Research On Legal Issues Related To The Crime Of Infringement Of Trademark Rights In China

On the one hand,infringement through network means has become the main way of crime,such as infringement cases through network platforms and social networking platforms,etc.,and on the other hand,trademark infringement has become the main object of infringement,which basically occupies half of the crimes of infringement of intellectual property rights.On the other hand,among the crimes of IPR infringement,trademark right has become the main object of infringement,basically occupying"half of the mountain" of IPR infringement crimes,and showing the trend of gangization,industrialization and chainization.In addition,with the innovation of information network,the increasing network of criminal means has also posed new challenges to the judicial organs,and the crimes of trademark infringement have shifted from the traditional fields of tobacco,alcohol and sports goods to the fields of science,education and culture,making the crimes diversify and complicate.Against this background,the Opinions of the Supreme People’s Procuratorate on Comprehensively Strengthening Intellectual Property Prosecution in the New Era emphasizes comprehensive performance of duties and comprehensive judicial protection from criminal,civil,administrative and public interest litigation,which is sufficient to see thechanges of traditional crimes in the new era and the importance China attaches to the regulation and prevention of trademark infringement crimes.With the promulgation of the Trademark Law in August 1982,the Patent Law in March 1984,and the Copyright Law in September 1990,China began to build a legal system in the field of intellectual property rights,and when the Criminal Law was comprehensively amended in March 1997,"crimes of infringement of intellectual property rights" were established in Chapter Ⅲ,Section 7 of the Criminal Law.The crimes of infringement of trademark rights correspond to Articles 213,214 and 215 of the Criminal Law.In order to strengthen judicial application,three judicial interpretations were issued in 2004,2011 and 2020 to clarify the contents of"trademark use" and "aggravating circumstances",and the Amendment(XI)to the Criminal Law was issued in December 2020 to make appropriate amendments to the crimes.In December 2020,the Amendment to the Criminal Law(XI)was issued to make appropriate amendments to adapt to the development of society and improve the regulation of crimes from both legislative and judicial aspects.However,combined with the results of relevant cases and data analysis,the following three aspects of problems still exist in the actual judicial application of trademark infringement crimes in China.(1)In the current era,there are deviations in the criminal justice’s understanding of the legal interests of trademark infringement crimes protection,and the traditional understanding of the legal interests of trademark rights protection can hardly touch the essence of the crime.(2)The objective aspects of trademark infringement crimes are not clearly defined,such as the "aggravating circumstances"in Article 213 of the Criminal Law or the "other aggravating circumstances" in the newly added Article 214 based on the amendment.(3)From the viewpoint of the application of penalties,crimes of infringement of intellectual property rights are criminalized by "aggravating circumstances",but the probationary sentence with"minor circumstances of the crime" as the substantive element is applied excessively,which makes the "single fine The "single penalty" clause is not taken seriously,and the discretionary aggravation provision is not reasonable enough,thus making it difficult to achieve effective regulation of the crime.In this regard,under the condition that the legislation has been amended,it is necessary to avoid over-expansion or restriction in the application of the provisions by correctly understanding the protection of legal interests,clarifying the objective aspects and adjusting the application of penalties,adhering to the principle of consistent subjective and objective conviction,and implementing the concept of"mitigating penalties",and actively improving the judicial practice on the basis of In order to further improve the criminal penalties for infringement of trademark rights,and to achieve the purpose of protecting intellectual property rights.