Trademark infringement and liability principles
1. Without the permission of the trademark registrant, the same kind of goods or Using a trademark that is the same as or similar to the registered trademark on similar goods;
2. Selling goods that infringe the exclusive rights of a registered trademark;
3. Forgery or unauthorized production of other people's registered trademarks or sales of counterfeit or unauthorized production of other people's registered trademarks;
4. Without authorization The trademark registrant agrees to replace its registered trademark and put the goods with the replaced trademark on the market;
5. Use the trademark as other commercial signs;
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6. Providing facilities for trademark infringement;
7. Causing other damage to the exclusive right to use the trademark the behavior of.
The principle of liability occupies a very important position in tort law, and it will directly affect the constituent elements of tort. Judging from the history of the development of tort law, the modern "strict liability principle" holds that, based on the special evaluation of the law, certain states of the actor can be used as reasons for attribution of liability. In our country, many scholars regard the provisions of paragraphs 2 and 3 of Article 106 of the General Principles of Civil Law as the domestic legal basis for the principle of liability for torts. Specifically: "If a citizen legal person infringes upon state or collective property, or infringes upon the property or person of others due to fault, he shall bear civil liability." "If there is no fault, but the law stipulates that he should bear civil liability, he shall bear civil liability." These two paragraphs are often It is considered to have established the basic liability principle for torts in my country's civil law - the principle of fault liability. The "strict liability principle" only applies in situations expressly provided for by law.
"Strict liability principle" is also called "no-fault principle" or "no-fault principle". It means that no matter whether there is fault or not, as long as it causes othersIn the event of damage, according to legal provisions, the person involved in causing the damage shall bear civil liability. The implementation of this principle is not based mainly on the fault of the person responsible, but on the objective existence of the damage. It is based on the causal relationship between the activities of the actor and the dangerous nature of the people or things under his management and the consequences of the damage, and is determined by the law. specified special responsibilities. Therefore, it is also called "objective liability" or "hazard liability" in theory.
Introducing the "strict liability principle" into the liability principle for trademark infringement, or at least introducing the "strict liability principle" into the so-called "direct infringement", is the trend of most scholars in my country The reasons for this view are:
1. The application of the "strict liability principle" can relieve the rights holder's difficulty in providing evidence and overcome the weakness of the fault liability principle.
2. The development trend of relevant international legislation is such that our country should be consistent with it. For example, Article 14 of the German Trademark Law stipulates: “The victim may apply for injunctive relief now for infringements that are in danger of recurrence. If the infringement was intentional or negligent, the victim may also apply for damages at the same time. ." Common law countries have confirmed the "strict liability principle" in the form of case law, which is stricter than the general liability standard. Of course, in order to limit the rights holder's abuse of rights, the perpetrator still has some limited defense grounds that can be invoked against the liability, but the defense cannot be made on the grounds that the party concerned has exercised reasonable care.
The "strict liability principle" has been introduced in my country's trademark legislation. For example:
1. Using the same or similar trademark on the same or similar goods without the permission of the registered trademark owner;
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2. Counterfeiting or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks; 3. Forging the same or similar goods with those registered by others Words and graphics that are identical or similar to the trademark are used as product names or product decorations, and are sufficient to cause misunderstanding. The expression of this type of infringement is its appearance. Although it only provides for the constitution of torts, it is sufficient to comply with the "strict liability principle" and does not require fault elements, and can be understood as an area "otherwise provided for by law" in Article 106 of the General Principles of the Civil Law.
Some scholars deny that the provisions of this type of tort reflect the legal recognition of strict liability. They believe that the trademark law does not emphasize the fault of the infringer because these two elements are often relatively clear in such infringements and there is no need to make repeated provisions. infringementThe essential characteristic of infringement is to violate the law and infringe on the exclusive rights of others to use trademarks; and from the perspective of infringement behavior, the infringer always behaves actively. The author does not agree with this view. The principle of liability is the core that governs tort law. There is absolutely no reason for the law to omit the elements that constitute an infringement in order to avoid duplication. Although the number is small, there are indeed cases of no-fault infringement of trademark infringements. The above reasons are not enough to deny the recognition of the "strict liability principle" in my country's trademark legislation.
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