The crime of counterfeiting registered trademarks refers to the serious act of using the same trademark as the registered trademark on the same product without the permission of the registered trademark owner. In practice, difficult problems in the crime of counterfeiting registered trademarks are mainly reflected in the different understandings of the same product, the same trademark, and the execution of this crime. This article combines the relevant provisions of criminal law and trademark law, uses the relevant principles of criminal law and trademark law, and attempts to put forward its own superficial views on the above three issues from the perspective of departmental criminal law, for the benefit of colleagues in the teaching field.
1. Identification of the same kind of goods
The same kind of goods and similar goods are important concepts in trademark law. Taking the goods for which the registered trademark is approved as a reference, there are three categories of goods, namely, the same kind of goods for which the registered trademark is used, similar goods for which the registered trademark is used, and other goods. Therefore, there are two corresponding boundaries, namely The boundary between the same commodity and similar commodities, and the boundary between similar commodities and other commodities. The focus of research in trademark law is on the boundary between similar goods and other goods, but not more attention is paid to the boundary between the same goods and similar goods. This is determined by the scope of protection of trademark exclusive rights. The scope of protection of trademark exclusive rights is also the scope of trademark prohibition rights. According to the provisions of the Trademark Law, a trademark registrant has the right to prohibit others from using the same or similar trademarks as its registered trademark on the same or similar goods without its permission. rights. Specifically, the trademark registrant has the right to prohibit the following four behaviors: (1) Using the same trademark as its registered trademark on the same product without the trademark registrant’s permission; (2) Without the trademark registrant’s permission, The act of using a trademark that is similar to its registered trademark on the same kind of goods; (3) The act of using the same trademark as its registered trademark on similar goods without the permission of the trademark registrant; (4) The act of using the same trademark as its registered trademark on similar goods without the permission of the trademark registrant; The act of using a trademark that is similar to its registered trademark on similar goods. The above four behaviors are also the behaviors of counterfeiting registered trademarks under the Trademark Law. As long as the perpetrator performs any of the above behaviors, it will constitute infringement. From the perspective of determining trademark infringement, strictly distinguishing the same product from similar products does not have much practical significance. Even if the relevant products cannot be determined to be the same product, they can still be determined to be similar products. Therefore, the trademark law does not pay more attention to the study of the same kind of goods. The research focuses more on the issue of similar goods and the boundary between similar goods and other goods, rather than the boundary between the same kind of goods and similar goods. However, since the condition for establishing the crime of counterfeiting a registered trademark under my country’s criminal law is that the perpetrator must use the same trademark as another’s registered trademark on the same kind of goods, the same kind of goods has become an important issue in determining whether it is a crime or not to counterfeit a registered trademark. The issue of the boundary between the same kind of goods and similar goods has become prominent in criminal law and has become a problem that criminal law has to solve.
So, what is the same product? There are different views in theory. Some scholars believe that the same kind of goods refers to the exact same goods or goods of the same variety or goods with the same trade name, which are basically the same in nature and use; other scholars believe that the goods should be classified according to their raw materials, shape, Judging from performance, use and other factors as well as habits, the same product generally refers to the product with the same name, or the product has different names but refers to the same product. Some commodities have different raw materials and appearance, but considering the consumer situation, the two are essentially the same and should be regarded as the same commodity. For example, bicycle frames, bars, wheels, and rims have different uses, but they should also be considered the same product in terms of bicycle parts. The above-mentioned various views define "the same commodity" from different angles, and each has certain truths, but there are also areas worthy of discussion. The main shortcoming of them is that they do not distinguish between two levels of issues. First, when analyzing and judging the same commodity, we must first solve the problem of the commodity involved in the case (hereinafter referred to as the "to-be-identified commodity") and which commodity belongs to the same commodity, that is, to solve the problem of reference commodities for judging the same commodity. . Second, what criteria should be used to judge that the "product to be identified" and the "reference product" are the same product.
(1) To identify the reference goods of the same kind of goods, they should be the goods for which the registered trademark is approved.
The first problem encountered in judging the same kind of goods is to identify the reference goods of the same kind of goods. question.
