What are the elements of the crime of counterfeiting registered trademarks
Subjective elements
1) The criminal subject of this crime is a general subject, that is, any enterprise, institution or individual who counterfeits the registered trademark of others, and the circumstances meet the criminal standards, shall be deemed to be guilty of this crime.
2) The object of infringement by this crime is the legal exclusive right to use registered trademarks of others and the national trademark management order;
3) The subjective aspect of this crime is intentional and for the purpose of profit. Negligence does not constitute this crime.
4) The objective aspect of the crime is that the perpetrator committed trademark counterfeiting prohibited by the criminal law, and the circumstances were serious.
It is the state’s trademark management system and the exclusive right to register trademarks of others. The object of this crime is someone else’s registered trademark. The so-called trademark refers to the words, graphics, letters, numbers, three-dimensional logos and colors or other trademarks used by natural persons, legal persons or other organizations on the goods they produce, manufacture, process, select or distribute or the services they provide. A combination of visual signs with distinctive characteristics that can distinguish its goods or services from those of others. China adopts the registration principle to obtain exclusive rights to trademarks, that is, the ownership of trademark rights is determined based on the order in which registration is applied for. That is, whoever applies for trademark registration first will be granted the trademark rights. Due to the registration principle, only registered trademarks are protected by the Trademark Law, and unregistered trademarks are not protected. In China, registered trademarks can be classified differently according to different standards: according to the objects for which the trademarks are used, Chinese trademarks can be divided into two categories: commodity trademarks and service trademarks; according to the components of trademarks, Chinese trademarks can be divided into Word trademarks, graphic trademarks, letter trademarks, digital trademarks, three-dimensional logo trademarks, color combination trademarks and combination trademarks; according to the common trademark types in the Chinese trademark registration application form, trademarks can be divided into three types: general trademarks, collective trademarks and certification trademarks kind. According to Article 213 of the Criminal Law, the crime of counterfeiting registered trademarks only includes commodity trademarks, not service trademarks.
Objective requirements
It is a serious act to use the same trademark as the registered trademark on the same product without the permission of the registered trademark owner. Specifically, the objective aspects of this crime include the following points:
1. Without the permission of the registered trademark owner
According to the provisions of the Trademark Law, the trademark owner can allow others to use its registered trademark on its goods. Without permission, you may not use the same or similar trademarks as others' registered trademarks on the same or similar goods. This is one of the contents of the exclusive right to register a trademark. Failure to obtain the permission of the registered trademark owner includes the following specific situations: The perpetrator has never obtained the permission of the registered trademark owner to use the registered trademark. That is, the trademark owner has not permitted the perpetrator to use its registered trademark at any time or in any way; although the perpetrator has obtained permission to use the registered trademark from the owner, he continues to use the registered trademark after the expiration of the use period stipulated in the license contract. The trademark of the owner; although the perpetrator once obtained the license from the owner of the registered trademark, the license contract was terminated early due to reasons such as the licensee's inability to guarantee the quality of the goods using the trademark, and the perpetrator continued to use the trademark after the contract was terminated. Registered trademark; Although the perpetrator has obtained the permission to use the registered trademark from the owner, it uses it beyond the scope of goods for which the registered trademark is permitted to be used; Although the perpetrator has obtained the permission to use the registered trademark from the owner, it uses it beyond the geographical scope for which the registered trademark is permitted to be used. .
2. Use in commercial activities
In the same product For use in communication with others, exhibitions and other commercial activities. It can be seen that according to this provision, the use of trademarks should also include use in advertising, exhibitions and other commercial activities.
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