The Criminal Regulations Of Reverse Counterfeit Trademarks

The issue of reverse counterfeiting trademarks has become a hot issue in the protection of intellectual property criminal law in recent years,and academics have disputed over whether they should be guilty or not.At present,China's legislation on reverse counterfeiting trademarks is scattered in administrative laws and regulations such as the Trademark Law and the Anti-Unfair Competition Law,but it is a phenomenon of reverse counterfeiting trademarks that is increasingly rampant and hidden and serious However,the effect of only cracking down with administrative laws and regulations is unsatisfactory,so it is urgent to find a possible culprit for counterfeiting trademarks and regulating them with criminal law.In addition to the introduction,this article is mainly divided into the following four parts.The first part mainly introduces the basic concepts of trademarks,trademark rights,reverse counterfeit trademarks,the nature of reverse counterfeit trademarks,and the reasons for this phenomenon.Reverse counterfeit trademarks are a special form of counterfeit trademarks.Legislative regulations and the academic community currently generally recognize the behavior as "extracting the trademarks that others have legally attached to a product and then attaching their own trademarks to the product and putting them on the market.".However,in judicial practice,there are still forms of controversy such as reverse counterfeit barcodes and reverse counterfeit neutral packaging products.When defining the nature of reverse counterfeit trademarks,it mainly focuses on whether the nature of its behavior is unfair competition or trademark infringement.Defining the nature of reverse counterfeit trademarks as an infringement of trademark rights is not only consistent with the practice of explicitly listing reverse counterfeit trademarks as an infringement of the exclusive right to use registered trademarks in article 57 of the "Trademark Law" of China,but also consistent with trademarks in most foreign countries Legislative status is consistent.The pursuit of economic benefits by the actor,the asymmetry of information between buyers and sellers,and the low cost of implementing the law have become the main reasons why counterfeit trademarks are constantly emerging in China.The second part mainly discusses the necessity of criminal regulations on reverse counterfeiting trademarks.The necessity of criminal regulations on reverse counterfeiting trademarks is mainly reflected in three aspects.First,counterfeiting trademarks is serious social harm.Reverse counterfeiting of trademarks by the actor will make the infringed enterprise's efforts to build a brand and increase the popularity of the trademark a shortfall,squeezing the development space of the infringed enterprise.For consumers,reverse counterfeiting of trademarks is a serious violation of consumers' legal rights,including the right to know and the right to choose,and even makes consumers unable to defend their rights when product quality problems cause damage to personal property.In addition to causing serious damage to individuals and enterprises,counterfeiting trademarks is a great disruption to the fair competition market order,and fair competition is a prerequisite for the good operation of the market.Its damage will directly affect the healthy development of the market economy.In addition,business ethics and business spirit will be seriously violated in the process.Second,penal regulations on reverse counterfeiting trademarks are necessary measures to strengthen the protection of intellectual property criminal law in China.When the social harmfulness of reverse counterfeiting trademarks rises from general to serious,criminal regulations will meet the "timely,modest,and coordinated" requirements of China's criminal legislation modernization principles.Moreover,as a kind of intellectual property rights,trademark rights have a strong international character.Incorporatingreverse counterfeiting trademarks into criminal regulations is a response to the internationalization of intellectual property legislation and the globalization of laws.Its criminal legislation needs to be consistent with the criminal provisions of international intellectual property treaties such as TRIPs.Third,at present,there are several views in the academic world against the counterfeiting of counterfeit trademarks,but the author believes that these views cannot be established.The third part mainly demonstrates the possibility of incorporating counterfeit trademarks into the existing crimes of the current criminal law.Because the production and circulation of commodities are the carriers through which the market economy can operate.Therefore,the author puts counterfeit trademarks in Chapter 3 of the Criminal Law,"Crimes undermining the socialist market economy," looking for links to other existing crimes such as the crime of illegal business operations,the crime of counterfeiting registered trademarks,and the crime of producing fake and shoddy products.Although reverse counterfeiting of trademarks overlaps with the three types of crimes mentioned above,or in the subject matter of crimes or in the manner of criminal acts,it does not completely agree on the four requirements.Therefore,it is not appropriate to incorporate reverse counterfeiting of trademarks into any of the three crimes mentioned above.The fourth part mainly discusses the possibility of criminalizing the counterfeiting of trademarks by adding new crimes.In the first section,the chapter placement and crime constitution of "counterfeiting registered trademarks" are explained.A new "counterfeit registered trademark offence" should be created and placed in Section III,Chapter 7,"Crime of Intellectual Property Infringement" of the Criminal Law.According to the traditional four-element theory,the author believes that the subject of the crime of counterfeiting a registered trademark should be a general subject,and the subjective element is intentional.The subject matter infringed is the national trademark management system and the exclusive right to use the registered trademark of another person.Objectively,the registered trademark is replaced without the consent of the owner of the registered trademark,and the product of the replaced trademark is put on the market again.In the second sentence of the crime of “reverse counterfeiting ofregistered trademarks”,the form of “administrative violation + plus important factors”can be adopted and Illegal business amount as the main important factor,and the reverse counterfeiting of registered trademarks can be regarded as an impure amount Commit.