I. Jurisdiction of intellectual property infringement cases
Criminal cases of infringement of intellectual property rights shall be put on file for investigation by the public security organ in the place where the crime was committed. When necessary, the public security organ of the criminal suspect's residence may file a case for investigation. The criminal locations of intellectual property infringement cases include the manufacturing place, storage place, transportation place and sales place of infringing products, the location of the website server that disseminates infringing works and sells infringing products, the location of network access, the location of the website founder or manager, the location of the infringer, and the location of the criminal result that the obligee is actually infringed. If there are multiple crimes of infringing intellectual property rights, they shall be under the jurisdiction of the public security organ that initially accepted them or the public security organ in the main crime place. Where the public security organs in several places where intellectual property rights are infringed have disputes over their jurisdiction, they shall be designated by the public security organs at higher levels, and applications for approval of arrest, transfer for examination and prosecution or public prosecution shall be accepted by the people's procuratorates and people's courts at the same level where the public security organs are located.
If different criminal suspects and criminal gangs commit crimes of infringing intellectual property rights, such as manufacturing, storing, transporting and selling the same batch of infringing products across regions, which meet the conditions for consolidated handling, the relevant public security organs may file a case for investigation together, and if it is necessary to apply for approval of arrest, transfer for examination and prosecution or prosecution, it shall be accepted by the people's procuratorate at the same level or the people's court where the public security organ is located.
Two, about the effectiveness of the administrative law enforcement departments in handling criminal cases of infringement of intellectual property rights.
Material evidence, documentary evidence, audio-visual materials, inspection reports, expert conclusions, transcripts of inquests and on-site transcripts collected, retrieved and produced by administrative law enforcement departments according to law can be used as criminal evidence after being examined by public security organs and people's procuratorates and confirmed by court cross-examination.
If the public security organ considers it necessary to use the investigation records such as witness testimony and statements of the parties made by the administrative law enforcement department as criminal evidence, it shall collect and make them again according to law.
Three, about the sampling and identification of handling criminal cases of intellectual property rights infringement.
When handling criminal cases of infringement of intellectual property rights, public security organs can collect evidence by sampling according to the needs of their work, or they can ask administrative law enforcement departments at the same level and relevant inspection agencies to assist in collecting evidence by sampling. If laws and regulations stipulate sampling institutions or sampling methods, they shall entrust the prescribed institutions to sample in accordance with the prescribed methods.
The public security organs, people's procuratorates and people's courts shall entrust an appraisal institution recognized by the state with the qualification of appraisal to handle criminal cases of infringement of intellectual property rights.
The public security organ, the people's procuratorate and the people's court shall examine the appraisal conclusion, listen to the opinions of the obligee, the criminal suspect and the defendant on the appraisal conclusion, and may require the appraisal institution to make corresponding explanations.
Four, on the issue of evidence collection of private prosecution cases of intellectual property infringement crimes.
The people's court accepts cases of criminal private prosecution of intellectual property infringement according to law, and if the parties can provide relevant clues to the evidence that cannot be obtained due to objective reasons, the people's court shall obtain it according to law.
V. Identification of "the same commodity" as stipulated in Article 2 13 of the Criminal Law.
Commodities with the same name and commodities with different names but referring to the same thing can be identified as "the same commodity". "Name" refers to the name used by the Trademark Office of the State Administration for Industry and Commerce in trademark registration, usually the name of the commodity specified in the International Classification of Goods and Services for Trademark Registration. "Commodities with different names but referring to the same" refers to commodities with the same or basically the same functions, uses, main raw materials, consumers and sales channels. And it is generally regarded as the same thing by the relevant public.
The identification of "similar goods" shall compare the goods approved for use by the registered trademark of the obligee with the goods actually produced and sold by the actor.
Six, on the identification of "the same trademark as its registered trademark" as stipulated in Article 2 13 of the Criminal Law.
In any of the following circumstances, it may be recognized as the same trademark as its registered trademark:
(1) Changing the font, case or text arrangement of a registered trademark, which is only slightly different from the registered trademark;
(2) Changing the spacing between words, letters and numbers of a registered trademark will not affect the expression of the distinctive features of the registered trademark;
(3) Changing the color of a registered trademark;
(4) Other trademarks that are basically indistinguishable from registered trademarks and misleading to the public.
Seven, about whether the value of infringing products that are not attached or not fully attached with counterfeit registered trademarks is included in the illegal business.
When calculating the value of infringing products with counterfeit registered trademarks manufactured, stored, transported and unsold, if there is reliable and sufficient evidence to prove that the products with counterfeit registered trademarks have been manufactured but not attached (including pasting) or not completely attached (including pasting), the value will be included in the illegal business amount.
Eight, about the crime of selling counterfeit registered trademark goods in the case that the goods have not been sold or partially sold.
Whoever knowingly sells goods with counterfeit registered trademarks under any of the following circumstances shall be convicted and punished for the crime of selling goods with counterfeit registered trademarks (attempted) in accordance with the provisions of Article 214th of the Criminal Law:
(a) the goods with counterfeit registered trademarks have not been sold, and the value of the goods is more than150,000 yuan;
(2) Some goods with counterfeit registered trademarks are sold with a sales amount of less than 50,000 yuan, but the total value of goods with counterfeit registered trademarks that have not yet been sold is more than 150,000 yuan.