Because the so-called same kind of commodity must mean that the commodity involved in the case belongs to the same kind as a certain commodity. Only when compared with a certain commodity can it be said to be the same kind of commodity. That is to say, the identification must first be determined. Reference products of the same product. In this regard, the above-mentioned views do not explain the reference commodities for identifying the same commodity. Therefore, there is no premise for judging the same commodity. For example, some of the above-mentioned opinions believe that the same kind of commodity refers to the exact same commodity, or refers to the commodity with the same performance, use and raw materials. It is not clear whether it is the same as the goods for which the registered trademark is approved, the goods for which the registered trademark is actually used, or the goods for which the trademark owner applies for registration. In practice, the goods approved for use of a registered trademark may include a variety of goods, and the trademark registrant may actually only use its registered trademark on one of the goods. If the perpetrator counterfeits several other goods among the goods approved for use, whether Can it also be regarded as the same product? For example, if a trademark registrant registers a trademark on vehicles and land, air and sea carriers in Class 12 of the International Classification of Goods and Services for Trademark Registration, the approved product is a bicycle in the similar group 1204 of Class 12. Tricycles and their parts are similar to wheelchairs, trolleys and children's strollers in the 1206 product group. However, since the registrant registered the trademark, it has not produced tricycles, trolleys, wheelchairs and children's bicycles. It has only used its registered trademark on bicycles and their parts. The perpetrator has only used the registered trademark on the tricycles and trolleys it produced. People's trademarks. Bicycles, tricycles and handcarts are obviously not the same commodity. If the goods approved for use are used as the reference goods for identifying the same goods, then if the perpetrator uses someone else's registered trademark on the tricycle or handcart, he is using the registered trademark on the same kind of goods. If the circumstances are serious, it constitutes a crime; if the goods actually used by the registrant are used as the reference goods, then the perpetrator using someone else's registered trademark on a tricycle or trolley is not using a registered trademark on the same kind of goods, and it does not constitute a crime. .
We believe that the purpose of identifying identical goods is to protect the trademark registrant’s trademark rights. According to the provisions of my country's Trademark Law, the exclusive right to register a trademark is limited to the goods approved for use and the trademark approved for registration. Therefore, the reference goods for the same kind of goods should be the goods approved for use by the registrant. The trademark registrant's use of the registered trademark in daily production and operation is limited to the following situations: (1) The registered trademark is used on all types of goods approved for use; (2) It exceeds the scope of the goods approved for use. Use the registered trademark on other goods that have not been approved for use; (3) Use the registered trademark on one or certain types of goods among the goods approved for use, that is, the goods actually using the trademark are only part of the goods approved for use. ; (4) The goods actually using the trademark are only part of the approved use of the registered trademark, and at the same time they exceed the scope of the approved use of goods, and the registered trademark is used on other goods that have not been approved for use, that is, the third and fourth situations are both have.
In the first case, the reference product for judging the same product should be the product approved for use by the registrant, and there is no objection to this. In the second and fourth cases, the registrant's use of his registered trademark on goods other than the approved goods is an illegal act of passing off a registered trademark. Not only is it not protected by law, it should also be stopped by the local industrial and commercial administration department. , make corrections within a time limit, and may be notified or fined. Therefore, of course, when judging the same product, the product actually used outside of the approved use product cannot be used as a reference product. Otherwise, it means that the trademark registrant's use of the registered trademark on goods other than the goods for which it is approved will be legally protected. When the third type of registrant only uses a registered trademark on some of the goods approved for use, when judging the same product, whether it should be based on the actually used goods or the goods approved for use. We believe that the approved product should still be used as the reference product for judging the same product. The perpetrator used the same trademark as his registered trademark on the same product without the permission of the trademark registrant. Although the registered trademark has not been actually used on the product, the perpetrator's behavior still infringed upon the trademark registrant's rights. Legal rights have also caused consumers to misunderstand and deceive consumers.
