Announcement of the Supreme People’s Court and the Supreme People’s Procuratorate

The “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate Concerning Some Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights”, which was adopted at the 1131st meeting of the Judicial Committee of the Supreme People’s Court on November 2, 2004, and the 28th meeting of the Tenth Procuratorial Committee of the Supreme People’s Procuratorate on November 11, 2004, is hereby promulgated, and shall come into force on December 22, 2004.

　　　　　　　　　　　　　　　　　　　　　　　　December 8, 2004
 

(Interpretation No. 19 [2004] of the Supreme People’s Court; Adopted at the 1131st meeting of the Judicial Committee of the Supreme People’s Court on November 2, 2004, and the 28th meeting of the Tenth Procuratorial Committee of the Supreme People’s Procuratorate on November 11, 2004)

In order to lawfully punish the criminal activities of infringing upon intellectual property rights, maintain the order of socialist market economy, some issues on the specific application of law for handling criminal cases of infringement upon intellectual property rights are hereby interpreted as follows in accordance with relevant provisions of the Criminal Law:

Article 1 Whoever uses a trademark which is identical with a registered trademark on the same merchandise without the permission of the registered trademark owner shall, in any of the following circumstances, be deemed to have caused “the serious consequences” as prescribed 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 for the crime of counterfeiting registered trademark, and/or be imposed upon a pecuniary fine:
(1) The amount from illegal business operation proceeds is no less than 50,000 Yuan or the amount of illegal proceeds is no less than 30,000 Yuan;
(2) He/it counterfeits two or more registered trademarks, with the amount of proceeds arising from illegal business operations to be no less than 30,000 Yuan or the amount of illegal proceeds to be no less than 20,000 Yuan;
(3) Other circumstances in which the consequences are serious.

In any of the following circumstances, he/it shall be deemed to have caused “the particularly serious consequences” as prescribed 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 for the crime of counterfeiting registered trademark, and be concurrently imposed upon a pecuniary fine:
(1) The amount from illegal business operation is no less than 250,000 Yuan or the amount of illegal proceeds is no less than 150,000 Yuan;
(2) He/it counterfeits two or more registered trademarks, with amount of proceeds arising from illegal business operations to be no less than 150,000 Yuan or the amount of illegal proceeds to be no less than 100,000 Yuan;
(3) Other circumstances in which the consequences are particularly serious.

Article 2 Whoever sells the merchandise under a counterfeited registered trademark when he/it clearly knows the fact, with the sales amount to be no less than 50,000 Yuan, it shall be deemed that “the amount is relatively large” as prescribed in Article 214 of the Criminal Law, and the offender shall be sentenced to a fixed-term imprisonment for not more than three years or criminal detention for the crime of selling merchandise under a counterfeited registered trademark, and/or be imposed upon a pecuniary fine.

If the sales amount is no less than 250,000 Yuan, it shall be deemed that “the amount is large” as prescribed in Article 214 of the Criminal Law, and the offender shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years for the crime of selling merchandise under a counterfeited registered trademark, and be concurrently imposed upon a pecuniary fine.

Article 3 Whoever forges or illegally produces the marks of other’s registered trademark, or sells forged or illegally produces the marks of other’s registered trademark shall, in any of the following circumstances, be deemed to have caused “the serious consequences” as prescribed in Article 215 of the Criminal Law, and shall be sentenced to a fixed-term imprisonment for not more than three years, criminal detention or criminal custody for the crime of illegally making or selling illegally made marks of other’s registered trademark, and/or be imposed upon a pecuniary fine:
(1) Having forged or illegally produced 20,000 pieces or more of any other’s trademark or sold 20,000 pieces or more of the forged or illegally made trademark or the amount of proceeds arising from illegal business operations is no less than 50,000 Yuan, or the amount of illegal proceeds is no less than 30,000 Yuan;
(2) Having forged or illegally made 10,000 pieces or more of two or more kinds of registered trademarks or having sold 10,000 pieces or more of two or more kinds of the forged or illegally made registered trademarks or the amount of proceeds arising from illegal business operation is no less than 30,000 Yuan, or the amount of illegal proceeds is no less than 20,000 Yuan;
(3) Other circumstances in which the consequences are serious.

