It refers to the act of using the same trademark as its registered trademark on the same commodity without the permission of the registered trademark owner, which has one of the following circumstances:
(a) the amount of illegal business is more than 50 thousand yuan or the amount of illegal income is more than 30 thousand yuan;
(2) Counterfeiting two or more registered trademarks, with an illegal business amount of more than 30,000 yuan or an illegal income of more than 20,000 yuan;
(3) Other serious circumstances.
The constitutive requirements of the crime of counterfeiting registered trademarks are:
1) The criminal subject of this crime is the general subject, that is, any enterprise, institution or individual passes off the registered trademark of others, and the circumstances reach the crime standard, which constitutes this crime.
2) The object of this crime is the legal exclusive right of registered trademarks of others and the national trademark management order;
3) The subjective aspect of this crime is intentional, with the purpose of making profits. Negligence does not constitute this crime.
4) The objective aspect of this crime is that the perpetrator has committed trademark counterfeiting prohibited by the criminal law, and the circumstances are serious.
The difference between the crime of producing and selling fake and inferior commodities;
The former crime violates the national trademark management system and commits trademark counterfeiting, and the circumstances are serious;
The latter kind of crime violates the national commodity quality management system, and carries out the act of adulterating, filling the fake with the real, shoddy with inferior products or passing the unqualified products off as qualified products.
For producing and selling fake and inferior commodities by means of counterfeiting registered trademarks, and the sales amount is particularly huge or causes serious consequences, it not only violates the crime of producing and selling fake and inferior commodities, but also violates the crime of counterfeiting trademarks. In this case, according to the principle of felony absorbing misdemeanor, the crime of producing and selling fake and inferior commodities with heavier punishment should be convicted and sentenced.
According to:
1. Article 213 of the Criminal Law Whoever uses a trademark identical to its registered trademark on the same commodity without the permission of the owner of the registered trademark, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
2. Judicial interpretation: using the same trademark as its registered trademark on the same commodity without the permission of the registered trademark owner, under any of the following circumstances, is a "serious case" as stipulated in Article 213 of the Criminal Law. For the crime of counterfeiting a registered trademark, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall only be fined:
(a) the amount of illegal business is more than 50 thousand yuan or the amount of illegal income is more than 30 thousand yuan;
(2) Counterfeiting two or more registered trademarks, with an illegal business amount of more than 30,000 yuan or an illegal income of more than 20,000 yuan;
(3) Other serious circumstances.
Under any of the following circumstances, it is "especially serious" as stipulated in Article 213 of the Criminal Law, and the crime of counterfeiting a registered trademark shall be punished with fixed-term imprisonment of not less than three years but not more than seven years and a fine:
(a) the amount of illegal business is more than 250 thousand yuan or the amount of illegal income is more than150 thousand yuan;
(2) Counterfeiting two or more registered trademarks, with an illegal business amount of more than 150,000 yuan or an illegal income of more than 100,000 yuan;
(3) Other particularly serious circumstances.
Article 2 13 of the criminal law defines the objective act of the crime of counterfeiting a registered trademark as "using the same trademark on the same commodity without the permission of the registered trademark owner". Therefore, when determining the crime of counterfeiting registered trademarks, it is very important to judge whether the trademark used by the actor is "the same" as the registered trademark of others, which involves the basic qualitative problem of whether the actor can be determined to constitute the crime of counterfeiting registered trademarks.
Legal liability for infringement of patent right
According to the General Principles of the Civil Law and the Patent Law of China, the civil laws that infringe patent rights mainly include stopping the infringement, compensating the losses and eliminating the influence.
First, stop the infringement.
The so-called cessation of infringement means that the infringer should stop manufacturing, using, promising to sell, selling or importing patented products or using patented methods and unauthorized use, promising to sell, selling or importing products directly obtained by patented methods.
Second, compensate for the losses.
Patent right is an intangible property. When the property is infringed and causes economic losses to the obligee, the patentee or interested party has the right to demand the infringer to compensate the economic losses according to law.
Calculation method of loss compensation:
1. The actual economic losses suffered by the patentee due to infringement shall be regarded as damages.
2. The amount of compensation for losses shall be all the profits obtained by the infringer due to infringement.
3. With reference to the multiple of the amount of patent license fee, reasonably determine the amount of loss compensation. (1-3 times the commission shall be determined by the judge according to the specific case)
4. Fixed remuneration
The people's court may, according to the types of patent rights, the nature and circumstances of the infringer's infringement, generally determine the amount of compensation between 5,000 yuan and 300,000 yuan, with a maximum of 500,000 yuan.
Third, eliminate the influence.
Eliminating the influence is mainly to order the infringer to make a statement through newspapers, magazines and other news media, or to make a speech or statement on radio and television, to admit his infringement and ensure that he will not infringe again.
The above ways of bearing civil liability can be applied separately or in combination.
Article 63 of the Patent Law stipulates that any of the following circumstances shall not be regarded as infringement of the patent right:
(1) After the patented product manufactured or imported by the patentee or manufactured or imported with the permission of the patentee or the product directly obtained according to the patented method is sold, the patentee uses, promises to sell or sells the product;
(2) Having manufactured the same product, used the same method or made necessary preparations for its manufacture and use before the patent application date, and continuing to manufacture and use it only within the original scope;
(3) Foreign means of transport temporarily passing through China's territorial waters and airspace use the relevant patents in their devices and equipment for their own needs in accordance with the agreements signed between their countries and China or international treaties to which they are both parties, or on the principle of reciprocity;
(four) the use of relevant patents for scientific research and experiments.
If the use or sale of a patented product that is not known to be manufactured or sold without the permission of the patentee or a product directly obtained by a patented method is used for production and business purposes, it shall not be liable for compensation if it can prove the legal source of the product.