The basic parties in a trademark infringement case are trademark owners, including the exclusive right to use a registered trademark and the licensed user of a trademark, and the infringers include sellers, producers and authorizers of infringing marks. In judicial practice, due to the urgency of stopping infringement, trademark owners often directly sue sellers to stop infringement and compensate for losses. There are several different understandings about the legality of this kind of lawsuit. One view is that the trademark law stipulates the independent liability of the seller, so the trademark owner can file a lawsuit against the seller alone; Another understanding is that if the trademark owner is allowed to file a lawsuit against the seller alone, once the seller's infringement is established, it will have a pre-determined effect on the seller's online, that is, wholesalers and producers; The third understanding adopts a compromise attitude and thinks that different situations should be treated differently. In a case where the seller can provide legal sources, these legal sources should become the parties to the case, and the way to participate in the lawsuit is that the parties request to participate or the people's court notifies them to participate; For cases where the seller cannot provide a legal source, the civil liability can be investigated separately. The difference in understanding whether the seller can participate in litigation independently is the biggest reason for the above-mentioned difference, and the above-mentioned difference in understanding may lead to great differences in the procedural legitimacy of the case. The author tries to express his views on this issue from the following aspects. The independence of the seller's tort determines the seller's litigation status. The first thing is to determine whether it is an independent tort or a participant in the same tort. If the seller's tort is independent of other infringers, the seller's litigation status should also be independent. The sales behavior discussed in this paper is only a typical sales behavior, not including the collusion between sellers and producers. In the statutory law system, the characterization of an act should be based on the existing laws. Whether the law provides special provisions for an act alone is an important basis for investigating the legal independence of an act. The definition of tort in Trademark Law has a gradual process. This process helps us to understand the nature of the seller's responsibility. China's 1983 Trademark Law, when legislating, only stipulated? Use? Trademark acts that are the same as or similar to others' registered trademarks are tort; In 1988, the Implementation Rules began to separate the use from the sales behavior; When the Trademark Law was revised in 21, Article 52 stipulated five kinds of infringement: namely, the act of using the same or similar trademark on the same commodity or similar commodity without the permission of the trademark registrant; Selling goods that infringe upon the exclusive right to use a registered trademark; Forging or manufacturing others' registered trademark logos without authorization or selling forged or manufactured registered trademark logos without authorization; Without the consent of the trademark registrant, the registered trademark is changed and the goods with the changed trademark are put on the market again; Causing other damage to the exclusive right to use a registered trademark of others. It can be seen that China's trademark legislation has experienced a cognitive change from confusion to independence in terms of use and sales behavior. Article 52 of the Trademark Law can be interpreted as follows: First, it is a provision on trademark infringement; Secondly, this kind of regulation is through the combination of enumeration and bottom protection; Thirdly, the enumerated legislation determines that the ways of infringement enumerated in this article are relatively independent and not mutually conditional; Fourth, the other torts stipulated in the fifth paragraph refer to acts that are equivalent to the first four torts, but are not clearly defined. Is the production behavior included in item (1)? Use? In item (2), however, it is separately stipulated that the sales behavior constitutes infringement. Therefore, the provisions of the law on the infringement of production and sales are independent, and they are not based on each other's responsibility. Secondly, sales and production are independent behaviors, with different elements of infringement, and should be responsible for each other. Compared with subjective fault, they have different fault requirements. When producing a product, the producer shall have a corresponding understanding of the exclusive right to use a registered trademark enjoyed by others in the same or similar species of the product, and shall have the obligation not to infringe upon the exclusive right to use a trademark of others. The producer's failure to fulfill this obligation constitutes infringement, and the Trademark Law does not stipulate the exemption clause for producers. Unlike producers, the third paragraph of Article 56 of the Trademark Law stipulates that sellers? Anyone who sells goods that he does not know are infringing on the exclusive right to use a registered trademark and can prove that the goods were legally obtained by himself and explain the supplier shall not be liable for compensation. ? Therefore, the seller's subjective fault lies in his failure to fulfill his duty of reasonable care. For example, the Beijing No.1 Intermediate People's Court is trying a trademark infringement case between French lacoste Shirt Co., Ltd. and Beijing Huashi Storage and Sales Company? In, that is, that? As a seller, the defendant should abide by the relevant provisions of China's trademark law and do his duty of reasonable care when engaging in commercial activities related to trademarks. ? In terms of behavior, production and sales are relatively independent behaviors. As long as the infringer carries out one of the acts, it may constitute an infringement of the exclusive right to use a registered trademark of others, and the producer does not need to assume civil liability on the premise of the seller, and vice versa. From the perspective of the consequences of infringement, the producer is responsible for all the products he produces, while the seller is only responsible for the infringement facts within his fault. From the above analysis, it can be seen that the producers and sellers of infringing products should be responsible