(1) In terms of behavioral subjects, the subjects are only related to the producers of similar products produced by the person being reversely counterfeited, and do not include sellers of such goods. The act of a seller purchasing goods produced by others, replacing the trademarks of others with his own sales trademark, and then putting the goods into circulation does not constitute reverse counterfeiting.

(2) In terms of the perpetrator’s subjective aspect, the subjective motivation of the perpetrator of reverse trademark counterfeiting is mainly to steal the reputation of other people’s products to create a brand for himself and obtain improper profits. For example, foreign manufacturers purchase cheap and high-quality goods produced by Chinese manufacturers and then use their own trademarks to continue selling them in order to make huge profits.

(3) In terms of the object of the behavior, reverse counterfeiting directly points to the products produced by others, and its essence is to steal or disparage the reputation of other people's products.

(4) In terms of behavioral content, reverse counterfeiting is manifested in purchasing goods produced by others in the market; replacing other people’s trademarks with one’s own trademarks; and continuing to put the goods into circulation.

Nature

There is already a clear understanding of the nature of counterfeiting trademarks: from the perspective of trademark rights, it is a serious trademark infringement; from the perspective of consumer rights , it is an act of defrauding consumers; from the perspective of market competition, it constitutes unfair competition.

The behavior of reverse trademark counterfeiting is different from the behavior of counterfeiting trademarks in many aspects. The view that the two behaviors are simply equivalent in nature is open to question. They plan to reveal the nature of reverse counterfeiting trademark behavior from the following aspects:

(1) Reverse counterfeiting trademark behavior does not constitute trademark infringement - the negative theory of "trademark infringement".

In the aforementioned case of "Maple Leaf" v. "Crocodile", the most heated debate was whether the defendant's behavior constituted trademark infringement. From a strict analysis, it is difficult to determine that reverse counterfeiting has infringed upon the trademark rights of the person being counterfeited.

1. Analyze from the perspective of the relationship between goods, trademarks and trademark rights.

As we all know, a trademark is a mark of recognition of a product. From the perspective of trademark users, the main function of a trademark is to indicate the different sources of goods; from the perspective of consumers, its main function is to represent the constant quality of goods. The function of a trademark must be combined with the product, and the product uses the trademark to expand its reputation and attract consumers. Trademark rights are the rights that registered trademark owners have over their registered trademarks in accordance with the law, and their purpose is to ensure the functioning of the trademark. Looking at the trademark laws of various countries, the content and scope of protection of trademark rights are set from the perspective of the combination of trademarks and goods. For example, Article 37 of China's Trademark Law stipulates: "The exclusive right to use a trademark is limited to the trademark that has been approved for registration and the goods that have been approved for use." It can be considered that for a specific product, whether there is a registered trademark on it The right should be judged based on whether the registered trademark has been combined with the product. If the two are combined, the registered trademark right exists; otherwise, the registered trademark right does not exist on the product. In reverse trademark counterfeiting, the registered trademark of the person being reverse counterfeited has been separated from the goods for which it is approved to be used. In this separated state, the registered trademark rights do not exist on the goods. And "if the skin is gone, the hair will be attached." Accordingly, reverse counterfeiting of a trademark does not constitute an infringement of the trademark rights of the person being counterfeited.

2. Analysis from the perspective of trademark rights and ownership relationships.

In reverse trademark counterfeiting, the perpetrator legally obtains the ownership of the goods produced by others and the registered trademark attached to them by paying a consideration. As the owner, the actor has the right to control the goods and registered trademarks in accordance with the law, such as continuing to sell, destroy, use, etc. Due to the existence of other people's registered trademark rights, the actor's ownership of the goods and registered trademarks is restricted. Except that the trademark can be used to continue to put the goods into circulation without making any changes to the goods, the perpetrator cannot use the registered trademark in the sense of other trademarks, otherwise it will be trademark infringement. For example, if the perpetrator uses the registered trademark logo on his own products that are similar to those approved by the trademark owner, it is a trademark infringement. Except for the above restrictions, this registered trademark right does not have any binding force on the perpetrator's ownership.

