Opinions On The Application Of Law To Criminal Cases Involving Infringement Of Intellectual Property Rights

In recent years, the public security organs, the people's procuratorates and the people's courts are handling the matter.

I. jurisdiction over crimes involving intellectual property rights

Crimes involving intellectual property rights are investigated by public security organs in criminal places.

When necessary, the public security organ at the place where the suspect lives shall be placed on file for investigation.

The crime areas that infringe upon intellectual property rights, including the place of manufacture, storage area, place of pportation, place of sale of the infringing product, the site where the infringing product is pmitted, the site of the website where the infringing product is sold, the place of the network access, the website builder or the place of the manager, where the right person is affected by the actual infringement occurs.

Where there are many crimes of infringing intellectual property rights, the public security organs or the major criminal public security organs that are initially accepted shall be under the jurisdiction of the public security organs.

A number of public security organs that infringe upon intellectual property rights shall designate jurisdiction by a joint higher level public security organ if they have jurisdiction over disputes. If a public security organ or a higher level public security organ is required to designate jurisdiction, it is necessary to ask for permission to arrest, pfer the examination and prosecution and initiate public prosecution.

For crimes involving infringing intellectual property involving manufacturing, storing, pporting, selling and other infringing products involving different groups of suspects and criminal gangs, which conform to the requirements of the case handling, the relevant public security organs may file a case for investigation and require approval, arrest, pfer, examination, prosecution and public prosecution. The people's Procuratorate and the people's court at the same level shall accept the case.

Two. Regarding the effectiveness of collecting and obtaining evidence from administrative law enforcement departments in handling criminal cases involving intellectual property rights.

Material evidence, documentary evidence, audio-visual material, inspection report, expert conclusion, inspection record and on-site record collected by law enforcement departments according to law shall be examined by the public security organs and people's procuratorates, and verified by the people's court's cross examination, which can be used as criminal evidence.

The investigation record of witness testimony and litigant statement produced by the administrative law enforcement department shall be collected and produced according to law according to the necessity of public security organs for the use of criminal evidence.

Three. The issue of sampling and forensics in handling criminal cases involving intellectual property rights and the issue of entrusted appraisal.

When handling criminal cases involving infringing intellectual property rights, public security organs may collect evidence according to their work needs, or invite administrative departments at the same level and relevant inspection institutions to assist in sampling and collecting evidence.

Where a law or regulation stipulates a sampling institution or a sampling method, it shall entrust a prescribed institution and extract samples according to the prescribed method.

The public security organs, the people's procuratorates and the people's courts shall, when handling criminal cases involving intellectual property rights, entrust national accreditation bodies with qualification to conduct appraisement for matters needing identification.

The public security organ, the people's Procuratorate and the people's court shall examine the conclusion of the appraisal, and listen to the opinions of the obligee, the criminal suspect and the defendant on the conclusion of the appraisal, and may request the appraisal institution to make corresponding explanations.

Four. Evidence collection on private prosecution cases involving infringement of intellectual property rights.

The people's court accepts the cases of private prosecution of intellectual property infringement according to law, and the people's court shall take the case for the evidence that the parties can not obtain because of objective reasons, and provide relevant clues when applying for private prosecution, and apply to the people's court for obtaining the evidence.

Five. The cognizance of "the same commodity" stipulated in the 213rd provision of criminal law.

Goods with the same name and goods with different names but the same thing can be identified as "the same commodity".

The term "name" refers to the name of the commodity used by the Trademark Office of the State Administration for Industry and Commerce in the work of trademark registration, usually referred to as the commodity name specified in the international classification of goods and services for trademark registration.

"Goods with different names but the same thing" mean the same or basically the same in terms of functions, uses, main raw materials, consumer objects, and sales channels, and the commodities that the public generally considers to be the same thing.

The identification of "the same commodity" shall be compared between the goods approved by the obligee's registered trademark and the goods actually produced and sold by the actor.

Six. The identification of the trademark "the same trademark as the registered trademark" stipulated in the 213rd provision of the criminal law.

One of the following circumstances may be identified as "trademark identical to its registered trademark":

(1) changing the font, alphabet, or vertical arrangement of registered trademarks, with only minor differences between registered trademarks and registered trademarks.

(two) changing the spacing between registered trademarks, letters and numbers will not affect the salient features of registered trademarks.

(three) changing the color of registered trademarks;

(four) other trademarks which are basically visually different from registered trademarks and are misleading to the public.

Seven. Whether the value of infringing products that have not been attached or have not been attached to the counterfeit registered trademark is counted as illegal business amount.

When calculating the value of counterfeit registered trademark products manufactured, stored, pported and unsold, the products that have been made but not yet attached (or affixed) or are not fully attached (including affixed) with counterfeit registered trademarks shall be counted in the amount of illegal business if there is sufficient evidence to prove that the product will counterfeit the registered trademark of others.

Eight. The conviction and sentencing of goods sold in counterfeit registered trademarks in cases of unsold or partial sales.

If a sale is knowingly known as a counterfeit registered trademark, one of the following circumstances shall be convicted and punished according to the 214th provision of the criminal law.

(1) goods counterfeit registered trademarks have not yet been sold, and the value of goods is more than one hundred and fifty thousand yuan.

(two) the sale of counterfeit registered trademarks is less than fifty thousand yuan, but the value of goods sold with counterfeit registered trademarks that have not yet been sold amounts to more than one hundred and fifty thousand yuan.

Counterfeit registered trademark goods have not yet been sold, the value of goods amounted to more than one hundred and fifty thousand yuan, less than two hundred and fifty thousand yuan, two hundred and fifty thousand yuan or more, respectively, according to the 214th provisions of the criminal law, the scope of the statutory punishment.

