Study On The Crime Of Counterfeiting Registered Trademark

Intellectual property is an important means to maintain the competition of intangible capital.At present,under the background of comprehensively deepening the reform,China is carrying out the construction of an innovation-oriented country's intellectual property legislation,and the protection of intellectual property rights is gradually strengthened.In the crime of intellectual property infringement,the crime of trademark infringement is severe,which not only infringes the trademark registrant's exclusive right to use the trademark,but also disturbs the order of market economy.The trademark law stipulates the act of counterfeiting a registered trademark in article 57,and the criminal law of China stipulates the crime of counterfeiting a registered trademark in article 213.By comparing the two legal provisions,it can be seen that the criminal law has limited the scope of counterfeiting a registered trademark.This paper mainly analyzes and studies the standard and theoretical dispute of the crime of counterfeiting registered trademark in article 213 of the criminal law in order to provide some Suggestions for judicial practice.If the extension of registered trademark is interpreted as a registered trademark outside the territory,it does not conform to the provisions of international treaties,and China has given the well-known trademark special protection,and the case and dynamic nature of the well-known trademark make it unsuitable to be included in the protection scope of criminal law.Therefore,foreign registered trademarks that have not been registered in our country but have been certified as well-known trademarks by our country should not be protected by our criminal law.The equal status of service trademarks and commodity trademarks,the same service trademarks covered by the provisions of article 213 of the criminal law within the "registered trademarks",the administrative and civil areas of the provisions can not be automatically applied to the criminal law does not mean that all reasonable provisions are not applicable to the criminal law.Therefore,the service trademark can become the criminal object of the crime of counterfeiting the registered trademark;After the trademark exclusive license contract is signed,the trademark registrant loses the license right,and the determination does not constitute 'without permission',which is not conducive to the protection of the licensee's rights.Therefore,the act of the trademark registrant still using the trademark after signing the trademark exclusive license contract constitutes "unauthorized".Since there is no essential difference between service goods and physical goods,the trademark status of goods and services is equal.Therefore,the "commodity" stipulated in article 213 of the criminal law should be interpreted in a broad sense.Goods with the same name shall be identified in accordance with the international classification of goods and services for trademark registration adopted by the nice agreement;As for the identification of commodities with different names but the same basic purpose,a comparison shall be made between the commodities approved for use of the registered trademark of the obligee and the commodities actually produced and sold by the actor.Reverse counterfeit behavior conforms to the definition of tort and liability components,the principle of exhaustion of trademark rights does not mean all the intellectual property rights are used on trademark constitutes a tort,reverse counterfeit behavior in line with the "anti-unfair competition law" with the general terms and conditions of ACTS of unfair competition,the offender is "on the same commodity use" trademark rights of trademark,reverse counterfeit behavior and violation of counterfeiting registered trademark crime object-trademark protection.Therefore,reverse counterfeiting is the responsibility concurring of the crime of tort,unfair competition and counterfeiting registered trademark.From the Angle of crime constitution,the act of passing off the bottled low-priced liquor as high-priced liquor should be regarded as the crime of counterfeiting registered trademark rather than the crime of producing and selling fake and low-quality products.The generality of the concept is obtained from the different definitions of the refurbishment of second-hand goods in the academic circle,and the behavior is classified from different angles.In the context that the state encourages the lawful refurbishment of old goods,the law should not evaluate it as a whole,but should provide sufficient space for the free competition of market economy.It is a narrow understanding of the criminal law that if there is no actual production of goods,the protection of the criminal law will not be given.Therefore,the act of counterfeiting vacant trademarks constitutes the crime of counterfeiting registered trademarks.Where the act of counterfeiting the trademark of a commodity with a joint name objectively infringes upon two or more trademarks,several trademarks shall be determined as infringed upon according to the actual number.