"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"

(November 2, 2004, No. 1 of the Judicial Committee of the Supreme People's Court) 1331st meeting, adopted at the 28th meeting of the 10th Procuratorial Committee of the Supreme People's Procuratorate on November 11, 2004)

(Fashi [2004] No. 19)

People of the People's Republic of China* **The Supreme People's Court of the People's Republic of China

The Supreme People's Procuratorate of the People's Republic of China

Announcement

"The Supreme People's Court and the Supreme People's Procuratorate's Notice on Handling Violations "Interpretation of Several Issues on the Specific Application of Laws in Criminal Cases of Intellectual Property" was adopted at the 1331st meeting of the Judicial Committee of the Supreme People's Court on November 2, 2004, and at the 28th meeting of the 10th Procuratorial Committee of the Supreme People's Procuratorate on November 11, 2004. Passed, hereby promulgated and effective from December 22, 2004.

December 8, 2004

In order to punish criminal activities that infringe on 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 Criminal Law, we will now handle intellectual property infringement cases Several issues concerning the specific application of law in property rights criminal cases are explained as follows:

Article 1. If a trademark identical to the registered trademark is used on the same kind of goods without the permission of the owner of the registered trademark, and one of the following circumstances applies, Those who fall under the "serious circumstances" stipulated in Article 213 of the Criminal Law shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of counterfeiting registered trademarks, and shall also be fined or shall be fined alone:

(1) Illegal business operations The amount is more than 50,000 yuan or the illegal income is more than 30,000 yuan;

(2) Counterfeiting two or more registered trademarks, the illegal business amount is more than 30,000 yuan or the illegal income is more than 20,000 yuan The above;

(3) Other serious circumstances.

Anyone who has any of the following circumstances falls under the “extremely serious circumstances” stipulated in Article 213 of the Criminal Law and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years for the crime of counterfeiting registered trademarks, and shall also be fined :

(1) The amount of illegal business operations is more than 250,000 yuan or the amount of illegal income is more than 150,000 yuan;

(2) Counterfeiting two or more registered trademarks, The amount of illegal business operations is more than 150,000 yuan or the amount of illegal income is more than 100,000 yuan;

(3) Other particularly serious circumstances.

Article 2 Anyone who knowingly sells goods with counterfeit registered trademarks and the sales amount is more than 50,000 yuan shall fall into the category of "relatively large amounts" as stipulated in Article 214 of the Criminal Law and shall be registered as selling counterfeit goods. Those who commit trademark crimes shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined.

If the sales amount is more than 250,000 yuan, it belongs to the "huge amount" stipulated in Article 214 of the Criminal Law, and shall be sentenced to not less than three years but not more than seven years for the crime of selling goods with counterfeit registered trademarks. Imprisonment and a fine.

Article 3: Anyone who forges or manufactures registered trademarks of others without authorization or sells registered trademarks that have been forged or manufactured without authorization and meets any of the following circumstances shall fall under the category of "serious circumstances" stipulated in Article 215 of the Criminal Law. ” shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance for the crime of illegally manufacturing or selling illegally manufactured registered trademarks, and shall also or solely be fined:

(1) Counterfeiting, unauthorized manufacturing or selling of counterfeit goods , The number of registered trademarks produced without authorization exceeds 20,000, or the amount of illegal business operations exceeds 50,000 yuan, or the amount of illegal income exceeds 30,000 yuan;

(2) Counterfeiting, unauthorized production, or Selling counterfeit or unauthorized manufacturing of two or more registered trademarks in quantity of more than 10,000 pieces, or the illegal business amount is more than 30,000 yuan, or the illegal income amount is more than 20,000 yuan;

(3) Others Serious situation.