After the perpetrator of reverse counterfeiting has legally obtained the ownership of the goods and registered trademarks produced by others, he has not used the registered trademarks in any trademark sense. Therefore, the resale behavior of exercising the ownership rights is not subject to the rights of others to register trademarks. restrictions, making it difficult to identify it as trademark infringement. However, this does not mean that reverse counterfeiting is legal, but it does not involve the registered trademark rights of the reverse counterfeiter.

3. Analysis from the perspective of trademark exhaustion theory.

Exhaustion of trademark rights, also known as trademark exhaustion, means that once goods legally bearing a trademark are put on the market, the trademark owner loses control over it and its rights are deemed to be exhausted. For example, Article 20 of the "Model Law on Trademarks, Trade Names and Unfair Competition in Developing Countries" stipulates: "Registration of a trademark does not give the registered owner the right to prevent third parties from using their trademarks on goods legally sold in that country under the name of the trademark." Use the trademark as long as there are no changes to the goods. "The exhaustion theory of trademark rights is one of the restrictions on trademark rights. Although China's Trademark Law does not provide for it, this principle is also followed in practice. According to this theory, after the owner of a registered trademark right puts his goods into circulation and obtains consideration from the transaction partner, his trademark rights have been exhausted with respect to the goods, that is, the trademark rights expressed on the goods have been extinguished, so his trademark rights have been exhausted. No matter how the new owner of the goods continues to circulate the goods, it will not damage the reputation of the registered trademark and should not be regarded as trademark infringement. Of course, if the product has been changed, it cannot be put into circulation using the trademark, otherwise it will be trademark infringement. Because the quality of the goods commended by the trademark has changed at this time, continued use of the trademark may damage the reputation of the trademark. In reverse trademark counterfeiting, the trademark owner has put its goods on the market, so its trademark rights on the goods have been extinguished. If the perpetrator continues to put the goods into circulation in any way without changing the goods, it does not constitute trademark infringement. Therefore, reverse counterfeiting of trademarks cannot be identified as trademark infringement. It should be noted that if the perpetrator uses a third party’s registered trademark to sell the product, it constitutes trademark infringement (infringement of the third party’s registered trademark rights).

4. The arguments in favor of “trademark infringement” are not convincing.

Scholars who agree that reverse counterfeiting of trademarks is a trademark infringement have put forward many reasons as evidence, the main ones of which are four: (1) If reverse counterfeiting of trademarks is not treated as trademark infringement , will inevitably seriously affect the interests of trademark owners, and the famous brand strategy of Chinese manufacturers will never succeed; (2) Trademark rights and copyrights belong to the same category of intellectual property rights, and Article 46, Item 7 of China's Copyright Law has defined reverse counterfeiting copyright as Copyright infringement, accordingly, reverse counterfeiting of trademarks should also be defined as trademark infringement; (3) Reverse counterfeiting of trademarks falls within the category of "registered trademarks given to others" as stipulated in Article 38, Item 4 of China's Trademark Law "One of the behaviors that cause other damage to the exclusive right shall be deemed as trademark infringement; (4) Foreign legislation and judicial practice have already treated reverse counterfeiting of trademarks as trademark infringement." (Note: See Zheng Chengsi: "Intellectual Property Law", Beijing, Law Press, 1997 edition, pp. 206-208.)

The main reason for the disagreement on whether reverse counterfeiting of trademarks is trademark infringement The reason also lies in the differences in understanding of the content of exclusive trademark rights. Those in favor mostly understand the exclusive right to trademark as a collection of rights including exclusive use by oneself, prohibiting others from using it, and prohibiting others from replacing it, while those who are negative believe that the exclusive right to trademark should not include the right to prohibit others from replacing it. . Some scholars have proposed to re-discuss this issue. (Note: See Zheng Chengsi: "15 Years of Trademark Law Enforcement and New Issues Needing Research," "Intellectual Property" Issue 2, 1998.) They strongly agree, because this Helps resolve differences.