Discussion On Some Problems With Judicial Determination Of Counterfeiting Registered Trademark Crime

On the early stage of development of China's economy,owing to the factors such as the need of development and the lack of law and awareness,we did not put much protection to the intellectual property right for a long time,which led to much more tort behaviors.As China communicates with the world continually,the protection to the intellectual property right comes back to our eyes,despite of its unnoticed situation in the early times.The wrongdoings to the registered trademark have a large proportion of the intellectual property right infringements.Its low tort cost and high earning all contribute to a large quantity of the registered trademark infringement act.And counterfeiting registered trademark crime plays an active role in trademark crimes.Our laws and judicial interpretations have defined how to recognize this crime,but there exist some confusing problems in practical cases indeed.Aiming to solve this problem,the writer states his humble opinions on how to recognize this crime.The article can be divided into four chapters.The first chapter introduces the recognition of “the same kind of commodity”.The writer thinks the recognition should take both China's law and trademark registered by the international classification table of commodities and services into consideration,and divide this issue into two sides: identical commodity,and the indeed same thing with different names.For the determination of identical commodity,it's simple with the help of trademark registered by the international classificationtable of commodities and services.As for the other one,the writer tends to estimate it from natural quality and social quality.If it points to one thing virtually,they should be the same kind of commodity in spite of the different kind.The second chapter teases the recognition of “the same trademark”.Although there is a fierce debate about this issue,everyone should hold the principle that there is no difference in vision and it may mislead others adequately,regardless of the kind of trademark.The writer comes up with different recognized methods for different kinds of trademarks.For word trademark,the words should be completely the sane.For the figurative trademark,we should consider the significant portion and the whole effect.Besides,we should distinguish “the similar trademark in civil law sense” from “the same trademark in criminal law sense”.The third chapter analyzes the “use” in this crime.The writer firmly believes the using in this crime should be in the trademark sense,which means the using actually plays a role in introducing or distinguishing.The writer thinks that using in the trademark sense is the precondition for tort behaviors.And the use should firstly in commercial activity,and secondly play a role in distinguishing.The fourth chapter leads to other common actions: Foreign original equipment manufacturer,trademark reverse passing-off and trademark infringement acts on the Internet.This article analyzes these actions from nature and law aspects,holding that the two previous actions are actually registered trademark infringement acts and we cannot regard it as a crime for the principle of necessity.As for the third one,we should define the nature depend on their different detailed behavior patterns.