Key words: sale, counterfeit registered trademark, commodity
Case description: During the period from October 2018 to June 2019, defendants Li Weichao, Cao Bingtuan and Ye Dawen bought counterfeit cigarettes with counterfeit registered trademarks (hereinafter referred to as “counterfeit cigarettes”) from Huang Hezhou, a person not involved in the case. The counterfeit cigarettes involved brands “Hongtashan”, “Yunyan”, “Liqun”, “Furongwang” etc. Subsequently, the three defendants sold the counterfeit cigarettes by raising price in their store. The sale volume of Li Weichao, Cao Bingtuan and Ye Dawen is 163,000 yuan, 156,130 yuan and 96,450 yuan, respectively. The public prosecution organ sued the three defendants Li Weichao, Cao Bingtuan and Ye Dawen for violating Article 214 of the Criminal Law of the People's Republic of China. It initiated a public prosecution to the court for defendants selling commodity with counterfeit registered trademarks.
Result of judgment: In the judgment of Haikou City Qiongshan District People’s Court, the defendants Li Weichao, Cao Bingtuan and Ye Dawen knew the commodities were of counterfeit registered trademarks and sold them. The sale volume was high. The three persons committed the crime of selling commodity with counterfeit registered trademarks. When arrested, they all confessed their crime and were willing to admit their guilt, so a lesser punishment could be given. Family members of the three defendants handed over the illegal profit to public security organ, so a lesser punishment could be given. It was finally affirmed that the three defendants committed the crime of selling commodity with counterfeit registered trademarks. Defendant Li Weichao was sentenced to a fixed-term imprisonment of one year and three months; suspended sentence term was one year and six months; the amount of fine was RMB100,000. Defendant Cao Bingtuan was sentenced to a fixed-term imprisonment of one year and three months; suspended sentence term was one year and six months; the amount of fine was RMB100,000. Defendant Ye Dawen was sentenced to a fixed-term imprisonment of ten months; suspended sentence term was one year; the amount of fine was RMB60,000.
Typical significance: This is the first criminal case of intellectual property after Haikou City Qiongshan District People’s Court implemented the “three-in-one” trial of criminal, civil and administrative cases of intellectual property rights. Considering the three defendants had good attitude toward admission of guilt and had no danger of recommitting the crime, suspended sentence is applicable, which manifests the judiciary “warmth”. As for the crime of infringing intellectual property, the people’s court will above all consider illegal profit, amount of illegal business operation, the loss caused to the right owner and the hazard to society. While applying principal penalty, fine will be sentenced. The amount of fine tends to be larger than the amount of illegal gains but smaller than the amount of five times of illegal gains; or the amount of fine can be larger than 50% illegal business volume but smaller than the total illegal business. This is to deprive the criminal offenders of the ability and conditions to recommit the crime in economy. At the same time, their criminal motive can be restrained. The judgment to the case strikes a severe blow to the act of infringing intellectual property, implements the criminal policy of combining punishment with leniency and puts leniency system into practice for admitting guilt and accepting punishment. This is significant for strengthening criminal and judicial protection to intellectual property. In addition, this helps to unify legal efficacy with social effect.