In any of the following circumstances, he/it shall be deemed to have caused “the particularly serious consequences” as prescribed in Article 215 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 for the crime of illegally making or selling illegally made marks of other’s registered trademark, and be concurrently imposed upon a pecuniary fine:
(1) Having forged or illegally made 100,000 pieces or more of any other’s registered trademarks or having sold 100,000 pieces or more of the forged or illegally made registered trademarks or the amount of proceeds arising or the amount of proceeds arising from illegal business operations is no less than 250,000 Yuan, or the amount of illegal proceeds is no less than 150,000 Yuan;
(2) Having forged or illegally made 50,000 pieces or more of two or more kinds of registered trademarks or having sold 50,000 pieces or more of two or more kinds of the forged or illegally made registered trademarks or the amount of proceeds arising or the amount of proceeds arising from illegal business operation is no less than 150,000 Yuan, or the amount of illegal proceeds is no less than 100,000 Yuan;
(3) Other circumstances in which the consequences are particularly serious.

Article 4 Whoever counterfeits any other’s patent shall, in any of the following circumstances, be deemed to have caused “the serious consequences” as prescribed in Article 216 of the Criminal Law, and shall be sentenced to a fixed-term imprisonment for not more than three years or criminal detention for the crime of counterfeiting other’s patent, and/ or be imposed upon a pecuniary fine:
(1) The amount of proceeds arising from illegal business operations is no less than 200,000 Yuan or the amount of illegal proceeds is no less than 100,000 Yuan;
(2) The direct economic losses caused to the patent right holder are no less than 500,000 Yuan;
(3) He/it counterfeits two or more of other’s patents, with the proceeds arising from illegal business operations to be no less than 100,000 Yuan or the amount of illegal proceeds to be no less than 50,000 Yuan;
(4) Other circumstances in which the consequences are serious.

Article 5 Whoever, for the purpose of making profits, commits any of the acts of infringing upon copyright as described in Article 217 of the Criminal Law, with the amount of illegal proceeds to be no less than 30,000 Yuan, shall be deemed to have generated a “relatively large amount of illegal proceeds”; in any of the following circumstances, he/it shall be deemed to have caused “other serious consequences”, thus shall be sentenced to a fixed-term imprisonment for not more than three years or criminal detention for the crime of infringing upon copyright, and/or be imposed upon a pecuniary fine:
(1) The amount of proceeds arising from illegal business operation is no less than 50,000 Yuan;
(2) Without permission from the copyright owner, he/it reproduces and distributes the copyright owner’s literal works, musical works, film, television or video products, computer software or other works with the total of no less than 1,000 copies;
(3) Other circumstances in which the consequences are serious.

Whoever, for the purpose of making profits, commits any of the acts of infringing upon copyright as described in Article 217 of the Criminal Law, with the amount of illegal proceeds to be no less than 150,000 Yuan, shall be deemed to have generated a “large amount of illegal proceeds”; in any of the following circumstances, he/it shall be deemed to have caused “other particularly serious consequences”, thus shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years for the crime of infringing upon copyright, and be concurrently imposed upon a pecuniary fine:
(1) The amount proceeds arising from illegal business operation is no less than 250,000 Yuan;
(2) Without permission from the copyright owner, he/it reproduces and distributes the copyright owner’s literal works, musical works, film, television or video products, computer software or other works with the total quantity to be no less than 5,000;
(3) Other circumstances in which the consequences are particularly serious.

Article 6 Whoever, for the purpose of making profits, commits any of the acts as prescribed in Article 218 of the Criminal Law, with the amount of illegal proceeds to be no less than 100,000 Yuan, shall be deemed to have generated “a large amount of illegal proceeds”, and shall be sentenced to a fixed-term imprisonment of not more than three years or criminal detention for the crime of selling infringing copies, and/or be imposed upon a pecuniary fine.

Article 7 Whoever commits any of the acts as prescribed in Article 219 of the Criminal Law, with the amount of losses caused to the obligee of the commercial secret to be no less than 500,000 Yuan, shall be deemed to have “caused heavy losses to the commercial secret obligee”, and shall be sentenced to a fixed-term imprisonment of not more than three years or criminal detention for the crime of infringing upon commercial secret, and/or be imposed upon a pecuniary fine.

If the amount of losses caused to the commercial secret obligee is no less than 2,500,000 Yuan, he/it shall be deemed to have caused “particularly serious consequences” as prescribed in Article 219 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 for the crime of infringing upon commercial secret, and shall be concurrently imposed upon a pecuniary fine.

Article 8 An “identical trademark” as prescribed in Article 213 of the Criminal Law shall mean a trademark which is completely identical with the counterfeited registered trademark, or which is hardly different from the counterfeited registered trademark in terms of visual effect and is enough to mislead the public.

“Use” as prescribed in Article 213 of the Criminal Law shall mean to use a registered trademark or counterfeited registered trademark on merchandise, merchandise packing or container, or product instructions, merchandise trading documents, or to use the registered trademark or counterfeited registered trademark in advertising, exhibition or other commercial activities.

