The Efficacy And Impartiality Of Trademark Administrative Enforcement

In the era of knowledge economy,the awareness of intellectual property protection is increasing day by day.Administrative protection and judicial protection coexist in intellectual property protection in China.Administrative protection of intellectual property based on national realties has its rationality,and it is more active and efficient than judicial protection.However,there are still different opinions on the administrative protection of intellectual property in academic studies.The problem of non-normative enforcement of administrative law also makes the administrative law enforcement of intellectual property criticized by observers.Therefore,it is of great significance to investigate whether the administrative protection of intellectual property is effective and just.Since administrative penalty is one of the main means of administrative protection,the judicial review mechanism of administrative penalty complements the fairness of administrative penalty.In order to fully understand the current situation and problems,this research takes the trademark right in intellectual property as concerned and administrative punishment in administrative protection as the perspective,taking trademark administrative punishment judicial judgment document during year 2018 as the object and starting point,adopting the method of case analysis and empirical analysis,setting relevant indicators,combined with relevant legislation and theories,digging into the effect and fairness of trademark administrative punishment.First of all,it analyzes the basic situation of administrative penalty cases in judicial documents.This paper analyzes the objective situation of trademark administrative punishment cases in litigation from the aspects of the regional distribution,subject,object and illegal administrative behaviors,which indicating: trademark registrants have a strong sense of rights protection and a high degree of participation;the system of administrative reconsideration has not fully played its role;the system of chief executive appearing in court and responding to lawsuits has not been implemented effectively;trademark infringement is still the top priority of trademark administrative law enforcement,but due to the complexity of infringement cases,the governance and investigation should be further strengthened;there is still a gap between the current situation of administrative law enforcement in some regions and the requirements of administration according to law,which highlights the necessity of judicial review.Based on the analysis of the basic situation of trademark administrative punishment cases,this paper constructs the analysis index of the effect of administrative law enforcement from the efficiency,procedure and strength of trademark administrative law enforcement activities.Due to the lack of procedural operational provisions,before the Implementation of the Interim Provisions on administrative Penalty Procedures for Market Supervision and Administration executed,the personal qualities of law enforcement officials,some trademark administrative departments have problems such as low efficiency and lax administrative penalty scale,which leads to the punishment is quite different from the cognition of the administrative counterpart and the lawsuit,indicating that the system of trademark administrative punishment still needs to be improved.Finally,from the perspective of judicial review,this paper analyzes the illegal behavior in the process of trademark administrative punishment,analyzing the basis of court revocation and the specific forms of illegal administrative behavior combined with specific cases,summarizing its characteristics,and analyzing its causes from multiple perspectives.It is found that the evidence awareness and procedural awareness of trademark administrative penalty organs need to be improved.A good many illegal administrative punishments derives from the exercise of discretion.Some law enforcement officials have misunderstandings in articles of law,so it is necessary to improve the legal literacy and legal awareness of administrative law enforcement officials.The relevant regulations should be made up and adopted accordingly,It also reflects that the legitimacy and rationality of the current administrative law enforcement have been effectively supervised by the judicial branch,and the trademark law enforcement is generally fair and effective.