Viewpoints | How the right holder of an intellectual property criminal case determines the subject of civil compensation.

On June 11, 2014, Ruihui Company (legal representative Zheng Limeng, a two-person limited company) sent 40 boxes of counterfeit electrical products to Yancheng through Debang Logistics, which was seized by the Yandu District Administration for Industry and Commerce of Yancheng City. On August 18, 2015, the Yancheng People's Procuratorate filed a lawsuit with the court of first instance. During the period from April to June 2014, the defendant Zheng Limeng sold circuit breakers with counterfeit "ABB" registered trademarks to others, with a total sales amount of 60513.5 yuan, which was relatively large. His behavior has constituted the crime of selling counterfeit registered trademarks. The court of first instance issued a criminal judgment (2015) Yanzhi Xing Chu Zi No. 00010 on November 6, 2015, finding that the defendant Zheng Limeng constituted the crime of selling goods with counterfeit registered trademarks, and sentenced the defendant Zheng Limeng to six months' imprisonment and a fine of RMB 40000 yuan.

The obligee Schneider Company believes that Zheng Limeng and Ruihui Company use the same trademark as Schneider Company on the same goods without the permission of the trademark registrant, and sell the goods that infringe the exclusive right to use the registered trademark, which infringes the trademark rights of Schneider Company, seriously damages the goodwill of Schneider Company, and causes losses to the trademark brand value of Schneider Company, and the electrical products that are fake will pose a great potential danger to the personal and property safety of consumers. In addition to assuming administrative and criminal responsibilities in accordance with the law, the trademark owner should also bear the civil liability of stopping the infringement, compensating for losses, and apologizing.

Therefore, the court is requested to order Zheng Limeng and Ruihui Company to: 1. Stop infringing Schneider's exclusive right to use registered trademarks No. G715396 and No. 267665; 2. Jointly compensate Schneider Company for economic losses of 2 million yuan and other litigation claims.

1. on the conduct of Ruihui Company and Zheng Limeng. Zheng Limeng specific implementation of sales behavior, so Zheng Limeng, Ruihui company's behavior is an infringement of the exclusive right to use a registered trademark, constitute a trademark infringement.

2. about the legal responsibilities of Ruihui Company and Zheng Limeng. Ruihui Company has violated the exclusive right to use the trademarks of Schneider Electric Company and Schneider Electric Industry Company, and shall bear legal liabilities such as stopping the infringement and compensating for losses in accordance with the law. Zheng Limeng is the legal representative of Ruihui Company. His behavior is an official behavior. If his business activities in the name of a legal person cause economic losses to others, the enterprise legal person shall bear civil liability. Therefore, Schneider's claim for compensation for economic losses by Zheng Limeng has no legal basis and will not be supported.

1. Yueqing Ruihui Electric Co., Ltd. and Zheng Limeng immediately stopped infringing on the exclusive rights of trademarks No. G715396 and No. 267665; 2. Yueqing Ruihui Electric Co., Ltd. compensated Schneider Electric (China) Co., Ltd. for economic losses of 100000 yuan within 10 days from the effective date of the judgment; the 3. rejected other claims of Schneider Electric (China) Co., Ltd. The case acceptance fee of 23200 yuan shall be borne by Yueqing Ruihui Electric Co., Ltd. and Zheng Limeng.

After the first instance judgment, Schneider filed an appeal against:

Main reasons: 1. the first instance found that the facts are not clear, the application of law is wrong. 1. The tort is a personal act of Zheng Limeng, not an official act. The defendant in the criminal judgment of (2015) Yan Zhi Xing Chu Zi No. 00010 was only Zheng Limeng, and Zheng Limeng was found to constitute a crime, but Ruihui Company was not found to constitute a unit crime. Zheng Limeng confessed in the criminal proceedings that the business contact, purchase, delivery and collection of counterfeit products were all carried out by him personally and did not commit a crime in the name of the company. Therefore, the first-instance judgment found that Ruihui Company sent 40 boxes of counterfeit electrical products through logistics, and Zheng Limeng's behavior was wrong. 2, Ruihui company for Zheng Limeng to implement infringement to help. According to Article 75 of the Regulations for the Implementation of the Trademark Law of the People's the People's Republic of China of China, the provision of storage, transportation, mailing, printing, concealment, business premises, online commodity trading platforms, etc. for infringing on the exclusive rights of trademarks of others belongs to Article 57 of the Trademark Law. The provision of convenience as stipulated in Item 6.

On the issue of whether Ruihui Company and Zheng Limeng constitute joint infringement.

