There is a passage in the first paragraph of Article 1 of the Agreement on Trade-related Aspects of Intellectual Property Rights of the World Trade Organization: "A contracting party may provide broader protection in its domestic law than that required by this Agreement, as long as such protection does not violate the provisions of this Agreement, but it is not obliged to do so."
The meaning of this passage is that the object of intellectual property protection is not limited to trademarks, patents, copyrights, etc. Countries can determine some contents that need to be protected according to their own needs, such as other important features related to commodity identification, and can also protect them according to their needs. These important features include naming the country of origin, quality identification (such as labels, certification and production licenses), and the name and address of the factory. The frequent areas that provide financial resources for other criminal gangs for a long time and manufacture and sell fake goods often have underworld background, serious corruption of cadres and poison the social environment.
Generally speaking, fake and shoddy goods only account for a small part of the total social goods, but if the momentum of their development and spread is not contained, it will bring disaster to the country and the people. Therefore, cracking down on the manufacture and sale of fake and shoddy goods is not only an economic problem, but also a serious social and political problem. If fake and shoddy goods are left unchecked, there is no hope for the country.
It can be said that today's national famous brand enterprises have been forced to a critical moment of life and death by counterfeiting. In the era of brand economy, the number of well-known and famous trademarks reflects the economic strength of a country or region. Creating and protecting famous brands has become the driving force for the economic development of a country or region. China's national brands are still very immature and fragile in the face of WTO, global economic system and many internationally renowned brands. If the national legislation and administrative law enforcement departments can't give priority protection in policy and legislation as soon as possible, and fundamentally curb the illegal and criminal activities of manufacturing and selling fake and shoddy products, then tomorrow will endanger the survival of China's national industry.
1 Counterfeiting is mainly trademark infringement. Almost without exception, these counterfeit enterprises or owners rush to register trademarks that are the same as or similar to well-known and famous trademarks. When they were investigated and dealt with by law enforcement officers, they prevaricated with the acceptance certificate of trademark agency, which made the anti-counterfeiting work give up halfway because it was difficult to identify infringement (in Guangdong, Sony and anti-counterfeiting law enforcement agencies were in an extremely embarrassing situation because they registered trademarks similar to Sony successfully). Counterfeits that are difficult to distinguish between trademarks and packaging and decoration are also found from time to time, but it is more difficult to find dens. The state has promulgated many laws and regulations on counterfeiting, but the definition of counterfeiting is still vague, the provisions are too principled and lack of operability, and there are many loopholes for offenders to evade sanctions. On the one hand, it has brought great difficulties to administrative law enforcement and judicial personnel's law enforcement; on the other hand, because of its broad nature and discretion, it has given some law enforcement personnel too many reasons for "not acting according to law" (in essence, bending the law). What kind of illegal crime is it to produce and sell fake and shoddy products? What is the difference between its social harmfulness and killing people for money? How should the law punish this illegal crime? Does law enforcement in a legal society deal with contradictions among the people or between ourselves and the enemy?
2. Law enforcement officers are not afraid to complain about enterprises, because law enforcement departments are in charge of both market access and market supervision. Famous enterprises operate in the sun, but they don't look up. However, law enforcement officers are afraid that the fake company will sue, even if it is definitely not lost, they will worry that the normal work order will be messed up. Many punished offenders are indifferent to law enforcement departments, and law enforcers are often helpless; After more offenders are punished, they will act immediately to make up for the confiscated losses by manufacturing and selling more fake and shoddy products. The current law's punishment for counterfeiting and selling fakes is not enough to produce warning and prohibition.
3. Law enforcement departments are restricted by administrative law enforcement procedures, but it is actually very difficult to obtain evidence on the spot, not to mention the intensity of counterfeiting. The complainant is not qualified to enter the fake scene. Can the complainant rest assured? Many counterfeit finished product packages can be exempted from inspection because they are "unrecognizable" or "not suspected of infringement". Some even have to identify, and the complainant just ate the reassurance of "Don't worry, it's all closed to us". Unexpectedly, fakes will be transported out in a car in the dead of night, and only the "mice" and "cats" involved in the case know this well.