for their own actions and faults. As an absolute right, the intellectual property right holder has the right to choose the object he thinks suitable for litigation, and the trademark right has both positive and negative powers. The so-called positive power refers to the right of the trademark owner to implement positive behavior in order to realize the property right of the trademark right; Negative power means that the trademark owner has the right to ask others to exclude his trademark right. Reflected in the law is the right to claim intellectual property rights. It is of great significance to determine the nature of trademark right claim for understanding the litigation status of sellers in trademark infringement litigation. Traditional property right is inherently exclusive. If a house belongs to A, it is impossible for others to enjoy the property right at the same time. Intellectual property is an intangible right. When an intellectual property is made public, others can imitate and enjoy the benefits brought by this right. Therefore, in the legislation of intellectual property rights, the incentive mechanism of utilitarianism or economics is its main theoretical basis. As a right to the world and an absolute right, the most powerful and quickest way to protect trademark rights is to eliminate obstacles and stop infringement, and this protection measure can only be implemented through litigation. If trademark infringers in other links must be included in the seller's infringement lawsuit, it may lead to the long-term instability of the trademark owner's rights and the inability to restore the original state, which is contrary to the original legislative intention of intellectual property protection. For example, the trademark owner A sued the seller B for infringement of his trademark right. B requests to add its online supplier C; Party C requests to add producer D after appearing in court; Ding argued that the infringing logo was authorized by E, and E also said that the logo was designed? A's lawsuit of defending rights will become endless. Pre-litigation and litigation injunction are unique behavior preservation measures in the field of intellectual property rights and the embodiment of trademark absolute right. The nature of absolute right of trademark right determines that the most direct protection measure for trademark right is to stop infringement and restore the original appearance of right. Therefore, the trademark owner's right of claim is essentially a right of claim for real right, which is of relevance to the world. When the right is infringed, the real right of this claim determines that the obligee has the right to decide the object of exercising the right by himself, that is, when there are many infringers, he can only ask one of them to stop the infringement and remove the obstruction. In this sense, in the eyes of trademark owners, any infringer has its independent status as the opposite party. There are a pair of confusing concepts here. In judicial practice, it is often easy to confuse the claim for tort damages with the claim for intellectual property rights. Actually,? The claim for compensation is not the same as the intellectual property claim similar to real right in nature. They are independent claims directly generated by creditor's rights or intellectual property rights, and the parties can either use the claim for compensation or exercise the claim for intellectual property rights. ? When the trademark owner demands to compensate for the loss and stop the infringement at the same time, in fact, he has exercised both the claim for creditor's rights and the claim for real right. At this time, the claim for real right determines the nature of the lawsuit, that is, the nature of the lawsuit is mainly the lawsuit of not acting as the main payment. In this kind of lawsuit, The legitimate defendant should be determined according to the plaintiff's alleged infringement of the plaintiff's rights and interests and the plaintiff's interest in prohibiting the infringement? . Therefore, the trademark owner chooses to sue the seller alone, which gives the seller an independent litigation status. It is not necessary for the seller and the trademark infringer in other links to * * * join the lawsuit with the litigant * * * Joining the lawsuit refers to a multi-person lawsuit in which one or both parties are two or more, and there are * * * the same litigation object. The * * * similarity of this kind of litigation is that * * * enjoys the same rights and obligations as the litigants, and it is an inseparable lawsuit. It is one of the main reasons to refute the seller's independent litigation status in trademark infringement litigation that it is necessary for the seller and other trademark infringers to be the same litigant. China's Civil Procedure Law does not clearly define the necessary * * * joinder in law, which leads to the judicial practice that cases of joint and several liability and * * * joinder in infringement are defined as necessary * * * joinder, and the persons jointly and severally liable should participate in the litigation as * * * with the defendant. For the litigation based on the same fact or legal reasons, the decision is handed over to the courts on whether it constitutes necessary * * * joinder, which objectively leads to the necessity of local courts. 1. The seller and the trademark infringer in other links do not constitute joint liability. According to legal and judicial interpretations, to sum up, in cases related to intellectual property rights, the people's court should deal with the litigants as necessary: the property * * * has the right, and several people * * * have their intellectual property rights infringed by others, and some * * * owners sue, while other * * * owners should be listed as * * with the plaintiff; If several persons * * * infringe upon the intellectual property rights of others, and shall bear joint and several liabilities according to law, in the proceedings, the * * * accomplice is the * * accomplice and the defendant. According to the above analysis, the seller and other trademark infringers have their own independent behaviors. Under normal circumstances, the seller only bears the liability for compensation for the scope and quantity of its sales or the civil liability for stopping the infringement only within its business scope, while the producer should bear the civil liability for the quantity and the whole sales scope of its production, and there is no exemption clause, so there is no joint liability between them. 2. The objectivity of the criteria for judging trademark infringement and the setting of the fixed compensation system determine that it is not necessary for the trademark infringer in the sales voice and other links to be the same litigant. The judgment standard of trademark infringement stipulated by law and judicial interpretation is based on the general knowledge of the relevant public, which is an objective standard beyond the original and the defendant. The scope and extent of the seller's responsibility is only related to its own operating situation and influence on the infringing products. The law that can't be ascertained still stipulates the fixed compensation system as a remedy. Therefore, in trademark infringement cases, there is no fact that can only be ascertained when the trademark infringer in other links appears in court. 