Research On The Crime Of Counterfeiting Registered Trademarks

Along with the processes of world-wide economy uniformity being stepped up and socialist market economy develops rapidly, the trademarks crimes are getting complicated and frequently. Trademarks crimes not only infringe upon rights of registered trademark proprietor and trademark management system of our country, but also become a major disability of word economy development. So nations of the world and some international treaties all advocate that people should strengthen the power of criminal protection of trademarks crime. In this paper, the author analyzes the status of legislations regarding crime of counterfeiting registered trademark, and introduces the general situation of trademark right and status which legal system protect trademark right. The author analyzes the crime of counterfeiting registered trademark innovation in China's criminal low and constitution of a crime t present. According to analysis, the author hope people can find the deficiency of the law and make some suggestions, then let China's criminal law on the protection of crime of counterfeiting registered trademark more perfect. This paper is divided into four parts.The first part is about the legislative study on the crime of counterfeiting registered trademarks.As the world economy continues to develop in depth, trademark status in economic activities and the importance of the role becoming more and more prominent.According to national legislation and TRIPS Agreement, it is absolutely necessary to make a penal legislation for trademark infringement. Trademark right is a kind of intellectual property rights. It is a new type of intangible property rights. As the rapid development of the world economy, the function of scientific technologies, especially technological innovation is all getting great. There is a definite link between trademark right and scientific technologies. Therefore, the protection of trademark right should be more global and unified. The function and power of criminal law and particularity of trademark right make it necessary to punish trademark infringement by criminal law. In China, the criminal law provides three offenses. The crime of counterfeiting registered trademarks can be said the source. In all countries, trademark infringements are punished by criminal law. Then the article gives an overview of the world legislation. It provides a basis for pointing out defect on the crime of counterfeiting registered trademarks.The second part is about the elements of the crime of counterfeiting registered trademarks in China. Firstly this paper analyzes the 213th of China's current criminal law, and points out elements which constitutes the crime of counterfeiting registered trademarks.Counterfeiting registered trademarks violated not only the legitimate interests of trademark owners, but also endanger the national trademark management system, crime is a complex object. This crime does not require for-profit, units and individuals can constitute a crime. This paper analyzes what is the same production, what is the same trademark, what are serious circumstances and what are particularly serious circumstances by judicial interpretation and international treaties.And then it affirmed the change of China's current legislation on the pre-amended legislation. Whether the subject, charge or the operability, the existing criminal law reflected market's rapid economic development demands we should strength the power to punish crime of counterfeiting registered trademark by comparing revision of the crime of counterfeiting registered trademark in criminal law.The third part points out some considerations when etermines the crime of Counterfeiting Registered Trademarks.This part is the judicial determination problem on the crime of counterfeiting registered trademarks. Described the boundaries of crime or crime of counterfeiting registered trademarks, but also in practice for the crime of counterfeiting registered trademarks and other crimes, including fraud, production and sales of fake or substandard products, sale of counterfeit trademark goods with common crimes and other crimes from the criminal case definition and composition analysis, pointed out that the difference between a conviction for the practice of qualitative proposed theory.The fourth part points out the disadvantages and plans the conception of the improvements of the legislation on the crime of counterfeiting registered trademark.At first, according to the analysis the article points out the legislative defect on the object and behavior and the penalty setting of the crime and then makes suggestions for the blank part of China's current crime of counterfeiting registered trademark. The first is the scope of the crime of counterfeiting registered trademark targets should be expanded. This is mainly related to the general protection of service marks and special protection for well-known trademarks. The behavior of counterfeiting a registered trademark of behavior must be increased. By comparison with foreign legislation and international treaties require draw, we should put the action into criminal specification that using the same or similar trademarks on the same or similar goods without the consent. Reverse passing of trade marks should also be regulated by the criminal law. Then, it provides some suggestions on penalties set currently. Application of Fine for Punishment is advocated by savant. Although the criminal fine has pros and cons, and the savant also consider that criminal fine impact the justice of punishment in some crime, criminal fine really have not objection in the economic crimes. It is worth noting that, compared with other countries, China's emphasis on the degree of liberty is much greater than the criminal fine. Today, with the rapid economic development, this idea should be changed. The qualification penalty is a contentious clause. There are many restraints about entitlement in China's non-criminal legislation. But the criminal law puts the qualification penalty in the political aspects. This is related to China's social and historical. It was proposed that it is necessary to set up the qualification penalty in criminal law, but it is less to be used in economic crime. By analysis, this paper point out the importance that using the qualification penalty to deprivation repeated capability. We should change the current mode of consequential offense at present, distribute usage of criminal fine, the qualification penalty and punishment against freedom reasonable, and use the right way for the crime of counterfeiting registered trademarks, play the role of criminal law better. In conclusion, this paper suggests that because of the needs of social development and world economic situation, we should increase protection efforts to crime of counterfeiting registered trademark, enhance the legislative technique, and improve the legislative system.