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Interpretation by the Supreme People's Court and the Supreme People's Procuratorate of Several Issues Relating to Specific Application of Law to the Treatment of Criminal Cases of Intellectual Property Infringement (2004.12.22)

(Promulgated by the Supreme People's Court and the Supreme People's Procuratorate on 8 December 2004 and going into force on 22 December 2004)

 

With a view to punishing, according to law, criminal activities of intellectual property infringement and maintaining the order of the socialist market economy, this Interpretation has hereby been made of the several issues relating to specific application of law to the treatment of criminal cases of intellectual property infringement pursuant to the pertinent provisions of the Criminal Law:

 

Article 1 Whoever uses, without authorization from the owner of a registered trademark, a trademark identical with the latter's registered trademark on the same kind of goods, with any one of the following circumstances, he/it has done an act with the "serious circumstances" provided for in Article 213 of the Criminal Law, and shall be sentenced to a fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined for the crime of counterfeiting registered trademarks:

(1) the illegal business turnover is more than RMB 50,000 yuan, or the illegal profit is more than RMB 30,000 yuan;

(2) two or more registered trademarks are counterfeited, with the illegal business turnover being more than RMB 30,000 yuan or the illegal profit more than RMB 20,000 yuan; and

(3) there are other serious circumstances.

Whoever has done an act with one of the following circumstances has, he/it has done an act with the "especially serious circumstances" provided for in Article 213 of the Criminal Law, and shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years or criminal detention, and shall also be fined for the crime of counterfeiting registered trademarks:

(4) the illegal business turnover is more than RMB 250,000 yuan, or the illegal profit is more than RMB 150,000 yuan;

(5) two or more registered trademarks are counterfeited, with the illegal business turnover being more than RMB 150,000 yuan or illegal profit more than RMB 100,000 yuan; and

(6) there are other serious circumstances.

 

Article 2 Whoever knowingly sells goods bearing counterfeit registered trademarks shall, with the amount of sales amounting to more than RMB 500,000 yuan, he/it has done an act with the "relatively large amount" provided for in Article 214 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined for the crime of selling goods bearing a counterfeit trademark.

If one's amount of sales exceeds RMB 250,000 yuan, which is a "huge amount of sales" provided for in Article 214 of the Criminal Law, he shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years, and shall be fined for the a crime of selling goods bearing a counterfeit registered trademark.

 

Article 3 Whoever forges or makes, without authorization, representations of another person's registered trademark or sells such representations in the presence of one of the following circumstances, he/it has done an act with the "serious circumstances" provided for in Article 215 of the Criminal Law, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined for the crime of illegally making or selling illegally made representations of a registered trademark:

(1) the number of representations of registered trademarks forged or made without authorization or that of sales of such representations forged or made without authorization reaches 20,000 or more, or the illegal business turnover is more than RMB 50,000 yuan, or the illegal profit is more than RMB 30,000 yuan;

(2) the number of representations of registered trademarks forged or made without authorization or that of sales of such representations forged or made without authorization reaches 10,000 or more, or the illegal business turnover is more than RMB 30,000 yuan, or the illegal profit is more than RMB 20,000 yuan; and

(3) there are other serious circumstances.

Whoever has done an act with one of the following circumstances, he/it has done an act with the "especially serious circumstances" provided for in Article 215 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than three years but not more seven years, and shall also be fined for the crime of illegally making or selling illegally made representations of a registered trademark:

(1) the number of representations of registered trademarks forged or made without authorisation or that of sales of such representations forged or made without authorisation reaches more than 100,000, or the illegal business turnover is more than RMB 250,000 yuan, or the illegal profit is more than RMB 150,000 yuan;

(2) the number of representations of registered trademarks forged or made without authorisation or that of sales of such representations forged or made without authorisation reaches more than 50,000, or the illegal business turnover is more than RMB 150,000 yuan, or the illegal profit is more than RMB 100,000 yuan;

(3) there are other serious circumstances.

