The Legal Characterization Of Mobile Phone Refurbished Sales

Since the trademark infringement case of Nokia v.Shenzhen Fuxinsheng Trading Co.,Ltd.in 2007,more and more refurbished trademark infringement cases have begun to attract the attention of the academic circles.At present,the refurbished machine has become an industry and is widely existed in places such as Shenzhen.The refurbished machines,mostly represented by the third person after the acquisition of second-hand mobile phones,replace the screen,the back panel,the battery and other components,with accessories and packaging,sold with brand new machines,this type of refurbished machine in appearance and genuine mobile phones Different,but the sales price is much lower than the original mobile phone.More and more conduct of selling refurbished mobile phones has been brought to lawsuit.In judicial practice,regardless of the degree of refurbishment of mobile phones,most of them have been characterized as violating trade mark rights.They are even considered as criminal of counterfeiting registered trademarks if the circumstances are aggravation.Whether the trademark legality of mobile phone refurbishment sales should be differentiated according to different standards such as the degree of refurbishment,and whether it constitutes a related crime should be interpreted in depth from the legal level.Therefore,the author selects a criminal dispute case for mobile phone renovation and sales as a guide,and combines the trademark exhaustion principle and the criminal law related crimes to make a more comprehensive analysis of the legal concept and legal nature of mobile phone refurbished sales behavior.This paper has four parts.The first part introduces the details of the case of selling counterfeit registered trademarks.The second part describe the different opinions and the key questions of this case.The disputes in this case include whether the refurbished mobile phone sold by defendants violate the trade mark right,if their behavior commit the crime of selling the counterfeit registered trade mark or the crime of selling the counterfeit product.The third part analyzes the legal issues involved in this case.The first is the definition of mobile phone refurbished sales and the analysis of the infringement of all kinds of mobile phone refurbished trademarks from the perspective of trademark exhaustion.By defining the definition and characteristics of mobile phone refurbished sales.And classification,determined the legal concept of this behavior,and then carefully combed the principle of exhaustion of trademark rights,and applied this principle to analyze the trademark infringement of various types of mobile phone refurbished sales,and finally believed that the mobile phone was refurbished.Sales,whether or not the details are fully informed,are trademark infringements and the repair-type refurbishment sales can apply the trademark exhaustion principle without full disclosure of details,and is not an infringement of trademark exclusive rights;secondly,sales counterfeiting registration is analyzed.The criminal constitution of the trademark crime.The key to the determination of this crime based on the identification of the objective aspects.Finally,the distinction between the sale of counterfeit registered trademarks and the sale of counterfeit and inferior products.The two crimes are different in the elements of object,objective and subjective.The fourth part is the conclusion this case and judicial advice.First,combined with the legal analysis of the third part,we can draw the conclusion that the defendant is not guilty,because the defendant's behavior is can't fully meet with the component of dispute charges.Second,it is aimed at judicial practice.Giving some advice about the qualitative considerations of mobile phone refurbishment sales behavior.