Discussion On Some Problems Of The Crime Of Counterfeiting Registered Trademarks

Intellectual property rights as the new industry, plays an important role In ourcountry’s market economy and national economy. In order to promote thedevelopment of intellectual property rights in China and enhance China’s intellectualproperty rights to create, use, protection and management ability, In2008,the statecouncil issued“The national intellectual property strategy outlines” which cleared theplanning and goals for the building of an innovation-oriented country.However, fromthe present conditions in our country, Infringement of intellectual property rightsrelated cases remain high, even increases year by year. Among them, the cases of theinfringement trademark rights are especially prominent which seriously harm theexclusive use of a registered trademark of trademark and country trademarkmanagement system, and disturb the normal order of the market economy. In ourtrademark crime criminal legislation, there are many problems in the registeredtrademark of fake sin that lead to the confusion of the standard of judicial applicationand bring a lot of trouble to judge activities.So, the author analyzes this crime intheory and application problems deeply and proposes own views and suggestions,hoping to perfect the crime and doing some favor to the trademark rights criminalprotection.This article is divided into six parts. The first part is the summary for fakeregistered trademark of sin, including our present trademark crime situation and our trademark counterfeiting criminal legislation. Judging from the illegal casesinvestigated and dealed with in2011and2010, trademark crime phenomenon is stillserious and shows some new characteristics. The trademark rights criminal protectionshoulders heavy responsibilities.The second part discusses and interprets the application of " the same kind ofgoods"," the same trademark","use" and "seriousness" from the judicial recognitionlevel. The author thinks that "the same kind of goods" standard of identifyingconsideration shall be given to the subjective and objective said. Determination of acommodity standard ought to be" trademark registered by the internationalclassification table of commodities and services" and consumers’ subjective cognition.For" the same trademark" we should be in accordance with the relevant interpretation,and pay attention to" visually indistinctive" understanding and definition of the scopeof" public". For" seriousness", with the "super fine case" as the starting point.Theauthor puts forward the difference of the amounts of illegal operation, amount ofillegal income and sales amount, and elaborates on the illegal operation amountcalculation method.The third part is mainly the problems about the legislative level and constitutiverequirements. The main contents include fake registered trademark object of the crime,subjective sin, purpose, protect object and punishment system, etc. The author thinksthat the fake registered trademark object of the crime including country’s trademarkmanagement system and the registered trademark of the exclusive right ofothers.Because the crime of counterfeiting registered trademark is behavior crime,the subjective aspect is only direct intent, not indirect intention. According to thetheory of implicated offense and" trade related intellectual property rights agreement",the crime of counterfeiting registered trademarks should not be understood as" for thepurpose of profit". Service trademark and well-known trademark protection ofcriminal problems in recent years has been the academic focus. In order to perfect thecriminal protection of trademark, we shall put service mark and unregisteredwell-known trademark into the criminal law protection, which is also the legislativecoordination and the inevitable requirement of relevant international treaties. As to Penalty, punishment against freedom should be weakened, strengthening the finepunishment and setting the relevant punishment against freedom, thus better abatecriminal recidivism ability, achieve better prevention effect.The fourth part related to the crime of counterfeiting registered trademarks andother trademark tort relationship problems, which mainly include the trademarkreverse passing-off, well-known trademark dilution and innuendo trademark behavior.Counterfeit behavior does not have the crime of counterfeiting registered trademarkelements, so it should not be punished according to the crime of counterfeitingregistered trademarks. Because this kind of behavior harm is bigger, we shall set up anew crime. Only in certain circumstances, can the well-known trademark dilution actbe punished for the crime of counterfeiting registered trademarks, and others can onlybe handled by general trademark infringement. In the absence of express provisions inour country at present, the behaviors of innuendo trademark can only be given to civilor administrative sanctions.The fifth part is the relationship between the crime of counterfeiting registeredtrademarks and other criminals, Including the production, sales of shoddy goodscrime, crime of damaging commercial reputation, reputation of goods crime, fraud,illegal manufacture of crimes registered trademarks in four.In the constituent elements,the crime of counterfeiting registered trademarks and the above charges are different,but in the judicial practice, the crime of counterfeiting registered trademarks and thecharges often have competing or implicated relation. Therefore, we must consider thecircumstances of the case,then accurate convictions depending on the situation ofcompeting principles or implicated principles.The last part is a conclusion. The author finds that the crime of counterfeitingregistered trademark legislation deficiency and judicial determination difficulty bysummarizing the contents of the first five. In order to improve the criminal protectionof trademark rights,the author puts forward the corresponding suggestions at last.