Standards For The Number Of Registered Trademarks: Judicial Determination Of "Pieces"

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During the period from August 2010 to August 2012, the defendant, Chiang Moumou, ordered 6000 sets of plastic films attached to the registered trademarks of counterfeiting and lifting aluminum from the defendant's place, and sold the plastic films to others after the P was cut and packed.

In the accusation, the procuratorial organs identified 18 million 360 thousand plastic trademarks on the plastic sheeting.

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< p > at the end of August 2012, the defendant, Jiang Moumou, pferred the printing and packaging Co., Ltd., which was run by him, to the defendant, Wang Mou.

During the operation, the defendant, Wang Moumou, also ordered 1120 sets of plastic film from the defendant's place to be attached to the registered logo of the counterfeit ascent aluminum manufacturer, and sold the plastic film to other people after splitting.

In the accusation, the procuratorial organs identified 3 million 427 thousand and 200 plastic trademarks on the plastic sheeting.

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< p > < strong > divergence < /strong > /p >

The controversy over the case of < p > lies in the calculation standard of the number of registered trademarks.

The first view is that a registered trademark logo is a mark with a complete trademark pattern. It should be calculated on the basis of a complete registered trademark plan approved by the State Trademark authority. The second view is that a registered commodity logo should be calculated on the basis of a complete commodity body or packaging. Because according to the "trademark printing management regulations", trademark identification refers to the "visible carrier with trademark in the circulation field with goods matching". According to this, a a href= "http://www.91se91.com/ news/index_c.asp" > registered trademark < /a > logo can contain multiple trademark patterns, and the number of trademark names calculated by the number of trademarks will expand the scope of punishment.

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< p > < strong > comment < /strong > < /p >.

< p > for the first controversial issue, I agree with the first view. The reasons are as follows: < /p >

< p > 1, from the relationship between trademark logo and trademark, the relationship between form and content is a one-to-one relationship.

Trademarks can only be expressed or recognized by trademark labels. Besides, there are no other external manifestations. Trademarks can only be trademarks, and all their functions are limited to trademarks only.

A 5cm2 size trademark is printed on a paper size of A4 paper size. Besides, there are several non trademark graphics and characters printed on the material. Then the material part of the trademark 5cm2 is a trademark logo, regardless of the contents of the whole material.

If the rest of the material is printed on a number of identical trademarks, it will not affect the identification of the material part of the 5cm2 size of the trademark, that is, a trademark logo.

In this way, if a number of 5cm2 sized trademarks are printed on this material, each part of the 5cm2 size material with a trademark is a trademark logo.

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< p > 2, from the point of view of literal interpretation, the logo marked with a complete < a href= "http://www.91se91.com/news/index_c.asp" > trademark > /a > is identified as a trademark logo in the "legal range" of the law, which does not violate the principle of legality and is in line with people's usual understanding.

According to the interpretation of the Supreme People's court and the Supreme People's Procuratorate on the issues concerning the specific application of laws in criminal cases involving intellectual property infringement (hereinafter referred to as the interpretation) in 2004, the twelfth third paragraphs stipulate that "pieces" are indicators of a complete trademark pattern.

"Marked with a complete trademark pattern" is a modification or qualification to a "logo". According to the usual habit of understanding, this attribute can be understood to be only one or more if the logo is marked with a complete trademark pattern.

Therefore, the author thinks that as long as a complete trademark pattern is marked, it can be identified as a trademark logo, which is in line with the possible meaning contained in the law, and is not artificially expanded.

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< p > 3, if the twelfth clause third of the interpretation is understood, it can be understood that it is possible to identify the logo with a complete trademark pattern as a trademark logo, or to identify the logo with more than one complete trademark pattern as a trademark mark, that is to say, a trademark logo can contain multiple trademarks.

At present, there are three main points of view in the theoretical circle. Some of them should be counted by the number of commodity pieces (some of them are counted on the basis of commodity theory). Some people think that the number of independent carriers should be calculated (independent carrier theory), while others think that the whole package theory should be used to calculate (complete packaging theory). However, each of them has defects in application. If there is no actual use of goods at the time of the crime, it is impossible to calculate the trademark logo according to the number of goods; the number of independent carriers is used to calculate the trademark logo; what is the independent carrier is difficult to define; the calculation of trademark logo by the number of complete packages will not be able to crack down on the production, sale of the inner packaging or outer packers, and it will not inhibit the function of criminal law.

Therefore, the above three viewpoints can not only help to standardize the application of justice, but also complicate matters.

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< p > 4, from < a href= "http://www.91se91.com/news/index_c.asp > > to the judicial practice of combating crime < /a >, it is sure that the calculation of the number of registered trademarks with a complete trademark approved by the state competent trademark authority as a standard will be beneficial to judicial practice and ensure the same crime and punishment.

The relationship between the crime of illegal manufacture and sale of illegally manufactured trademark labels and the crime of counterfeiting registered trademarks is stipulated in the criminal law. However, because of the specific provisions of the specific provisions, they are independent, and are two separate crimes.

Accordingly, the former's investigation, prosecution and trial are not preconditions for subsequent prosecution.

However, if the trademark number is calculated according to the number of goods, it is bound to lead to judicial identification of the former depending on the investigation of the latter, and sometimes even the embarrassing situation of different penalties for the same crime.

For example, in this case, a plastic film is registered with the registered trademark of the counterfeiting and rising aluminum. After the commodity fraudsters purchased the plastic film from the label maker, the plastic film should be cut according to the size and shape of the fake aluminum, and then the plastic thin film should be covered on the fake aluminum material by electroplating.

If the commodity fraudsters A purchased the plastic film 60000 M2 from the trademark label manufacturer B, and used 100000 units per unit of aluminum sheet to cover the total amount of counterfeit aluminum products, then the number of trademark labels was calculated in terms of the number of goods sold, and the sales mark of 100000 commercial labels manufactured by B was 100000. The plot was particularly serious. C, who also made counterfeit products, also purchased 60000 M2 from the trademark label manufacturer B at the B level. On the basis of large aluminum materials, each unit of aluminum film covered 1.2m2, a total of 50000 units of counterfeit aluminum materials were sold. Then, the number of trademark labels calculated by commodity number was 50000, and the sales of illegally manufactured trademarks were 50000, which did not constitute a particularly serious case.

For example, D, a maker of counterfeit goods, bought 60000 m2 of this plastic film from the trademark label manufacturer B, which is used on the super large aluminum material. The aluminum film is coated with 6m2 per unit, and the total number of counterfeit aluminum products is 10000 units. Then the number of trademark labels calculated by the number of goods is sold, and the sales mark of 10000 illegally manufactured products by B is not a crime.

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< p > therefore, this case should be calculated by a complete registered trademark plan approved by the State Trademark authority.

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