China News Service, September 13th. According to the Supreme People’s Procuratorate’s official Weibo news, on September 13, the “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 Infringement of Intellectual Property Rights (3)” was released. Effective on September 14, 2020.
It is understood that the introduction of criminal judicial interpretations on intellectual property rights is an important measure taken by the Supreme People’s Court and the Supreme People’s Procuratorate to implement the Party Central Committee’s decisions and arrangements, increase the protection of intellectual property criminal justice, and actively respond to social concerns.
The promulgation and implementation of judicial interpretations are of great significance for improving the legal system of intellectual property protection, unifying the applicable standards of law, regulating the handling of criminal cases of infringement of intellectual property rights, and creating a good innovative legal environment and business environment.
Attached: "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 Infringement of Intellectual Property Rights (3)"
(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 implemented on September 14, 2020)
In order to punish 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 "Criminal Law of the People's Republic of China", "Criminal Procedure Law of the People's Republic of China" and other relevant provisions, the following explanations are given on the specific application of law in handling criminal cases of intellectual property infringement :
Article 1 Under any of the following circumstances, it can be determined as "the same trademark as its registered trademark" as stipulated in Article 213 of the Criminal Law:
(1) Changing the font, letter case, or the horizontal and vertical arrangement of the registered trademark is basically indistinguishable from the registered trademark;
(2) Changing the spacing between the words, letters, numbers, etc. of the registered trademark so that there is basically no difference between it and the registered trademark;
(3) Changing the color of a registered trademark does not affect the distinctive features of the registered trademark;
(4) Only adding the generic name and model of the product to the registered trademark lacks distinctive features, and does not affect the manifestation of the distinctive features of the registered trademark;
(5) There is basically no difference from the three-dimensional mark and flat elements of the three-dimensional registered trademark;
(6) Other trademarks that are basically indistinguishable from registered trademarks and sufficiently mislead the public.
Article 2 A natural person, legal person, or unincorporated organization whose name is 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 sound recording producer, and the work or sound recording exists The corresponding rights are granted, unless there is proof to the contrary.
In a case where there are many types of works and sound recordings involved and the rights holders are scattered, there is evidence that the copy involved is illegally published, copied and distributed, and the publisher or copy distributor cannot provide relevant evidence materials licensed by the copyright owner or sound recording producer , Can be determined as "without the permission of the copyright owner" and "without the permission of the recording producer" as stipulated in Article 217 of the Criminal Law.
However, unless there is evidence to prove that the right holder has waived his rights, the copyright of the work involved in the case, or the related rights of the sound recording is not protected by my country's Copyright Law, unless the protection period of the right has expired.
Article 3 Anyone who steals trade secrets by illegal copying, unauthorized or over-authorized use of computer information systems, etc., shall be deemed to be “theft” as stipulated in the first paragraph of Article 219 of the Criminal Law.
Where bribery, fraud, electronic intrusion, etc., obtain the right holder’s business secrets, it shall be deemed as "other improper means" as stipulated in the first paragraph of Article 219 of the Criminal Law.
Article 4 The implementation of the acts specified in Article 219 of the Criminal Law shall be deemed as "causing significant losses to the owners of trade secrets" in any of the following circumstances:
(1) The amount of loss caused to the owner of the trade secret or the amount of illegal gains from the infringement of the trade secret is more than 300,000 yuan;
(2) Directly causing the owner of the trade secret to go bankrupt or go bankrupt due to major business difficulties;
(3) Causes other major losses to the owner of the trade secret.
Where the amount of loss caused to the owner of a trade secret or the amount of illegal gains from the infringement of the trade secret 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 loss or the amount of illegal gains caused by the implementation of the acts specified in Article 219 of the Criminal Law may be determined in the following ways:
(1) Where the trade secret of the right holder is obtained by improper means, and the amount of loss has not been disclosed, used or permitted to be used by others, the amount of loss may be determined based on the reasonable license fee for the trade secret;
(2) Where the right holder’s trade secrets are obtained by improper means, the amount of loss can be determined based on the loss of the right holder’s sales profits caused by the infringement, but the amount of loss is less than the trade secret’s reasonable permission The use fee shall be determined based on the reasonable license use fee;
(3) Where the right holder violates the agreement or the right holder’s requirements for keeping business secrets, disclosing, using or allowing others to use the trade secrets in his possession, the amount of loss may be determined based on the right holder’s loss of sales profits due to the infringement;
(4) Knowing that the trade secret was obtained by improper means or violated the agreement, the right holder’s requirements for the protection of trade secrets are disclosed, used, and allowed to be used, but still obtain, use or disclose, the amount of loss may be based on the right holder’s infringement caused by the sale The loss of profits is determined;
(5) Where a trade secret has become known to the public or has been lost due to an infringement of a trade secret, the amount of loss may be determined based on the commercial value of the trade secret.