 

Article 4 Whoever passes off another person's patent, with one of the following circumstances, he/it has done an act with the "serious circumstances" provided for in Article 216 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined for the crime of passing off patent.

(1) the illegal business turnover is more than RMB 200,000 yuan, or the illegal profit is more than RMB 100,000 yuan;

(2) the patentee is directly inflicted economic losses of more than RMB 500,000 yuan;

(3) two or more patents are passed off, the illegal business turnover is more than RMB 100,000 yuan, or the illegal profit is more than RMB 50,000 yuan; and

(4) there are other serious circumstances.

 

Article 5 Whoever, for the purpose of making profits, commits any of the acts of infringement of the copyright provided for in Article 217 of the Criminal Law, with the illegal profit being more than RMB 30,000 yuan, he/it has done an act with the "relatively large amount of illegal profits"; whoever has done an act with one of the following circumstances, he/it has done an act with "other serious circumstances", and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined for the crime of copyright infringement.

(1) the illegal business turnover is more than RMB 50,000 yuan;

(2) the number of reproductions made or distributed without authorisation of the copyright owner of his/its literary, music, cinematographic, television or video work, computer software or other work is more than 1,000 pieces (copies) in total; and

(3) there are other serious circumstances.

Whoever, for the purpose of making profits, commits any of the acts of copyright infringement provided for in Article 217 of the Criminal Law, with the illegal profit being more than RMB 150,000 yuan, he/it has done an act with the "huge amount of illegal profit"; whoever has done an act with any one of the following circumstances has done an act with the "other specially serious circumstances", and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined for the crime of copyright infringement.

(1) the illegal business turnover is more than RMB 250,000 yuan;

(2) the number of reproductions made or distributed without authorisation of the copyright owner of his/its literary, music, cinematographic, television or video work, computer software or other work is more than 5,000 pieces (copies) in total; and

(3) there are other serious circumstances.

 

Article 6 Whoever, for the purpose of making profits, commits any of the acts of copyright infringement provided for in Article 218 of the Criminal Law, with the illegal profit being more than RMB 100,000 yuan, he/it has done an act with the "huge amount of illegal profit", and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined for the crime of selling infringing reproductions.

 

Article 7 Whoever commits one of the acts provided for in Article 219 of the Criminal Law and thus causes losses of more than RMB 500,000 yuan to the rightholder of a trade secret, he/it has done an act of "having caused heavy losses to the righthoder of the trade secret", and shall be sentenced to a fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined for the crime of infringement of a trade secret.

Whoever causes losses of more than RMB 2,500,000 yuan to the rightholder of a trade secret, he/it has committed an act that has "caused especially serious consequences" provided for in Article 219 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined for the crime of infringement of a trade secret.

 

Article 8 The "identical trademark" provided for in Article 213 of the Criminal Law shall refer to a trademark that is exactly identical with or is not so visually different in a substantially way from the counterfeited registered trademark that it is sufficient to mislead the public.

The word "use" in Article 213 of the Criminal Law shall mean use of a registered trademark or a counterfeit registered trademark on goods, packages or containers and product specifications, goods trading instrument, or use of a registered trademark or a counterfeit registered trademark in advertisement, promotion, exhibition and other business activities.

 

Article 9 The phrase "amount of sales" in Article 214 of the Criminal Law shall refer to all the illegal profits that comes or should be received from sales of goods bearing counterfeit registered trademarks.

Under any one of the following circumstances, the sales shall be established as being done "knowingly" as provided for in Article 214 of the Criminal Law:

(1) one knows that the registered trademark on the goods he sells has been altered, replaced, or covered;

(2) one who has been imposed administrative penalty or civil liability before for selling goods bearing counterfeit registered trademark sells the same goods bearing the counterfeit trademark again;

(3) one forges or alters a trademark registrant's authorizing document or knows that said document has been forged or altered; and

(4) any other circumstances where one knows or should know that the goods are those bearing a counterfeit registered trademark.

