| At present, trademark crimes are still very serious in China. It not only violated the exclusive right of trademark owners'and the national trademark management system, but also harm the legitimate rights and interests of the consumers'and serious interference and impact on the market economic order. As a member of WTO, according to one of the three pillars of WTO—TRIPS, the provisions of section 61, the protection of trademark rights in China should provide adequate and effective criminal procedures and criminal penalties. The topic on the criminal protection of trademark rights is discussed in this thesis. First of all, it introduces the overview of the criminal protection of trademark rights. Secondly, the status quo of China's criminal law on the protection of trademark rights is discussed and under TRIPS the improvement of China's criminal protection of trademark rights is prospected at last. The full thesis is divided into three parts:I.The Overview of Criminal Protection of Trademark RightsFor criminal protection of trademark rights, Section 61 of TRIPS explicitly requests members provide criminal procedures and penalties to punish the act which intend to counterfeit trademark on commercial scale, It is a mandatory requirement. In China, the protection of the exclusive right of registered trademarks is of great significance for the development of the socialist market economy. Therefore, the protection of the exclusive right to use the trademark is to protect the enterprise's survival lifeline. In the backdrop of economic globalization, trademark rights own new characteristics of the times. It involves not only the relations between right owners and users in one country, but also increasingly large extent, beyond national boundaries, the relations among countries. Trademark system has been not only to protect the interests of the right owners', but also to seek national trade development and safeguarding the interests of the whole nation. Therefore, we can not place too much emphasis on the nature of privacy of trademarks, but see it as an importance strategy of national trade development. Civil and administrative laws are the most basic protection, but as a kind of relief afterwards, its effects are limited. The criminal protection of trademark rights is an important component of trademark legal protection and the most powerful legal punishment to the violations. The Penal Code in 1997 increased the new criminal counts of trademark crimes, which provided more powerful legal weapon for the punishment to the trademark crime. At present, China's trademark crime problem is still quite prominent, causing serious harm and poor social impact. Therefore, the criminal law, as a final barrier, with criminal penalties to punish trademark, is very necessary.II.The Status Quo of China's Criminal Protection for The Trademark RightsAccording to the definition of criminal law, trademark crime refers to the act which infringes on the exclusive right of the registered trademark owners'seriously. Under the existing "Criminal Law" section VII of Chapter III, infringing on the exclusive right to use registered trademarks constitute a crime with three counts. This part discusses the three counts respectively: counterfeiting registered trademarks, selling counterfeit registered trademark goods, and illegal manufacture, selling registered trademark logos which illicitly manufactured. By survey and comparison with the criminal law of the major countries of Anglo-American law system and continental law system, it is obvious that there are many problems about the protection of trademarks to be resolved in China's current criminal law. Firstly, the object of protection is too narrow. Only provide criminal protection for the registered trademarks of goods, but not provide criminal protection for the registered trademarks of service. Secondly, the objective act which punished by criminal law is single. Only take the serious act that use the same trademark on the same kind of goods without the permission of the trademark owner as a crime, but not provide criminal protection for other serious acts, such as use the registered trademarks on similar goods or use similar trademarks to mislead consumers and the act of reverse counterfeiting trademarks. Thirdly, the legal sentence configured incorrectly. The criminal law provide the same penalty to three crimes—counterfeiting registered trademarks, selling counterfeit registered trademark goods, and illegal manufacture, selling registered trademark logos which illicitly manufactured. Since the social harms caused by the three trademark crimes are apparently different, it is unfair to provide the same criminal penalty.III.The Improvement of China's Criminal Protection of Trademark Rights Under TRIPSChina's current criminal law on the protection of trademark rights has been marked progress compared with the past, but is still a certain distance to the requirements of criminal procedures and criminal penalties of TRIPS. Therefore, the author, by comparison with the legislative experience of the United States, Britain, Australia, Germany, France, as well as China's Hong Kong region, put forward the following suggestions: Firstly, increase the types of trademarks protected by criminal law. Criminal protection should expand the extent to service trademarks and well-known trademarks should be provided special protection. Secondly, enlarge the extent of the behavior patterns of counterfeiting registered trademarks. As a WTO member, China must perform the requirement of TRIPS in full scale. Therefore, reverse counterfeiting trademarks should be involved in the criminal penalty and enlarge the scope of behavior of the crime of counterfeiting registered trademarks. Thirdly, adjust criminal penalty structure of trademarks. According to China's criminal principle and the relevant requirements of TRIPS, our country's criminal legal sentence is unreasonable in some aspects. Rational legal sentence should be provided according to different social harm of the crimes in order to show the fair value of criminal law. We can learn from foreign experience and relevant legislation to strengthen the use of the sentence of fine. Criminal penalty and fine used in conjunction in the sentence will take more beneficial social effects. The author put forward the above legislative proposal and discussed them in details, with a wish to contribute meager effort to the improvement of China's criminal protection of trademark rights in the research of theory and practice.
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