The Theory Of Trademark Crime Under The Network Environment In China

With the emergence of internet and intellectual economy, cyber trademark right is revived and evolved from traditional trademark right, yet is under scrutiny and faced up with challenges. Cyber trademark crime is universally recognized one of the most severe offenses against intellectual property. Given the conflict between universality of internet and jurisdiction of intellectual property law, Chinese law is arguably incompetent and insufficient when confronting crimes including malicious registration of domain names, malicious appropriation of hyperlinks and meta tags. In this regard, the author aims to illustrate the concepts and categories of cyber trademark crime, pinpoint the flaws of current legal regimes and institutes policies and suggestions on the protection of trademark right in the internet ages.The concept and character of cyber trademark crimes serves the first part. According to Chinese criminal law, trademark crime means improper use of identical registered trademarks on the same goods without the permission of trademark right owner, which is profitable and serious in nature. Accordingly, cyber trademark crime means offence against trademark right made via the internet. Given the nature of cyber trademark crimes, namely the high intelligence, broad dimension, good concealment, substantial hazard and difficult enforcement, it is crucially necessary and important to revise current legal regime, so as to complement Chinese criminal law and correspond with the international trends. This part is conducted in a macro perspective.Pursuant to theoretical foundation laid in first part, comes the analysis of cyber trademark crime categories.Cyber Counterfeit trademarks:Different with commission offense in other crimes, the object of cyber-crime involves omission offense done by the internet service provider; cyber trademark crime infringes registered trademark right as well as the orderly manner of internet management, therefore the subject matter is twofold. The objective element requires more than an intention to make profit, but also non-profit purposes like recreation or enjoyment; various behaviors would amount to the subjective elements, for example, using identical or similar trademarks on identical or similar goods without permission of trademark right owner. The target of crime is not confined to goods trademarks but also services trademarks; the sentencing criteria should respond to the characters of cyber-crimes and incorporate the quantity of counterfeiting trademarks for consideration.Sale of counterfeiting trademark goods:The dealers are the primary subjects, but internet service providers may amount to crime joinder; the object it offended is identical to that of cyber counterfeit trademarks. Subjectively, it requires an intention to make profit. Its objective elements are similar to those of sale of counterfeiting trademark goods. In this regard, what distinguishes crime and non-crime is that the offenses must be done via internet.The crime of cyber counterfeit or manufacture trademarks without permission, or online sale of counterfeiting trademarks, manufacture trademarks without permission:The subject is dually consisted of both commission offense and omission offense; the objective elements are in line with those in the previous two crimes; subjectively it requires offenders’ acknowledge of trademarks; the objective elements are proposed by the author, i.e. malicious registration of trademarks, malicious use of hyperlinks and meta tags in the internet. The author also suggests malicious registration of trademarks in the internet be punished by criminal law.Cyber reverse counterfeit crime:The author agrees with classical counterfeit crime theorists that cyber reverse counterfeit trademarks shall be punished by criminal law; furthermore, new sentencing thoughts and ideas should emerge to impose adequate and deterrent protection of cyber trademarks considering the characters of internet.In the third part, the author aims to pinpoint the flaws of legislation, enforcement in terms of cyber trademark crimes, namely the narrow scope of both crime subjects and objective elements. As discussed above, internet service providers and malicious registration of domain names and malicious use of hyperlinks and meta tags shall be incorporated into criminal law. In addition, the ambiguity of jurisdiction and obstacle of gathering evidence adds to the shortcomings of current legal regimes. One last challenge is the lack of cyber prevention and supervision. Protection of cyber trademarks are made urgent by above mentioned points.The fourth part comes with new thoughts and ideas on the ground of previous analysis. As for substantial law, the scope and concept of trademarks should be expanded, more offenses be incorporated into criminal law, various sentencing criteria be considered. As for procedural law, traditional litigation mode should be advanced to improve digital evidence inspection. In conclusion, the gap must be filled and legal protection be strengthened to advance the great cause of ruling the country according to law.