Anyone who has any of the following circumstances falls under the "particularly serious circumstances" stipulated in Article 215 of the Criminal Law and shall be sentenced to not less than three years and seven years for the crime of illegally manufacturing and selling illegally manufactured registered trademarks. The following shall be punished with fixed-term imprisonment and shall also be fined:

(1) Counterfeiting, manufacturing without authorization, or selling registered trademarks with a quantity of more than 100,000, or illegal business amount exceeding 250,000 yuan , or the amount of illegal income is more than 150,000 yuan;

(2) Forging, manufacturing without authorization, or selling forged or manufacturing two or more registered trademarks without authorization, the number of which is more than 50,000, or the amount of illegal business operations The amount of illegal income exceeds 150,000 yuan, or the amount of illegal income exceeds 100,000 yuan;

(3) Other particularly serious circumstances.

Article 4: Anyone who counterfeits someone else’s patent and falls under any of the following circumstances shall fall under the “serious circumstances” stipulated in Article 216 of the Criminal Law and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of counterfeiting a patent. , and be fined or solely fined:

(1) The amount of illegal business operations exceeds 200,000 yuan or the amount of illegal income exceeds 100,000 yuan;

(2) Granting a patent The right holder causes a direct economic loss of more than 500,000 yuan;

(3) Counterfeiting two or more patents of others, with an illegal business amount of more than 100,000 yuan or an illegal income of more than 50,000 yuan;< /p>

(4) Other serious circumstances.

Article 5: If one of the copyright infringement acts listed in Article 217 of the Criminal Law is carried out for the purpose of profit, and the amount of illegal income is more than 30,000 yuan, it is classified as "the amount of illegal income is relatively large" ; Anyone who has any of the following circumstances shall be deemed to have "other serious circumstances" and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of copyright infringement, and shall also be fined or shall be fined alone:

(1) Illegal business amount More than 50,000 yuan;

(2) Reproduction and distribution of written works, music, movies, television, video works, computer software and other works without the permission of the copyright owner. The total number of copies is one More than one thousand copies (copies);

(3) Other serious circumstances.

Any person who commits one of the copyright infringement acts listed in Article 217 of the Criminal Law for the purpose of profit, and the amount of illegal income is more than 150,000 yuan, is classified as a "huge amount of illegal income"; he has the following If one of the circumstances falls under "other particularly serious circumstances", he shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years for the crime of copyright infringement, and shall also be fined:

(1) The illegal business amount exceeds 25 More than 10,000 yuan;

(2) Reproduction and distribution of written works, music, movies, television, video works, computer software and other works without the permission of the copyright owner, with the total number of copies exceeding 5,000 (copies) or more;

(3) Other particularly serious circumstances.

Article 6 If the conduct stipulated in Article 218 of the Criminal Law is carried out for the purpose of profit, and the amount of illegal gains is more than 100,000 yuan, it shall be classified as "the amount of illegal gains is huge" and shall be treated as the sale of infringing products. The crime of making copies shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be punished with a fine.

Article 7: Carrying out one of the acts stipulated in Article 219 of the Criminal Law, causing losses of more than 500,000 yuan to the right holder of the trade secret, shall be classified as "causing losses to the right holder of the trade secret" "causing serious losses" shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of infringement of trade secrets, and shall also or solely be fined.

If the amount of losses caused to the right holder of a trade secret exceeds 2.5 million yuan, it falls under the category of "causing particularly serious consequences" stipulated in Article 219 of the Criminal Law and shall be charged with the crime of infringement of trade secrets. He shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.

Article 8 The "identical trademark" stipulated in Article 213 of the Criminal Law means that it is exactly the same as the counterfeited registered trademark, or is basically visually indistinguishable from the counterfeited registered trademark. , trademarks that are sufficient to mislead the public.

The "use" stipulated in Article 213 of the Criminal Law refers to using a registered trademark or a counterfeit registered trademark on goods, product packaging or containers, product instructions, and product transaction documents, or using a registered trademark Trademarks or counterfeit registered trademarks are used for advertising, exhibitions, and other commercial activities.

Article 9 The "sales amount" stipulated in Article 214 of the Criminal Law refers to all illegal income earned and due from the sale of goods with counterfeit registered trademarks.

