The Judicial Determination Of The Objective Aspect Of Counterfeiting Registered Trademark Crime

With the development of economy,the crime of intellectual property is rampant day by day,especially the crime of trademark.This article,taking the crime of trademark as an example,is divided into four parts to discuss the judicial determination of the objective aspects of the crime of trademark.The first part mainly discusses the identification of the same trademark in the crime of counterfeiting trademark.The cognizance of the same trademark should cover the basic identical and the complete identical,and when the cognizance is the basic identical,the cognizance subject should combine the judicial reviewer with the general consumer.The cognizance method should combine the form standard and the substance standard,after the form is identical,then combine the concrete commodity to carry on the substance judgment.The specific identification standard should be strictly in accordance with the provisions of judicial interpretation,closely linked to the definition of "visual basic no difference,enough to cause misleading to the relevant public".The second part mainly discusses the identification of the same commodity in the crime of counterfeiting trademark.In judicial practice,there are objective and subjective criteria for the determination of the same kind of commodity,and the subjective criteria are complementary to the objective criteria,and two conditions must be met at the same time: "function","use" and "related public think it is the same thing".And when two kinds of goods belong to different "groups" in the?international classification of goods and services for trademark registration?,the objective criteria can be directly applied as different goods without the need to make a supplementary comparison in the application of subjective criteria.The third part mainly discusses the effective licensing method of the crime of trademark,and the concrete identification of the unauthorized use of trademarks.As for the effective licensing,there are two main points of view: "consent" and "contract",the paper holds that "consent" should be adopted.The manifestation of unauthorized use of a trademark shall not cover the continued use of the trademark by the licensee without timely obtaining the licensor's authorization after the expiration of the license.Whether the use of a trademark beyond the scope of permission is an unauthorized use shall be specifically determined.When the use of a trademark beyond the scope of permission within the scope of goods approved for use by the trademark is an unauthorized use;When the use of a trademark beyond the scope of the license and outside the scope of the goods approved for use by the trademark is not an unauthorized use.The use of trademark should be based on the existence of actual infringement objects and "trademark use"."trademark use" should be aimed at distinguishing the origin of goods or services.The use of more than one trademark should be interpreted restrictively.Not all cases of use of more than one trademark are "use more than one fake trademark" and should be judged by the number of times the consumer misleads.The fourth part mainly discusses the calculation standard and the calculation object of the amount of illegal business operation in the crime of trademark.For unsold goods,the marked price of the unsold goods or the average price of the sold goods may be applied.The paper holds that when the marked price of the unsold goods and the average price of the sold goods can be ascertained,the lower price should be given priority according to the principle of "in favor of the accused".The application of "market median price" should be divided into two cases: "knowing fake to buy fake" and "using fake to be true".The scope of calculation of the amount ofillegal business operations shall be strictly in accordance with the provisions of the law,covering only those commodities that have not yet been affixed with trademarks,but excluding other semi-finished products.