Distributors selling goods that infringe others' patent rights or registered trademarks constitute infringement.
Article 84 of the Detailed Rules for the Implementation of China's Patent Law stipulates: "The following acts are acts of counterfeiting patents as stipulated in Article 63 of the Patent Law: (1) Marking a patent mark on a product or its packaging that has not been granted a patent right, and continuing to mark the patent mark on the product or its packaging after the patent right is declared invalid or terminated, or marking the patent number of others on the product or its packaging without permission; (2) selling the products mentioned in item (1); (3) calling a technology or design that has not been granted a patent right a patented technology or design, calling a patent application a patent, or using another person's patent number without permission, so that the public will mistake the technology or design involved for a patented technology or design; (4) Forging or altering patent certificates, patent documents or patent application documents; (five) other acts of confusing people and mistaking a technology or design that has not been granted a patent right for a patented technology or design; ……"。 From this, it can be seen that the behavior of dealers selling goods that infringe others' patent rights constitutes patent infringement.
Article 57 of China's Trademark Law stipulates: "Article 57 violates the exclusive right to use a registered trademark if it commits any of the following acts: (1) using a trademark identical to its registered trademark on the same commodity without the permission of the trademark registrant; (2) Without the permission of the trademark registrant, using a trademark similar to its registered trademark on the same kind of goods, or using a trademark identical with or similar to its registered trademark on similar goods is likely to cause confusion; (3) selling goods that infringe upon the exclusive right to use a registered trademark; (4) Forging or unauthorized manufacturing of registered trademark marks of others or selling forged or unauthorized registered trademark marks; (five) without the consent of the trademark registrant, the registered trademark is changed and the goods with the changed trademark are put on the market again; (6) Deliberately facilitating the infringement of the exclusive right to use a trademark of others and helping others to commit the infringement of the exclusive right to use a trademark; (7) causing other damage to the exclusive right to use a registered trademark of others. " From this, it can be seen that the distributor's behavior of selling goods that infringe the registered trademarks of others constitutes patent infringement.
Second, what is the difference between "malicious infringement" and "goodwill infringement"?
According to the subjective will, the acts of dealers infringing other people's patents and registered trademarks can be divided into "malicious infringement" and "goodwill infringement".
The so-called "malicious infringement" refers to the infringement that the distributor "knows or should know" that the goods infringe the patent right or registered trademark of others and sell. For example, knowing that it is a "fake" commodity and knowing that it is a "pirated" commodity, it is still sold.
The so-called "bona fide infringement" refers to the infringement of the distributor's knowledge of the goods it sells and the infringement of the patent right or registered trademark of others.
On the basis of distinguishing the subjective wishes of dealers, China's Patent Law and Trademark Law stipulate different tort liabilities for "malicious infringement" and "bona fide infringement".
1. In case of "malicious infringement", the distributor shall not only stop selling, but also bear civil liability and even criminal liability.
Article 63 of China's Patent Law stipulates: "In addition to bearing civil liability according to law, the patent administration department shall order it to make corrections and make an announcement, confiscate the illegal income, and may impose a fine of less than four times the illegal income; If there is no illegal income, a fine of less than 200,000 yuan may be imposed; If it constitutes a crime, criminal responsibility shall be investigated according to law. "
Article 67 of China's Trademark Law stipulates: "If a trademark identical to its registered trademark is used on the same commodity without the permission of the trademark registrant, which constitutes a crime, criminal responsibility shall be investigated according to law in addition to compensation for the losses of the infringed party. Whoever, without authorization, forges or manufactures another person's registered trademark logo or sells a forged or manufactured registered trademark logo, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the law, in addition to compensating the losses of the infringed party. If the sale of goods that are known to be counterfeit registered trademarks constitutes a crime, criminal responsibility shall be investigated according to law in addition to compensation for the losses of the infringed. "
2. The distributor's "bona fide infringement" only needs to bear the tort liability of stopping sales, and does not need to bear civil compensation liability or criminal liability.
Article 70 of China's Patent Law stipulates: "Anyone who uses, promises to sell or sells an infringing patented product for the purpose of production and operation without knowing that it was manufactured and sold without the permission of the patentee shall not be liable for compensation". Article 84 of the Detailed Rules for the Implementation of the Patent Law stipulates: "If a product that is not known to be a counterfeit patent is sold, and the legal source of the product can be proved, the department in charge of patent affairs shall order it to stop selling, but it shall be exempted from the penalty of fine".
