What is the liability for online trademark infringement
Responsibilities of network service providers
If a network service provider knows that network users are using its network services to infringe the civil rights of others and fails to take necessary measures, it shall be liable to the network user. Joint and several liability. Article 8 of the "Regulations of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes Infringing the Right to Information Network Transmission" stipulates: "The People's Court shall determine whether the network service provider bears liability for abetting or assisting infringement based on its fault. Network Services The provider's fault includes knowing or should have known about the network user's infringement of information network dissemination rights." The condition for assuming joint infringement liability is that the network service provider specifically knows that the network user is committing direct infringement and helps the behavior. Concrete knowledge is a subjective psychological state, including known, knowing and should know. There is a difference between knowing and knowingly. Knowing should be able to prove that the actor clearly knew and acted intentionally; known means that the actor has already known it, which is indirect intentionality; should-know means to infer whether the network service provider is based on specific facts. Should know.
Liability of the actual infringer
(1) Civil liabilityFor trademark infringement that does not constitute a crime under our country’s laws, the following can be taken Civil penalty measures:
1. Stop the infringement and eliminate the impact. Stopping the infringement and eliminating the impact is the first civil liability that the infringer should bear in trademark infringement cases. It is often used in conjunction with other civil liabilities. The serious consequence of trademark infringement is to cause confusion to consumers and adversely affect the goods or services of the trademark owner. Stopping the infringement and eliminating the impact can reduce the losses of the trademark owner and restore the rights of the trademark owner in market competition as soon as possible. Location. Therefore, when handling trademark infringement cases,Infringers are usually required to bear such civil liability.
2. Compensate for losses. According to Article 56 of the Trademark Law, the amount of compensation for infringement of the exclusive right to use a trademark shall be the benefits gained by the infringer due to the infringement during the infringement period, or the losses suffered by the infringed party due to the infringement during the infringement period, including the Reasonable expenses paid by the infringer to stop the infringement. According to the relevant provisions of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases", the benefits obtained from infringement can be calculated based on the product of the sales volume of the infringing commodity and the unit profit of the commodity; if the unit profit of the commodity cannot be ascertained , calculated based on the unit profit of the Registered trademark goods; the losses suffered due to infringement can be calculated based on the reduction in sales of the goods caused by the infringement or the product of the sales volume of the infringing goods and the unit profit of the registered trademark goods; the losses incurred to stop the infringement Reasonable expenses paid, including reasonable expenses incurred by the right holder or its authorized agent to investigate and collect evidence on the infringement. The People's Court may, based on the parties' litigation claims and the specific circumstances of the case, calculate attorney's fees that comply with the provisions of relevant state departments into the scope of compensation. According to Article 56 of the Trademark Law, if the benefits gained by the infringer due to the infringement or the losses suffered by the infringed party due to the infringement are difficult to determine, the people's court shall award a compensation of not more than 500,000 yuan based on the circumstances of the infringement. This is the so-called "statutory compensation amount" system, which helps the people's court to quickly conclude the case and prevent it from being protracted, so as to protect the legitimate rights and interests of the trademark owner.
(2) Administrative responsibility
According to the provisions of Article 53 of the Trademark Law , when the industrial and commercial administrative department handles a trademark infringement case and determines that the infringement is established, it shall order the infringement to be stopped immediately, confiscate and destroy the infringing goods and tools specifically used to manufacture infringing goods and forge registered trademarks, and may impose a fine. According to Article 52 of the "Regulations for the Implementation of the Trademark Law", for infringement of the exclusive right to register a trademark, the fine amount shall be less than three times the illegal business volume; if the illegal business volume cannot be calculated, the fine amount shall be less than 100,000 yuan.
(3) Criminal liability
According to the provisions of my country's "Criminal Law", trademark crimes There are three types of illegal acts: the crime of counterfeiting a registered trademark, the crime of selling goods with counterfeit registered trademarks, and the crime of illegally manufacturing or selling illegally manufactured registered trademark signs.
