| With the obvious changes in the criminal structure,the state pays more and more attention to the protection of intellectual property rights.Especially after the implementation of the criminal law amendment（11）,the crime of counterfeiting registered trademarks has undergone new changes in both legislative norms and judicial work.At the same time,the judicial identification of the crime of counterfeiting registered trademarks continues to perplex the practice departments,including the controversial nature of "use" in different ways,the conflict between the identification results of "the same kind of goods" and nice classification,the single identification subject "enough to mislead the public",the wrong identification of "the same trademark",the unclear carrier scope of "use" of service trademarks,the lack of identification standards of "the same kind of services" Seven problems,such as the simplification of the criminal standard of the crime of counterfeiting service trademarks.Through indepth analysis of the causes of the problems,it is found that the identification rules of the crime of counterfeiting commodity trademarks need to be further improved.There are some deficiencies,such as the lag in the definition of "use",the failure to give full play to the role of Nice classification,the impact of multi-body review mode on litigation efficiency,and the unclear boundary between "same trademark" and "similar trademark";However,the identification rules of the crime of counterfeiting service trademarks have not been established.When constructing the identification rules,we must be aware of the particularity of the carrier of "use" of service trademarks,the lack of identification standards of "same service",the complexity of the criminal standards of the crime of counterfeiting service trademarks,and so on.From the perspective of perfecting and constructing rules,aiming at the identification rules of counterfeit commodity trademarks,this paper puts forward four specific improvement schemes,such as perfecting the definition of "use",giving full play to the restrictive role of Nice classification,constructing a multi-agent examination mode in difficult cases,and clarifying the internal requirements of the form and substantive standards of "the same trademark";Aiming at the identification rules of the crime of counterfeiting service trademarks,this paper puts forward three specific construction schemes: redefining the carrier scope of the "use" of service trademarks,strictly setting the identification steps and standards of "the same kind of services",and separately setting the amount standards and considerations of the crime of counterfeiting service trademarks,in order to realize the overall optimization of the judicial identification rules of the crime of counterfeiting registered trademarks. |
