Trademark rightThe protection of criminal law
 

 1Criminal protection.

Although the trademark right belongs to the private right, but as the theft of private property act is dangerous and when social harm to a certain extent, constitute a crime, the serious infringement of the exclusive right to use a registered trademark act, shall be investigated for criminal responsibility in accordance with the law the behavior people, is an important means of practical protection of trademark right.

Criminal sanctions the severity and disciplinary prevention function is very powerful, in recent years the international more and the protection of trademark rights more inclined to criminal protection, strengthening the qualification penalty, the penalty

　TIRPSThe agreement on the trademark tort liability, civil, administrative, judicial a relief procedure, strictly includes criminal procedure protection: Members shall provide for criminal procedures and penalties for intentional, at least on a commercial scale counterfeit trademark is like this. Remedies available shall include a sufficient deterrent imprisonment, or a fine, or shall be limited to two, conforming to the application and the corresponding punishment for crime

China's criminal law to crimes of infringing on intellectual property rights in the destruction of the socialist market economic order, rather than on the crimes of property violation, show that legislators more emphasis on the criminal protection of intellectual property rights from the understanding of the market economic system level.

 

China's criminal law section seventh special provisions the crimes of infringing on intellectual property rights, the section from the213Through article220A total of8Provisions. The criminal law article213Article without permission from the owner of a registered trademark on the same kind of commodity, the use of its registered trademark, if the circumstances are serious, is less than three years imprisonment or criminal detention, or be fined; if the circumstances are especially serious, three to seven years in prison, fined. The law of the214Shall knowingly selling commodities bearing counterfeit registered trademarks, the amount of sales is relatively large, is less than three years imprisonment or criminal detention, or be fined; if the amount of sales is huge, more than three years to seven years in prison, fined. The law of the215The provisions of the unauthorized manufacture counterfeit, marks of a registered trademark of others, or selling or manufacturing of registered trademarks, if the circumstances are serious, is less than three years imprisonment, criminal detention or control, or be fined; if the circumstances are especially serious, three to seven years in prison, fined.

China's criminal protection of trademark rights need to perfect:　

   1Legislation lags behind the Trademark Law Department of law

(1) not included in the scope of registration services to criminal law protection. In the clear provisions of our existing article 213rd of the criminal law on the crime of counterfeiting registered trademarks is: without the owner of a registered trademark license, at the same use of a commodity and its registered trademark, if the circumstances are serious. Some scholars believe that since the "trademark law" the relevant provisions on trademark is applicable to service marks, so the criminal law related to the registered trademark of the relevant provisions of logical for trademark registration. The author thinks that the crime in law, strictly according to the principle of legality, the core is no law does not expressly provided for sin, not on. Since "no article 213rd of the criminal law expressly provides that such behavior as the crime of conviction and punishment. It cannot. So in our current criminal law, the object of the crime of counterfeiting registered trademark crime does not include registered service mark, but only limited to registered trademarks. Our country has joined theTRIPSThe agreement that requires its members to service marks, trademarks and equal. This means that, for the trade and service marks shall be registered to equal protection, criminal law protection and should be the same

(2) did not reverse counterfeit behavior into the scope of criminal law. Reverse trademark counterfeiting illegal dissevers the trademark and the identification of goods or services, so that the two separation, resulting in the operator input enormous human, material and financial resources to build up the loss of intangible assets, to consumers caused confusion and misidentification, so as to achieve the ultimate goal of the goods of others to establish their own brand and reputation. The ordinary trademark counterfeiting has the same or similar social harmfulness. As a famous scholar intellectual property Zheng Chengsi said: reverse passing off without punishment, it will become a major impediment to our brand business.

(3) without the commodity in the same use similar trademark criminal penalties. International will use similar trademarks to meet the eye everywhere criminal criminal punishment in the same product

The 2 China trademark rights criminal activity legislation without accessory criminal law in essence Although the "trademark law" the legal liability in 'constitutes a crime shall be investigated in accordance with the law, form of responsibility', but the law if < criminal law, or the National People's Congress enacted without a specified act provides for the crime, then department law relating to constitute a crime shall be investigated for criminal responsibility is no substantive significance because the criminal law. The author thinks, relatively stable and trademark law change is greater, in the form of legal provisions shall be determined down trademark infringement in the revised trademark law behavior, in order to facilitate the practical operation. In the criminal legislation lags behind the department law, can be made up through the reasonable explanation of the existing if the Supreme People's court, the Supreme People's Procuratorate jointly issued "in handling criminal cases of infringing intellectual property issues concerning the specific application of the interpretation of the law" on the first, second, third of the trademark infringement behavior sets maximum may impose7The provisions of the criminal punishment in prison, for the punishment of violations of intellectual property rights protection of trademark rights of all people is undoubtedly a blow.
　　                                                                                                             

3 Criminal Legislation (including the essence has the legislative, judicial interpretation) in the crime of too much emphasis on the amount of illegal gains or illegal business amount. In the author's opinion, the amount can reflect the severity of the circumstances of the crime in a certain extent, but should not be the only standard. In the amount still exist such a problem: the is in the unit and the amount of personal illegal income or illegal business to constitute the crime of standard gap is too big, the amount of difference of four times. There is no what difference in violation of the interests of trademark rights and the economic order, but in the punishment standard is so large, for the protection of the interests of trademark rights is unfair. At the same time, also can cause has such a possibility, namely through the establishment of enterprises, business units to infringe the interests of trademark owners to escape legal sanctions