First of all, although Zheng Limeng is the legal representative of Ruihui company, whether the trademark infringement involved in the case is a duty behavior needs to be examined whether it is carried out in the name of the company. After investigation, a series of acts such as business contact, purchase, delivery and collection of infringing products involved in the case were carried out in the name of Zheng Limeng, not in the name of Ruihui company. It can be seen that the infringement proceeds involved in the case are also under the actual control of Zheng Limeng, for which he has not been able to make a reasonable explanation. Taking into account the above facts, it can be determined that the infringement committed by Zheng Limeng was not committed in the name of the company and should be identified as Zheng Limeng's personal behavior. The judgment of the first instance found that Zheng Limeng's involvement in the case was based on insufficient official conduct, and the court corrected it.

Secondly, according to the existing evidence in this case, it is not sufficient to determine that Ruihui Company has provided convenient conditions for Zheng Limeng's infringement. Article 57 of the the People's Republic of China Trademark Law and Article 75 of the Regulations for the Implementation of the the People's Republic of China Trademark Law stipulate that intentionally providing convenient conditions for infringing upon the exclusive right of another person to use a trademark and helping another person to infringe upon the exclusive right of a trademark shall be an infringement of the exclusive right to use a registered trademark. The provision of warehousing, transportation, mailing, printing, concealment, business premises, online commodity trading platforms, etc. for infringing on the exclusive right to use trademarks of others is a convenient condition for providing convenience as stipulated in Item 6 of Article 57 of the Trademark Law. In this case, Schneider Company claimed that Ruihui Company promoted Schneider's products through Alibaba's network platform and reserved Zheng Limeng's contact information on the Internet, while He Zichao contacted Zheng Limeng through the Internet to purchase the infringing products involved. Therefore, Ruihui Company provided assistance to Zheng Limeng in carrying out the infringement, constituting a joint infringement. However, according to Ruihui's corporate web page, Ruihui only publicizes the basic business information of the enterprise on Alibaba's network platform, but does not have relevant information on the sale of the infringing products involved. Therefore, the publicity content of Ruihui's web page will not necessarily lead the relevant public to believe that it sells the infringing products involved. He Zichao, the buyer involved in the case, also did not know the price of the infringing products, Zheng Limeng's contact information and other specific information about the sale of the counterfeit and infringing products involved through Ruihui's publicity on Alibaba's network platform. According to this, Ruihui Company's involvement in the case does not belong to the situation of providing an online commodity trading platform for Zheng Limeng's infringement of the exclusive right to use a registered trademark. Schneider Company claims that Ruihui Company provides assistance for Zheng Limeng's infringement, which constitutes insufficient infringement basis.

The 1. revoked the civil judgment of Yancheng Intermediate People's Court of Jiangsu Province (2015) Yanzhimin Chuzi No. 00118;

2. Zheng Limeng to immediately stop the infringement of No. G715396 and No. 267665 trademarks;

3. Zheng Limeng to compensate Schneider Electric (China) Co., Ltd. for economic losses of 300000 yuan within ten days from the effective date of this judgment;

The question of whether Huayuan Company, Mitai Company, Huang Deting and Xue Qiang should bear civil tort liability and what form of liability they should bear.

In this case, according to the facts, Huayuan Company, Mitai Company, Huang Deting and Xue Qiang, knowing that copper sludge is a solid waste prohibited from import by the state, jointly negotiated and cooperated. Among them, Huayuan Company, as a solid waste disposal enterprise, should make it clear that the state should strictly control the import of overseas solid waste. However, in order to seek illegal benefits, Huayuan Company first proposed to purchase overseas solid waste copper sludge, and confirmed the goods and paid the corresponding payment for the goods without paying due attention to the legality of the source of the purchased goods. As a professional import business unit, Mitai Company violated national laws and regulations by making false customs declaration documents for solid waste involved in the case for smuggling. When Huang Deting learned that Huayuan Company needed copper sludge, he took the initiative to contact Mitai Company and was responsible for customs declaration and domestic transportation. Under the instructions of Chen Yajun of Mitai Company, Xue Qiang organized the supply of copper sludge abroad, and cooperated with Mitai Company to falsify the name of the product and forge documents to sell the solid waste involved in the case to China. At present, the solid waste of the ticket has been seized by the customs and stranded in the port area, which cannot be returned, endangering the ecological environment safety of our country. Huayuan company, Mitai company, Huang Deting and Xue Qiang jointly carried out the act of illegally importing and purchasing overseas solid waste through negotiation, which caused the risk of environmental pollution and damaged the social and public interests. According to Article 64 of the the People's Republic of China environmental protection law, those who cause damage due to environmental pollution and ecological damage shall bear tort liability in accordance with the relevant provisions of the the People's Republic of China tort liability law. At the same time, Article 4 of the "the People's Republic of China Tort Liability Law" stipulates that if the infringer should bear administrative or criminal responsibility for the same act, it does not affect the tort liability in accordance with the law. Therefore, after Mitai Company, Huang Deting and Xue Qiang are criminally punished for smuggling solid waste prohibited by the state, they will not affect the risk of environmental pollution caused by their illegal acts, and bear the corresponding civil tort liability. Article 8 of the "the People's Republic of China Tort Liability Law" stipulates that if two or more persons jointly commit a tort and cause damage to others, they shall bear joint and several liability. Therefore, Huayuan Company, Mitai Company, Huang Deting and Xue Qiang shall be jointly and severally liable for the disposal costs caused by the joint infringement. Therefore, the opinions of the defendants that they should not bear civil tort liability and that they should bear the liability according to their share are not accepted.

