Critically Assess China’s Criminal Protection For Trademark Right On The Basis Of TRIPS

Agreement on Trade-related Aspects of Intellectual Property Right (hereinafterreferred to as TRIPS) is the first international convention which provides criminalprocedures, sanctions and criminal remedies for dealing with trademark counterfeitingon a commercial scale. As the party to TRIPS, China has the duty to enforce thisagreement and transfer it into domestic legislations. However, although China’scriminal protection for trademark right has met the minimum standard of TRIPS, itdoes not fully consist with all of its provisions, and still lags far behind thedevelopment of trademark laws and the trademarks criminal legislations of developedcountries. Based on a comparative research of the trademark right criminal protectionsof TRIPS, China and other countries in the world, this paper shall critically assessChina’s criminal protection for trademark right and provide corresponding reformingproposals.This paper has four sections. The first section shall introduce current situationand features of trademark infringement crime in China. And then, this section shallexplore reasons for high crime rate, review the legislation development of criminalprotection for trademark right and assess each trademark infringement crime type. The second section shall mainly introduce the trademark criminal protectionsunder TRIPS from two aspects. In the first aspect, the object, the fundamentalprinciples and the protection standard of trademark criminal protections under TRIPSshall be discussed. The second aspect shall analyse TRIPS provisions concerning howto enforce criminal procedures in order to protect trademark right under TRIPS.The third section shall critically assess China’s criminal protection for trademarkright on the basis of TRIPS. First of all, although the criminal protection fortrademark right in China is of critical importance, the effects of criminal law incontrolling trademark infringement crime should not be exaggerated. By means ofanalysing the China-US WTO intellectual property dispute in2007, this paperconcludes that China’s criminal protection for trademark right has reached theprotection criteria stipulated by TRIPS, but still has some defects in its legislativemodel, protection scope and penalty.The final section shall put forward proposals for reforming China’s criminalprotection for trademark right by means of using TRIPS provisions and the foreignadvanced legislations for reference. With regard to the value orientation, China’strademark right criminal protection should keep its own features and balance thepublic interest and the individual interest. More specifically, reform should beimplemented as follows: reforming legislative model, enlarging protection scope andadjusting penalty measures.