The Trademark Law clearly stipulates that the exclusive right to use a trademark is limited to the approved registered trademark and the goods approved for use, rather than to the approved registered trademark and the goods actually used. If only the goods actually used by the trademark registrant are used as reference goods to judge whether the goods are identical, it means that the exclusive right to use the trademark on goods that have not been actually used will not be protected. In practice, there are a large number of backup trademarks and defensive trademarks, but these trademarks are often not actually used in practice. If the goods actually used by the trademark registrant are used as a reference, legal protection cannot be given to backup trademarks and defensive trademarks. Naturally, it infringes upon the legitimate rights and interests of trademark registrants, and the establishment of such a trademark system loses its meaning, for one. Secondly, whether it is a backup trademark or a defensive trademark, when applying for registration, it is necessary to make an announcement to disclose the trademark pattern and approved products to the society and consumers. Therefore, although the trademark registrant has not actually used the registered trademark on the relevant products, Trademark, if others use the same trademark as its registered trademark on this type of goods, it will cause consumers to misunderstand the source of the goods, deceive consumers, and harm their interests. Especially for defensive trademarks, the trademarks being defended are generally well-known trademarks. Some countries also clearly stipulate that the trademarks being defended must be well-known trademarks. Because well-known trademarks are well-known and have great social influence, even if the well-known trademark is used on other goods, it may cause Consumers may be misled, which is why many countries extend the protection scope of well-known trademarks to goods other than the same or similar goods for which they are approved.
(2) Comprehensive standards should be used to determine whether the product to be identified and the reference product are the same product
After solving the problem of determining the reference product of the same product, it is necessary to further solve the basis for determining whether the product is the same product. What criteria are used to determine whether the goods to be identified and the reference goods are of the same type? We believe that when judging the same goods, the "International Classification of Goods and Services for Trademark Registration" should be used as the basis, and the common name and purpose of the goods should be used as the main criteria. At the same time, the main raw materials, consumer objects, sales channels, etc. of the goods should also be referred to. factor. If the goods to be recognized belong to the same kind as the reference goods, then they belong to the same category in the International Classification of Goods and Services for Trademark Registration, and their common names and uses should also be the same. Therefore, when judging whether the goods to be identified and the reference goods belong to the same kind of goods, you should first determine which category of the 34 categories of goods in the commodity classification table the reference goods belong to, what are their common names and uses, and then judge whether the goods to be identified are. Also belongs to this category, and its common name and purpose are also the same. If two products belong to the same category in the product classification table and have the same name and use, they are considered the same product. Below we will evaluate whether the bicycle frames, bars, wheels, and rims cited above belong to the same product to further explain how to identify the same product. First, if the goods for which the registered trademark is approved are bicycle accessories such as frames, bars, wheels, and rims for Class 12 bicycles, then the perpetrator will not use the trademark on the frame, bars, wheels, or rims. Any trademark that is identical to this trademark belongs to the use of the same trademark as its registered trademark on the same goods. If the circumstances are serious, it constitutes a crime. Second, if the goods for which the registered trademark is approved are Class 12 complete bicycles, then although the frames, bars, wheels, etc. for bicycles belong to the same Class 12 commodity classification table as bicycles, their common names and The uses are obviously different, so they cannot be considered to be the same commodity. Third, if the product for which the registered trademark is approved is a Class 12 bicycle frame, then the general names and uses of bicycle accessories such as bicycle bars, wheels, and rims are obviously different, and they cannot be considered to be the same product. It can be seen that whether bicycle frames, bars, wheels, rims, etc. belong to the same product cannot be discussed in general. Instead, the reference product for judging the same product should be determined first.
When determining whether the products are the same, the product classification table, common name of the product and usage should be combined for a comprehensive analysis. If only one of the criteria is used for judgment, errors may occur. In practice, some products have the same name, but have different categories and uses in the commodity classification table. For example, gloves are divided into Class 10 medical gloves, Class 24 washing gloves, and Class 25 daily use gloves. Gloves, Class 28 competitive gloves, although they are all called gloves, they are not a commodity.
Some products have several names, such as mobile phones and mobile phones, computers and computers. Although the names are different, the product they refer to is essentially one product. It belongs to the same category in the product classification table and has the same purpose. It is just called by different names. .
2. Identification of identical trademarks
In the criminal law, since the crime of counterfeiting a registered trademark requires the same trademark, the issue of the boundaries between identical trademarks, identical trademarks and similar trademarks has also become An important issue in determining the crime or non-crime of counterfeiting registered trademarks in criminal law. Due to the complexity, multi-level and diversity of things themselves, there cannot be two identical things. There are always certain differences between things in some aspects or at a certain level. The so-called sameness is only a relative term. , is the similarity of things in a certain aspect. Therefore, the determination of whether two trademarks are identical can only be based on certain standards. In a relative sense, the two trademarks are identical in a certain aspect or aspects. The key to the problem lies in what standards should be used and in what aspects to determine whether the trademarks are identical. The answer must be found in terms of the composition, elements and functions of trademarks.
