Interpretation (III) of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights
Published:
2020-09-10
The (III) of Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement, as adopted at the 1811th meeting of the Judicial Committee of the Supreme People's Court on August 31, 2020 and at the 48th meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on August 21, 2020, are hereby issued and shall come into force on September 14, 2020.
The (III) of Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement, as adopted at the 1811th meeting of the Judicial Committee of the Supreme People's Court on August 31, 2020 and at the 48th meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on August 21, 2020, are hereby issued and shall come into force on September 14, 2020.
Supreme People's Court, Supreme People's Procuratorate
12 September 2020
Fashi [2020] No. 10
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in Handling Criminal Cases of Infringing Intellectual Property (III)
(Adopted at the 1811th meeting of the Judicial Committee of the Supreme People's Court on August 31, 2020, and adopted at the 48th meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on August 21, 2020, and effective as of September 14, 2020)
In order to punish the crimes of infringement of intellectual property rights in accordance with the law and maintain the order of the socialist market economy, in accordance with the relevant provisions of the the People's Republic of China Criminal Law and the the People's Republic of China Criminal Procedure Law, several issues concerning the specific application of laws in handling criminal cases of infringement of intellectual property rights are hereby interpreted as follows:
Article 1 In any of the following circumstances, it may be recognized as a "trademark identical to its registered trademark" as stipulated in Article 213 of the Criminal Law ":
(I) changing the font of a registered trademark, the case of letters, or the arrangement of characters in either direction or vertical direction, making little difference between the registered trademark and the registered trademark;
(II) changing the spacing between words, letters, numbers, etc. of a registered trademark, which is basically indistinguishable from the registered trademark;
(III) changing the color of a registered trademark does not affect the manifestation of the distinctive features of the registered trademark;
(IV) only adding to the registered trademark the generic name, model and other elements that lack distinctive features, which do not affect the manifestation of the distinctive features of the registered trademark;
The (V) is basically no different from the three-dimensional logo and plane elements of the three-dimensional registered trademark;
(VI) other trademarks that are basically no different from registered trademarks and are sufficiently misleading to the public.
Article 2 A natural person, legal person or unincorporated organization that signs its name in the usual way on a work or sound recording specified in Article 217 of the Criminal Law shall be presumed to be the copyright owner or producer of the sound recording, and there are corresponding rights in the work or sound recording, unless proved to the contrary.
In cases where there are many types of works and sound recordings involved and the right holders are scattered, there is evidence to prove that the copies involved are illegally published, copied and distributed, and the publisher and copy distributor cannot provide relevant evidence materials with the permission of the copyright owner and sound recording producer. It can be deemed as "without the permission of the copyright owner" and "without the permission of the sound recording producer" as stipulated in Article 217 of the Criminal Law ". However, there is evidence to prove that the right holder has waived his rights, the copyright of the work involved or the relevant rights of the sound recording are not protected by China's copyright law, and the period of protection of the rights has expired.
Article 3 Whoever steals trade secrets by means of illegal copying, unauthorized or unauthorized use of computer information systems shall be deemed as "theft" as stipulated in the first paragraph of Article 219 of the Criminal Law ".
Obtaining the business secrets of the obligee by means of bribery, fraud, electronic intrusion, etc., shall be deemed as "other improper means" as stipulated in the first paragraph of the first paragraph of Article 219 of the Criminal Law ".
Article 4 The implementation of the acts stipulated in Article 219 of the Criminal Law shall be deemed as "causing heavy losses to the obligee of trade secrets" under any of the following circumstances ":
The amount of loss caused by the (I) to the obligee of the trade secret or the amount of illegal income from the infringement of the trade secret is more than 300,000 yuan;
The (II) directly causes the right holder of the trade secret to go bankrupt or close down due to major business difficulties;
(III) cause other heavy losses to the obligee of the trade secret.
If the amount of loss caused to the obligee of trade secrets or the amount of illegal income due to infringement of trade secrets is more than 2.5 million yuan, it shall be deemed as "causing particularly serious consequences" as stipulated in Article 219 of the Criminal Law ".
