An Analysis On Related Cases Dispute Between Heiwado Zhuzhou Mall And Zhuzhou Industry And Commerce Administration Bureau Administrative Sanction

In the trademark case of industrial and commercial administrative department,Once there is a infringing commodity in the shopping mall,the industrial and commercial departments shall impose administrative penalty on the shopping mall.Shopping mall generally does not directly participate in the sale of infringing goods and did not know the shop sales infringing goods,In this situation,the administrative authorities only impose administrative penalty on the shopping mall,which will obviously violate the principle of " the fault is in conformity with the punishment".For this problem of the identification and assumption of administrative responsibility of shopping mall,we should understand the cooperation model and clarify the legal relationship between the parties,which is the key to solve this law case.The administrative penalty case of trademark infringement by the example of Heiwado vs.Zhuzhou Administration of Industry and Commerce is the legal dispute arising from the sale of trademark infringing goods.This case has three main controversies,which includes the legal relationship between the shopping mall and shops,Whether the shopping mall has supervisory responsibility to the shops and the subject of administrative responsibility for the sale of infringing goods.The business model of shopping mall include leasing model,logistics alliance model,direct sales model and so on.The legal relationship and legal liability between the shopping mall and the shops under each mode is different.In this case,the clearing form of shopping mall and shops is guaranteed floating point model,this approach is essentially a way of charging merchants for rent.In this model,the shopping mall and shops is legal relationship of tenancy.In this leasing model,the shopping mall is subject of market management,which has duty of care for business behavior of shops.The subjective fault of shopping mall is the premise to judge whether shopping malls should bear administrative liability of trademark infringement.If there is no subjective fault in the shopping mall,it should not bear the administrative liability of trademark infringement,which provide convenient condition with infringer.In addition,the administrative organization has already determined that the sales amount of infringing goods has reached 429,363 yuan and is suspected of committing a crime.The administrative organization shall transfer the case to the judicial office.Administrative authorities should not take administrative penalty in the case before the judicial authorities make a decision on the case,which will result in different administrative penalties and criminal penalties in the same case and damage the given power of law.