The difference between the crime of counterfeiting patent and the crime of counterfeiting trademark. The crime of counterfeiting patent refers to the act of counterfeiting the patent granted by others or units within the validity period of the patent stipulated by law for the purpose of obtaining illegal benefits, which infringes on the patent rights and interests of others or units, and the circumstances are serious. So-called? Serious circumstances? (1) The amount of illegal business operation is more than 200,000 yuan or the amount of illegal income is more than 654.38+10,000 yuan; (2) Causing direct economic losses of more than 500,000 yuan to the patentee; (3) Counterfeiting more than two patents of others, with an illegal business amount of more than 654.38+10,000 yuan or an illegal income of more than 50,000 yuan. According to Article 216 of the Criminal Law, whoever imitates another person's patent, 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 only be fined. Article 220 Where a unit commits the crimes specified in Articles 213 to 219 of this section, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of this section.
The crime of counterfeiting a registered trademark refers to a serious act of using the same trademark on the same commodity without the permission of the registered trademark owner in violation of trademark management regulations. So-called? Serious circumstances? (1) The amount of illegal business operation is more than 50,000 yuan or the amount of illegal income is more than 30,000 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 acts. ? Illegal business amount? , refers to? What is the value of infringing products manufactured, stored, transported and sold by the actor in the process of infringing intellectual property rights? . According to Article 213 of the Criminal Law, if a trademark identical to its registered trademark is used on the same commodity without the permission of the registered trademark owner, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or 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. Article 220 Where a unit commits the crimes specified in Articles 213 to 219 of this section, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of this section.
The object of the crime of counterfeiting patent is the patent right of others and the national patent management system, while the object of the crime of counterfeiting trademark is the exclusive right of others and the national trademark management system.
The crime of counterfeiting patent objectively refers to marking the patent mark or patent number of the patentee on its non-patented products or packaging without the permission of the patentee, while the crime of counterfeiting trademark refers to using the same trademark as the registered trademark of others in the same business without the permission of the registered trademark owner.
How to protect trademark rights? Administrative protection of trademark rights
Concept: The administrative protection of trademark rights refers to the administrative law enforcement activities that the state trademark administration authorities order trademark infringers to stop infringement, compensate losses and punish them according to their functions and powers and the provisions of the Trademark Law.
Features: timely and effective protection; The measures are diverse and powerful; Flexible and active startup; Low cost.
Judicial protection of trademark rights
Concept: Judicial protection of trademark rights in a narrow sense refers to the litigation activities in which the people's court tries trademark infringement cases (including enforcement) by applying civil procedures according to the provisions of the Civil Law and the Trademark Law, and orders the infringer to bear civil legal responsibilities, thus protecting the legitimate rights and interests of the trademark owner. The judicial protection of trademark rights in a broad sense also includes criminal trial activities to deal with trademark crimes and administrative litigation activities to supervise trademark administrative law enforcement.
Features:
First, the judicial protection of trademark rights is a passive protection upon request, from which? Don't tell me? This principle requires trademark owners to take the initiative to seek relief from judicial organs before taking measures.
Second, the judicial protection of trademark rights is mainly based on trademark law, and civil law and its principles are its more important legal sources.
Third, in the process of judicial protection of trademark rights, stopping infringement and compensating losses are the core and key links of various forms of civil liability stipulated by law, and also the fundamental interests of victims in bringing civil proceedings.
Fourthly, we can seek judicial protection in the form of administrative litigation for the objections and disputes of trademark confirmation.
trademark infringement
Concept: Trademark infringement refers to the act of using the same or similar trademark with the registered trademark in the same or similar goods or services in commercial activities or for commercial purposes without the permission of the trademark owner, which infringes on the legitimate rights and interests of the trademark owner.
Requirements: The establishment of trademark infringement requires four requirements.
First, there must be illegal acts. In other words, it is illegal for the actor to objectively use a registered trademark without obtaining the permission of the trademark owner or other legal basis. It is not illegal for an actor to use a trademark without the authorization or permission of the trademark registrant at the beginning, but it is later approved or ratified, or the trademark registrant ignores this situation and expresses its acquiescence.
Second, there must be harmful results. Trademark right is an intangible intellectual property right, and the damage result may be tangible material damage, intangible economic loss or both. Specifically, it can be manifested in the decline in sales of trademark owners' products, the decrease in profits, the increase in production costs due to the suppression of infringement, the decline in trademark reputation, and consumer complaints.
Third, there is a causal relationship between the damage consequences and illegal acts, that is, the damage consequences are directly caused by illegal acts. This causal relationship is diverse and there is a direct causal relationship, such as the act of counterfeiting registered trademarks; There is also indirect causality, such as providing convenient conditions such as warehousing, transportation, mailing and concealment for infringement. If the damage result is caused by a series of behaviors, that is, multiple causes and one effect, such as the actor forging a trademark logo, the middleman responsible for transportation, the seller selling goods with counterfeit registered trademarks, etc., the actor may become an infringer and constitute trademark infringement.
Fourth, the actor is subjectively at fault, including intention and negligence. Intention means that the actor subjectively knows that another person's trademark has been approved and registered, and he has no right to use it, but still uses the same or similar trademark with another person's registered trademark on the same or similar goods; Negligence means that the actor still uses the same or similar trademark with the registered trademark of others on the same or similar goods when he should know that the trademark of others has been approved and registered subjectively.
Specific performance:
1. Using a trademark similar to or similar to its registered trademark on the same or similar goods without the permission of the registered trademark owner;
2. Selling goods that are knowingly counterfeit registered trademarks;
3. Forging or manufacturing others' registered trademarks without authorization or selling forged or manufactured registered trademarks without authorization;
4. Deliberately providing convenient conditions for infringement of the exclusive right to use a registered trademark;
5, causing other damage to the exclusive right to use a registered trademark of others.
Termination of trademark right
1. If the registered trademark is not renewed due to the expiration of the legal validity period, the registered trademark will be cancelled and the trademark right will be terminated.
2. The trademark right is terminated because the trademark registrant automatically applies for cancellation of registration.
3. The registered trademark is revoked by the Trademark Review and Adjudication Board due to the dispute over the registered trademark, and the trademark right is terminated.
4. The trademark right is terminated due to the death or termination of the trademark registrant.
5. The trademark right is terminated due to improper registration, cancellation of registration by the Trademark Office or cancellation of registration by the Trademark Review and Adjudication Board.
6. The trademark registrant was revoked by the Trademark Office for violating the provisions of the Trademark Law, resulting in the termination of the trademark right.
How to protect the trademark rights of enterprises
1. Train employees in trademark and other intellectual property rights, formulate corresponding rules and regulations, and raise awareness of trademark protection.
2. entrust trademark agencies and professionals to monitor trademark operation in real time all the year round to help enterprises establish an efficient intellectual property management system.
3. Apply for well-known trademarks when conditions are ripe, and expand the scope and intensity of trademark protection.
4. At the same time, enterprises should know the operation of the market through various channels, promptly resort to legal means and take necessary measures for trademark infringement, and investigate the infringer's civil liability or even criminal liability when necessary.
The above is the crime of counterfeiting trademarks provided by Bian Xiao. I hope everyone will like it!
counterfeit trademark