Article 5 The amount of losses or illegal gains caused by the implementation of the acts specified in Article 219 of the Criminal Law may be determined in the following ways:
Where the (I) obtains the right holder's trade secrets by improper means and has not disclosed, used or allowed others to use them, the amount of loss may be determined on the basis of the reasonable licensing fee for the trade secrets;
If the (II) discloses, uses or allows others to use the trade secrets of the obligee after obtaining them by improper means, the amount of loss may be determined on the basis of the loss of sales profits caused by the infringement of the obligee, but if the amount of loss is less than the reasonable licensing fee for the trade secrets, it shall be determined on the basis of the reasonable licensing fee;
Where a (III) discloses, uses or allows others to use the trade secrets in his possession in violation of the agreement or the obligee's requirements for keeping the trade secrets, the amount of loss may be determined on the basis of the loss of sales profits caused by the infringement of the right holder;
If the (IV) obtains, uses or discloses the trade secrets, knowing that they are obtained by improper means or in violation of the agreement or the obligee's request to disclose, use or allow the use of the trade secrets, the amount of loss may be determined according to the loss of sales profits caused by the infringement of the right holder;
(V) the trade secret has been known to the public or lost as a result of the infringement of the trade secret, the amount of the loss may be determined on the basis of the commercial value of the trade secret. The commercial value of a trade secret may be determined on the basis of the research and development costs of the trade secret and the proceeds from the implementation of the trade secret;
The property or other property benefits obtained by a (VI) as a result of disclosing or allowing others to use trade secrets shall be regarded as illegal gains.
The loss of sales profit caused by the infringement of the right holder as stipulated in the second, third and fourth items of the preceding paragraph may be determined by multiplying the total number of sales reductions caused by the infringement by the reasonable profit of each product of the right holder; if the total number of sales reductions cannot be determined, it may be determined by multiplying the sales volume of the infringing product by the reasonable profit of each product of the right holder; if neither the total number of sales reductions caused by the infringement of the right holder nor the reasonable profit of each product can be determined, it may be determined by multiplying the sales volume of the infringing product by the reasonable profit of each infringing product. If the trade secret is used for other business activities such as services, the amount of loss may be determined on the basis of the reasonable profits reduced by the right holder as a result of the infringement.
The remedial expenses incurred by the right holder of a trade secret in order to mitigate the loss of business operations, business plans or to restore the security of computer information systems or other systems shall be included in the losses caused to the right holder of the trade secret.
Article 6 In criminal proceedings, where a party, defender, agent ad litem or an outsider applies in writing to take measures to keep confidential the evidence and materials related to trade secrets or other commercial information that needs to be kept confidential, necessary confidentiality measures such as organizing the participants in the proceedings to sign a confidentiality undertaking shall be taken in accordance with the circumstances of the case.
Violation of the requirements of the preceding paragraph of the confidentiality measures or the confidentiality obligations stipulated by laws and regulations shall bear corresponding responsibilities in accordance with the law. Anyone who discloses, uses or allows others to use trade secrets contacted or obtained in criminal proceedings without authorization shall be investigated for criminal responsibility in accordance with the provisions of Article 219 of the Criminal Law.
Article 7 Except in special circumstances, goods with counterfeit registered trademarks, illegally manufactured registered trademark logos, copyrighted copies, materials and tools mainly used to manufacture goods with counterfeit registered trademarks, registered trademark logos or infringing copies shall be confiscated and destroyed according to law.
If the above-mentioned articles need to be used as evidence in civil or administrative cases, they may be destroyed after the conclusion of the civil or administrative case or after the evidence is fixed by means of sampling or photographing.
Article 8 Under any of the following circumstances, a heavier punishment may be imposed as appropriate, and probation is generally not applicable:
(I) are mainly engaged in infringing intellectual property rights;
Infringement of intellectual property rights again after the (II) has been administratively punished for infringing intellectual property rights constitutes a crime;
(III) the counterfeiting of registered trademarks of commodities such as materials for rescue and disaster relief and epidemic prevention during major natural disasters, accidents and disasters, and public health incidents;
The (IV) refuses to hand over the illegal gains.
Article 9 Under any of the following circumstances, a lighter punishment may be imposed as appropriate:
(I) pleading guilty to punishment;
(II) obtaining the obligee's understanding;
(III) showing signs of repentance;
(IV) has not disclosed, used or allowed others to use the business secrets of the obligee after obtaining them by improper means.
Article 10 For a crime of infringement of intellectual property rights, a fine shall be imposed in accordance with the law, taking into account the amount of illegal proceeds of the crime, the amount of illegal business operations, the amount of losses caused to the obligee, the number of infringing and counterfeit articles, and the social harm.
The amount of the fine shall generally be determined between one and five times the amount of the illegal proceeds. If the amount of illegal income cannot be ascertained, the amount of the fine shall generally be determined as 50% to double the amount of illegal business operations. Neither the amount of illegal income nor the amount of illegal business operations can be ascertained. If the sentence is fixed-term imprisonment of not more than three years, criminal detention, public surveillance, or a single fine, the amount of the fine shall generally be determined between 30,000 yuan and 1 million yuan; if the sentence is fixed-term imprisonment of more than three years, the amount of the fine shall generally be determined between 150,000 yuan and 5 million yuan.
Article 11 After the promulgation and implementation of this interpretation, if the judicial interpretation and normative documents previously issued are inconsistent with this interpretation, this interpretation shall prevail.
Article 12 This Interpretation shall come into force as of September 14, 2020.
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