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How to characterize the infringement of accessories in assembled products?
The third opinion is that the case should be handled qualitatively according to the Regulations of Jiangsu Province on Punishing the Production and Sale of Fake and Inferior Commodities. Generators as finished accessories are infringing goods. According to the provisions of Item (7) and Item (11) of Article 6 of the Regulations on Punishing the Production and Sale of Fake and Inferior Commodities in Jiangsu Province, generators should be identified as fake and inferior goods. According to the provisions of Item (5) of Article 19 of the Regulations, Company A should be ordered to make corrections, its illegal income should be confiscated, and a fine of not less than 1% of the sales amount of generator sets should be imposed. Analysis: The author agrees with the second opinion for the following reasons: 1. The "sales" stipulated in Item (2) of Article 52 of the Trademark Law should be understood in a broad sense, referring to all trade activities. Article 16 of the Agreement on Trade-related Intellectual Property Rights (TRIPS Agreement) stipulates: "The owner of a registered trademark enjoys exclusive rights to prevent all third parties from using the same or similar marks on the same or similar goods or services with the registered trademark in the course of trade without the consent of the owner, and such use will lead to the possibility of confusion." The agreement defines the behavior of the third party as the use behavior in trade activities, not the simple sales behavior. The author believes that the legislative spirit of the Trademark Law is consistent with the agreement, and the behavior of Company A in this case can be regarded as sales. 2. The term "selling goods that infringe the exclusive right to use a registered trademark" as mentioned in Item (2) of Article 52 of the Trademark Law shall refer to the paid transfer of the ownership of goods that infringe the exclusive right to use a registered trademark in commercial activities. Where an operator uses infringing goods for production, processing, assembly and sale of new products, as long as the infringing trademark is still retained on the processed products or new products, it shall be deemed as selling goods that infringe the exclusive right to use registered trademarks. The essence of processing business is the paid transfer of the ownership of the contracted processing work, and the ownership of infringing goods as spare parts and raw materials is also paid. □ Jiangsu Jiangdu Administration for Industry and Commerce Xuhang Zhou Jun