The Study On The Crime Of Selling Commodities Bearing Counterfeit Registered Trademarks

The Amendment(11)to the Criminal Law amended Article 214 of the Criminal Law.Regarding the understanding of the law,there is a lot of controversy in the academic community and practice.In-depth research on issues related to the sales of counterfeit registered trademarks stipulated in the law,have important theoretical and practical value.The key to identifying the crime object is to determine the "same trademark" and"the same product".The trademark that "basically has no difference and is sufficient to mislead the public" as "the same trademark" is not only in line with legislative purposes,but also meets practice requirements.The degree of similarity of "basically no difference" is very similar to the registered trademark,but there are subtle differences;"enough to mislead the public" emphasizes the inevitability of the misleading of the public.The former is the prerequisite for the latter.The choice of judging whether the method of the same trademark should be "comparative observation method" that is different from the field of the Civil Law and Administrative Law.The identification of "the same product" should highlight the core position of substantial judgment,and at the same time,it is necessary to establish a relevant public confusion investigation system.The "illegal income" should be understood as the profit amount after deducting the cost of crime.The scope of deduction of cost should be kept cautious,and sufficient evidence to prove that the cost is associated with the profit and invest in legitimacy.When the actor proposes the"refreshing" claim in the amount of crime,there are legitimate reasons to deduct it.The identification of "other serious circumstances" should be operated while reflecting the infringement of the law and benefits.Specifically,it includes the "large sales amount" "with a large number of sales" and "the amount of losses caused by the rights of the rights".,Implementing it ",wait for the situation.In the "serious"judgment standard,it should be significantly higher than the standard of administrative penalties,which is equivalent to the illegal level of "large illegal income" and adapt to other violations of intellectual property crimes.The object of "knowing" in this crime is a product of other people’s counterfeit registered trademarks."Knowing" is only interpreted as "okey to Know",and the scope of "knowing" is not limited;interpretation as "should know",it is easy to confuse the relationship between intentional and negligence;Knowing possible.The identification of subjective knowledge should follow the principle of consistent consistency of the subjective and objectives,and infer the objective facts.When the actor did not meet the requirements of the "basic" and "aggravated"amount of the crime due to the reasons other than his will,he could punish it according to the attempts of "basic" and "aggravating the offenders".