How many years will be sentenced for selling goods with counterfeit registered trademarks
1. A natural person who commits this crime shall be sentenced to not more than three years. Fixed-term imprisonment or criminal detention, and concurrently or solely a fine; if the sales amount is huge, the person shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined.
2. If a unit commits this crime, the unit shall be fined, and the person directly in charge and other directly responsible personnel shall be punished in accordance with the above provisions.
(1) Object Requirements
The object of infringement of this crime is the country’s trademark management system and The exclusive right to use another person’s registered trademark. The exclusive right to use a trademark is the trademark owner’s exclusive right to use his or her registered trademark in accordance with the law. It constitutes the main content of my country’s trademark management system. my country’s Trademark Law clearly states that the exclusive right to use trademarks must be protected. Infringement of exclusive rights to trademarks may be manifested in the production or manufacture of counterfeit trademarks, or in the sale of counterfeit trademarks. In actual production, most cases involve the sale of goods that are knowingly known to be counterfeit trademarks, and these are all infringements without exception. The exclusive right to register a trademark, and the sale of goods knowing that they are counterfeit trademarks has objectively caused a large number of counterfeit, inferior, and substandard products to be put into the market, which has had an impact on famous and high-quality products and other similar products, making it difficult for consumers to distinguish the authenticity from the counterfeit and being deceived. , in serious cases, it will pose a threat to the health and life safety of consumers, and seriously damage the legitimate interests of consumers.
Selling goods with counterfeit registered trademarks. Although they themselves do not produce goods with counterfeit registered trademarks, their behavior causes the goods counterfeiting other people's registered trademarks to flow directly to consumers. It endangers the interests of consumers, and at the same time financially supports criminals who counterfeit other people's registered trademarks, which strengthens the psychology of criminals. Therefore, Article 38 of the Trademark Law of the People's Republic of China clearly stipulates that selling knowingly counterfeit registered trademarks The products are one of the acts that infringe the exclusive rights of registered trademarks. The object of this crime is goods counterfeiting registered trademarks. Such goods are mostly counterfeit, inferior, inferior or even harmful. The so-called products that counterfeit registered trademarks must be products that use the same trademark as the registered trademark on the same product without the permission of the registered trademark owner. If the goods intentionally sold are counterfeit goods with non-registered trademarks, or goods with registered trademarks,If the products are not of the same type, it cannot constitute the crime of intentionally selling goods with counterfeit registered trademarks.
(2) Objective elements
The objective aspect of this crime is that the perpetrator illegally sells goods that he knowingly The behavior of counterfeiting registered trademark goods and selling a large amount of money.
The so-called sales refer to the act of selling goods to others by purchasing, promoting, selling or peddling, etc., including wholesale and retail, inviting people to sell on behalf of others, and commissioned sales. and many other forms. No matter which form the perpetrator takes, as long as the sales amount reaches a relatively large amount, this crime will be committed. It is worth noting that the goods sold here should not be products produced, manufactured or processed by yourself. If the goods being sold are not counterfeiting others’ registered trademarks, but are goods without a trademark, or goods with a trademark but not a registered trademark, or goods with a registered trademark but not someone else’s but one’s own registered trademark, or goods registered by someone else. This crime will not be committed if the trademark is not a registered trademark used on the same product as the product. If the perpetrator counterfeits the registered trademark of others on his own goods and then sells them, which constitutes a crime, he has committed two crimes respectively. There is an absorption relationship between the two crimes, and he should choose one of the felony crimes and be severely punished. However, judging from the statutory sentences of the two, the punishments for both are the same, and it is difficult to say who is lighter and who is heavier. Considering that the act of selling goods that counterfeit someone else’s registered trademark is a follow-up and extension of the act of counterfeiting a trademark, it is appropriate for those who counterfeit a trademark and then sell it to be convicted of the crime of counterfeiting a registered trademark, and the punishment should be severe and cannot be punished multiple times. And punished. If you conspire in advance with criminals who counterfeit registered trademarks, and subsequently sell goods with counterfeit trademarks on your behalf, you should also be punished for the crime of counterfeiting registered trademarks, constituting an accomplice in the crime of counterfeiting registered trademarks.
Sales of goods counterfeiting other people’s registered trademarks must be of a relatively large amount to constitute a crime. Although there is an act of selling goods counterfeiting someone else's registered trademark, the sales amount is not large and does not constitute this crime. The so-called sales amount refers to all illegal income of sellers from selling goods that counterfeit other people's registered trademarks without deducting costs, taxes, etc. It is different from illegal income, which is the actual amount of profit after deducting costs, nor is it equal to the operating amount. If the perpetrator completely sells the goods that are counterfeiting other people's registered trademarks, the sales amount is the operating amount. If it is seized without selling, there will only be an operating amount but no sales amount. If there is no sales amount or if there is sales amount but the amount is not large, generally it cannot be treated as a crime, but this does not mean that it cannot absolutely be treated as a crime. If the crime is serious, if the person refuses to change despite repeated admonitions, or if the sales amount will be extremely huge and the harm will be serious, he should be held criminally responsible for attempted crime. However, it should be pointed out that if the sale has been made but the purchaser has not paid the sales amount due to various reasons, theThere is no sales amount. For this to constitute a crime, it should be completed, not attempted.
(3) Subject requirements
The subject requirements of this crime are general subjects. Both natural persons and units can constitute the subject of this crime. As far as natural persons are concerned, as long as the perpetrator has reached the age of criminal responsibility and has the ability to be criminally responsible, and intentionally sells goods with counterfeit registered trademarks, it can be constituted. If a unit commits this crime, a two-penalty system shall be implemented, and the unit shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be held criminally responsible in accordance with the provisions of this article.
