphics, etc. to distinguish it from other products. The second is the act of selling illegally manufactured registered trademarks, that is, the act of selling counterfeit or unauthorized registered trademarks. The sales behavior mentioned here should be a knowing behavior, that is, the seller knows or should know that the trademark logo it sells is a registered trademark logo that is counterfeit or manufactured without authorization. The above two behaviors must be serious to constitute a crime. According to judicial practice, serious circumstances generally refer to those who have repeatedly manufactured and sold trademarks registered by others; illegally manufactured and sold trademarks that are used for important commodities involving personal safety such as medicines; and those that have caused serious consequences or adverse effects. According to the provisions of Article 215 of the Criminal Law, forging or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks, if the circumstances are serious, shall constitute the crime of illegally manufacturing or selling illegally manufactured registered trademarks. Anyone who commits this crime shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance, and may also be fined; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be fined.
3. Criminal liability for the crime of selling counterfeit registered trademark goods. To constitute the crime of selling goods with counterfeit registered trademarks, the following elements must be met: First, the perpetrator must have subjective intention, that is, the perpetrator knows that the goods are counterfeiting other people's registered trademarks and still sells them. If the perpetrator does not know that the goods are counterfeiting registered trademarks and sells them, it does not constitute a crime. Second, the perpetrator objectively carried out the act of selling goods that he knew were counterfeit registered trademarks. Third, the sales amount must reach a relatively large level.
According to the provisions of Article 214 of the Criminal Law, selling goods that are knowingly counterfeit registered trademarks and the sales amount is relatively large shall constitute the crime of selling goods with counterfeit registered trademarks. Anyone who commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined; if the sales amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be fined.
4. Pursuing criminal liability for infringement of the exclusive rights of others’ registered trademarks in accordance with the law does not exempt the infringer from civil liability. If the act of infringing upon the exclusive rights of others to register a trademark constitutes a crime in accordance with the relevant provisions of the criminal law, while pursuing criminal liability, the offender must still bear liability for compensation in accordance with the law. The person who has been infringed may file an incidental civil lawsuit in the lawsuit to pursue the criminal liability of the infringer, or he may file a separate civil lawsuit to request the infringer to compensate for his losses. In addition, according to the relevant provisions of the criminal law, an illegal actor who infringes the exclusive right to use a registered trademark shall bear civil liability for compensation to the infringed party and be sentenced to a fine. If his property is insufficient to pay the full amount, or if he is sentenced to confiscation of property, he shall first Bear civil liability for compensation.
Legal basis:
"Trademark Law of the People's Republic of China"
Article 59 The common name of the product contained in the registered trademark , graphics, models, or directly represent the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods, or contain place names, the owner of the exclusive right to a registered trademark has no right to prohibit others from legitimate use.
The owner of the registered trademark has no right to prohibit the shape of the goods contained in the three-dimensional mark registered trademark due to the nature of the goods themselves, the shape of the goods required to obtain technical effects, or the shape that makes the goods have substantial value. Fair use by others.
Before the trademark registrant applies for trademark registration, if others have already used a trademark that is identical or similar to the registered trademark and has certain influence on the same goods or similar goods before the trademark registrant, the holder of the exclusive right to the registered trademark shall There is no right to prohibit the user from continuing to use the trademark within the original scope of use, but it can require it to attach an appropriate distinguishing mark.