The Supreme People's Court, the Supreme People's Procuratorate, Ministry of Public Security
Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights (20 1 1)
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 certificate of the work 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 copy publisher forged or altered the license document or exceeded the scope of authorization should be combined with other evidence for comprehensive identification.
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.