Study On The Cognizance Of The Defense Of The Seller's Legal Source In The Case Of Trademark Infringement

With the development of economy and the enhancement of people's consciousness of protecting their rights,the number of IPR infringement lawsuits is increasing year by year.A complete trade chain of trademark goods must satisfy: The trademark right holder as a seller in three stages.In the market transaction,it is difficult for the trademark right holder to defend his rights through the manufacturer because the manufacturer's tort is hidden.Therefore,trademark owners usually sue the sellers at the end of the trading chain to protect their rights.In order to protect the interests of bona fide infringing sellers,section 64(2)of the People's Republic of China Trademark Law(1993)and section 79 of the Implementation Regulations of the Trademark Law stipulate that the seller is subjectively unaware of the matter,and can prove the origin of goods and suppliers,will be able to obtain the corresponding exemption.The system is widely used in trademark infringement cases,trying to balance the interests between trademark owners and sellers.However,due to the lack of uniform standards in the current legal and judicial interpretation of the system,various courts have greater discretion in determining the subject matter of the defense,resulting in greater disputes in the outcome of the judgment,the original legislative intention of the system has not been fully realized.Therefore,it is of great significance to clarify the status quo and existing problems of the system in judicial practice,and to put forward legislative and judicial suggestions to perfect the system of defense of legal sources in trademark infringement cases based on the core and the purpose of the system.In this paper,four parts of the trademark infringement cases in the legitimate source of the defense to identify the cause of the study.This paper studies the cognizance of the Defense of legal source in trademark infringement cases from four parts.The first part is the status quo of domestic and foreign legislation for the defense of legal source.This part analyzes the difference between the defense system of legal source and the foreign legislation by combing the domestic legislative background,legislative evolution and the foreign legislation,in order to perfect the defense system of legal source and provide the extraterritorial experience.In the second part,the author analyzes the present situation of the application of the legal source defense in the judicial practice.In this part,first of all,the successful rate of the defense of legal sources and the defense of legal sources,which are common in judicial practice,is obtained by combining practical cases,secondly,it analyzes the concrete application of subjective and objective elements in judicial practice,mainly from subjective "do not know" and objective "legal source".On the subjective side,the author analyzes the evidence provided by the trademark owner to prove that the seller knows subjectively and the evidence provided by the seller to prove that he knows subjectively Objective aspect through to the seller legal source defense reason establishment and the untenable present situation carries on the combing,induces to the seller legal acquisition and the seller provides the supplier the cognizance present situation.The third part summarizes the problems existing in the cognizance of the defense cause of legal source in trademark infringement cases.On the basis of the second part,this part also analyzes whether the defense of legal source is established or not in judicial practice,it is concluded that there are some problems in the process of identification,such as unclear burden of proof,inconsistent identification standard,and whether the "three-nil product" fails to fulfill the duty of reasonable care In the process of objective identification,there are some problems such as the inconsistency of the examination standard of "legal source",whether to ask the seller to provide the basic information of the supplier and the inconsistency of the consideration factors.The fourth part,on the basis of the foregoing,this part consummates the cognizance of the defense of the lawful source from the way of the cognizance of the subjective and objective constitutive elements.