What are the manifestations of indirect trademark infringement
At this stage, indirect infringement is not included in my country’s Trademark Law No clear provisions have been made. This is in line with my country’s national conditions and intellectual property protection level when formulating its trademark law. In the development of the theory, there is no clear definition of indirect infringement. The concept of indirect infringement is generally derived from the definition of the manifestation of direct infringement. So, how is direct trademark infringement defined? Here the author may wish to learn from the provisions of the U.S. Trademark Law: In commercial activities, any unauthorized copy, forgery, plagiarism or counterfeit of another person’s registered trademark is used to infringe on goods. Sales, promotion or advertising of products or services can constitute "direct infringement" of registered trademark rights as long as they are likely to cause confusion, misunderstanding or deception.
Through the above comparison, indirect trademark infringement refers to the behavior of the perpetrator who instigates and helps others to commit trademark infringement or provides the necessary conditions for trademark infringement. According to the general tort theory, the establishment of an infringement is the prerequisite for the infringer to bear legal liability. According to the definition of indirect trademark infringement proposed by the above author, the following four elements must be present for indirect trademark infringement, and the following four elements must be present at the same time:
(1) Indirect trademark infringement Actual occurrence of infringement
Indirect trademark infringement must actually occur. If there is only the behavioral intention of indirect infringement, it is impossible to establish indirect infringement.
Based on existing cases and the concept of indirect trademark infringement, the author summarizes that indirect trademark infringement has the following forms:
1. Enticing, instigating, and helping others to commit trademark infringement;
2. Providing warehousing, transportation, and mailing for others to commit trademark infringement , concealment and other convenient conditions;
3. Provide a place for others to sell trademark infringing products;
4. Importing trademark infringing products
5. Other behaviors that facilitate and assist trademark infringement.
(2) Resulting in direct trademark infringement.
The establishment of indirect trademark infringement must be based on the occurrence of direct trademark infringement. There are two opinions in the academic circles: "independent theory" and "subordinate theory". However, the author believes that even if indirect trademark infringement provides convenience and help for direct trademark infringement, if there is direct infringement, the indirect infringement will only stay in the intention or preparation stage. What can be "independent" is only the legal liability borne by the indirect infringer.
(3) There is a causal relationship between indirect trademark infringement and direct infringement.
There must be some causal relationship between indirect trademark infringement and direct infringement. Otherwise, indirect infringement, as an auxiliary part of direct infringement, should not bear legal liability. .
(4) The subjective state of mind of the indirect infringer is intentional or knowing
Generally speaking, inducement , the subjective state of mind of instigating and helping others to commit infringement acts is intentional; providing warehousing, transportation, mailing, concealment and other convenient conditions for others to commit trademark infringement acts, providing a place for others to sell trademark infringing products, and the subjective state of mind of importing trademark infringing products is intentional Or knowingly. Only in the case of "intentional or knowing" circumstances, indirect infringers need to bear corresponding legal liability. Of course, this subjective state of mind of "intentional or knowing" can be derived based on the presumption.
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