On February 8, 2021, China’s Supreme People’s Procuratorate issued the 26th batch of guiding cases covering intellectual property. This batch covers 5 circumstances together with felony trademark, copyright and commerce secret regulation. Overseas victims included Starbucks, Cisco, and HP in 2 of the 5 circumstances. A short abstract of the circumstances comply with. The total textual content is obtainable here (in Chinese language solely).
Counterfeit Starbucks VIA Espresso
In February 2018, the Wuxi Metropolis Market Supervision Division acquired a report stating that there have been counterfeit “Starbucks” model espresso being offered. An investigation decided the “Starbucks” espresso offered by Shuangshan was a counterfeit product. After verification, the market supervision division notified the Wuxi public safety division. Later, it was discovered that the espresso offered by Shuangshan Firm was not licensed by the proprietor of the “Starbucks” model. Below the premise of realizing that the bought merchandise had been counterfeit, Shuangshan nonetheless solid customs declaration paperwork and false authorization paperwork, and offered the merchandise. The counterfeit Starbucks espresso went to greater than 50 retailers in 18 provinces throughout China, and eventually offered to finish customers.
Efficiency of duties by procuratorial organs
The primary activity is to establish the crime and topic of the crime. The espresso concerned is a product with a counterfeit registered trademark. Whether or not the espresso is poisonous or dangerous or that doesn’t meet security requirements will have an effect on the characterization of the case. Nonetheless, the proof within the case didn’t present whether or not the counterfeit espresso accommodates poisonous and dangerous components and whether or not it meets security requirements and occasional high quality . In view of the unclear information of this half, the procuratorial organ requires the general public safety organs to conduct sampling and identification of the a number of batches of espresso seized in accordance with the provisions of GB7101-2015 “Nationwide Meals Security Commonplace Beverage.” After identification, it was decided that the espresso concerned within the case complies with China’s meals security requirements and doesn’t represent against the law of manufacturing or promoting poisonous or dangerous meals. Accordingly the crime was solely trademark counterfeiting by way of manufacture and sale. Nonetheless, the proof for manufacturing was not adequate – proof was solely adequate for the sale of counterfeit espresso.
The second activity is to find out the monetary quantity of the crime. The general public safety organs gathered proof from sale slips, purchaser’s testimony, and worker chat information to find out that just about 10 million RMB of counterfeit espresso was offered among the many defendants.
The third activity is to find out intent – did the defendant know that the espresso was counterfeit and offered it anyway? On this case, there have been solid and used false authorization paperwork and one vendor confessed.
The fourth activity is to suggest sentencing suggestions primarily based on gross sales quantity, counterfeit product kind, geographic scope, and so forth.
The defendants had been fined as much as 3.2 million RMB and one defendant acquired a jail sentence of 1 12 months.
The guiding significance: Severely punish crimes of counterfeiting registered emblems in accordance with the regulation, and earnestly safeguard the legit rights and pursuits of proper holders and customers; Prosecutors ought to take note of subjective data (intent) of each upstream and downstream personnel within the gross sales chain; Prosecutors ought to mix each public curiosity litigation and felony prosecution.
2. Guangzhou Carmen Industrial Co., Ltd. Use of KM Trademark
Carmen (广州卡门实业有限公司) began utilizing the “KM” trademark on clothes in March 2013. On October 30, 2014, Carmen Firm utilized to the previous Trademark Workplace to register the trademark to be used on clothes, hats and different items. The Trademark Workplace rejected the trademark utility as just like a beforehand registered trademark. On June 14, 2016, Carmen once more utilized for the registration of the “KM” trademark on clothes, hats and different items. On February 14, 2017, the Trademark Workplace solely authorized the “KM” trademark for sleep eye masks, however Carmen continued to make use of the “KM” trademark on clothes. Within the meantime, Carmen has step by step developed into an enterprise with practically 600 shops and greater than 10,000 staff throughout the nation.
Beijing Jinyitang Enterprise Tradition Growth Co., Ltd. (北京锦衣堂企业文化发展有限公司) utilized for the registration of the “KM” trademark on clothes and different items. The Trademark Workplace rejected the trademark on the grounds that the trademark was just like the beforehand registered trademark. On November 22, 2016, Jinyitang Firm once more utilized for using the “KM” trademark on clothes and different items. Because the beforehand registered related trademark was cancelled, the Trademark Workplace authorized the appliance on January 7, 2018.