(1) Identical trademarks refer to trademarks whose constituent elements and images composed of the constituent elements are identical in sound, form and meaning (objective standards)
A trademark is a trademark consisting of words, Graphics, letters, numbers, three-dimensional logos and color combinations, as well as combinations of the above elements, have the function of indicating the source of goods or services and distinguishing similar goods or services. A trademark is to a product (or service) what a name is to a person. A specific name is associated with a specific person, a specific name represents a specific person. The same is true for trademarks. A specific trademark is associated with a specific product and represents the different source, quality, and reputation of the specific product. The source, quality, and reputation of the product represented by the same trademark are also the same. Consumers generally distinguish between different products and make choices based on their trademarks. Therefore, my country’s Trademark Law stipulates that the trademark applied for registration should be distinctive and easy to identify. The distinctiveness of a trademark (also known as the recognizability of a trademark) stipulated here means that the trademark has overall distinctive features and is easy to identify. People can use the trademark to distinguish the goods or services of different operators. So, how do trademarks differ from each other and how do they obtain distinctiveness? According to Article 8 of my country’s Trademark Law, a trademark that can be registered must be a visible mark, including two-dimensional (planar) visible marks and three-dimensional (three-dimensional) visible marks. In some countries, other non-visible trademarks such as smell trademarks, audio trademarks and electronic data transmission trademarks have appeared. The similarities and differences between these trademarks are of course different from the similarities and differences between visible trademarks. The difference between scent trademarks must be the difference in the sense of smell between the trademarks, the difference between the sound trademarks must be the difference in the sense of hearing between the trademarks, and the difference between the visual trademarks can only be the difference in the visual sense of the trademarks. differences in aspects. Visibility The visual difference of a trademark is expressed through the constituent elements of the trademark. The 1993 Trademark Law stipulates that the only elements that constitute a trademark are words, graphics and their combinations. Current trademark laws stipulate that words, graphics, letters, numbers, three-dimensional logos and color combinations, as well as combinations of the above elements, are the constituent elements of a trademark. Thousands of trademarks are designed based on the above elements and combinations of different elements. pattern. Therefore, determining whether the trademarks are identical can only be based on the above-mentioned components of the trademarks and the pattern of the combination of the elements. Specifically, for words, letters, and numbers, the pronunciation and meaning of the words, letters, and numbers that make up the trademark, as well as the shapes composed of words, letters, and numbers are the same; for graphics, the appearance and shape composed of graphics and colors are the same. The meaning expressed by graphics is the same; for the combination of the above elements, words, numbers, and letters have their own pronunciation, meaning, and appearance. The appearance, pronunciation and meaning mentioned above are the three elements commonly referred to as trademarks, referred to as shape, pronunciation and meaning. Therefore, identical trademarks and similar trademarks appear because the three elements that constitute a trademark are identical or similar. The similarity of trademarks refers to the similarity in these three elements, rather than the similarity in other aspects such as the size of the trademark pattern, the printing quality of the pattern, and the beauty of the pattern. When two trademarks have the same appearance, pronunciation and meaning, ordinary consumers will generally be confused or confused. Since the components of trademarks are different, the specific criteria for judging whether different types of trademarks are the same are also different.
1． Word trademarks, digital trademarks, letter trademarks.
Word trademarks, digital trademarks, and letter trademarks refer to trademarks that only consist of words, numbers, and letters, and do not contain any graphic components other than words, numbers, and letters. Identical word trademarks, digital trademarks, and letter trademarks respectively refer to the words, numbers, and letters that constitute the trademark. Not only are the pronunciations, shapes, and meanings of the words the same, but the fonts of the words, numbers, and letters are also the same.
