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

The crime of selling commodities bearing counterfeit registered trademarks is an important crime of trademark infringement.Through the implementation of this crime,a lot of crimes of trademark infringement eventually achieve their ultimate goals of seeking illegal interests.But there are a lot of theoretical and practical problems when handling this crime in judicial practice.Through the empirical research on the present judicial situation,not only many problems of this crime in judicial trial can be grasped,but also many practical problems encountered in conducting investigation and initiating public prosecution can be reasoned reversely,the social,economic,legal,institutional and other factors behind this crime can also explored in the same time.By empirical research in the framework of four elements crime constitution,we can discover many problems,such as the cognizance of the same goods and the same trademark in the the cognizance of criminal target,the calculation and identifying problems of the sales amount and the value of products,and the identifying problems of crime completed and attempted,and the influence of the sales amount and value of products on the measurement of penalty in the objective aspect of the crime,the cognizance of knowing in the subjective aspect of the crime,and so on.The empirical study of this crime focuses on the actual problems existing in the judicial practices,taking problem solving as the guidance,and the final purpose is to serve the judicial practice and realize the criminal judicial justice.This crime infringes upon the legal interests,including other people's exclusive rights to use a registered trademark and the state trademark management system,and its direct criminal target is the goods counterfeiting registered trademarks.The judicial practice should accurately identify the "same trademark" and the "same goods".and should entrust professional appraisal agency to conduct judicial authentication activities to determine whether goods have counterfeited registered trademark.The objective aspect of this crime appears that actor deliberately illegally sells counterfeit registered trademark goods,and the sales is large amount.In the face of complex and diverse "sales behavior" in the judicial practices,carrying on the concrete analysis is necessary,and whether sales activities are completed should be identified accurately.The sales amount and the value of products in the conviction and measurement of penalty play a decisive role,so to identify crime and noncrime and multiple crime form of crime should be based no counting two kinds of crime amount,and to sentence in combination with other case facts.This crime can only appear as intent in the subjective aspect,including direct intent and indirect intent.The ascertain of subjective "knowing" cannot be too narrow.The judiciary in dealing with a case should consider the case facts comprehensively,and presume whether the actor knows subjectively through objective case facts.In the judicial practice,there are usually a competition relationship between this crime and counterfeiting registered trademark crime,which often is the necessary premise of the former crime,and the former crime often is the inevitable result of the latter crime.There are difficulties in making a distinction between this crime and the crime of manufacturing or selling counterfeit or inferior products,which should be distinguished specifically in the judicial practice.