3. The necessity of prosecuting counterfeiters of certification marks on the charge of trademark infringement

We believe that it’s of concrete necessity to prosecute counterfeiters of certification marks on the charge of trademark infringement.

(1) The harm of infringement of certification marks

Counterfeiting a certification mark causes damage to society as well as violating the national trademark management system and the exclusive rights of trademark owners, compared with counterfeiting a normal trademark. In addition, the results of counterfeiting certification marks are highlighted in the following respects:

i. Counterfeiting certification marks impacts consumer trust. Certification marks, especially those to prove the standard of goods or services, indicate that pertaining goods or services have a higher than normal standard. Consumers tend to trust goods or services with certification marks. For example, UL, a certification mark that is highly recognized around the world, is a guarantee of product safety and a special guarantee for consumer confidence. In certain product industries, such as electrical appliances, pressure vessels, inflammable and explosive products, foods, household decorations and such, safety certification marks play an important role in consumers’ minds when selecting goods or services. A less famous trademark bearing a certification mark will remarkably improve consumer’s confidence in the quality of the product and subsequently increase the purchase rate. A product below the safety standard bearing a counterfeit safety certification mark may create tremendous potential risks to life and public property. Counterfeiting a renowned certification mark is not less harmful to society than counterfeiting a famous normal trademark, and even sometimes more harmful.

ii. Counterfeiting certification marks facilitates circulation of counterfeit products overseas. Internationally recognized certification marks greatly help increase the market share of a product in European and American countries. Some manufacturers illegally affix certification marks on their products to promote export via overseas orders, hence escalating the depth and scope of trademark infringement.

iii. Counterfeiting certification marks does tremendous harm to the interests of certification marks owners. China has special and strict policies for the supervision, licensing and use of certification marks. In accordance with the provisions, certification marks owners must possess the related inspection and supervision ability, and be responsible for the quality of authorized goods or services. Hence the threshold for certification marks to be approved is much higher than normal trademarks, and the time for reviewing is also longer. Certification marks owners have to go through a stricter procedure and endure higher costs to acquire the exclusive rights to certification marks and to establish the guarantee and certification power of the mark. Accordingly, their loss in reputation and finance is huge when their rights are infringed.

With regards to the registration practice of certification marks in China, most of those registered are famous marks. If certification marks are excluded from the criminal protection of trademark rights, acts to counterfeit certification marks will significantly soar, which will strongly disrupt the purpose of a quality guarantee and reputation of the marks. Rights owners will not pursue authorization of certification marks and subsequently, the system of certification marks in our country will be overwhelmingly disrupted.

(2) It is more convenient to prosecute counterfeiters of certification marks on the charge of trademark infringement

i. Legislation has been mature, and the police have improved its capacity in handling cases of IP crime

Several relevant legal interpretations have been enacted and the legislation on handling criminal cases of trademark infringement has been remarkably enhanced. The police have notably upgraded its capacity to deal with IP criminal cases given that criminal cases involving trademark infringement have been increasing for years. To prosecute counterfeiters of certification marks on the charge of trademark infringement will help guarantee the hit rate and efficiency of cases, and will also facilitate the prosecution of counterfeiters.

ii. Compared with other charges, the charge of trademark infringement is more applicable