Article 64 of China's Trademark Law stipulates: "If you sell a commodity that you don't know is an infringement of the exclusive right to use a registered trademark, you can prove that the commodity was legally obtained by yourself and explain it to the supplier, and you will not be liable for compensation."
3. In the case of patent and trademark infringement, how can dealers prove that they are "bona fide infringement"?
As mentioned above, if the distributor is accused of patent infringement and trademark infringement, in order to exempt the distributor from civil liability, the distributor is obliged to provide sufficient evidence to prove that it is indeed "bona fide infringement" and that the product is "legal in origin".
In the case of infringing goods, dealers can provide evidence from the following aspects to prove that they are "bona fide infringement":
1, subjectively: "I don't know" or "I shouldn't know".
When dealers sell infringing goods, their subjective understanding can generally be divided into three types: first, dealers "know" that they are infringing goods and sell them maliciously; Second, the distributor "should know" that the goods it sells are infringing goods, but failed to realize and sell them due to his own fault; Third, dealers do not know and should not know that the goods they sell are infringing goods and sell them.
Distributors should take reasonable and prudent measures when purchasing goods. If it violates the duty of reasonable care, it can be considered that it should be known but not known. If it has fulfilled its reasonable duty of care, it should be considered that it "doesn't know or shouldn't know".
In judicial practice, the accused infringing dealer can prove that he has fulfilled his duty of reasonable care from the following aspects:
(1) Provide the court with production and business license, use certificate, inspection report, certificate of conformity, trademark registration certificate, patent certificate, authorized distribution certificate, etc. Information of manufacturers or other suppliers;
(2) The difference between the price of goods received by the distributor from the supplier and the market price is within a reasonable range;
(3) the dealer's cognitive ability of patents and registered trademarks;
(4) the popularity and distinctiveness of the registered trademark of the obligee;
(5) The popularity and distinctiveness of the patented product of the obligee;
(6) The source of the goods of the distributor;
(seven) whether the product supplier has handled the industrial and commercial registration;
(8) Whether the distributor received the lawyer's letter or warning letter sent by the obligee before the lawsuit, and the reflection after receiving the lawyer's letter or warning letter sent by the obligee;
(9) Has the supplier ever been punished by the administrative organ for infringing products and made public through the media? ...
2. Objectively, the source of the goods is legal and the purchase certificate is sufficient.
In judicial practice, the distributor accused of infringement can prove his "legitimate source of goods" from the following aspects: (1) The distributor must be able to explain the name, address and contact information of the supplier and supplier of goods; (2) Dealers should be able to provide purchase channels, purchase contracts, delivery documents, payment vouchers, tax invoices or VAT invoices, witness testimony, etc. (3) Provide the right to use certificate, inspection report, certificate of conformity, trademark registration certificate, patent certificate and authorized distribution certificate to the court. Quality marks such as production and business licenses, certification marks and brand-name marks of production enterprises or other suppliers; (four) the difference between the price of the goods received by the distributor from the supplier and the market price is within a reasonable range; (5) Relevant evidence of non-smuggled goods. ...
Fourth, suggestions for dealers-standardize the purchase procedures and keep the original evidence.
In cases where dealers are accused of patent or trademark infringement, many dealers are often unable to provide enough purchase vouchers to prove that their goods are from legitimate sources, and are finally sentenced to pay compensation. The reason is that "the purchase procedure is not standardized, the original evidence is not well preserved, and it is impossible to prove that the source of the goods is legal".
It is suggested that dealers standardize the purchase procedures and properly collect and preserve the original relevant evidence, so as to prove their innocence and be exempted from the liability for compensation when they are accused of infringement. To this end, the distributor should try its best to: (1) sign a purchase and sale contract with the supplier; (2) The purchase and sale contract shall indicate the model, product name, trademark and specifications of the purchased product; (3) Both parties had better sign the photos or drawings of the products for confirmation; (4) After payment, the supplier is required to issue a formal invoice; (5) Require suppliers to provide copies of business licenses, etc. (6) Keep the original vouchers such as delivery notes and receipt documents of suppliers.