If the sales amount and the value of the unsold goods reach different statutory penalty ranges or all reach the same statutory penalty range, they shall be given heavier punishment within the heavier statutory sentence or the same statutory penalty range.

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Nine. On the conviction of the case of a crime that has not been sold or partly sold in the case of a registered trademark marked by the sale of others illegally.

Whoever sells a registered trademark mark forged or manufactured without authorization shall be convicted and punished in accordance with the provisions of article 215th of the criminal law by selling the illegally manufactured registered trademark logo (attempted).

(1) the number of registered trademarks that have not been sold or forged or manufactured illegally is more than sixty thousand.

(two) the number of more than two registered trademarks that have not been sold and forged or manufactured by another person is more than thirty thousand.

(three) a portion of the registered trademark labels that sell other persons forged or manufactured without authorization, the number of sales marks is less than twenty thousand, but the total number of registered trademarks is sixty thousand or more than those that have not yet been sold.

(four) some of the two or more registered trademarks which are sold and forged or manufactured by others are not more than ten thousand, but the total number of registered trademarks is thirty thousand or more.

Ten. The identification of "profit seeking" in cases of copyright infringement.

In addition to sales, one of the following circumstances can be identified as "profit oriented":

(1) collecting fees directly or indirectly by charging advertisements in other works and bundling third party works.

(two) disseminating others' works through the information network, or using the infringing works uploaded by others to provide advertising services on the website or webpage, charging directly or indirectly.

(three) disseminating other people's works through the information network through membership system, collecting registration fees or other fees;

(four) other circumstances that make use of others' works to make profits.

Eleven. The cognizance of copyright infringement cases without permission of copyright owners.

"Without permission of the copyright owner", the copyright authentication document of the copyright involving the copyright owner or his authorized agent, the copyright collective management organization, and the copyright administrative organ designated by the state copyright administrative department shall be generally certified by the copyright owner or his authorized agent, or the proofs of the publisher, the duplicated producer forged or altered the license documents or the evidence beyond the scope of the authorized license shall be combined with other evidence.

In cases where there are many types of works and dispersed rights holders, the above evidence is really difficult to obtain, but there is evidence to prove that the duplicated copies involved are illegal publishing, copying and issuing, and publishers and duplicating publishers can not provide relevant certification materials obtained by the copyright owner. They can be identified as "without permission of copyright owners".

However, there is evidence that the right of the obligee to abandon his right and the copyright of the works involved are not protected by the copyright law of China, or that the duration of copyright protection has expired.

Twelve. Cognizance of "issuing" stipulated in the 217th provision of criminal law and related issues.

"Issue" includes general distribution, wholesale, retail, information network dissemination, rental, exhibition and other activities.

Whoever illegally publishes, duplicating or distributing works of others, infringing upon copyright constitutes a crime, shall be convicted and punished according to the crime of infringing copyright, and shall not be deemed to be an offense of illegal operation.

Thirteen, the standard of conviction and punishment on the dissemination of infringing works through the information network.

For profit purposes, without the permission of the copyright owner, to disseminate other people's works, music, films, television, art, photography, video, audio and video products, computer software and other works through the information network to the public, with one of the following circumstances, is the "other serious circumstances" stipulated in the 217th provision of the criminal law:

(1) the amount of illegal business is over fifty thousand yuan;

(two) the total number of works disseminating others is more than five hundred (parts).

(three) the actual number of hits pmitted to others is more than fifty thousand times.

(four) disseminating other people's works in the form of membership, with more than one thousand registered members.

(five) although the amount or quantity does not meet the standards stipulated in Item 1 (1) to (four), however, more than half of the above two standards are achieved.

(six) other serious circumstances.

If the amount or amount of the acts specified in the preceding paragraph reaches five times the standard stipulated in Item 1 (five) of the preceding paragraph, it shall belong to the "other special circumstances" specified in the 217th provision of the criminal law.

Fourteen. The cumulative calculation of violations of intellectual property rights.

In accordance with the provisions of the twelfth and second paragraphs of the Supreme People's court and the Supreme People's Procuratorate on the interpretation of certain issues concerning the specific application of laws against intellectual property criminal cases, violations of intellectual property rights have been carried out many times, without administrative treatment or criminal punishment, the amount of illegal operations, the amount of illegal gains or the amount of sales has been accumulated.

Violation of intellectual property rights violations has been carried out many times in two years. If no administrative treatment has been done, the cumulative amount constitutes a crime, and shall be convicted and punished according to law.

The time limit for prosecution of infringing acts of intellectual property rights shall be governed by the relevant provisions of the criminal law and shall not be restricted by the preceding two years.

Fifteen. Qualitative issues concerning the provision of raw materials, machinery and equipment for the infringement of intellectual property rights for others.

Knowing that others are committed to infringing intellectual property rights and providing them with help to produce and manufacture the main raw materials, auxiliary materials, semi-finished products, packaging materials, mechanical equipment, label labels, production techniques, recipes, etc., or provide Internet access, server hosting, network storage space, communication pmission channels, toll collection, cost settlement services, etc., shall be punished for accomplices infringing on intellectual property crimes.

Sixteen. Dealing with the concurrence of crimes against intellectual property rights.

If a perpetrator implements a crime of infringing upon intellectual property rights and constitutes a crime of producing or selling fake and inferior commodities, he shall be convicted and punished according to the provisions of heavier penalties for infringement of intellectual property crimes and production and sale of fake and inferior commodities.