III. The differences between the act of refurnishing mobile phones and crime of counterfeiting registered trademarks
The crime of counterfeiting registered trademark specified in the Article 213 of the Criminal Law ( the ?Article 213?) refers to whoever, without permission from the owner of a registered trademark, uses a trademark which is identical with the registered trademark on the same kind of commodities shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of no more than three years or criminal detention and shall also, or shall only, be fined; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined . (the image is the genuine Blackberry and genuine Blackberry)
Accordingly, the elements of the crime of counterfeiting registered trademarks are : a) the subject is general subject including natural persons and units; b) the encroached objects are the national administration system of trademark and the exclusive right of registered trademarks; c) in the subjective aspect, an actor shall be deliberate; d) in the objective aspect, an actor, without permission from the owner of a registered trademark, uses a trademark which is identical with the registered trademark on the same kind of commodities, and the consequence is serious. [1]
To this case, in the two sentences and the Judicial View, the judges and the reporter all argue for the conduct of refurnishing mobile phones constitutes the objective element ?without permission from the owner of a registered trademark, uses a trademark which is identical with the registered trademark on the same kind of commodities ?specified in Article 213, accordingly, the aim is to expound and prove the trademark used in the refurnished mobile phones constitutes using a trademark being identical with the registered trademark BlackBerry on the same kind of commodity. However, I find that none of the arguments refers to this case?s essential difference from the common case of counterfeiting registered trademark in the issue of the origin of the ?same kind of commodity?.
The same kind of commodities referred in the crime of counterfeiting registered trademark are fake that aren?t made or sold by the owner of the registered trademark, neither does the used trademark representations. Despite the refurnished mobile phones concerned in this case is the same as that on which the registered trademark is used, but the refurnished mobile phones aren?t completely false as for the key component, main board, originating from the BlackBerry Smartphone made by RIM is genuine, however, only the shell and trademark used on them are false, which is the essential difference between this case and the crime of counterfeiting registered trademark. Ultimately, such difference makes the conduct of refurnishing BlackBerry Smartphone distinguish from the crime of counterfeiting registered in the objective aspect specified in Article 213.
Legal concept of a trademark is a mark distinguishes an enterprise or commodities operated by an enterprise from those of others?.[2] The Trademark Law of the People?s Republic of China doesn?t define a trademark, but Article 8 illustrates the extension of a trademark that an application for trademark registration may be filed for any visible mark including word, design, letter, number, 3D (three-dimension) mark or color combination, or the combination of the elements above mentioned, that can distinguish the commodities of the natural person, legal person or other organization from those of others.? Clearly, it can be seen that the essential nature of a trademark is to distinguish the origin of commodities or service.
According to the concept of a trademark, who using others? registered trademarks on such commodities as those made by other manufacturers and the amount of profits gained from selling such commodities are satisfied with the statutory amount, doesn?t commit the crime of counterfeiting registered trademarks. In this case, although the amount reaches the statutory amount, the refurnished mobile phone sold by the defendants is only replaced with new shell but kept with the original movements made and sold by the owner of the registered trademark, in another word, the essential component and main board of the same kind of commodity, BlackBerry Smartphone, is original from the owner of the trademark BlackBerry, and other parts of components such as shell and trademark representations made by different makers, under which circumstance, it needs further discussion that whether such conduct constitutes crime of counterfeiting registered trademarks.
I think the essential components of a refurnished BlackBerry Smartphone are originally made by RIM, therefore the conduct of refurnishing only can be regarded as passing a old product off as a new one, a defective product as a high-quality one, on the contrary, the purpose of Article 213 to combat against whoever, without permission, using a registered trademark of others in the same kind of commodities is to combat the conduct of passing a fake product off as a genuine one. To conclude, in the objective aspect, there?s difference between the conduct of refurnishing and Article 213.
IV. The conduct of refurnishing BlackBerry Smartphone may possibly constitute another two crimes specified in the Criminal Law
As discussed above, the conduct of refurnishing BlackBerry Smartphone doesn?t constitute the crime of counterfeiting registered trademarks, but such conduct can be combated for it offends other legal relationships according to the Criminal Law. For example, due to the fact that a refurnished BlackBerry Smartphone has been replaced with a shell isn?t genuine and uses the original main board, which can?t guarantee the users the quality of a refurnished BlackBerry Smartphone as that of a genuine one, therefore, such conduct maybe constitute the crime of producing and marketing fake and substandard commodities specified in Article 140 of the Criminal Law. However, in this case, I have seen nothing about the expert conclusions of fake or substandard commodities except for the expert conclusions provided by the victims? agent ad litem,[3] which is applicable to evaluate whether the refurnished mobile phones are fake or not, however, additional expert conclusions of the problem whether they are substandard are expected to be made by qualified product quality evaluation departments.
Additionally, the defendants? conducts of using the trademark representations not made by the owner of the registered trademark on a refurnished BlackBerry Smartphone meanwhile selling them possibly constitute the crime of illegally producing and marketing representations of registered trademarks illegally made ,which, however, is mainly specific to the conduct of producing and selling fake representations of registered trademarks. The objects of such crime are exclusive right to use a registered trademark and the national trademark administration system meaning one , with the Certificate of A Designated Unite to Print Trademarks issued by the industry and commerce administration authorities at county leave or above and the entrusts of the owners of registered trademarks, can produce trademark representations.[4] To conclusion, it is arguable the defendants in this case are convicted of such crime.
Finally, it?s illegal to produce and sell refurnished BlackBerry Smartphone, however whether the defendants can be combated according to Criminal law shall be subject to the principle of nulla poena sine lege that only for offenders? acts that are explicitly defined as criminal acts in law can they be convicted and punished in accordance with law. It means that it is necessary to apply correct law in judging whether someone is convicted, if can, what crimes he is suspected of. For those who are convicted according to law, they shall be punished subject to law; otherwise, they shall be combated by civil or administrative ways.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China?s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU?s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
Author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.
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[1] Science of Criminal Law, Chen Minghua, China University of Political and Science Press, 1999, 526
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[2] Intellectual Property Law: Jing Yongjun, Law Press, 2005, 122
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[3] ?2010?ShenFuFa Criminal Chu Zi No.1274, Page 15
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[4] Science of Criminal Law, Chen Minghua, China University of Political and Science Press, 1999, 528
???????? ?? ?????????1999?8????P528
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