Criminal liability for infringements of well-known trademarks rights: the demand and possibilities

Abstract

Purpose – to examine the demand for the infringements of Well-Known Trademarks rigthts criminalization and to examine the possibilities to protect the Well-Known Trademark rights by criminal measures without infringement of criminal law principle nullum crimen sine lege (“no crime without law”) and other defendant rights. On the one hand, the TRIPS1 agreement foresees the need to apply criminal liability for counterfeit trademarks related only to the registered trademarks. On the other hand, not registered, but the Well-Known Trademarks (product) counterfeit causes a threat and violates criminal codes stored values in states usually more than registered trademarks, because they are usually more prevalent, recognized and appreciated, and they are more trusted. It is particularly important to protect the market from the counterfeit specialized food market products for people with allergies (products without lactose, gluten, etc.), with specific diseases (diabetes, etc.). Also, there is a lot of risk in children goods as counterfeited children goods; toys often contain unauthorized or even toxic substances. When we are talking about the registered trademarks, regardless of their prevalence and merchantability in society, these trademarks are protected by the criminal law. Trademark registration is objectively determined circumstance. However, when it comes to a non-registered trademark, there are legal barriers related to the rights of a defendant in a criminal procedure by the criminal law measures. As a Well-Known Trademark is recognized exclusively by a court decision, it results in an inability to check whether a particular use of a Trademark is criminal until the national court’s (administrative unit) decision.