Research On The Crime Of Counterfeiting Registered Trademarks

As mankind enters the era of knowledge economy era, intellectual property rightsindustry as an emerging industry plays a pivotal role in the world. China, as a developingcountry, based on the needs of its own economic development and international trade, paysthe maximum attention to the development and protection of intellectual property. In2008,our country promulgated the” National Intellectual Property Strategy” to improve the abilityto use and to protect the intellectual property in the hope of building an innovative country.However, as China’s economy developing, China’s current IPR infringement cases presentswith some kind of continuous development and rampant trend, more and more major caseshappens and the number of cases is still increasing. However, China’s current intellectualproperty rights infringement case is increasing with the rapid development of the economy,specially the trademark infringement crimes. Those crimes do not only against the interests oftrademark owners, but also unhealthy to form a market order and worse the investmentenvironment. To a certain extent, those crimes are damaging China’s image. Among thetrademarks crime in China’s Criminal Law, the crime of counterfeiting registered trademarksare most discussed in academia and get more and more charges in judicial practice, but theproblems of its own bring some judicial application problems. The author analyzes andevaluates the problem of this crime which is existed in theory and practice and put forwardher own opinion, hoping this would helpful for getting this crime more perfect.This paper is divided into five parts. The first part introduces the overview of China’scurrent trademark crime. The author used some statistics and cases to present the number, thetendency and characteristics of the current trademark crime. Based on above depiction I’d liketo propose the necessity and urgency of criminal law protection on trademark crime.In the second part, I’ve analyzed and identified the objects of counterfeiting registeredtrademarks crime. In this crime, identifying the same mark for the same goods has alwaysbeen a difficult issue. The Supreme people’s Court and The Supreme People’s Procuratoratehave issued a judicial interpretation specifically for this crime, hoping to reduce theambiguities among the identify-work in the judicial practice which is in vain. I believe that toidentify a same commodity should not only consider the " Registration of Marks InternationalClassification of Goods and Services ", but also the consumers’ subjective understanding.Another controversy about the object is the service mark. The crime of counterfeiting registered trademarks only provides protection for trademarks, no protection for the servicemark. In this regard, some scholars believe that services should be included in criminal lawtrademark protection. I hold a positive view of that, the service mark should be included in theprotection of the criminal law service mark.In the third part of this paper, the author gives her own answer to the question which thebehavior of using similar marks on same commodity, using the same mark on similarproducts, using similar marks on similar products and reverse counterfeit trademark behaviorshould or not be regulated in criminal law on the basis of analyzing and evaluating otherscholars’ view.In the fourth part, the author thinks that the existing law on Criminal fine configurationof counterfeiting registered trademarks is not reasonable, which results in artificially highamount of fines. The high amount of fines which could not be enforced must affect thejudgment authority seriously.After analyzing and evaluating four different criminal fineslegislation configuration, the author suggests that Limit fine system would be a good choice.In the fifth part, the author proposes a question about calculation of the amount of crimeof counterfeiting registered trademarks through "price penalty case". When the price gapbetween infringing goods and the actual sales is large, the author believe that the priceshould be in accordance with the defendant’s favor to identify the amount of illegal business,in line with Modesty principles of criminal law.