A Study Of Difficult Issues In The Application Of Counterfeit Registered Trademarks

With the deepening use of information technology,the means of infringing registered trademarks are constantly being updated,and the crime of counterfeiting registered trademarks is penetrating into new areas such as information platforms.There are many difficult issues in judicial practice.This paper examines the problem in three main sections,as follows:The first part of this article focuses on the determination of the objects of the crime of counterfeiting registered trademarks.Based on the perspective of the convergence of the Trademark Law,it is clear that certification marks,collective marks and marks that are not actually used should all be "registered trademarks".The controversy over "identical trademarks" lies in the determination of "basic indistinguishability",the objective criteria for which should start from the words,graphics,colours and combinations,while the subjective criteria should be judged by judicial officers and the awareness of "relevant consumers".The subjective criteria should be judged by the judiciary and by the perception of the "relevant consumer".When determining the nature of the area where goods and services overlap,a distinction must be made between specific situations: if the services are separable from the goods,the determination should be based on the purpose of the goods and the nature of the type of service provided;if they are not separable,the determination should be that they are actually used at both the level of the goods and the actual service provided.On the question of whether the criteria for determining the "sameness" of goods and services should be modified to "identical",the author believes that it is unnecessary from the perspective of substantive interpretation.The second part focuses on the identification of three specific types of counterfeiting of registered trademarks.In the context of the information age,in response to the controversy between the one-sided assistance of this offence and the neutral assistance of the offence of assisting criminal activities on information networks,it should be clear that most of the time,information platforms only know that their technical support will facilitate the commission of another person’s crime,and usually lack specific knowledge of the nature of the subsequent crime,therefore,information platforms lack clear intent to assist and are closer to neutral assistance.The offence should be considered as aiding criminal activities in information networks.As to the understanding of "counterfeiting two or more registered trademarks",from a formal standard,it should be understood as counterfeiting two or more different trademarks with separate registration numbers,regardless of whether they are used on the same goods,while from a substantive standard,counterfeiting of more than two defensive trademarks should be excluded.The difficulty in identifying cross-border counterfeiting of registered trademarks lies in determining whether they constitute a joint crime.In the case of joint crime,both constitute only one offence of passing off a registered trademark.The third part discusses the determination of the amount of the offence of counterfeiting a registered trademark.The calculation of the amount of criminal proceeds is controversial in practice,and the relatively uniform method of calculating the "amount of illegal proceeds" under public law should be applied from the perspective of system interpretation.For the determination of the "amount of illegal business",when the marked price and the average price of actual sales are inconsistent,the principle of the lowest price should be applied in full respect of the defendant,while the calculation of the middle market price should take into account the specific circulation link in which the perpetrator is located.The determination of the amount of counterfeit service marks should be based on the "amount of illegal operation",while the standard of the amount is increased with reference to commodity marks.