(1) Requirements for the crime of trademark infringement
1. It must violate the national Trademark management system and registrars that infringe othersexclusive rights.
2. The act of infringing the registered trademark of others must be carried out, including:
( 1) Using the same trademark as the registered trademark on the same product without the permission of the trademark registrant;
(2) Forging or creating without authorization the trademark registered by others Or sell counterfeit or unauthorized registered trademark signs;
(3) Selling goods that are knowingly counterfeit registered trademarks.
The crime of infringement of registered trademark rights is based on "serious circumstances" as the standard. The so-called "serious circumstances" are as follows:
(1) Using the same trademark as the registered trademark on the same kind of goods without the permission of the registered trademark owner, and the amount of illegal income is more than 20,000 yuan;
(2) Selling goods that are knowingly counterfeit registered trademarks, and the amount of illegal income is more than 20,000 yuan; forging or unauthorized manufacturing of other people's registered trademarks or selling forged or unauthorized registered trademarks , the illegal amount is more than 10,000 yuan;
(3) Counterfeiting other people’s registered human drug trademarks;
(4) Counterfeiting other people’s registered trademarks, causing adverse social impact and international impact;
(5) Being punished by the industrial and commercial authorities for counterfeiting other people’s registered trademarks The administrative department imposes two administrative penalties and counterfeits other people's registered trademarks;
(6) Using bribery and other illegal means to promote counterfeit trademarked goods or forging or manufacturing them without authorization Trademarks registered by others.
3. The subject of trademark infringement can be a natural person or an entity. Criminal penalties for units include fines and sentences for directly responsible managers and other directly responsible personnel. The so-called "directly responsible personnel" refer to the personnel in the enterprise who directly decide, plan and sponsor counterfeit trademarks. Due to the relaxation of my country's economic policies, perpetrators of counterfeit trademarks are no longer limited to enterprises but also include individual industrial and commercial households and individual citizens.
4. The perpetrator must be subjectively intentional, that is, counterfeit other people's registered trademarks to make illegal profits, or damage the reputation of other people's trademarks, or seek toTo obtain other illegal benefits. The perpetrator has no criminal intention subjectively and does not constitute this crime. When punishing the sale of goods with counterfeit registered trademarks, it should be noted that the constituent elements of civil liability and criminal liability are different. The actor's civil liability does not require "knowingly" as a constituent element, while the actor who bears criminal liability must know that he has done so. Selling goods with counterfeit registered trademarks is an important distinction between crimes and non-crimes.
(2) Penalty
In order to punish the crime of counterfeiting registered trademarks, the National People's Representative The amendments to the "Criminal Law" passed by the General Assembly in 1997 increased the sentencing range for crimes involving trademarks. The original "Criminal Law" stipulated: "In violation of trademark management regulations, industrial and commercial enterprises counterfeit registered trademarks of other enterprises shall be directly responsible. Personnel shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or a fine." The current "Criminal Law" stipulates: without the permission of the owner of the registered trademark, using the same trademark as the registered trademark on the same kind of goods, if the circumstances are serious, or selling goods that are knowingly counterfeit Those who sell goods with registered trademarks for a relatively large amount, or who forge or manufacture without authorization the registered trademarks of others, or who sell forged or unauthorized manufactures of the registered trademarks of others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and may be sentenced concurrently or separately. A fine shall be imposed; if the circumstances are particularly serious or 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. If a unit commits this crime, the unit shall be fined, and the directly responsible supervisor and other directly responsible personnel shall be held criminally responsible.
(3) Other criminal acts related to trademark infringement
"Trademark Law" : State agency staff engaged in trademark registration, management and review must enforce the law impartially, be honest and self-disciplined, be loyal to their duties, and serve in a civilized manner. If state agency staff engaged in trademark registration, management and review work neglect their duties, abuse their power, engage in self-seeking fraud, handle trademark registration, management and review matters illegally, accept property from parties, and seek illegitimate benefits, which constitutes a crime, they shall be punished in accordance with the "Criminal Law" Articles 397, 385 and other provisions provide for criminal liability.
If readers need legal advice, welcome to the Legal Savior Network.
