Study On The Objects Of The Crime Of Counterfeiting The Registered Trademark

With the increasingly rapid economic development and intense competition, trademark has become more and more important for economic entities. It is the top priority for them to create and maintain the value of their trademarks. Because of the great value and interests behind them, real trademarks have been counterfeited in different ways circulating in the market. Correspondingly, the counterfeit behaviors are regulated by quite a few laws in civil, administrative and criminal fields, among which, the crime of counterfeiting the registered trademark is prescribed as an independent accusation in provision 213 Criminal Law of the People’s Republic of China. The crime has been studied by lots of scholars in criminal field including researches on the targets of the crime. However, according to materials the author found, most of them were limited to the ordinary commodity trademarks, without focusing on those in other categories. Thus, this article is to concentrate on certification trademark, service trademark and collective trademark, discussing whether they can be the targets of the crime of counterfeiting trademarks in the following three chapters.Chapter one is on the regulation and practice of counterfeiting certification trademark, which is to be discussed in three sections. The first section is the analysis of some basic identifications on certification trademarks. Since ordinary having been the focus of the researches in both theoretical and practical view of the criminal field, the article will first give a special mention to the relation between ordinary commodity trademark and certification one in this section. Besides, the legislation and evolution of counterfeiting the certification mark both in China and abroad are also introduced in the first section. In the second section, the article introduces and analyzes the opinions on whether the certification trademark belongs to the targets of provision 213, based on which the author gives her idea that the certification trademark should be the target of provision 213. The third section discusses the possible problems in application of the provision including interpretation of the constitute element of the crime, especially the individual character of the counterfeit of certification trademarks and the amount of the crime as well as the constitution of the circumstances of the crime.Chapter two is about the regulation and practice of counterfeiting service trademarks which is also divided into three parts. In the first part, the author introduces the basic definitions of service trademarks. Just as what she did in the former chapter, the author is to present the comparison between service trademark and ordinary commodity trademark. Right after the basic definition and comparison, the article introduces the legislation on service trademarks confusing those who practice the law and scholars’ research results on the question whether the counterfeit of them is guilty with the arguments between positive theories and negative theories. In the second part, based on introduction and analysis of the opinions mentioned in the first part, the author is in favor for the idea that the service trademark should belong to the target of provision 213. And the third part will discuss the problems in application of the provision 213 in dealing with the counterfeiting conduct of service trademarks, mainly in the field of judicial practice.Chapter three presents the regulation and practice of counterfeiting collective trademarks, also in three divisions. First of all, it is about the fundamental information introduced by a case to clearly identify collective trademark. Just as the first part in the above two chapters, the comparison between collective trademarks and ordinary commodity trademarks as well as the legislation and evolution is discussed here in this part. Secondly, the author gives supports of her idea that collective trademarks are also targets of the crime of counterfeiting trademarks. Thirdly, it comes to the application problems of the provision 213 in dealing with collective trademarks. Key words: Crime of Counterfeiting the Registered Trademark, Registered Trademark,...