The commercial value of a trade secret can be comprehensively determined based on the research and development costs of the trade secret and the benefits of implementing the trade secret;
(6) Property or other property benefits obtained by disclosing or allowing others to use trade secrets shall be deemed illegal income.
The loss of sales profits caused by the infringement of the right holder as specified in the second, third, and fourth items of the preceding paragraph can be determined by multiplying the total amount of sales reduction caused by the infringement by the right holder by the reasonable profit of each product of the right holder ; If the total number of sales reductions cannot be determined, it can be determined by multiplying the sales volume of the infringing product by the right owner’s reasonable profit per product; where the right holder’s total sales reduction due to infringement and the reasonable profit of each product cannot be determined It can be determined by multiplying the sales volume of infringing products by the reasonable profit of each infringing product.
Where a trade secret is used in other business activities such as services, the amount of loss can be determined based on the reasonable profit reduced by the right holder due to the infringement.
The remedial expenses paid by the owner of a trade secret to reduce the loss of business operations or business plans or restore the security of computer information systems and other systems shall be included in the loss caused to the owner of the trade secret.
Article 6 In criminal proceedings, if the parties, defenders, agents ad litem or persons outside the case apply in writing to adopt confidential measures regarding evidence and materials related to trade secrets or other commercial information that need to be kept confidential, they shall organize litigation participants according to the circumstances of the case Sign confidentiality commitments and other necessary confidentiality measures.
Anyone who violates the requirements for confidentiality measures in the preceding paragraph or the confidentiality obligations stipulated by laws and regulations shall bear corresponding liabilities in accordance with the law.
Any unauthorized disclosure, use or permission of others to use the business secrets contacted or obtained in criminal proceedings is in compliance with the provisions of Article 219 of the Criminal Law and shall be investigated for criminal responsibility in accordance with the law.
Article 7 Except for special circumstances, materials and tools that counterfeit registered trademarks, illegally manufactured registered trademark signs, copyright-infringing copies, goods mainly used to manufacture counterfeit registered trademarks, registered trademark signs or infringing copies, shall Confiscated and destroyed according to law.
Where the above-mentioned items need to be used as evidence in civil or administrative cases, upon application by the right holder, the evidence may be destroyed after the conclusion of the civil or administrative case or by means of sampling or photographing.
Article 8 Under any of the following circumstances, a heavier punishment may be imposed as appropriate, and suspended sentences are generally not applicable:
(1) Mainly engaged in infringement of intellectual property rights;
(2) Infringement of intellectual property rights again constitutes a crime after being administratively punished for infringement of intellectual property rights;
(3) Counterfeiting the registered trademarks of commodities such as rescue and disaster relief and epidemic prevention materials during major natural disasters, accidents, disasters, and public health events;
(4) Refusing to hand over the illegal gains.
Article 9 Under any of the following circumstances, a lighter punishment may be given as appropriate:
(1) Plead guilty and punished;
(2) Obtaining the understanding of the right holder;
(3) Shows of repentance;
(4) The business secrets of the right holder have not been disclosed, used or allowed to be used by others after obtaining the right holder's business secrets by improper means.
Article 10 For the crime of infringement of intellectual property rights, the amount of illegal income from the crime, the amount of illegal business, the amount of losses caused to the right holder, the number of infringing and counterfeit goods, and the social harm shall be comprehensively considered, and a fine shall be imposed according to law.
The amount of fines is generally determined at more than one time and less than five times the amount of illegal gains.
If the amount of illegal gains cannot be ascertained, the amount of fines is generally determined at more than 50% and less than one time of the amount of illegal operations.
Neither the amount of illegal income nor the amount of illegal business operations can be clarified. Those who are sentenced to fixed-term imprisonment of less than three years, criminal detention, surveillance, or a single fine are generally set at a fine of not less than 30,000 yuan but not more than one million yuan; those who are sentenced to more than three years in prison , Generally, the amount of fine is determined between RMB 150,000 and RMB 5 million.
Article 11 After this interpretation is issued and implemented, if the judicial interpretations and regulatory documents previously issued are inconsistent with this interpretation, this interpretation shall prevail.
Article 12 This interpretation shall come into effect on September 14, 2020.