4. Some law enforcement departments do not accept the claim of the infringed enterprise, that is, they have accepted it. The amount of compensation is negotiated, there is no basis for discretion according to law, and there is no seriousness of punishment, sanctions and so-called compensation. By the end of last year, the Union had drawn up a joint judicial procedure for the industry, made a number of influential collective claims for intellectual property rights, and achieved decisive results in cracking down on "Huadu Machine". But as it turns out, the key is that it is extremely difficult to obtain evidence, and there is still a lot of helplessness in law. We are worried that the amount of compensation decided by the court is not enough to deal a heavy blow to counterfeiters, and the amount of compensation cannot be put in place, which will eventually lead enterprises to spend a lot of energy and financial resources, but counterfeiters are crazy about counterfeiting, and the effect is counterproductive. There are too many similar lessons!
5. Should the law enforcement departments check the complaint documents submitted by enterprises, when and what the investigation results are, and should they give a clear answer? Some law enforcement departments have a lot of complaints about the complainant's Penalty Decision, so they can only read it and refuse to copy it on the grounds that they have "taken what you want to sue me". There is no evidence for the complainant to go to court to sue the counterfeiters.
6. Most of the counterfeit products investigated have no real factory name and address, which not only leads to trademark infringement, but also seriously violates the Anti-Unfair Competition Law and the Product Quality Law. However, some law enforcement officers often evade the importance or seal it on the spot, which is ineffective. Or just destroy the packaging and return the product (infringement cannot be stripped), or even ask the complainant to buy the confiscated product. Others are said to have useful value and should be auctioned. As a result, some of them returned to the seller's hands, and the confiscated fake and shoddy DVD players were finally sold to consumers. It should be said that pirated CDs are also valuable, which will not make consumers feel cheated like many counterfeit products, but also have problems such as security risks and service life. But why do these pirated CDs always have to be destroyed and never auctioned? !
7. The members of our anti-counterfeiting alliance (famous enterprise anti-counterfeiting and rights protection cooperation network) are all well-known enterprises, and their infringed trademarks are unknown but well-known. To this end, our alliance submitted a joint complaint report to the law enforcement department of Guangdong, the source of fraud. However, the local law enforcement agencies only investigated and dealt with the infringement of the complaining enterprises on the spot. Some law enforcement officers turn a blind eye to other infringing and counterfeit products found on the spot, whether infringing well-known trademarks or key protected trademarks. If the complainant present informs other infringed persons to be present, these administrative law enforcement officers also scold you for meddling. Therefore, members of the anti-counterfeiting alliance had to rush to the scene as soon as possible, but the complainant was driven away when no infringing products were found at the scene. 1. There are many laws related to counterfeiting in China, and there are also many departments that implement these laws, each acting in its own way. Take industrial and commercial administration as an example: the inspection department is generally responsible for counterfeiting, and there are also some full-time counterfeiters, but its superior business guidance department, the Fair Trade Bureau, implements the Anti-Unfair Competition Law, while infringement and counterfeiting involves the Trademark Law. There are few people in the trademark department at the grassroots level, and many of them don't handle cases at all; This kind of joint anti-counterfeiting is guided by the consumer protection department, and the consumer rights protection law is implemented, and the grassroots processing power is weaker. Peer companies are competitors in the positive market and should jointly crack down on counterfeiting. It is manufacturers and sellers who bind famous brand enterprises together. Joint efforts can attract the attention and support of the government, society and the public, increase the intensity of anti-counterfeiting and reduce the anti-counterfeiting costs of law enforcement departments and enterprises, but some law enforcement officers are reluctant; The State Council organized various departments to jointly crack down on counterfeiting, requiring media publicity and supervision by public opinion. Some law enforcement officers do not welcome others to be present, but prefer to crack down on counterfeiters alone. Is it suspected that black-box operation is convenient?
2. The most basic law enforcement unit is the industrial and commercial office, which is responsible for both market access and market supervision. In the primary stage of market economy, the manufacture and sale of fake and shoddy products represent vested interests in all aspects, and it is difficult for us to accuse them of perfection, so how much hope can we place on their strict law enforcement? In the storage yard of a famous counterfeit electrical appliance market in Guangzhou, the signboard of "XXX Industrial and Commercial Bureau Market Branch" is hung high. Every time it passes by, it is particularly eye-catching. Look at the scale of fake sales in that market. I wonder if there are any administrative law enforcement personnel in this market branch? Why are fake factories in Guangzhou, Chengdu, Shijiazhuang, Linyi, Hangzhou and Yiwu, especially in Guangzhou and Shenzhen, flooding for a long time? How do local grass-roots law enforcement departments usually master market access and how do they supervise it? "Local protection" has become a beautiful amulet. Therefore, the complainant had to avoid the grass-roots law enforcement departments and try to find a higher-level law enforcement department. The experience of counterfeiting tells us that the more you go to the grassroots level, the more inexplicable "accidents" will occur.