Finally, a licensee reported Carmen’s use of the “KM” trademark on clothes to the market supervision authorities in lots of locations throughout the nation, and reported to the Nanhai Department of the Public Safety Bureau of Foshan Metropolis, Guangdong Province Carmen’s suspected of promoting items with counterfeit registered emblems. The Nanhai Department opened the case on Might 31, 2018 and subsequently seized roughly 90,000 items of clothes marked with the “KM” trademark within the logistics warehouse of Carmen.
Nanhai District Procuratorate discovered that the general public safety organ’s cause for submitting a felony case can’t be established after evaluation. One is the truth that Carmen has prior use. Carmen has used the “KM” trademark for a very long time earlier than Jinyitang obtained the “KM” trademark. The second is that Carmen has no felony intent. Carmen has all the time used this trademark through the manufacturing and gross sales of clothes, and has by no means claimed to be a product of Jinyitang Firm or Beijing-Tianjin Lianhang Firm. The model of “KM” clothes operated by Carmen has rather more affect than the above two corporations. There was no intention to counterfeit the registered trademark of others. The manufacturing and sale of “KM” clothes by Carmen Firm doesn’t represent the crime of promoting merchandise with counterfeit registered emblems. The general public safety organs made a mistake in submitting a case and must be corrected.
On August 3, 2018, the Nanhai District Procuratorate issued a “Discover to Cancel the Case”. On August 10 of the identical 12 months, the South China Sea Department dismissed the case and returned the seized items. Carmen offered the products in a well timed method and averted tens of tens of millions of financial losses.
The guiding significance of this case consists of: 1. In dealing with felony circumstances of infringement of mental property rights, 2. procuratorial organs ought to take note of analyzing whether or not there’s a legally legit use; procuratorial organs ought to accurately grasp the defenses of the prior use of the trademark; and three. arrange hearings when obligatory to hold out case-filing supervision work to boost case-handling transparency and supervision credibility.
3. Pirated Film Distribution by Chen Li
Defendant Chen Li was initially sentenced to seven months imprisonment and a fantastic of RMB 150,000 by the Folks’s Court docket of Hefei Excessive-tech Growth Zone, Anhui Province for the crime of copyright infringement.
Apparently feeling that crime does pay, from July 2017 to March 2019, the defendant Chen Li was entrusted by overseas personnel to recruit the defendants Lin Ying, Lai Dong, Yan Jie, Yang Xiaoming, Huang Yasheng, Wu Bingfeng, Wu Jianxing, and arrange a QQ chat group to replace and keep “Www.131zy.web” “www.zuikzy.com” and plenty of different pirated movie and tv useful resource web sites. Amongst them, Chen Li is answerable for publishing duties and remuneration to different members within the group; Lin Ying is answerable for recruiting some personnel, coaching and urging different members to finish duties; Lai Dong, Yan Jie, Yang Xiaoming and others have obtained the pirated movies by downloading, cloud disk sharing, and so forth., slice and add playing web site ads and watermarks, generate hyperlinks, and eventually copy and paste the hyperlink to the above pirated movie and tv useful resource web sites. Within the meantime, Chen Li acquired over 12.5 million RMB in working bills for pirated movie and tv useful resource web sites remitted by overseas personnel, and the defendants made income starting from 18,00 to 500,000 RMB.
After the incident, the general public safety organs preserved a lot of infringing movie and tv works copied and uploaded by the defendant Chen Li and others from the above-mentioned pirated movie and tv web sites, together with “The Wandering Earth”, “Incorruptible Authorities”, “Loopy Alien” and different motion pictures.
On September 27, 2019, the Shanghai Third Department filed a public prosecution with the Shanghai Third Intermediate Folks’s Court docket for the crime of copyright infringement in opposition to 8 individuals together with the defendant Chen Li.
The eight defendants voluntarily pleaded responsible and accepted fixed-term imprisonment from ten months to 4 years and 6 months and fines. Fines starting from 10,000 yuan to 500,000 yuan had been advisable.
