Recently, Supreme People’s Court, the Supreme People’s Prosecuratorate and the Ministry of Public Security jointly issued in January 2011 the Opinions regarding the applicable laws for criminal cases of intellectual property (hereinafter the Opinions), which further clarifies the details in settling crimes relating IP infringement. Below are summary of the key points :
The jurisdiction of local PSB has extended, for instance, the public security agencies where the storing or transporting infringing goods locate or found may have jurisdiction. This can best avoid the local protection for infringers caused by jurisdiction where the infringing goods are produced.
In terms of infringement over the network, the rightholder may seek help from the public security agency where it resides for docketing and investigating the case. This offers much convenience to the rightholders.
For private prosecution carried out by the rightholders, the Supreme People’s Court delegates authority to the local courts in taking evidence basing on its power, which is helpful for the rightholders in initiating the criminal procedures against the IP infringement.
The concept of identical goods is extended to the extent that they should be viewed as substantially identical, not completely identical. This has actually increased the scope of criminal protection for trademark right.
The scope of calculation of the amount of illegal business operation has been increased in cases of counterfeit registered trademarks. Even if the goods are not attached with representations of the counterfeit registered trademark, they may be calculated into the amount of illegal business operation.
Heavier responsibilities are imposed for sellers of counterfeit goods. Even though there is no act of sale, criminal liability may be applies when the value of the inventory reach 150,000RMB.
With regard to the sale of infringing representations, when the inventory reaches certain number, such act should be liable for criminal activity no matter whether there is proof of actual sale. This decreases the thresholds requirement of proving sale of infringing representations.
Criminal liabilities shall apply to the act of copyright infringement over information network. Specifically, it shall be considered as criminal activities where there is 50,000RMB of illegal business operation, or distribution of 500 copies, or click of 50,000, or registered membership of 1000 members.
If one knowingly provides materials, technology, devices, internet access, storage, fee settlement to other persons’ IP crime when there is clear evidence of IP crime, the provider shall be criminally punished as a complicity.