If the goods with counterfeit registered trademarks have not been sold, and the value of the goods reaches more than 150,000 yuan but less than 250,000 yuan and 250,000 yuan respectively, they shall be convicted and punished according to the statutory punishment range stipulated in Article 214 of the Criminal Law.
If the amount of sales and the value of unsold goods reach different legal punishment ranges or both reach the same legal punishment range, a heavier punishment shall be given as appropriate within the legal punishment range with heavier punishment.
Nine, about the sale of a registered trademark illegally manufactured by others, the criminal case has not been sold or partially sold.
In any of the following circumstances, the sale of forged or unauthorized registered trademark marks shall be convicted and punished for the crime of selling illegally manufactured registered trademark marks (attempted) in accordance with the provisions of Article 215th of the Criminal Law:
(1) More than 60,000 registered trademarks forged or manufactured by others have not been sold;
(2) Forging or manufacturing more than 30,000 registered trademarks of others that have not been sold;
(3) partially selling registered trademark marks forged or manufactured by others without authorization, and the number of sold marks is less than 20,000, but the total number of unsold marks is more than 60,000;
(4) partially selling two or more registered trademark marks forged or manufactured by others without authorization, and the number of sales is less than 10,000, but the total unsold number is more than 30,000.
X. Determination of the crime of copyright infringement "for profit"
In addition to sales, one of the following circumstances can be identified as "for profit":
(1) Directly or indirectly charging fees for publishing paid advertisements in other people's works or bundling third-party works;
(2) Disseminating other people's works through information networks, or providing paid advertising services on websites or webpages by using infringing works uploaded by others, and charging fees directly or indirectly;
(3) Disseminating other people's works through information networks in the form of members, and collecting membership registration fees or other fees;
(4) Other circumstances in which other people's works are used for profit.
XI。 On the determination of the crime of infringing copyright "without the permission of the copyright owner"
"Without the permission of the copyright owner", generally, the copyright certification documents of the works involved should be issued by the copyright owner or his authorized agent, the copyright collective management organization and the copyright certification institution designated by the national copyright administrative department, or the evidence that the publisher or the copy publisher forged, altered or exceeded the authorized scope should be comprehensively identified in combination with other evidence.
In the case of various works involved and scattered rights holders, it is really difficult to obtain the above evidence one by one. However, if there is evidence that the copy involved is illegally published and copied, and the publisher and the copy publisher cannot provide relevant certification materials for obtaining the permission of the copyright owner, it can be considered as "without the permission of the copyright owner". However, unless there is evidence that the obligee has given up his rights, the copyright of the works involved is not protected by China's copyright law, or the copyright protection period has expired.
XII. Identification of "distribution" as stipulated in Article 2 17 of the Criminal Law and related issues.
"Distribution" includes general distribution, wholesale, retail, dissemination through information network, rental, exhibition and other activities.
Illegal publication, reproduction and distribution of other people's works, which constitutes a crime, shall be convicted and punished according to the crime of copyright infringement, and shall not be deemed as illegal business and other crimes.
Thirteen. Conviction and punishment standards for disseminating infringing works through information networks
For the purpose of making profits, spreading other people's written works, music, movies, television, fine arts, photography, video, computer software and other works to the public through the information network without the permission of the copyright owner, under any of the following circumstances, belongs to "other serious circumstances" as stipulated in Article 217 of the Criminal Law:
(a) the amount of illegal business is more than fifty thousand yuan;
(two) the total number of works of others is more than 500 pieces (departments);
(three) the actual number of clicks to spread other people's works has reached more than fifty thousand times;
(4) Disseminating other people's works by means of membership, with more than 1,000 registered members;
(5) Although the amount or quantity does not meet the standards specified in Items (1) to (4), it reaches more than half of the two or more standards respectively;
(six) other serious circumstances.
The acts specified in the preceding paragraph, the amount or quantity of which reaches more than five times the standards specified in items (1) to (5) of the preceding paragraph, belong to "other particularly serious circumstances" as stipulated in Article 217 of the Criminal Law.
Fourteen, on the cumulative amount of repeated infringement of intellectual property rights.
According to the second paragraph of Article 12 of 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, the amount of illegal business, illegal income or sales shall be calculated cumulatively without administrative treatment or criminal punishment.
Those who repeatedly commit illegal acts of infringing intellectual property rights within two years, without administrative treatment, and the accumulated amount constitutes a crime, shall be convicted and punished according to law. The time limit for prosecution of crimes against intellectual property rights shall be governed by the relevant provisions of the Criminal Law and shall not be limited by the above two years.
Fifteen, about providing raw materials, machinery and equipment for others to commit crimes of intellectual property infringement.
Knowing that others commit crimes of infringing intellectual property rights, they provide assistance to them in the production and manufacture of infringing products, such as main raw materials, auxiliary materials, semi-finished products, packaging materials, machinery and equipment, labels, production processes, formulas, etc. , or provide services such as Internet access, server hosting, network storage space, communication transmission channels, fee collection and fee settlement. , should be punished as * * * criminals who infringe intellectual property rights.
XVI. Handling of concurrence of crimes against intellectual property rights
If the perpetrator commits a crime of infringing intellectual property rights and at the same time constitutes a crime of producing and selling fake and inferior commodities, he shall be convicted and punished in accordance with the provisions of the crime of infringing intellectual property rights and the crime of producing and selling fake and inferior commodities.