An Empirical Research On Judicial Identification Of Well-known Commodities In Counterfeit Cases

With the rapid development of market economy, plenty of well-known enterprises have grown up in an endless stream. However, in current judicial practices, malicious competitors have promoted their own products by counterfeiting registered trademark, phishing the name and package of famous commodities, employing others' enterprise name or others' name and forging and imitating logos, etc., which not only infringes upon the operator's business reputation and economic interest seriously, but also damages the consumers' interest. By comprehensively applying legal literatures, the thesis mainly adopts empirical research method to analyze the identification and legal protection of well-known commodities from the perspective of judicial practice. On the basis of probing into the fundamental legal principles, it analyzes and makes a comparison between the judgments on counterfeited well-known commodities, delves into the current situation and drawbacks of the judicial identification for well-known commodities in China and proposes some suggestions for improving the judicial identification for well-known commodities in China, hoping to offer some enlightenment for the theoretical research on the protection of well-known commodities as well as the legislative and judicial practice.In the thesis, a total number of 297 judgments for counterfeited commodities are collected, several variables are designed according to the research purpose and the variables are selected from the judgments and input to the software for analysis. The thesis adopts “whether it's identified as well-known commodity or service” as the dependent variable and the related factors on identifying the well-known commodities as the independent variable, attempting to explore the relation between each factor and “whether it's identified as well-known commodity or service”. The whole thesis is divided into two parts, i.e. introduction and main body. In the introduction, the thesis investigates the research background, the research status on identification of well-known commodities, the research value and the research method. The main body is illustrated in five chapters.The first chapter gives a brief introduction of the general theory on judicial identification of well-known commodities, including the concept and characteristics of counterfeiting as well as the relation between the protection of well-known commodities and the prevention of counterfeiting. Through analyzing the definition of well-known commodities in the existing laws and regulations, it elaborates on the significance of improving the judicial identification of well-known commodities.The second chapter probes into the basic information of the judicial identification of well-known commodities in counterfeit cases from the viewpoint of case collection, research instrument and variable design. Through analyzing and elaborating on basic data, it investigates the overall trial situation in well-known commodity counterfeiting cases and the information concerning legal applicability, sales, propaganda, award and protection in the identification of well-known commodities, arriving at the conclusion that the current distribution of well-known commodity counterfeiting cases in China is consistent with the economic development level on the whole. The legal application is unreasonable in some aspects and the information concerning sales, propaganda, award and protection affects the result of well-known commodity identification in different aspects.The third chapter carries out an interactive analysis of the factors in the identification of well-known commodities and “whether it's identified as well-known commodity or service” after the basic information on the judicial identification of well-known commodity in counterfeit cases is obtained, and summarizes the current situation of the judicial identification of well-known commodity in counterfeit cases, i.e. the identification of well-known commodities is a process of combining individual cases and making comprehensive considerations; the relevancy between the factors and identification result varies from one to another; some factors are emphasized in the process of judicial identification and the interested parties put particular emphasis on some aspects in raising evidences. Meanwhile, it's also discovered that in the judicial identification of well-known commodities in current counterfeit cases, the identification standards are less operable than expected and the identification steps deviate from and are inconsistent with the original plan and, etc.In the fourth chapter, the research focus is shifted to the individual in the whole research, i.e. judgments. Through constant reading and thinking, the author makes a comparative analysis of their similarities and differences and delves into the reasons for the problems in judicial identification of well-known commodities in counterfeit cases in combination with the laws, regulations and other scholars' research result. It's found that the illustrations in the Judicial Interpretation are not specific and the relating provisions of Judicial Interpretation are not applicable to the change of trial. Meanwhile, there are some problems in legal applicability; for instance, the identification of well-known commodities is downplayed in some judgments, the identification is carried out unilaterally according to partial factors and the trademark is often confused with the well-known commodities.In the fifth chapter, the thesis holds that in order to improve the judicial identification for well-known commodities, the first step shall be taken from the improvement of legal provisions and the unification of judicial standards, including bringing the “awards” into the enumeration part and making special provisions on the factors relevant to internet; setting strict standards on legal applicability, clarifying the judicial identification value of well-known commodities, insisting on comprehensive judgment, verifying the awards and strengthening the training for judges. It's aimed to realize the ultimate purpose of improving the protective system for well-known commodities through the above-mentioned measures.