A case of illegal trademark printing

At the beginning of 2007, the parties in Shandong Zhoucun a packaging Co., LTD. (hereinafter referred to as the packaging company) signed a written agreement with a cement factory in Zouping County to produce paper cement bags for the factory, and print the Dongtian registered trademark logo and pattern on the bags. When printing the trademark business, the packaging company in the trademark printing client did not produce a copy of the business license or legal business certificate or identity certificate, did not carefully check the relevant certification documents and trademark registration certificate and trademark pattern, in accordance with the trademark printing client provided trademark pattern carved into a module, the trademark logo printed on the paper cement packaging bag. At the same time, when the parties undertake the trademark printing business, they do not fill in the trademark printing business registration form, and establish a system to manage the trademark printing business. After the batch of bags with registered trademark logos were printed, the company did not take the sample of the logo and the trademark printing business registration form provided by the manufacturer entrusted to print it, a copy of the trademark registration certificate, a copy of the trademark printing authorization letter, etc., and did not establish the trademark logo entry and exit warehouse registration account. Up to the time of filing investigation, the parties involved produced and printed 211,050 paper cement bags with Dongtian registered trademark logo for a cement factory in Zouping County, with sales proceeds of 236,376 yuan and illegal income of 11,068 yuan.

The illegal printing of trademark logos by diverge packaging company violates the provisions of Article 7, Article 8, Article 9 and Article 10 of the Measures for the Administration of Trademark Printing, and constitutes an illegal act of printing trademark logos in violation of regulations. There is no disagreement about the nature of this behavior, but there are two different views on how to deal with it. One view is that it should be punished according to the provisions of Article 11 of the Measures for the Administration of Trademark Printing (hereinafter referred to as the Measures). Because the "Measures" is a special law, is a special regulation of trademark printing behavior of professional legal norms, and the "Printing Industry Management Regulations" (hereinafter referred to as the "Regulations") is the common law, is the basic law to regulate the printing industry. According to the principle that the special law is superior to the common law, this case should be punished according to the Measures. Another view is that the punishment should be based on the provisions of Article 39, paragraph 2, of the Regulations. Because the "Measures" is the State Administration for Industry and Commerce issued on August 19, 2004, belongs to the department regulations; The Regulations were promulgated by The State Council on August 2, 2001, and are administrative regulations with higher legal level effect than regulations. Therefore, in the event of a conflict between the two, administrative regulations should prevail.

The analysis author agrees with the second view. First of all, look at the relevant provisions of the Regulations on the punishment of this kind of behavior: Article 23 stipulates that "printing enterprises shall not print counterfeit or forged registered trademark logos", Article 24 paragraph 1 stipulates that "printing registered trademark logos shall verify and check the Trademark Registration Certificate, registered trademark pattern and registered trademark license contract, and file the relevant information for 2 years". The second paragraph stipulates that "if the State has other provisions on the printing of registered trademarks, the printing enterprise shall also comply with its provisions." The above are the legal provisions that printing enterprises should abide by in engaging in trademark printing business activities. The first paragraph of Article 39 of the Regulations stipulates the legal liability to be borne in violation of the relevant provisions. Including: 1. When printing the registered trademark logo, the printing enterprise fails to verify and verify the relevant materials of the printing client as required; (2) The printing enterprise pirated printing other packaging and decoration printed matter (including trademark logo). The publishing administrative department of the local people's government at or above the county level shall give a warning to these two acts, confiscate the illegal gains, and impose a fine of not less than 5 times but not more than 10 times the illegal business amount if the illegal business amount is more than 10,000 yuan; If the amount of illegal business is less than 10,000 yuan, a fine of not less than 10,000 yuan but not more than 50,000 yuan shall be imposed. However, the second paragraph of Article 39 also provides that if a printing enterprise violates the State regulations on the management of registered trademarks and advertising and publicity materials by accepting the commission to print registered trademarks and advertising and printing materials, the industrial and commercial departments shall give a warning, confiscate the printed matter and the illegal income, and impose a fine of not less than 5 times but not more than 10 times the illegal business amount if the illegal business amount is more than 10,000 yuan; If the amount of illegal business is less than 10,000 yuan, a fine of not less than 10,000 yuan but not more than 50,000 yuan shall be imposed. Look again at the provisions of the Measures on punishment for such acts: From the provisions of Article 3 to Article 6, the Measures are detailed from the perspective of the trademark printing client, the provisions of Article 24 of the Regulations, and in accordance with the registered trademarks and unregistered trademarks respectively stipulated that the client should provide documents and materials in line with the provisions of the Measures when commissioning the printing of trademark logos. Article 7 stipulates the verification responsibility of the trademark printing unit, and stipulates that if the relevant certificate materials provided by the printing client do not meet the requirements, the printing enterprise shall not print. Article 8 to Article 10 provides for the registration system of trademark printing business of printing enterprises, the management system of trademark logos in and out of storage, the destruction system of waste trademark logos, and the management system of trademark printing archives, etc., requiring enterprises to establish relevant systems and implement them according to law when printing trademarks. Article 11 Where a trademark printing unit violates the provisions of Articles 7 to 10, it shall be ordered by the local industry and commerce Bureau at or above the county level to make corrections within a time limit, and given a warning according to the circumstances, and a fine of not more than three times the illegal income, but not more than 30,000 yuan, and a fine of not more than 10,000 yuan if there is no illegal income. From the above analysis, it can be seen that if the printing enterprise does not verify and verify the relevant documents and information when printing the registered trademark logo according to the provisions, the punishment stipulated in the Regulations is far heavier than the Measures. The author believes that in order to deal with the conflict between these two legal norms, it is crucial to accurately understand the "other provisions of the State" and "relevant provisions of the State" in Articles 24 and 39 of the Regulations. The "other provisions of the State" mentioned in Article 24 of the Regulations shall refer to the laws, other administrative regulations other than the Regulations, other provisions of The State Council, the State Administration for Industry and Commerce and other ministries (lines, departments) on the printing of registered trademarks. The "relevant provisions of the State" referred to in Article 39 of the Regulations shall include the provisions of Article 23 to Article 27 of the Regulations, and also include the provisions of laws, other administrative regulations, other provisions of The State Council, the State Administration for Industry and Commerce and other ministries (banks and departments) on the management of registered trademarks and advertising printing. The Measures shall fall within the scope of "other provisions of the State" and "relevant provisions of the State" as referred to in the Regulations. Illegal printing of registered trademark logos, including violations of Articles 7 to 10 of the Measures, are within the scope of adjustment of Article 39, paragraph 2 of the Regulations. Moreover, the effect of the Regulations is higher than that of the Measures, therefore, the author believes that this case should be implemented in accordance with the provisions of the second paragraph of Article 39 of the Regulations. (China Business News)