Discussion On Crime Of Selling Commodities Bearing Counterfeited Registered Trademarks

Intellectual property as a new industry plays an increasingly important role in China's economic structure. Trademark rights as important intellectual property rights, have a great effect on market economy. However, with the development of the national intellectual property strategy,the phenomenon of selling goods bearing counterfeited registered trademarks become more and more widely. Also, the number of such cases which transferred to judicial organs is rapidly increasing, which shows the serious harms to both national trademark management system and the registered trademark holders'exclusive rights. In order to fight against the crime of selling commodities bearing counterfeited registered trademarks, legislators and Judiciaries keep doing the deep research continuously. However, there are still many problems when dealing with the crimes in judicial practice, which lead to the different standards of judging the crime and reducing the authority of the Crime Code as well. Thus, the writer collates the difficulties from judicial practice and makes comments, in order to improve the role of the crime.This thesis is divided into five parts. Part one is an overview of the crime, which includes not only the history, development, basis, value of the legislation of the crime of selling commodities bearing counterfeited registered trademarks, but also explanation of some relative concepts such as trademarks, registered trademarks, and goods. For example, there're no clear explanation to the concept of goods in Criminal Code and other laws. We only consider goods as visible items in practice. The writer considers that in order to protect the trademark rights well, the concept of goods in this crime should also include invisible items.Part two is about the elements of crime of selling commodities bearing counterfeited registered trademarks, such as the criminal object, objective elements of crime, subject of crime, and subjective elements of crime. Taking the criminal object for example, the writer considers it as the complex criminal object, which includes both national trademarks management system and the registered trademark holders'exclusive rights. There're several problems about the objective elements of crime, for example, the standard to judge whether the goods are bearing counterfeited registered trademarks ones, the standard to judge the sum obtained through sale, and the attitude to if special protection should be put to well-known trademark by the Criminal Code.Among these, the standard to judge the sum obtained through sale is the most controversial one. The writer thinks that the main reason leading to the obscure standard of the sum obtained through sale is for the unclear and inoperable terms of the Criminal Code and judicial interpretation, which also lacks of the judgment to the value of the trademark rights. The writer suggests that we should take the median price in market of the authorized goods as the filing and prosecution standard, and take quantity for addition.Part three is about the stop form of crime of selling commodities bearing counterfeited registered trademarks. As a crime measured by amount, how to handle the crime if one sold part of goods but left the other part is a dilemma. The writer considers that we should make clear both the sum obtained and to obtain if possible, and determined the crime according to the different standards from accomplished offense and attempted crime.Part four is about the overlapping of legal provisions. Sometimes one should commit several crimes simultaneously such as crime of selling commodities bearing counterfeited registered trademarks, crime of selling fake or inferior products, crime of illegal business operations just by one behavior. However, there're no established standards on conviction and sentence in such situation in practice. The writer considers that we should concern about the circumstances of different crimes and then ascertain the very crime deserving heaviest punishment by comparing the different ranges of sentence. Part five is the conclusion.It is a progress that the crime of selling commodities bearing counterfeited registered trademarks appears in legislation of the Criminal Code. Although it is neither perfect on legislation technique, nor long in history, further more there are many disputes on the crime both in theory and practice. Nevertheless, the writer though that it is still a progress of the crime. Therefore the writer tries to discuss on the problems of crime of selling commodities bearing counterfeited registered trademarks in this thesis in order to make further legislative perfection.