On November 20 of the identical 12 months, the case was opened in courtroom in response to regulation. The eight defendants and their defenders haven’t any objection to the fees , however they put ahead their very own protection opinions on the calculation of the quantity of unlawful enterprise on this case. Principally, the price of operating the felony operation must be deducted from the enterprise income (e.g., renting servers, paying wages, and so forth.). The prosecutors disagreed. Additional, the dearth of the overseas ringmasters within the case would have an effect on the choice. The prosecutors additionally disagreed stating sufficient proof is offered to show every defendant dedicated a joint crime.
Relating to sentencing suggestions, the prosecutors said that the suggestions are primarily based on the felony information, proof, statutory discretionary circumstances, social hurt and different elements of every defendant, and have been confirmed and acknowledged by every defendant. As well as, there are a lot of infringing works on this case, a variety of dissemination, and enterprise operations. The size of the crime is lengthy and the circumstances are significantly critical, and the defendant Chen Li dedicated against the law that must be sentenced to fixed-term imprisonment of extra inside 5 years . He’s additionally a repeat offender, so suspended sentences shouldn’t be utilized. The Court docket agreed.
On November 20, 2019, the Shanghai Third Intermediate Folks’s Court docket made a first-instance judgment and sentenced the defendant Chen Li and different folks to imprisonment starting from ten months to 4 years and 6 months for copyright infringement, every with a fantastic of 20,000 RMB to 500,000 RMB. After the decision was introduced, not one of the defendants appealed, and the decision has taken impact.
The guiding significance consists of: 1. Give full play to the procuratorial operate, punish crimes of on-line infringement of the copyright of audiovisual works in accordance with the regulation, and earnestly safeguard the legit rights and pursuits of the proper holders; 2. In dealing with felony circumstances of on-line copyright infringement, procuratorial organs ought to conduct a complete evaluation of the objectivity, legitimacy and relevance of digital knowledge, and apply the system of responsible pleas and leniency in punishing in accordance with the regulation to enhance the standard and effectivity of the case; and three. Precisely grasp the certification methodology of “with out the permission of the copyright proprietor” (e.g., for overseas works).
4. CISCO , HP and HUAWEI Emblems on Fiber Optic Modules
From 2015 to April 2019, defendant Yao Changlong organized for defendant Gu Jin to buy printers, label paper, fiber optic modules and different supplies; solid “CISCO”, “HP” and “HUAWEI” emblems on the fiber optic modules and different commodities; and organized for defendants Wei Zihao and Zhang Chao and Zhuang Ganxing to promote abroad. Yao Changlong and Gu Jin produced and offered greater than 100,000 counterfeit optical fiber modules with the above-mentioned registered emblems, with a complete gross sales quantity of greater than RMB 31.62 million; 11,975 items of counterfeit optical fiber modules and switches, value greater than 3.83 million yuan had been seized; Yao Changlong, Gu Jin The quantity of unlawful revenue was 4 million RMB for Yao. The gross sales quantity of Wei Zihao, Zhang Chao, and Zhuang Ganxing had been respectively 7.45 million RMB, 4.29 million RMB, and three.52 million RMB; the unlawful features had been 200,000 RMB, 185,000 RMB and 140,000 RMB respectively.
On October 10, 2019, the Donggang District Court docket heard the case. In the course of the trial, defendants put ahead the next protection opinions: 1. The actions of defendants Zhuang Ganxing, Zhang Chao, Wei Zihao with the defendant Yao Changlong didn’t represent a joint crime; 2. The products on this case had been all offered overseas, and subsequently the social hurt was much less. The prosecutor’s argued in response: First, Zhuang Ganxing, Zhang Chao, and Wei Zihao knew that the products they offered with counterfeit registered emblems had been OEM produced by Yao Changlong and Gu Jin and continued to be offered. Subjective intention to promote counterfeit items constituted a joint crime of counterfeiting registered emblems. Second, the products concerned on this case had been all offered abroad, however the infringed emblems had been all registered in China, and the crime of counterfeiting registered emblems occurred in China. No matter whether or not the products concerned had been offered abroad or not, the legit rights and pursuits of the registered trademark proprietor had been infringed. The Court docket agreed with the prosecutor.
