How to deal with trademark infringement in supermarkets. How to deal with the sale of infringing tra

If the seller does not know that the goods infringe the exclusive right to use a registered trademark, and can prove that the goods were legally obtained by the person and explain the supplier, he shall not be liable for compensation. So you'll want to find all the Oba shampoo purchase documents and provide all the information you have about the suppliers.

If the sale of a supermarket constitutes trademark infringement, the owner of the trademark may request the supermarket to stop using the trademark; stop selling immediately; confiscation and destruction of infringing goods; Confiscation and destruction of tools specially used to manufacture infringing goods and forge registered trademarks. If the exclusive right to use a registered trademark is intentionally infringed, it is necessary to pay compensation, otherwise it is not required, specifically stipulated in the second paragraph of Article 64 of the Trademark Law, which stipulates that "if the goods sold in the cave do not know that they infringe the exclusive right to use a registered trademark, and can prove that the goods were legally obtained by themselves and explain the supplier, they shall not be liable for compensation." ”

1. What is the standard of compensation for trademark infringement?

1. Criteria for determining the amount of compensation.

2) where the actual losses are difficult to determine, they may be determined in accordance with the benefits obtained by the infringer as a result of the infringement;

4) For malicious infringement of the exclusive right to use a trademark, where the circumstances are serious, the amount of compensation may be determined between one and five times the amount determined in accordance with the above method.

2. If it is difficult to determine the actual losses suffered by the right holder due to the infringement, the benefits obtained by the infringer as a result of the infringement, and the license fee for the registered trademark, the people's court shall make a judgment to give compensation of less than 5 million yuan according to the circumstances of the infringement.

Legal basis: Trademark Law of the People's Republic of China

Article 63.

The amount of compensation for infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the right holder due to the infringement; where the actual losses are difficult to determine, they may be determined in accordance with the benefits obtained by the infringer as a result of the infringement; If it is difficult to determine the loss of the right holder or the benefits obtained by the infringer, it shall be reasonably determined with reference to the multiple of the trademark license fee. Where the circumstances are serious, the amount of compensation may be determined between one and five times the amount determined in accordance with the above-mentioned methods. The amount of compensation shall include the reasonable expenses paid by the right holder to stop the infringement.

In order to determine the amount of compensation, the people's court may order the infringer to provide account books and materials related to the infringement if the right holder has tried its best to provide evidence, and the account books and materials related to the infringement are mainly in the possession of the infringer; Where the infringer does not provide or provides false account books or materials, the people's court may refer to the rights holder's claims and the evidence provided to determine the amount of compensation before giving way.

If it is difficult to determine the actual losses suffered by the right holder due to the infringement, the benefits obtained by the infringer as a result of the infringement, and the license fee for the registered trademark, the people's court shall make a judgment to give compensation of not more than RMB 5 million according to the circumstances of the infringement.

The people's court hearing a trademark dispute case shall, at the request of the right holder, order the destruction of the goods that are counterfeit registered trademarks, except in special circumstances; The materials and tools mainly used to manufacture goods with counterfeit registered trademarks shall be ordered to be destroyed without compensation; or under special circumstances, order that the aforementioned materials and tools be prohibited from entering commercial channels without compensation.

Goods with counterfeit registered trademarks may not enter the commercial channel after only removing the counterfeit registered trademark.

In the case of supermarket trademark infringement, compensation shall generally be determined based on the actual losses suffered by the right holder due to the infringement. where the actual losses are difficult to determine, they may be determined in accordance with the benefits obtained by the infringer as a result of the infringement; If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined with reference to the multiple of the trademark license fee. Legal basis:

Article 120 of the Civil Code of the People's Republic of China: Where civil rights and interests are infringed upon, the infringed party has the right to request that the infringer bear the tort liability of prudence. Article 183:Where oneself is harmed by protecting the civil rights and interests of others, the infringer bears civil liability, and the beneficiary may give appropriate compensation. Where there is no infringer, the infringer has escaped, or is unable to bear civil liability, and the victim requests compensation, the beneficiary shall give appropriate compensation.

Article 1167:Where the tortious conduct endangers the safety of others' persons or property, the infringed party has the right to request that the infringer bear tortious liability such as stopping the infringement, removing obstructions, or eliminating dangers. Article 1168:Where two or more persons jointly commit tortious acts, causing harm to others, they shall bear responsibility for the infringement of rights.

The amount of compensation for supermarket trademark infringement shall be determined according to the actual losses suffered by the right holder due to the infringement; where the actual losses are difficult to determine, it may be determined on the basis of the benefits obtained by the infringer as a result of the infringement; If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined with reference to the multiple of the trademark license fee. Where the circumstances are serious, the amount of compensation may be determined between one and five times the amount determined in accordance with the above-mentioned methods. The amount of compensation shall include the reasonable expenses paid by the right holder to stop the infringement.

Article 63 of the Trademark Law of the People's Republic of China.

The worst outcome of trademark infringement is to pursue the criminal liability of the perpetrator in accordance with the law. According to the relevant laws and regulations, if the actor sells goods that he knows to be counterfeit registered trademarks, which constitutes a crime, in addition to bearing the civil liability of compensating the losses of the infringed party, he shall also be investigated for criminal liability in accordance with the law.

