1. The crime of counterfeiting registered trademarks
According to Article 200 of the Criminal Law Article 13 stipulates that the crime of counterfeiting registered trademarks targets registered trademarks. However, there are currently disagreements among my country’s criminal law theorists on whether the crime of counterfeiting registered trademarks includes service trademarks. The author believes that the crime of counterfeiting registered trademarks should include service trademarks. Service trademarks, also called service marks, are special marks used by service industry operators to distinguish the services they provide from the same or similar services provided by others. According to the provisions of the Trademark Law, owners of commodity trademarks and service trademarks have the same rights to their registered trademarks and receive equal protection by law.
At the same time, protecting service trademarks has also become a world trend. The TRIPS Agreement requires each member party to establish criminal procedures and penalties to punish intentional counterfeiting of trademarks on a commercial scale. Among them, counterfeiting of trademarks includes counterfeiting registered service marks.
However, providing criminal law protection to registered service marks is only the status quo of criminal law. At present, my country's "Criminal Law" uses "on the same kind of goods" when describing the composition of this crime. In the literal sense, "goods" are indeed different from "services", so it is understood that the criminal object of this crime should be limited to goods. Trademarks, but not service marks. Obviously, there is an omission in the criminal legislation on this point. According to the principle of statutory crime and punishment, if service trademark is used as the object of the crime, it will violate this basic principle of the Criminal Law. Therefore, the author believes that it is necessary to make up for and improve it through the revision of the Criminal Law.
2. Determination of “using the same trademark as another’s registered trademark on the same kind of goods”
">There are different views in the criminal law community on how to identify the "same product" in the crime of counterfeiting registered trademarks: The first view is "the same product", which refers to the function, use, production department, sales channel, consumer object, etc. Goods that are identical in aspects, or goods that are generally considered to be the same by relevant consumers, should be identified using the Nice Agreement International Classification and combined with relevant consumers’ general understanding of the goods.Make comprehensive judgments. The second point of view is that the "same kind of goods" should be based on the goods for which the registered trademark is used as the reference goods, based on the "International Classification of Goods and Services for Trademark Registration", with the common name and purpose of the goods as the main criteria, and at the same time, Factors such as the main raw materials, consumer targets, and sales channels of the product should be considered. The author believes that the reference goods for identifying "the same kind of goods" should be the goods for which the registered trademark is approved. To judge whether the goods to be identified and the reference goods belong to the same kind of goods, the national statutory commodity classification table, namely "Goods and Services for Trademark Registration" should be used. "International Classification List" is the standard. The reasons are as follows:
First of all, to judge the same product, it is necessary to determine the reference product of the same product. The Trademark Law clearly stipulates that the exclusive right to register a trademark is limited to the approved registered trademark and the approved goods for use. Therefore, to judge the same product, we must first use the product for which the registered trademark is approved as the reference product.
Secondly, to determine whether the goods to be identified and the reference goods belong to the same kind of goods, the national legal commodity classification table, that is, the Nice Agreement Classification, should be used as the standard, that is, my country has joined The "International Classification of Goods and Services for Trademark Registration" commonly used after the Nice Agreement is the standard.
Thirdly, the comprehensive standard is based on consumers' general understanding of the product or the Nice Classification, with reference to other factors. The author believes that the "International Classification of Goods and Services for Trademark Registration", as a standard for goods for trademark registration, is formulated precisely to distinguish different types of goods. As a norm, it must be determined based on ordinary people's general rules of thumb. The basis for the boundary between one kind and another. The consumer's general cognitive experience of the product is based on the consumer as a normal person or an ordinary person as the normative evaluation object. Therefore, consumers' general cognitive experience of the product should be the same as the general cognitive experience of ordinary people on which the normative boundaries are formulated. In other words, if consumers are ordinary people set by the norms, using the "International Classification of Goods and Services for Trademark Registration" as the standard and using consumers' general cognitive experience as the standard are actually the same judgment method, both based on general recognition. It is known that experience is the standard because the former is objective, clear, and direct through norms, while the latter is subjective, difficult to determine, and complex and changeable. Therefore, it is more scientific to use the former as the standard.
How to determine the same trademark "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement" stipulates in paragraph 1 of Article 8 : The "identical trademark" stipulated in Article 213 of the "Criminal Law" refers to one that is exactly the same as the counterfeited registered trademark, or is basically visually indistinguishable from the counterfeited registered trademark and is enough to mislead the public. trademark. According to this explanation, "identical trademarks" can be divided into two types, one isExactly the same trademark and another essentially identical trademark. So how to determine "basically the same"? The author believes that the following issues should be clarified:
First of all, we should determine what "basically no difference" means and whether "basically no difference" refers to counterfeiting Compared with the registered trademark of the right holder, there is basically no difference in the glyph, pronunciation, meaning or popular composition and color of the characters, or the overall structure of the combination of its various elements, or there is basically no difference in the three-dimensional shape or color combination.
Secondly, how to judge "sufficient to mislead consumers"? The so-called "sufficient to mislead" means that it is sufficient to cause consumers to misunderstand the source of the goods, or to create misunderstandings. There is a misunderstanding that there is some special connection between the party and the trademark registrant.
Again, determine the "basically the same" criterion. It is generally believed that there are two standards: the first is the expert standard, which is a scientific identification based on the cognitive level and practical experience of relevant experts; the second is the standard based on consumers’ usual identification ability, that is, based on the common identification ability of most consumers. Under normal circumstances, as long as the recognition ability and general experience are enough to cause most consumers to mistakenly think that they are the same trademark, they can be regarded as the same trademark. However, there are certain flaws in these two standards. If ordinary consumers are used as the standard, the judgment standard is too broad due to insufficient attention of ordinary consumers, and it is possible that different trademarks will be identified as the same trademark; if relevant experts are used as the standard If the standard is too high, the judgment standard will be excessively raised. Because experts are more professional and their attention is too high, the standard will be too strict, and it is possible to identify basically indistinguishable trademarks as different trademarks. Therefore, the author believes that the general attention of relevant consumers should be used as the standard. Relevant consumers refer to consumers who are in contact with a certain type of goods marked by a trademark. Such consumers know more about the goods than ordinary consumers and have more say; while ordinary attention is neither too strict nor too strict. It would be too sketchy. Only by focusing the attention of relevant consumers can we judge more comprehensively and fairly whether two trademarks are "substantially identical" trademarks.