2． Symbol trademark or graphic trademark. A symbol trademark refers to a trademark without any words and consisting only of a certain mark. A graphic trademark refers to a trademark without any text and consisting only of graphics. Broadly speaking, graphic trademarks can also be regarded as sign trademarks. The difference is that mark trademarks have simple graphics, such as ▲ marks, half-moon marks, semicircle marks, etc., while graphic trademarks have complex graphic structures, such as a landscape graphic, a temple, an ancient well, etc. Graphics can be concrete graphics, abstract graphics, or even fictitious graphics. As long as they are distinctive and easy to identify, they can be used as trademarks. Identical symbol trademarks or graphic trademarks refer to trademarks that have the same appearance and shape composed of symbols, graphics and colors, and have the same meaning expressed by the symbols and graphics.
3. Combination trademark. It refers to a trademark composed of words, numbers, letters, and graphics. Identical combination trademarks refer to trademarks that have the same pronunciation of the words, numbers, and letters that make up the trademark, and the appearance, shape, and meaning of the words, numbers, letters, graphics, and the entire trademark pattern.
In addition, according to the provisions of my country's Trademark Law, in addition to flat trademarks, there are also three-dimensional trademarks, which are three-dimensional trademarks stipulated in the Trademark Law. The so-called three-dimensional trademark refers to the appearance or packaging of the product as a trademark. For example, product containers, beverage bottles, wine bottles, perfume bottles and decorations closely related to the goods themselves serve as trademarks. Given legal protection for three-dimensional trademarks, there is also the problem of counterfeiting of three-dimensional registered trademarks. However, according to the provisions of the new Trademark Law, applications for registration of three-dimensional trademarks can only be accepted after December 1, 2001. Therefore, the crime of counterfeiting three-dimensional registered trademarks does not exist in our country. There is currently no empirical data on the characteristics of the crime of counterfeiting three-dimensional registered trademarks. Apply analytics. Therefore, the crime of counterfeiting three-dimensional registered trademarks will not be discussed here. It is worth mentioning that a three-dimensional trademark uses the appearance of the product or the physical packaging of the product as the trademark, and the appearance or physical packaging of the product is originally an industrial design. The famous three-dimensional trademark "Coca-Cola" bottle was originally an industrial product design. Since the protection period of an industrial product design is not like the protection period of a trademark, it can be renewed indefinitely. After the period, it is considered to have lost its novelty. No longer protected. As a trademark registration, if it is renewed on schedule, you can get long-term protection. However, my country uses patent law to protect the design of industrial products. According to the provisions of the law, manufacturing, selling, or importing design patents for the purpose of production and operation without the permission of the patentee constitutes patent infringement and shall bear corresponding civil liability, but it does not constitute a crime. The same design can be protected by criminal law if it applies for a trademark, but is not protected by criminal law if it applies for a patent. This creates a coordination problem for the legal protection of the design.
(2) Two types of "identity" (subjective standard) of different natures
In an absolute sense, no two trademarks are the same. The so-called identical trademarks are only based on A certain standard is the same in a certain aspect or in some aspects. If you analyze further, you will find that even in a relative sense, there are two different qualities of sameness - objective sameness and visual sameness. Objectively identical trademarks refer to trademarks that are objectively identical regardless of human visual differences. Specifically, the pronunciation, shape, and meaning of the words, graphics, numbers, letters and other elements that constitute a trademark, as well as the shape and meaning of the trademark pattern, are objectively the same and do not differ due to visual differences of the observing subject. Visually identical trademarks refer to the visual similarities in the sounds, shapes, and meanings of the words, graphics, numbers, letters, and other elements that make up the trademark, as well as the shapes and meanings of the trademark images. Objectively identical trademarks do not differ due to differences in the subject of observation, the environment of observation, time, place, and distance of observation. Visual identity may vary depending on the subject, environment, time, place, and distance of observation. appear different.
For example, for two trademarks, when ordinary consumers observe them with ordinary attention, they may think they are the same, but when trademark experts observe them, they may be different; if the registered trademark and the allegedly infringing trademark are placed in different places for observation, You may think that they are the same, but if you compare the above two trademarks together, you may find that they are different. Therefore, when two trademarks are said to be the same, there are differences in whether they are objectively the same or visually the same and who observes the same. So, in what sense should the identical trademarks in the crime of counterfeiting registered trademarks be identical. It can be considered that theoretically different understandings of the same trademark are the result of different answers to this question.