How to identify legal sources in trademark infringement cases
Article 60 of my country’s Trademark Law stipulates that “If you sell goods that are not known to infringe the exclusive rights of a registered trademark, and you can prove that you obtained the goods legally and explain the supplier, you will not be liable for compensation. ". This paragraph stipulates that trademark infringers who can provide the legitimate source of goods are exempt from liability for compensation. What is a “legitimate source”? Current laws and regulations lack detailed provisions. In judicial practice, the determination of “legitimate source” in trademark infringement cases is also a focus and difficulty in the trial of the case.
Specifically, "legitimate sources" need to be from The following aspects will be considered:
1. Subject of defense Must be legal
At this stage, the counterfeiting phenomenon in our country is relatively rampant. In trademark infringement litigation, the right holder’s claims are generally directed against the producers and operators of the infringing goods. For producers of infringing goods, unless others entrust them with processing, litigation is mostly caused by their active infringement, and the producer has the subjective intention to actively pursue the infringement results, which falls into the category of malicious intent. You cannot be a third party with good intentions. Therefore, the only person who can claim that the infringing goods sold have legal origins is the operator, that is, the seller of the goods.
2. Subjectively, operators need to be in good faith
The subjective goodwill of the infringing operator means that the seller of infringing goods subjectively does not know that the goods he distributes are infringing. There are two forms of "not knowing", namely "impossible to know" " and "should have known but did not know due to negligence." If a business operator knows that what he is selling is a product that infringes the trademark rights of others and still sells it, it is malicious and he should bear the liability for infringement compensation. However, how to determine whether the business operator is " Impossible to know” or “not knowing due to negligence due to negligence” is the difficulty in trademark infringement cases in practice.
As for "should know", merchants in our country, especially small and medium-sized merchants, generally lack the ability to distinguish the authenticity of goods and whether they are infringing. If it is simply presumed The operator's negligence will inevitably lead to the expansion of commercial business risks, causing the operator to be timid in the business process.
3. The source must be objectively legal
Lawful source is the basis for determining that the goods have a legal source. In the judicial practice of trademark infringement, it is generally presumed that the goods sold by the dealer do not have a legal source. However, , it is only a legal presumption at this time. If the distributor does not want to bear the liability for infringement, it must provide evidence that the source of the products it distributes is legal, that is, the distributor obtained the products through legal channels. In terms of evidence, the following are generally the Aspects:
1. Have a legal contract. When a distributor obtains goods from a producer, he or she must have a sales contract. However, this is not necessary to prove that the source of the distributor's goods is legal.There are two reasons:
(1) Legal allow. The law allows the existence of oral contracts between the parties to the transaction. The Civil Code (effective on January 1, 2021), as a distributor, does not violate the provisions of the law to obtain goods through oral contracts.
(2) Requirements for business transaction efficiency. In real business transactions, due to the efficiency of business transactions and common practices, there are a large number of oral contracts, and operators can often obtain distributed goods through a phone call.
2. Reasonable price. Reasonable price is one of the core factors in legally determining whether the source of a distributor's goods is legal. If the price difference of the goods is large, the distributor should be clearly aware of it, and the distributor should make further decisions on whether the goods are infringing, etc. Awareness of discrimination and careful verification.
3. Have a legal commercial invoice. The commercial invoice is an important piece of evidence proving the source of the goods sold by the dealer. In actual operations, there are also cases where some operators do not issue commercial invoices for purposes such as tax evasion. This kind of behavior is based on illegality. Once the goods sold by the dealer are infringing and cannot provide other evidence to prove that the source of the goods is legal, the dealer cannot be exempted from liability for compensation.
4. Have complete daily business records. In actual operations, some dealers often do not establish sales records for purposes such as tax evasion. Such illegal behavior does not exempt them from their legal obligations. When other evidence that the source of the goods is legal cannot be provided, business records are important evidence to determine whether the infringing goods have a legal source. Otherwise, the dealer will bear the burden of proving the inability to prove it.
The editor’s summary ends here. If you have more questions in this regard, you are welcome to consult the Legal Savior Network. The Legal Savior Network provides professional legal consulting services and a professional team of lawyers will answer your questions. Your doubts.
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