3. The absolute nature of trademark rights determines the seller's independent litigation status. The reason has been explained in the previous article, so I won't repeat it here. The prejudgment of the effective judgment of the seller's infringement case to the trademark infringer in other links In the seller's trademark infringement case, if the seller is convicted of infringement, it will have the prejudgment effect on the producer, which is another basis for thinking that the seller has no independent litigation status. Whether the facts ascertained in a civil judgment have pre-determined effect is related to the res judicata of the judgment. The res judicata of a judgment refers to the binding force of a legally effective judgment on the parties and the people's court. Because the purpose of civil litigation is to solve the disputes over the legal relationship of civil entities between the parties, the judgment is made based on the results of the debate between the parties, and the result of the litigation is determined according to the litigation behavior of the parties, so the res judicata in principle extends to the parties, that is, the subject of prejudgment is limited to the parties participating in the litigation. The prejudgment of the judgment is often reflected in different lawsuits between the same parties. For example, if there is a dispute between Party A and Party B about the ownership of a patent right, Party A files a lawsuit to confirm the ownership of the patent right, and the court decides that Party A wins the case. Then Party A filed a claim for compensation with Party B. At this time, Party B may no longer claim the ownership of the patent right, and the court may no longer make a contrary determination. As for the effect of effective judgment on other people's litigation, according to our country's laws and judicial interpretations, the pre-determined fact is mainly reflected in the effect of exemption from evidence for the same fact. It is generally believed that according to? Who advocates who gives evidence? The principle that the pre-determined fact exempts its proponent from the burden of proof, while the burden of proof that the pre-determined fact is not established is borne by the other party, which only leads to the transfer of the burden of proof. If the other party can't give evidence to deny the predetermined fact, the responsibility it should bear is not predetermined by the effective judgment, but based on its failure to give evidence in the latter lawsuit. In the seller's trademark infringement case, the effect of infringement determination is limited between the trademark owner and the seller. For infringers in other links, the judgment only exists as a fact that leads to the inversion of the burden of proof, and cannot directly determine their rights and obligations. In other links, the infringer can still make enough refutation and defense to deny the validity of the predetermined fact. Furthermore, in the trademark infringement lawsuit of the seller, all the producer's defense rights can be invoked by the seller, and the seller itself should have a comprehensive understanding of the goods it deals with and have a reasonable and prudent obligation, which leads to its responsibility to prove the exemption. For those who fail to fulfill the obligation of prudence when purchasing goods, the seller can also ask the producer to provide relevant evidence for remedy, and the evidence collection of this defense itself is part of its burden of proof. In this way, even if the seller loses in the lawsuit against the trademark owner and loses again in the lawsuit against the producer, it will not lead to the contradiction between the previous and subsequent judgments. The seller's failure in the previous judgment was based on his poor proof. To sum up, the author believes that, as far as the basis of rights is concerned, trademark rights, as an important part of intellectual property rights, have intangible characteristics that determine that their economic value can be copied indefinitely; Compared with the protection of property rights, the resulting protection mechanism directly reflects the encouragement to the obligee. Therefore, when applying the protection of trademark law, there are some ideas and provisions that are not completely consistent with the traditional civil law, and the pre-litigation injunction is a very representative example. From the legal point of view, the Trademark Law stipulates the independent liability of the seller, which is parallel to the liability of the producer or other infringers, and the resulting litigation should reflect this independence; Judging from the necessary litigation mechanism, the determination of infringement facts and civil liability related to the seller does not need to be based on the identification of other facts. Therefore, generally speaking, the seller and other trademark infringers do not necessarily constitute necessary litigation; In particular, it should be clear that the facts of a case identified under the current judicial system in China are legal facts rather than objective facts, and the standard of identification is the standard of evidence rather than the whole fact. The burden of proof lies with the parties concerned, and the seller should give evidence when making a non-infringement defense. From the point of view of the correspondence between plea and defense, the right of defense of trademark infringers in other links can be completed by the seller's proof, and the seller fails to fully fulfill this right and bears the consequences of poor proof; The idea that whether the seller has an independent litigation status is determined on the condition that the producer and other infringers can be found will obviously bring the case into this.