(4) Subjective elements
This crime can only be manifested as intentional in the subjective aspect, that is, knowingly It is a product that is counterfeiting a registered trademark and intentionally sold to others. Negligence cannot constitute this crime. The scope of "knowingly" cannot be too narrow. "Knowingly" does not mean "certain knowledge", as long as the perpetrator should know that the goods being sold are fakes. This is because the circulation of goods with counterfeit registered trademarks is illegal, and operators often understand it implicitly during transactions and do not need to make it clear. In addition, it can also prevent some criminals from evading legal sanctions on the pretext that they do not know that the goods are counterfeit registered trademarks. In judicial practice, the main criteria for determining “knowledge” are: (1) There is evidence to prove that the perpetrator was informed that the goods being sold were counterfeit registered trademarks; (2) The purchase price and quality of the goods sold were significantly lower than those of the counterfeited goods on the market. The purchasing price and quality of goods with registered trademarks; (3) Based on the perpetrator’s own experience and knowledge, he can know that he is selling goods with counterfeit registered trademarks.
2. How to determine the crime of selling goods with counterfeit registered trademarks
(1) This crime and illegal The limits of the crime
According to the criminal constitution of the crime of selling goods with counterfeit registered trademarks, negligent sales of goods with counterfeit registered trademarks and intentional sales of goods with registered trademarks do not belong to the same category. Counterfeit products and intentionally sell goods with counterfeit registered trademarks. If the sales amount is not large and the social harm is relatively small and does not constitute a crime, it should be dealt with in accordance with the provisions of Article 39 of the Trademark Law. Only when the amount is relatively large, such as 20,000 yuan, can it be treated as a crime.
(2) The boundary between this crime and the crime of producing and selling counterfeit and inferior products
1. Infringement The objects are different. The objects infringed by this crime are the trademark owner's exclusive right to use the trademark and the legitimate interests of consumers, of which infringement of the exclusive right to use the trademark is the main aspect. And the object of the latter's infringementIt is the national product quality supervision and management system and the legitimate rights and interests of consumers, among which infringement of the legitimate rights and interests of consumers is the main aspect.
2. The objective requirements are different. The objective aspect of this crime is the act of selling goods that are knowingly counterfeit registered trademarks and obtaining a relatively large amount of illegal income; the objective aspect of the crime of producing and selling counterfeit and inferior products is the perpetrator adulterating or adulterating products, passing off fake products as genuine products. , passing off substandard products as good or substandard products as qualified products, with a sales amount of more than 50,000 yuan. In judicial practice, there are two situations worth noting. One is that the perpetrator does not know that the trademark on the goods sold is a counterfeit trademark and adulterates or adulterates the product, and then sells it, with a sales amount of more than 50,000 yuan. will only be punished for the crime of producing and selling counterfeit and inferior products; the second is if the perpetrator knows that the trademarks on the goods sold are counterfeit goods, and adulterates or adulterates the products sold, and the sales amount exceeds 50,000 yuan , how to deal with it? Can it be treated as a crime of imaginary co-operation? We believe that this situation cannot be treated as a crime of imaginary co-operation, because the perpetrator in this case has two different intentions and committed different natures. Two acts, but the two acts overlap to a certain extent, similar to the situation where an actor commits the crime of injury and kills the victim with the intention of killing. This is indeed a substantial number. However, since the two acts are related to absorption and being absorbed, it is only punishable as a crime constituted by the act of absorption, that is, as a crime of selling goods with counterfeit registered trademarks.
(3) The boundary between this crime and the crime of counterfeiting registered trademarks
According to Article 213 of this Law stipulates that the crime of counterfeiting registered trademarks refers to the serious act of using the same trademark as the registered trademark on the same product without the permission of the owner of the registered trademark. The main differences between this crime and the crime of counterfeiting registered trademarks are: 1. The objects of the crime are different. The criminal object of this crime is goods counterfeiting registered trademarks, and the criminal object of the crime of counterfeiting registered trademarks is trademarks registered by others. 2. The objective aspects of crime are different. The main objective aspect of this crime is that the perpetrator sells goods that are knowingly counterfeiting registered trademarks. The crime of counterfeiting registered trademarks is manifested in that the perpetrator uses the same trademark as someone else’s registered trademark on the same kind of goods without the permission of the owner of the registered trademark. . In practice, there are two situations that are difficult to identify. One situation is that the perpetrator uses the same trademark as someone else’s registered trademark on the same kind of goods without the permission of the registered owner, and then sells the goods and obtains How to characterize illegal benefits? We believe that this is a crime of absorption. The former act is an act of absorption, and the latter act is an act of being absorbed. The two acts before and after constitute the entire criminal process of the crime of counterfeiting registered trademarks, and they are closely related to each other. Behavior is the inevitable result of previous behavior. This situation is only considered as one crime of counterfeiting a registered trademark, and is no longer considered as two crimes and subject to concurrent punishment. another situationYes, several actors have the common intention of counterfeiting registered trademarks, and they divide labor and cooperate. Some of them manufacture goods with counterfeit registered trademarks, and some sell such goods. How should they be characterized? We believe that in this case, the sale of counterfeit registered trademarks The act of selling goods is an integral part of the common crime of counterfeiting registered trademarks, and can only be found guilty of the crime of counterfeiting registered trademarks. People who sell such goods are actually accomplices in the crime of counterfeiting registered trademarks.
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