 

Article 10 Committing one of the following acts shall be the act of "passing off another person's patent" provided for in Article 216 of the Criminal Law:

(1) indicating, without authorisation, another person's patent number on the goods or packages of products one makes or sells;

(2) using, without authorisation, another person's patent number in advertisement or other promotional material so as to make people mistake the involved technology for another person's patented technology;

(3) using , without authorisation, another person's patent number in contract so as to make people mistake the technology under the contract for another person's patented technology; and

(4) forging or altering another person's patent certificate, patent documents or patent application documents.

 

Article 11 The circumstance of directly or indirectly charging and collecting fees by way of publishing paid advertisement shall be one "for the purpose of making profits" provided for in Article 217 of the Criminal Law.

The phrase "without authorisation from the copyright owner" in Article 217 of the Criminal Law shall refer to the circumstances of lack of authorisation by the copyright owner, or forging or altering copyright owner's authorsation or licensing document or going beyond the authorisation or license.

An act of communicating to the public on information network another person's literary, music, cinematographic, television or video work, computer software or any other work shall be deemed the "reproduction or distribution" provided for in Article 217 of the Criminal Law.

 

Article 12 The "illegal business turnover" mentioned in this Interpretation shall mean the value of infringing products an actor makes, stores, transports and/or sells in the course of committing an act of intellectual property infringement. The value of infringing products sold is calculated according to the actual price at which the infringing products are sold. The value of infringing products made, stored, transported and not sold is calculated according to the labeled price or the identified actual average price of the infringing products. Where the infringing products are not priced or the actual sales price is unlikely to be found, the value is calculated according to the market intermidiate price of the infringing products.

Where repeatedly committed acts of intellectual property infringement are not administratively dealt with or criminally punished, the illegal business turnover, illegal profit or amount of sales is calculated accumulatively.

The "piece" provided for in Article 3 of this Interpretation shall mean one piece of the representation in which the whole device of a trademark is shown.

 

Article 13 Whoever commits the crime of counterfeiting a registered trademark provided for in Article 213 of the Criminal Law and, as well, sells goods bearing said counterfeit registered trademark, which constitutes a crime, he/it shall be established as, and punished for, committing the crime of counterfeiting registered trademarks pursuant to the provision of Article 213 of the Criminal Law.

Whoever commits the crime of counterfeiting registered trademarks provided for in Article 213 of the Criminal Law and sells goods which he clearly knows bear another person's counterfeit registered trademark, which constitutes a crime, he/it shall be punished for committing the multiple crimes.

 

Article 14 Whoever commits the crime of copyright infringement provided for in Article 217 of the Criminal Law and, as well, sells the infringing reproductions, which constitutes a crime, he/it shall be established and punished for the crime of copyright infringement pursuant to the provision of Article 217 of the Criminal Law.

Whoever commits the crime of copyright infringement provided for in Article 217 of the Criminal Law and sells the infringing reproductions which he clearly knows are those of another person, which constitutes a crime, he/it shall be punished for committing the multiple crimes.

 

Article 15 Any entity committing the acts provided for in Articles 213 to 219 of the Criminal Law shall be established as committing a crime and sentenced with a punishment three time as serious as one that would otherwise be imposed on an individual for the crime provided for in this Interpretation.

 

Article 16 Whoever clearly knows that another person commits a crime of intellectual property infringement and still provides him with loan, capital, bank account number, invoice, certificate, license certificate or place for production or business operation, services of transport, warehouse or import or export agency, or any other facilities or assistance, he/it shall be punished for accomplice of the intellectual property infringement.

 

Article 17 Any judicial interpretations issued before relating to crimes of intellectual property infringement which are in conflict with this Interpretation shall no longer be applicable upon entry into force of this Interpretation.

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