1. How to determine trademark infringement.

Any act that infringes upon the rights and interests of another person's registered trademark is an act of infringing on trademark rights. According to Article 52 of the Trademark Law, the infringement of the exclusive right to use a registered trademark mainly includes the following:

1) Without the permission of the owner of the registered trademark, the act of using a trademark identical or similar to the registered trademark on the same or similar goods.

2) The act of replacing the registered trademark without the consent of the trademark registrant and putting the goods with the replaced trademark on the market This act is also theoretically called reverse counterfeiting.

3) Selling goods that infringe on the exclusive right to use a registered trademark. Combined with the provisions of Article 56, Paragraph 3 of the Trademark Law, if the sale of goods that are not known to infringe the exclusive right to use a registered trademark can prove that the goods were legally obtained by the person and explain the supplier, he shall not be liable for compensation.

Therefore, this form of trademark infringement requires subjective knowledge of the seller.

4) Forging or manufacturing the registered trademark logo of another person without authorization, or selling the counterfeit or unauthorized manufacture of the registered trademark logo. It should be noted that this kind of infringement is an infringement of trademark identification, including manufacturing and sales.

5) Acts that cause other damage to the exclusive right to use a registered trademark of another person.

2. Elements of trademark infringement.

1) There must be an illegal act, that is, the perpetrator has carried out the act of selling goods with counterfeit registered trademarks.

2) There must be a fact of damage, that is, the act of closing the sale of counterfeit trademark goods carried out by the actor has caused the damage to the trademark owner. The sale of goods counterfeiting the registered trademarks of others will cause serious property losses to the right holders, and at the same time, it will also cause goodwill damage to the entities that enjoy the registered trademark rights. Both property loss and goodwill damage are facts.

3) The offender is subjectively at fault, that is, the perpetrator has known or should have known about the fact that the goods sold are goods with counterfeit registered trademarks.

4) There must be a causal relationship between the illegal act and the harmful consequences, that is, the relationship between the sales behavior of the wrongdoer and the damage caused to the trademark owner by the antecedent and consequence.

Penalty Standards for Trademark Infringement in SupermarketsArticle 60 of the Trademark Law contains one of the acts of infringement of the exclusive right to use a registered trademark listed in Article 57 of this Law, and if a dispute arises, the parties shall resolve it through negotiation; If the trademark registrant or interested party is unwilling to negotiate or fails to do so, the trademark registrant or interested party may file a lawsuit with the people's court or request the administrative department for industry and commerce to handle the matter. When the administrative department for industry and commerce handles the case, if it finds that the infringement is established, it shall order it to immediately stop the infringing act, confiscate and destroy the infringing goods and tools mainly used for manufacturing the infringing goods or forging registered trademark logos, and if the illegal business turnover is more than 50,000 yuan, it may impose a fine of not more than five times the illegal business turnover, and if there is no illegal business revenue or the illegal business revenue is less than 50,000 yuan, a fine of not more than 250,000 yuan may be imposed. Where there are two or more acts of trademark infringement within five years or other serious circumstances, a heavier punishment shall be imposed.

If the sale of goods that are not known to be infringing on the exclusive right to use a registered trademark can prove that the goods were lawfully obtained by the person and explain the supplier, the administrative department for industry and commerce shall order the sale to be stopped.

Legal basis: Trademark Law of the People's Republic of China

Article 3 Trademarks approved and registered by the Trademark Office are registered trademarks, including commodity trademarks, service trademarks, collective trademarks and certification trademarks; The trademark registrant enjoys the exclusive right to use the trademark and is protected by law. For the purposes of this Law, the term "collective trademark" refers to a sign registered in the name of a group, association or other organization for use by members of the organization in commercial activities to indicate the user's membership in the organization. For the purposes of this Law, the term "certification mark" refers to a sign controlled by an organization that has the ability to supervise a certain kind of goods or services, and is used by an entity or individual other than the organization for its goods or services to prove the origin, raw materials, manufacturing methods, quality or other specific qualities of the goods or services.

Special matters concerning the registration and management of collective trademarks and certification marks shall be prescribed by the administrative department for industry and commerce.

Article 4 Where a natural person, legal person or other organization needs to obtain the exclusive right to use a trademark for its goods or services in the course of production and business activities, it shall apply to the Trademark Office for trademark registration. An application for registration of a trademark in bad faith that is not for the purpose of use shall be rejected. The provisions of this Law relating to commodity trademarks shall apply to service trademarks.

Article 5 Two or more natural persons, legal persons or other organizations may jointly apply to the Trademark Office for registration of the same trademark, and jointly enjoy and exercise the exclusive right to use the trademark.

Article 6 Goods that must be registered as required by laws and administrative regulations must be registered as trademarks, and shall not be sold in the market without approval for registration.

Article 7 The application for registration and use of the trademark shall follow the principle of good faith. The trademark user shall be responsible for the quality of the goods in which the trademark is used. The administrative departments for industry and commerce at all levels shall, through trademark management, stop acts that deceive consumers.