反向假冒行为的法益侵害性日增,而现有法规范规制的效力疲软,加之知识产权犯罪门槛逐渐降低及严密刑事法网立法政策的需求,对反向假冒行为作入刑评价具有必要性。同时,鉴于刑法的谦抑属性,反向假冒入刑应设置限制性条件,可以借鉴商标法中责任承担条款和刑法上假冒注册商标罪、销售假冒注册商标的商品罪的有关规定。即五年内两次实施经工商行政管理部门认定为反向假冒的商标侵权行为,情节严重的,构成反向假冒罪;销售明知是反向假冒的商品,销售金额较大的,构成销售反向假冒的商品罪。此外,基于反向假冒行为是利用职业便利实施的犯罪,从预防再犯的角度,对涉罪主体适宜适用从业禁止。 The countervailing acts of law have more and more infringement on legal interests, and the weakness of the existing laws and regulations, and the gradual reduction of intellectual property crime threshold and the need of strict criminal law network legislative and policy, it is necessary to impose the imposition of imposition penalty on counterfeiting. In the meantime, due to the modest and restrained nature of the criminal law, the restrictive conditions should be set for the counterfeit and entry into the criminal law. Reference can be made to the relevant provisions of the articles on the liability of trademark law and the crime of counterfeiting registered trademarks in criminal law and the crime of selling counterfeit registered trademarks. That is, twice a trademark infringement deemed to be counterfeit by the administrative department for industry and commerce within five years shall be deemed to be a reverse infringement if the circumstances are serious, sales of counterfeit goods, which are known to be counterfeit goods, and whose sales amount is relatively large, constitute a reverse sale Counterfeit goods crime. In addition, counterfeiting is based on the use of professional facilities to facilitate the implementation of crime, from the perspective of the prevention of recidivism, appropriate for the main body of the crime involved in the prohibition of employment.