In the first case, if the counterfeit product is a product with an unregistered trademark, it constitutes a confusing act, which belongs to the category of unfair competition and should be held responsible according to the Anti-Unfair Competition Law.
Article 6 of the Anti-Unfair Competition Law stipulates that business operators shall not commit the following confusing acts, which may make people mistakenly think that they are other people's goods or have specific connections with others:
(a) unauthorized use of the same or similar marks in the name, packaging and decoration of goods that have certain influence on others.
Article 18 stipulates that if an operator violates the provisions of Article 6 of this Law and has confused behavior, the supervision and inspection department shall order him to stop the illegal behavior and confiscate the illegal goods. If the illegal business amount is more than 50 thousand yuan, a fine of less than 5 times the illegal business amount may be imposed; If there is no illegal business amount or the illegal business amount is less than 50 thousand yuan, a fine of less than 250 thousand yuan may be imposed. If the circumstances are serious, the business license shall be revoked.
In the second case, if a counterfeit product is recognized as a registered trademark, it is an infringement of the exclusive right to use a registered trademark, and it shall bear the responsibilities stipulated in the Trademark Law.
Article 57 of the Trademark Law stipulates that any of the following acts is an infringement of the exclusive right to use a registered trademark: (2) Using a trademark similar to its registered trademark on the same commodity without the permission of the trademark registrant, or using a trademark identical to or similar to its registered trademark on similar commodities, which is likely to cause confusion.
Article 60 stipulates that if one of the acts listed in Article 57 of this Law infringes on the exclusive right to use a registered trademark and causes disputes, the parties concerned shall settle them through consultation; Unwilling to negotiate or failing to negotiate, the trademark registrant or interested party may bring a lawsuit to the people's court or request the administrative department for industry and commerce to handle it.
When the administrative department for industry and commerce finds that the infringement is established, it shall be ordered to immediately stop the infringement, confiscate and destroy the infringing goods and tools mainly used to manufacture infringing goods and forge registered trademarks. If the illegal business amount is more than 50,000 yuan, a fine of less than five times the illegal business amount may be imposed; if there is no illegal business amount or the illegal business amount is less than 50,000 yuan, a fine of less than 250,000 yuan may be imposed.
Whoever commits trademark infringement twice or more within five years or has other serious circumstances shall be given a heavier punishment. The administrative department for industry and commerce shall order the sale of goods that are not known to infringe the exclusive right to use a registered trademark, and can prove that the goods are legally obtained by themselves, indicating the supplier.
If there is any dispute over the amount of compensation for infringement of the exclusive right to use a trademark, the parties concerned may request the administrative department for industry and commerce for mediation, or bring a suit in a people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC). After mediation by the administrative department for industry and commerce, if both parties fail to reach an agreement or fail to perform the mediation after it takes effect, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).
Article 63 stipulates that the amount of compensation for infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the obligee due to the infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement; If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by referring to the multiple of the trademark license fee.
In case of malicious infringement of the exclusive right to use a trademark, if the circumstances are serious, the amount of compensation may be determined in accordance with the amount determined by the above method. The amount of compensation shall include the reasonable expenses paid by the obligee to stop the infringement.
In order to determine the amount of compensation, the people's court may order the infringer to provide the account books and materials related to the infringement if the obligee has tried his best to provide evidence and the account books and materials related to the infringement are mainly held by the infringer; If the infringer fails to provide or provide false account books and materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided.
If it is difficult to determine the actual losses suffered by the obligee due to infringement, the interests gained by the infringer due to infringement, and the license fee for registered trademarks, the people's court shall award compensation of less than 3 million yuan according to the circumstances of the infringement.
Extended data:
Case: Jinhua investigated and dealt with six fake apple sales cases in Aksu.
Recently, the Market Supervision Bureau of Jindong District, Jinhua City, Zhejiang Province, in accordance with the unified deployment of the inspection detachment of the Municipal Bureau, jointly investigated and dealt with six cases in which four cold storages in Aksu region of Xinjiang Uygur Autonomous Region sold apples of forged origin.
According to the survey, during the period from 20 17 to 12, Xu and other six fruit distributors. We bought local apples from Shaanxi, Gansu, Shanxi and other places, put them into cartons printed with the words "Aksu Sugar Heart Apple" and "Origin: Aksu, Xinjiang", transported them to Jinhua, stored them in different cold storage, and sold them in the peak season before the Spring Festival.
Up to the time of the crime, the party concerned * * * had purchased more than 9 100 boxes of this kind of apples, totaling more than 50,000 kilograms, with a case value of 300,000 yuan, all of which were identified by the trademark owner as counterfeit "Aksu Candy Apple".
The market supervision bureau of Jindong District believes that the behavior of the parties concerned violates the relevant provisions of the new Anti-Unfair Competition Law that "operators shall not make false or misleading commercial propaganda on the performance, function, quality, sales status, user evaluation and honor of their products" and is suspected of false propaganda. At present, the case is under further investigation.
References:
Confusing behavior