Criminal liability and civil liability are two independent forms of liability. The actor has not been sentenced to criminal liability in the crime of smuggling waste, which does not mean that he does not necessarily need to bear civil liability in civil public interest litigation. Whether he should bear civil liability needs to be based on Civil legal norms are judged. If they meet the corresponding elements of civil liability, they should still bear civil liability. Although the evidence in the case can prove that Huayuan Company has negotiated with Mitai Company, Huang Deting and Xue Qiang on the import of solid waste, there is no evidence to prove that Huayuan Company is involved in the specific process of customs declaration and entry. It is difficult to conclusively determine that Huayuan Company and other parties jointly evaded customs supervision, lacked the relevant elements of the crime of smuggling waste, and were not investigated for criminal responsibility in previous criminal cases. In the public interest litigation in this case, according to the evidence in the case and the facts identified, it can be fully determined that there is a discussion between Huayuan Company and Mitai Company, Huang Deting, Xue Qiang, with a common intention of infringement, the implementation of the import of copper sludge behavior, in line with the joint implementation of environmental civil torts of the constituent elements. First of all, the parties discussed in advance. According to the facts confirmed by the court of second instance, before importing the copper sludge involved in the case, Qian Weidong, the legal representative of Huayuan Company, met with Huang Deting, Xue Qiang and others in Kunshan and discussed the purchase of imported copper sludge by Huayuan Company. Secondly, in the course of the transaction, Huayuan Company knew that the imported goods were copper sludge prohibited by the state. "the People's Republic of China Nonferrous Metals Industry Standard YST318-2007 Copper Concentrate" clearly, copper concentrate in the water (mass fraction) shall not be greater than 12%, winter should not be greater than 8%. However, the moisture content of the goods listed in the "Money Total Goods List 222" sent by Xue Qiang to Huayuan Company reached 50%, which obviously does not belong to copper concentrate products. As a professional waste disposal company, Huayuan Company should be able to judge that the purchased solid waste is copper sludge according to this list. The "List of Prohibited Imports of Solid Wastes" of the "Import Waste Management Catalog" jointly issued by the five national ministries and commissions on December 30, 2014 clearly stipulates that the import of slag, ash and residue mainly containing copper will be prohibited from January 1, 2015. As a solid waste disposal enterprise, Huayuan Company still actively proposes to purchase imported copper sludge knowing the national copper-containing solid waste import control regulations, and actively negotiate with Mitai Company, Huang Deting and Xue Qiang, there is a common intention to infringe upon the public interest of China's ecological environment, and there is a common infringement.

From the above and the cases, we can see that the defendant in a criminal case and the defendant who filed civil compensation do not have a certain degree of identity, and should be judged in the light of different criminal and civil criteria, such:

1. Unit crime must conform to the legal form stipulated in the criminal law. Although the unit has committed a tort, it does not necessarily constitute a unit crime. However, if the elements of civil tort are concerned, the unit may become the subject of civil liability. Therefore, in the civil compensation lawsuit, the unit can be listed as the defendant.

2. If the unit does not constitute a crime, but the legal representative or the main person in charge constitutes a crime, we should still judge from the perspective of civil infringement. Whether the tort has been committed in the name of the unit, if the tort has not been committed in the name of the unit, in the course of civil litigation, the unit may not bear civil tort liability.

3, individual industrial and commercial households generally will not be identified as unit crime, but only identified as operators constitute a crime. In the process of civil litigation, the judgment of the court is not the same. Some directly take the self-employed operator as the defendant, some directly take the self-employed as the defendant, and some list the self-employed and the operator as the defendant.