1. my country’s current legislation on the criminal protection of well-known trademarks
Article 1 of my country’s Criminal Law In Chapter 3, Section 7 "Crime of Infringement of Intellectual Property Rights", there are three main crimes of trademark infringement: the crime of counterfeiting registered trademarks, the crime of selling goods with counterfeit registered trademarks, and the crime of illegally manufacturing and selling illegally manufactured registered trademarks - Corresponding provisions are also made in Article 59 of "".
Judging from the content of the criminal law and trademark law, there are no special provisions on well-known trademarks. Although in practice "less well-known trademarks are generally not infringed by these criminal acts, it is often the more well-known trademarks that are infringed. Therefore, these regulations actually protect mostly trademarks that are well-known to the public or well-known trademarks." "However, this is not the direct purpose of the legislation and does not reflect the value orientation of providing special protection to well-known trademarks.
Among other relevant legal documents, only the "Regulations of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards for Economic Crime Cases" issued on April 18, 2001 (hereinafter (referred to as "Pursuit Standard"), in the third item of "61. Counterfeiting of Registered Trademark Cases", it is stipulated that "whoever counterfeits well-known trademarks or human drug trademarks", in "63. Illegal manufacturing and sales of illegally manufactured registrations" The second item of the "Trademark Case" stipulates "illegal manufacture and sale of illegally manufactured well-known trademarks". It is worth noting that, unlike counterfeiting general registered trademarks, illegally manufacturing, and selling illegally manufactured general registered trademark signs, there are no restrictions on the quantity, amount or frequency of the above-mentioned acts against well-known trademarks, that is, as long as the above-mentioned acts are carried out against well-known trademarks, Criminal prosecution is possible regardless of the circumstances. In other words, when the object of the above-mentioned crime is a well-known trademark, it changes from a "result crime" to a "behavior crime". This may be the only special provision on well-known trademarks in my country’s criminal legislation so far..
However, the provisions of the "Standards for Prosecution" have also caused some confusion in practice. There is no minimum amount for criminal liability for violations of trademarks or human drug trademarks, which may easily lead others to believe that all illegal acts of counterfeiting other people's well-known trademarks or human drug trademarks, regardless of the severity of the case, should be investigated for criminal liability... ” (Similar problems actually exist in Article 63, Paragraph 2). Therefore, in February 2002, the Economic Crime Investigation Bureau of the Ministry of Public Security, the Trademark Office, the Bureau of Fair Trade and the Coordination and Management Department of the State Intellectual Property Office of the State Administration for Industry and Commerce, in the "Meeting Minutes" of the first joint working meeting of the year, stated that " It is recommended that the Ministry of Public Security consult with the Supreme People’s Procuratorate to further supplement the specific application of this provision.”
In order to further strengthen the protection of intellectual property rights and punish criminal activities that infringe on intellectual property rights in accordance with the law, the Supreme People's Court and the Supreme People's Procuratorate announced their implementation on December 21, 2004. "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement" ("Fa Interpretation [2004119")), which significantly lowers the prosecution standards for criminal infringement of trademark exclusive rights, but does not specifically address well-known trademarks. It stipulates that "whether the infringement of a well-known registered trademark or an infringement of a general registered trademark is a crime, the amount shall prevail." This actually amends the special provisions on well-known trademarks in the "Prosecution Standards". Although the implementation of the "Interpretation of Laws [2004 No. 9" does not mean the abolition of the "Standards for Prosecution", from the perspective of timeliness and authority, it is obvious that the provisions of this interpretation should be applied first. In this way, the only special provision on well-known trademarks in my country's criminal legislation has actually existed in name only.
2. The necessity of granting special criminal protection to well-known trademarks
From the above analysis, we can see that although well-known trademarks can obtain criminal protection under my country's current legislative framework, the objects of this protection are limited to registered well-known trademarks, and it is protection in the sense of the exclusive right to register a trademark. Even if a well-known trademark As a registered trademark, it is given the same protection as a general registered trademark. Unregistered well-known trademarks cannot obtain any criminal protection. In this way, my country's current legislation has no particularity in the criminal protection of well-known trademarks. Although some people believe that because well-known trademarks have higher value than ordinary trademarks, the price of goods or services using well-known trademarks is relatively higher than the price of goods or services using ordinary trademarks, so it is easier to infringe on well-known trademarks. Meeting the criteria for conviction, this actually reflects the special protection of well-known trademarks. "But the author believes that this so-called "special protection" is caused by well-known trademarksIt is caused by the natural attributes and does not reflect the value orientation of legislation. Based on the characteristics and special value of well-known trademarks, it is necessary to provide special criminal protection to well-known trademarks in legislation.
First of all, compared with ordinary trademarks, well-known trademarks have higher value due to their long-term accumulation of high visibility and reputation, and are also more vulnerable to infringement. And thus cause greater losses to the right holder. Therefore, simply giving well-known trademarks the same protection as general registered trademarks is not enough to effectively deter criminal activities that infringe on well-known trademarks.
Secondly, a well-known trademark has a relatively independent value that transcends the category of goods or services based on its "well-known" characteristics. The use of the trademark on similar goods will also cause damage to such value. Therefore, the current special protection for well-known trademarks in relevant international and national legislation is mainly reflected in treating the use of well-known trademarks on different or dissimilar goods or services as a special type of behavior and imposing corresponding legal sanctions, which is the so-called "anti-dilution protection". China’s Trademark Law also stipulates in Article 13, Paragraph 2: “A trademark applied for registration for different or dissimilar goods is a copy, imitation or translation of a well-known trademark that has been registered in China by others, misleading the public, and causing the well-known person to mislead the public. If the interests of the trademark may be harmed, registration shall not be granted and use shall be prohibited.” In the Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Trademarks adopted by the Supreme People’s Court on October 72, 2002: Legal Interpretation [2002] 32 No. 1), paragraph 2, further classifies the above-mentioned behavior into "behavior causing other damage to others' exclusive rights to register trademarks" stipulated in Article 52, paragraph 5, of the Trademark Law. The use of a well-known trademark on similar goods is determined to be trademark infringement. The difference between general torts and criminal acts is often only degree. If the infringement is serious, it should be punished as a crime. Then, if the circumstances of such behavior are serious, it should also be regarded as a crime and be held criminally responsible.
Thirdly, for unregistered well-known trademarks, relevant international and national legislation generally adopts the "usage doctrine" principle and gives them protection similar to registered trademarks. Therefore, some scholars believe that , "well-known" is a special channel for generating trademark rights. : my country's "Trademark Law" stipulates in Article 13, Paragraph 1: "If a trademark applied for registration on the same or similar goods is a copy, imitation or translation of someone else's well-known trademark that has not been registered in China, and is likely to cause confusion, it will not be registered. and prohibited from use", and the above-mentioned acts are stipulated as "quasi-infringement acts" in Article 2 of the aforementioned "Fa Interpretation [2002] No. 32". Likewise, if such behavior is serious, it should also be treated as a crime and given criminal sanctions. As for whether unregistered well-known trademarks should be given "anti-dilution protection", there is still controversy in the academic circles, and it has not yet been established for our country.Confirmed by current legislation.