3. If any law enforcement department fails to crack down on counterfeiting, it is bound to be unfair in law enforcement, lax in supervision, indifferent to the phenomenon of counterfeiting and selling fakes, and corruption exists in direct management personnel. Last September, our alliance asked the quality supervision department to crack down on counterfeiting in a city in Central China. They were besieged three times for counterfeiting, and even some law enforcement officers were injured, and asked the top leaders of the provincial bureau to fight after they arrived. When the head of the provincial bureau really came to the scene, many cadres persuaded: "Don't go too far, enough is enough, after all, it is a contradiction among the people" and so on. What we know is that there is a billboard "Products recommended by Hengyang Technical Supervision Bureau" in a prominent position in this market. There are no national famous brands on the list, but there are many counterfeit brands for the simple reason that they can buy them with money. However, when the local distributors of our alliance members complained to the market management department of the bureau and asked for counterfeiting, they refused to accept it. 3. Local protection and interest groups are hotbeds for manufacturing and selling fake goods. Assessing the political achievements of local government chief executives with economic indicators such as fiscal revenue and gross national product will inevitably breed local protectionism that ignores legal dignity and national interests.
In order to complete the primitive accumulation of local economy, the chief executives and law enforcement departments in some places secretly support smuggling and counterfeiting, which has become a hotbed of gray economy. Of course, the local economy will also show a certain prosperity for a period of time. This demonstration effect has inspired other regions to follow suit. In this case, it is difficult for an official to rely on fair mechanism and the principle of sustainable development to realize local economic development. As the local leaders said, the economic pillar of a district (formerly a county-level city) in Guangzhou, Guangdong Province is mainly the production of small-scale electrical appliances by private individuals. In a sense, the local economy is essentially a gray economy. Officials from Guangdong Bureau of Quality and Technical Supervision have pointed out that there are problems in the guiding ideology of leaders and government functional departments in this regard, which is the reality of local protection on the grounds of developing local economic pillars (conversation when receiving complaints from our League). When the central media exposure in the case of mastering the real evidence (CCTV Oriental Time and Space February, 1999, etc. ), the relevant departments of the local government not only publicly published articles that distorted the facts, but even organized counterfeiters to take photos with their right hands under the signboard of the private enterprise association of the city, and published the photos everywhere (Science and Technology Daily, February, 1999). In its commitment letter to 2 1 century, there are still quite a few contents of infringing and counterfeiting the trademark rights of others (Science and Technology Daily); The legitimate enterprises advertised at the press conference hosted by the local government are actually the largest local counterfeiting enterprises; The rectified and qualified enterprises announced to reporters at the press conference were still producing and selling infringing products the next day (CCTV Legal Report, Guangdong Satellite TV, Guangzhou TV News, June 5438 +2000 10).
After this problem was exposed and investigated, many new similar infringing enterprises around were approved for registration, and their arrogance was almost lawless. In 2000, two vice mayors in charge of economy were punished by law for economic crimes (Guangdong Local Daily, 2000). However, the illegal economy supported by the local government and its interest groups have not been investigated more extensively and deeply. Most of the large markets dominated by individual and private enterprises have the background of government investment. In order to recover investment as soon as possible, some local governments even give ordinary civil servants the task index of attracting investment. In this situation, market access and supervision become a form, coupled with the implementation of the tax system, mainly cash transactions, these markets have become a paradise for smuggling, counterfeiting, trademark infringement, money laundering, tax evasion and other illegal crimes. What's so strange about it? !
Counterfeiting has become the most inefficient and inefficient work in all enterprises. The process of counterfeiting is like a "cat and mouse game", which enterprises can't afford to play. Corporate counterfeiters are messengers who suffer indignities both inside and outside, and they are the most insecure and anxious occupations. No wonder some members of the alliance have given up their anti-counterfeiting work. They think that enterprises have gone too far in counterfeiting.