Anyone who has any of the following circumstances shall be deemed to be "knowingly" as stipulated in Article 214 of the Criminal Law:

(1) Knowing that the registration on the goods he sells is The trademark has been altered, replaced or covered;

(2) Having been subject to administrative penalties or civil liability for selling goods with counterfeit registered trademarks, and then selling the same goods with counterfeit registered trademarks;

(3) Forging or altering the authorization document of the trademark registrant or knowing that the document has been forged or altered;

(4) Other situations where the person knows or should know that the goods are counterfeit registered trademarks.

Article 10: Anyone who commits any of the following acts shall fall under the act of “counterfeiting the patent of others” stipulated in Article 216 of the Criminal Law:

(1) Without permission, Marking other people’s patent numbers on the products or product packages they manufacture or sell;

(2) Using other people’s patent numbers in advertisements or other promotional materials without permission, causing others to Mistakenly believing that the technology involved in the contract is someone else’s patented technology;

(3) Using someone else’s patent number in the contract without permission, causing others to mistake the technology involved in the contract as someone else’s patented technology;

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(4) Forging or altering other people’s patent certificates, patent documents or patent application documents.

Article 11: Directly or indirectly collecting fees by publishing paid advertisements, etc., falls under the "purpose of profit" stipulated in Article 217 of the Criminal Law.

“Without the permission of the copyright owner” as stipulated in Article 217 of the Criminal Law refers to the situation of not obtaining the authorization of the copyright owner or forging or altering the copyright owner’s authorization document or exceeding the scope of authorization.

The act of disseminating other people’s written works, music, movies, television, video works, computer software and other works to the public through information networks shall be regarded as “reproduction and distribution” as stipulated in Article 217 of the Criminal Law. ".

Article 12 The term "illegal business amount" as used in this interpretation refers to the value of the perpetrator's manufacturing, storage, transportation, and sales of infringing products during the course of committing intellectual property infringement. The value of the infringing products sold is calculated based on the actual sales price. The value of manufactured, stored, transported and unsold infringing products shall be calculated based on the marked price or the actual average sales price of the identified infringing products. If the infringing product has no price tag or its actual sales price cannot be ascertained, the calculation shall be based on the market median price of the infringed product.

For repeated violations of intellectual property rights without administrative processing or criminal punishment, the illegal business amount, illegal income amount or sales amount will be calculated cumulatively.

The "piece" stipulated in Article 3 of this Interpretation refers to a mark with a complete trademark pattern.

Article 13: Whoever commits the crime of counterfeiting a registered trademark as stipulated in Article 213 of the Criminal Law and sells goods with the counterfeit registered trademark, which constitutes a crime, shall be prosecuted in accordance with Article 213 of the Criminal Law. According to the provisions of the regulations, the person shall be convicted and punished for the crime of counterfeiting a registered trademark.

Whoever commits the crime of counterfeiting a registered trademark stipulated in Article 213 of the Criminal Law and sells goods that are knowingly owned by others with counterfeit registered trademarks, which constitutes a crime, shall be punished for several crimes.

Article 14 If one commits the crime of copyright infringement as stipulated in Article 217 of the Criminal Law and then sells the infringing copies, which constitutes a crime, the person shall comply with the provisions of Article 217 of the Criminal Law. Convicted and punished for copyright infringement.

Whoever commits the crime of copyright infringement stipulated in Article 217 of the Criminal Law and sells the infringing copies knowingly belonging to others, which constitutes a crime, shall be punished for several crimes together.

Article 15 If a unit commits acts stipulated in Articles 213 to 219 of the Criminal Law, it shall be convicted and sentenced three times the standard for conviction and sentencing of the corresponding individual crime stipulated in this Interpretation. .

Article 16 Knowingly knowing that others have committed crimes of infringement of intellectual property rights, providing them with loans, funds, account numbers, invoices, certificates, licenses, or providing production and business premises or transportation, storage, or import and export agency Those who provide conveniences and assistance will be punished as criminals committing crimes of intellectual property infringement.

Article 17: If previously issued judicial interpretations on the crime of infringement of intellectual property rights conflict with this interpretation, they will no longer apply after the implementation of this interpretation.