On The Abolition Of The Crime Of Illegally Manufacturing And Selling Illegally Manufactured Registered Trademarks

The criminal protection of trademark rights is an important part of the legal protection system for trademark rights,and it is also the most severe legal punishment for trademark infringement.The use of criminal means to protect trademark rights can play the strongest protective role for trademark rights,but it should be compatible with the legal logic of criminal protection.Article 215 of China's "Criminal Law" defines "illegal manufacturing and sale of illegally manufactured registered trademark marks" as a crime of infringement of trademark rights,which violates the legal logic of criminal protection of trademark rights.In view of the fact that intellectual property rights are recognized as intangible property,it belongs to the private right of the right holder,and the trademark right is a kind of intellectual property,and its nature is also the property right.Based on the legal logic that the crime of infringement of property rights should be based on the civil tort of property rights,then For the crime of infringement of trademark rights,the premise should also be that such acts constitute a civil infringement of trademark rights.The premise of trademark infringement is the use of trademarks,and the use of trademarks reflects the recognition of the source of trademarks.Such “single forgery,unauthorized manufacture,sale of trademark marks” does not have the nature of trademark use,so the act itself does not The civil infringement that constitutes the trademark right does not meet the premise of the crime of trademark rights.If the "single forgery,unauthorized manufacture,sale of trademark marks" continues to be a criminal law in the criminal law,it will lead to cases in the judicial practice that will not constitute a crime because of the lack of "trademark use",because it essentially constitutes " The crime of forgery,unauthorized manufacture and sale of trademark marks has become an obvious law-free basis,and it also leads to the punishment of the reasonable use of trademarks that are not in the “trademark use”.Therefore,the crime of illegally manufacturing and selling illegally manufactured registered trademarks as stipulated in Article 215 of the Criminal Law of China shall be abolished.Moreover,the abolition of the provisions of this article does not derogate from the criminal protection of trademark rights.Because if the actor does not follow the trademark use behavior,it does not constitute infringement itself.If the subsequent use behavior constitutes "two identical infringements",it may constitute a crime of counterfeiting trademarks.If the subsequent use behavior constitutes "two similar infringements",then itself Does not constitute a crime of infringement of trademark rights.