The Study On The Crime Of Selling Commodities Bearing Counterfeit Registered Trademarks

With the booming of economic and the development of technology, intellectual property which is intangible assets of enormous economic has been playing a more and more important role in modern society. Therefore, protection of intellectual property in our country is paid more attention and effective measures have been taken to rigorously fight pirating in crimes of intellectual property rights violation. The crime of selling commodities bearing counterfeit registered trademarks is one significant kind of the intellectual property rights violation and the caseload has grown. The Supreme People’s Court and the Supreme People’s Procuratorate issued two judicial explanations in 2004 and 2011. However, the judicial explanations do not cover every pocket of the circumstances and there are some unreasonable aspects. In the judicial practice, how to condemnate the criminal and measure penalty has maintained some problems. Take one practical case for instance, if some of the merchandise have been sold while others have not when the offender is captured, we encounter the problem of how to calculate the total selling amount, how to judge the stop pattern and how to reasonably measure penalty. Hence, we deeply discuss the theoretical disagreement and application standard of the crime in this essay in order to solve the puzzling problems including stop pattern, total selling amount and selection of measurement of crime in law practice.The paper is comprised of 4 parts as follows:1. Summary of the crime of selling commodities bearing counterfeit registered trademarks. We will discuss problems including the judgement of stop pattern, total selling amount and selection of measurement of crime in law practice through introducing the legislation evolution as well as the development of the crime which presents the tendency of fast growing of cases, technicalization of crime methods, and more kinds of targets.2. The determination of the standard of sales amount in the crime of selling commodities bearing counterfeit registered trademarks. In this essay, we differ the concepts of sales amount, the amount of illegal business and the value of goods, and confirm that the connotation and extension of sales amount should be the sum of profits after illegally selling goods and the illegal income merchants should earn. Therefore, the completion of sales behavior is the premise of earning money, yet those may sell out are not part of sales amount. In addition, we indicate the presence of problems including the difficulty in finding out ‘actual sales amount’, the absence of law in price appraisal agency assessment and the problem of improper calculation with bid price or market values, through analyzing the calculating standards the sales amount. We also put forward a path to improve the calculation standards of sales amount, which is refinement of applicable conditions of market value of products, adjustment of syn-position of price calculation, clarification of legal status of price appraisal institutions, and increasing the calculation standard of the parts have been sold.3. The judicial cognizance of the crime of selling commodities bearing counterfeit registered trademarks. We first analyze the key difference between the mentioned crime and the crime of selling counterfeit commodity, which lie in the difference in crime targets: the target of the former crime is counterfeit registered trademark goods while that of the latter is sham products, whose main property lies in fake but not inferior. Fake means the products are not the same with what the seller says, and therefore the consumers are cheated buy the sellers. In addition, we list disregard of corporate of all the circumstances of coexistence of all the sold and unsold according to laws and explanations. We also try to give some solutions to specific conditions. First, the essay suggest that for the specific four circumstances we should recognize as completed crime. Second, we suggest combine two conditions to calculate the standards. At last, we reconsider the 8th suggestion in law because we think the main reason is the amount. We also try to find some solutions in the paper.4. Research on the stop pattern for selling commodities bearing counterfeit registered trademarks. Through comparing some studies we give a final conclusion that we have accomplishment state in the crime from some specific view. When we discuss the stop pattern of the crime, we should pay attention to three problems namely the recognition of undertaking, the recognition of unfinished crime and the reason of that. Besides, we also analyze the judgement of stop pattern on special circumstances like instalment, advance deposit, sales return etc.