Criminal Liability for Trademark Counterfeiting in the Digital Environment: A Comparative Study

Abstract

This study aims to clarify the legal basis of criminal liability for the imitation of digital trademarks and to examine the extent to which Jordanian legislation is capable of accommodating forms of trademark infringement in the digital environment, in light of technological developments and the diversity of electronic means used to commit such acts. The research problem lies in the ambiguity surrounding the legal basis of criminal liability for the imitation of digital trademarks, resulting from the inadequacy of the Jordanian Trademarks Law in keeping pace with the technological nature of such acts, as well as the overlap in the application of the provisions of the Jordanian Unfair Competition and Trade Secrets Law, the Economic Crimes Law, and the Cybercrime Law. This raises issues concerning the legal characterization of such acts, the scope of criminal liability, and the effectiveness of criminal protection afforded to economic interests and trust in the digital environment. The study adopts the descriptive approach to clarify the legal framework governing criminal liability for the imitation of digital trademarks and its effects, the analytical approach to analyze the relevant Jordanian legal provisions and assess their adequacy and legislative shortcomings, and the comparative approach by drawing on UAE legislation, particularly Federal Decree-Law No. (36) of 2021 on Trademarks. The study concludes that the traditional criminal provisions governing trademark imitation may extend to certain forms of infringement committed in the digital environment; however, their application remains subject to legal difficulties due to the absence of explicit and comprehensive regulation of certain forms of digital imitation, particularly infringements committed through domain names, search engines, and digital platforms. The study recommends that the Jordanian legislator introduce an explicit provision into the Trademarks Law criminalizing forms of trademark infringement committed through digital means, particularly the use or imitation of a trademark in domain names, websites, search engines, digital advertisements, and electronic platforms, where such use is likely to mislead the public or create confusion regarding the source of goods or services or the existence of a commercial connection with the trademark owner.