Yao acquired a 4-year sentence and 5 million RMB fantastic whereas the opposite defendants acquired smaller sentences and fines. No defendants appealed.
Guiding significance: 1. Counterfeit items which have obtained registered emblems in China and are offered abroad, and the circumstances are critical and represent against the law, shall be prosecuted in response to regulation; and a pair of. Whether or not the upstream and downstream defendants within the crime of counterfeiting registered emblems represent a joint crime must be decided by the intentional contact between the producer and vendor of the counterfeit items, the extent of consciousness of the illegality, and the notice of the distinction between the gross sales worth and the real worth and the totality of the circumstances.
5. Wenzhou Mingfa Optical Expertise Co., Ltd.’s Commerce Secrets and techniques
Wenzhou Mingfa Optical Expertise Co., Ltd. (温州明发光学科技有限公司) was established in 1993 and primarily produces and sells magnifying glasses, binoculars and different optical plastic merchandise. Mingfa Firm has been growing ultra-thin flat magnifying glass manufacturing know-how since 1997, and has developed a mass manufacturing methodology for Fresnel magnifying glass having excessive temperature resistance.
The defendant Jin Yiying utilized for a job at Mingfa Firm in 2005, and the 2 events signed a labor contract. The ultimate contract agreed that the work interval was from July 16, 2009 to July 16, 2011. In the course of the interval, Jin Yiying successively served as a salesman, gross sales supervisor, and deputy common supervisor. He had a sure understanding of the manufacturing strategies of Fresnel ultra-thin magnifiers, and realized of kit provide and advertising channels, buyer lists and different info. Jin Yiying has signed a confidentiality settlement with Mingfa Firm, and its confidential info consists of: (1) Technical info, together with product design, product drawings, manufacturing molds, manufacturing processes, manufacturing know-how, technical knowledge, patented know-how, and scientific analysis achievements, and so forth.; (2) Enterprise info, together with product manufacturing, provide and gross sales channels, buyer lists, shopping for and promoting intentions, transaction or negotiated costs, product efficiency, high quality, amount, supply date, and so forth. It is usually agreed that inside the time period of the labor contract, inside two years after the termination of the labor contract the above-mentioned confidential content material shall not be disclosed to a 3rd occasion.
Firstly of 2011, Jin Yiying resigned from Mingfa Firm. On March 24 of that 12 months, he established Fresnel Firm within the title of his brother-in-law. Instantly after its institution, Fresnel bought the identical rubber sheets, molds, hydraulic presses and different supplies and gear from the above three suppliers and used the identical course of as Mingfa to provide the identical magnifying glass on the market out there, leading to Mingfa Tsuffering RMB 1.22 million in losses.
On August 16, 2018 the Rui’an Metropolis Procuratorate filed a public prosecution with the Rui’an Metropolis Folks’s Court docket of Zhejiang Province (Rui’an Metropolis Court docket) in opposition to the defendant Jin Yiying for the crime of theft of commerce secrets and techniques.
The prosecutor argued: 1. the manufacturing course of concerned within the case was not publicly identified; 2. the provider info concerned is a commerce secret; 3. throughout his tenure at Mingfa Firm, Jin Yiying had contact with Mingfa Firm’s commerce secrets and techniques; 4. Jin Yiying used the commerce secrets and techniques of Mingfa Firm; 5. the present proof is adequate to rule out the chance that Jin Yiying obtained by different authorized channels or developed its personal ultra-thin magnifying glass manufacturing course of; and 6.the confidentiality settlement clearly stipulates that the defendant Jin Yiying ought to know that he has the duty to maintain confidential the technical info and enterprise info concerned within the case.
The Court docket agreed and sentenced Jin to 18 months in jail and a fantastic of 700,000 RMB.
Guiding significance: 1. To punish the crime of theft of commerce secrets and techniques in accordance with the regulation, we should first precisely grasp the definition of commerce secrets and techniques; 2. For conditions the place the defendant doesn’t plead responsible, it’s essential to be good at making use of the principles of proof to exclude the opportunity of the defendant legally acquiring commerce secrets and techniques and kind a series of proof for accusations of crimes; and three. Take note of the evaluation of the skilled opinions, and herald folks with specialised data to take part within the case.
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