| With the frequent occurrence of service mark infringement cases,the harm has been gradually highlighted,and the Criminal Law Amendment(XI)in 2020 has made the criminal object of "service mark" clear in the criminal law provisions.With the criminalization of "service mark",some new controversies have arisen in judicial practice,such as how to identify "the same service" and how to determine the amount of illegal operation of counterfeit service mark.In this regard,the author summarizes and analyzes the problems in the judicial application of the crime of counterfeiting a registered trademark,and makes corresponding suggestions for combating trademark crimes.In addition to the introduction and conclusion,this paper is divided into five chapters:Chapter 1: Through statistical analysis of the adjudication results of the crime of counterfeiting registered trademarks in the past ten years,and then summarize the problems in judicial application: first,the boundary between civil cases of trademark infringement and criminal cases is unclear;second,the application of penalties in the past ten years is unreasonable;third,the characterization of online trademark right crimes is controversial.Chapter 2: Defining and analyzing the concept and characteristics of trademark,the object of the crime of counterfeiting registered trademark,focusing on the emergence of "service mark" and its concept and characteristics,and discussing the difference and connection between it and "commodity mark".It also analyzes the difference and connection between "service mark" and "commodity mark",and provides reference for accurately identifying the two types of criminal objects of counterfeiting registered trademarks.Chapter 3: After the criminalization of "service mark",the determination of "use" of service mark,the understanding of "the same service",and the difference between "aggravated circumstances" and "aggravated circumstances" in the crime of counterfeiting registered service mark are discussed.Chapter 3 discusses more fully the problems of judicial application,such as the determination of "use" of service marks,the understanding of "same service",and the determination of "aggravated circumstances" and "illegal business amount" in the crime of counterfeiting registered service marks,and proposes that the number of services provided as the reference standard of aggravated circumstances and the amount of illegal business amount of counterfeiting service marks should be subtracted from the amount of service marks.The number of services provided as the reference standard for seriousness and the amount of illegal operation of counterfeit service mark should be deducted from the cost of additional goods.Chapter 4: The relationship between the crime of counterfeiting registered trademarks,the crime of selling counterfeit registered trademarks,and the crime of producing and selling counterfeit and shoddy products is discussed,and a distinction is made between this crime and the other crime from the perspective of the elements of the crime,and suggestions are made on the treatment of the above crimes when they compete.Chapter 5: The problems in judicial application of the crime of counterfeiting registered trademarks mentioned in the previous section are summarized,and suggestions for improvement are made in three aspects: first,to strengthen the connection between civil infringement and criminal offenses so that trademark rights can be fully protected;second,to reasonably apply penalties in judicial application;and third,to clarify the responsibilities to be borne by network service platform operators in the crime of counterfeiting registered trademarks. |
