What special criminal protection does a well-known trademark have
Chapter 3, Section 7 of my country's Criminal Law "Infringement of Intellectual Property Rights" ", there are three main crimes regarding trademark infringement: the crime of counterfeiting a registered trademark, the crime of selling goods with counterfeit registered trademarks, and the crime of illegally manufacturing and selling illegally manufactured registered trademark signs - corresponding provisions are also made in the "Trademark Law" .
From the content of criminal law and trademark law, There are no special provisions regarding 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.
The necessity of granting special criminal protection to well-known trademarks
From the above analysis we can see that although in our country Under the current legislative framework, well-known trademarks can obtain criminal protection, but the objects of this protection are limited to registered well-known trademarks, and only when the registered trademark is exclusively used.Protection in the sense of rights, even if a well-known trademark is one of the registered trademarks and is given the same protection as a general registered trademark, an unregistered well-known trademark 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 the natural attributes of well-known trademarks and does not reflect the value orientation of legislation. Based on the characteristics and special value of well-known trademarks, there are laws that provide criminal protection for well-known trademarks Special protection is necessary.
First of all, compared with ordinary trademarks, well-known trademarks have higher value due to their long-term accumulation of higher popularity and reputation. At the same time, they are also more susceptible to infringement and thus cause greater losses to the rights holders. Therefore, only Well-known trademarks enjoy the same protection as general registered trademarks, which 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. Even if others use the trademark on different or similar goods, Trademarks will also cause damage to this value. Therefore, the current special protection for well-known trademarks under relevant international and national legislation is mainly to treat the use of well-known trademarks on different or dissimilar goods or services as a special category. trademark infringement and impose corresponding legal sanctions, which is the so-called "anti-dilution protection".
China's "Trademark Law" also stipulates in the second paragraph of Article 13: "Application for different or dissimilar goodsIf a registered trademark is a copy, imitation or translation of someone else's well-known trademark registered in China, which misleads the public and causes possible damage to the interests of the registrant of the well-known trademark, it shall not be registered and its use shall be prohibited." On October 72, 2002, The Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Cases passed by the Supreme People's Court: "Fa Interpretation [2002] No. 32"), Article 1, Item 2, further classifies the above-mentioned acts into Article 52 of the "Trademark Law" Item 5 stipulates "acts that cause other damage to the exclusive rights of others to register trademarks", thus identifying the use of well-known trademarks on dissimilar or dissimilar goods as trademark infringement. There is a difference between general infringement and criminal acts. Often there is only a difference in degree. If the infringement is serious, it should be treated as a crime. Then, if the behavior is 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. Give it protection similar to that of a registered trademark, so some scholars believe that "well-known" is a special channel for the generation of trademark rights.: China's "Trademark Law" stipulates in Article 13, Paragraph 1: "Apply for registration of identical or similar goods If the trademark 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 its use will be prohibited." Article 2 of the aforementioned "Fa Interpretation [2002] No. 32" treats the above behavior as "Quasi-infringement" is stipulated. Similarly, if such behavior is serious, it should also be punished 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 Confirmed by China’s current legislation.
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