Article 9 “Sales amount” as prescribed in Article 214 of the Criminal Law shall mean all the illicit income which has been or can be obtained from sale of the merchandise under the counterfeited registered trademark.

In any of the following circumstances, the violator shall be determined to “clearly know the fact” as prescribed Article 214 of the Criminal Law:
(1) He/it knows that the registered trademark on the merchandise he/it sells is altered, changed or covered;
(2) He/it has ever been imposed upon administrative penalties or has borne civil liabilities due to sale of merchandise under a counterfeited registered trademark, but again sells the merchandise under the same counterfeited registered trademark;
(3) He/it forges or alters the authorization document of the trademark registrant or knows that the said document is forged or altered;
(4) Other circumstances in which he/it knows or ought to know the merchandise under the counterfeited registered trademark.

Article 10 Any of the following acts shall be a “counterfeiting of the patent of others” as prescribed in Article 216 of the Criminal Law:
(1) Marking, without permission, other’s patent number on the product he/it manufactures or sells or on the packing of such product;
(2) Using, without permission, other’s patent number in advertisements or other advertising materials, thus misleading other people to believe that the technology involved is a patented one;
(3) Using, without permission, other’s patent number in a contract, thus misleading other people to believe that the technology as described in the contract is a patented one;
(4) Forging or altering other’s patent certificate, patent document or patent application document.

Article 11 In the circumstances in which the violator directly or indirectly charges fees by means of publishing pay advertisement, etc., he/it shall be deemed to have done it “for the purpose of making profits” as prescribed in Article 217 of the Criminal Law.

“Without permission of the copyright owner” as prescribed in Article 217 of the Criminal Law shall mean that the violator is not authorized by the copyright owner, or he/it forges or alters the copyright owner’s authorization document or exceeds the authorized scope.

The act of disseminating other’s literal works, musical works, film, television or video products, computer software or other works to the public through information network shall be deemed to be a “reproduction and distribution” as prescribed in Article 217 of the Criminal Law.

Article 12 “Amount of proceeds arising from illegal business operations” as mentioned in this Interpretation shall mean the value of the infringing products which the violator has manufactured, stored, transported or sold in the process of infringing upon the intellectual property rights. The value of the sold infringing products shall be calculated at the actual sales price. The value of the manufactured, stored, transported or unsold infringing products shall be calculated at the marked price, or at the average actual sales price of the infringing products that has been found out. If no price is marked on the infringing products or the actual sales price is unable to be found out, the said value shall be calculated at the average market price of the infringed products.

If the violator commits the act of infringing upon intellectual property rights for more than one time, but has not been given any administrative or criminal punishment, the amount of proceeds arising from illegal business operations, the amount of illegal proceeds, or the sales amount shall be calculated accumulatively.

“Piece” prescribed in Article 3 of this Interpretation shall mean a mark with the entire trademark pattern.

Article 13 Whoever commits the crime of counterfeiting a registered trademark as prescribed in Article 213 of the Criminal Law, and sells merchandise under this counterfeited registered trademark shall, if a crime is constituted, be convicted and punished under the crime of counterfeiting registered trademark in accordance with Article 213 of the Criminal Law.

Whoever commits the crime of counterfeiting a registered trademark as prescribed in Article 213 of the Criminal Law, and sells merchandise under other’s counterfeited registered trademark which he clearly knows shall, if a crime is constituted, be subject to combined punishment for more than one crime.

Article 14 Whoever commits the crime of infringing upon copyright as prescribed in Article 217 of the Criminal Law, and sells the infringing copies shall, if a crime is constituted, be convicted and punished under the crime of infringing upon copyright in accordance with Article 217 of the Criminal Law.

Whoever commits the crime of infringing upon copyright as prescribed in Article 217 of the Criminal Law, and sells other’s infringing copies which he clearly knows shall, if a crime is constituted, be subject to combined punishment for more than one crime.

Article 15 Where an entity commits any of the acts as described in Articles 213 through 219 of the Criminal Law shall be convicted and given punishment by tripling that given to an individual committing the same crime prescribed in this Interpretation.

Article 16 Whoever obviously knows that other’s committing the crime of infringing upon intellectual property rights, and provides him/it with loans, funds, accounts, invoices, testimonials, permits, or provides him/it with a production or operation site, transport, storage, import or export agency, or other conveniences and assistances, shall be regarded and punished as accomplices to the crime of infringing upon intellectual property rights.

Article 17 Any previously promulgated judicial interpretation relating to the crime of infringing upon intellectual property rights, which is in conflict with this Interpretation, shall no longer apply since this Interpretation comes into force.