Study On The Objective Element Of Crime Of Counterfeiting Registered Trademark

In recent years, trademark has attracted the criminal's attention gradually. Crime of counterfeiting the registered trademark is the most serious problem, with its increasing quantity and great harm to the society. The controversial over the confirmation of its objective element in the academe affects the oneness of justice practice to some extent. Therefore, it is of great significance to accurately understand and confirm the objective element of counterfeit registered trademark crime in order to clarify the dispute of theory and protect the ownership of trademark.In order to confirm the objective element of counterfeit registered trademark crime, the following four facts should be understand: Premise terms——without permission of the registered trademark owner, the way of act——to apply, the object of act——the same merchandise and the same trademark, fixed amount element——gravity of circumstances.In criminal law, the registered trademark means the trademark of merchandise that has been registered, not including the service trademark that has been registered. The possessor of registered trademark is the one who owns the registered trademark right and undertakes certain obligation according to the law. The premise of"without permission"is the actor who doesn't have the usufruct, which means the actor not only doesn't get the permission to apply, but also doesn't get the transfer of the trademark. On the form of permission, we should adopt the doctrine of contract (or doctrine of widely agreement), not doctrine of agreement or doctrine of eclectic.The use of trademark means putting the symbol into commercial activity to distinguish the resources of the merchandise. There are two elements for it, one is to be used in commerce, and the other is to be used as trademark. The use of trade mark in commerce should be understood extensively, which includes putting the trademark into merchandise, merchandise package or container and transaction writ of merchandise, or putting the trademark into advertising propaganda, exhibition or other commercial activities.The consulted goods which is identified the same goods should be the goods which is checked and ratified to use. In order to identify the identical good, we should consult the goods which has been registered trademark, and adopt"the three levels synthesized judgment standard". The meaning of the same trademark should be understood in a board sense, which including not only the identical trademark, but also basically the same trademark. Besides, in the specific confirmation, the consumer awareness should be considered as the yardstick, but not professional standard. Elements of"basically the same"not only require "misleading the public", but also needs the "no difference in visual basically." The one can not do. In the specific confirmation, we should follow the principle of overall review, the principle of main part review and the principle of isolation review.The objective circumstance of counterfeit registered trademark includes the amount, the situation of administrative penalty, the object that be counterfeited, social influence, and other grave circumstance.