| In terms of intellectual property protection,although our country started late and has a short history,our government has a firm attitude.However,the identification of the object of the crime of counterfeiting registered trademarks still puzzles the theoretical and practical circles.Based on this,this paper focuses on the criminal object of the crime of counterfeiting registered trademark in order to be conducive to the unification of relevant judicial practice.The first part mainly discusses the definition and existing provisions of the object of the crime of counterfeiting registered trademarks.In practice,the number of crimes of counterfeiting registered trademarks is rising and the amount involved is increasing.However,the provisions on the criminal objects of counterfeiting registered trademarks in China are still unclear.In addition,the object of the crime of counterfeiting registered trademark has an important influence on the division between crime and non-crime,and the distinction between light crime and heavy crime.In the aspect of incrimination,the object of crime is of great significance to whether the act is criminal violation or civil tort,and to distinguish this crime from the crime of counterfeiting patent and other crimes;In sentencing,the number of counterfeit registered trademarks is the factor that determines the severity of the crime.The second part focuses on the same trademark,the criminal object of counterfeiting registered trademark.From two angles of judging premise and degree requirements,it is required that the same trademarks are basically visually indistinguishable,which is enough to mislead the public.To judge whether the trademarks are basically the same,the accused trademark and the right trademark should be placed in the same visual field,and the comparative observation method should be adopted to judge.Following the difference and hierarchical thinking,trademarks are divided into words,figures,combinations and three-dimensional trademarks,which are discussed respectively in combination with the above standards.The same text is the primary condition for identifying the same word mark;Word mark with the same words but different fonts should be considered according to the effect on consumers.For graphic trademarks,the overall effect is more decisive for the identification of the same trademark.If the color of graphic trademarks is changed and the public can recognize that they belong to different trademarks,they should not be identified as the same trademark.For the combination trademark of words and figures,whether the trademarks are the same should distinguish what is the main part of the trademark,and take the judgment method of the significant part as the main judgment benchmark of the combination trademark.As for three-dimensional trademarks,the identification of trademark identity mainly focuses on the judgment of three-dimensional marks and plane elements.Based on the modesty of criminal law,only trademarks that make no creative changes to three-dimensional trademarks in the two elements of three-dimensional marks and plane elements are the criminal objects of counterfeiting registered trademarks.The third part discusses the identification of the same commodity.The same commodity includes commodities with the same name and commodities with different names but referring to the same thing.For commodities with the same name and the same threshold value,it is enough to directly follow the map and confirm whether they constitute the same commodity according to the provisions of Nice Agreement.For commodities with the same name in essence,they should be considered to belong to the same commodity according to the function and legislative purpose of the crime of counterfeiting registered trademarks.For the discrimination of commodities with different names but referring to the same thing,we should take the subjective and objective methods to consider whether there is any error in consumers’ subjective understanding from the objective point of view of judges,take Nice Agreement as the judge’s objective evaluation standard,and take the relevant public as the subjective reference object.Among them,the definition of "related public" should be interpreted in a narrow way,which only refers to consumers who are closely related to trademarks of goods or services.In addition,whether it will cause confusion among the relevant public is also affected by factors such as consumers’ recognition ability,recognized commodity objects and the time and place when consumers buy commodities.Inconsistency between objective identification and subjective identification may constitute civil tort or administrative violation,but its social harmfulness has not yet reached the level of punishment,so it should not be regarded as "the same commodity".The fourth part discusses the service trademark.The Criminal Law Amendment(11)includes the service trademark as the object of this crime.From the perspective of the necessity of protecting trademarks,it is reasonable to add and modify service trademarks.First of all,all countries in the world have brought the protection of service trademarks into the scope of criminal law regulation,and this amendment is an inevitable trend to follow the law of world development;Secondly,the proportion of service trademarks in the composition of social consumption is increasing day by day,and its importance is also increasing day by day,which is the inevitable protection for the value determination of service trademarks;Finally,it is a thorough implementation of the coordination of the legal system structure.Some courts claimed that it constituted a crime,but the legal norms and reasoning logic based on it were not convincing.After the legislative amendment,the status quo that service trademarks can’t be relied upon will be greatly improved,but the following practical problems still need to be taken seriously: the identification standard of the same service trademark,the definition standard of the same service,whether the service can be applied to the "same commodity",etc. |
