China Copyright & Patent Service
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In comparison with the means of administrative enforcement of law and civil procedures, the appeal to criminal procedure for the protection of the exclusive right to the use of a registered trademark is the channel with greatest force and most obvious effect.
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Article 213 of the Criminal Code of the People’s Republic of China stipulates that “Where any person, without authorization of the owner of a registered trademark, uses a trademark which is identical with the registered trademark in respect of the same goods shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined
Crime of counterfeiting registered trademarks
Article 213 of the Criminal Code of the People’s Republic of China provides that “Where any person, without authorization of the owner of a registered trademark, uses a trademark which is identical with the registered trademark in respect of the same goods shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; if the circumstances are especially serious, he / she shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.”
The crime of selling goods bearing a counterfeited registered trademark
Article 214 of the Criminal Code of the People’s Republic of China provides that, “Where any person knowingly sells goods bearing a counterfeited registered trademark shall, if the amount of sales is relatively large, be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only be fined; if the amount of sales is large, he / she shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.”
Crime of falsifying, or making representations of another person’s registered trademarks without authorization, or selling such representations
Article 215 of the Criminal Code of the People’s Republic of China provides that “Where any person falsifies, or making representations of another person’s registered trademarks without authorization, or selling such representations shall, if the circumstances are serious, 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; if the circumstances are particularly serious, he / she shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.”
Accomplice of trademark infringement
The Criminal Code of the People’s Republic of China makes stipulations of joint commission of a crime. For the purpose of effectively protecting intellectual property rights and severely cracking down upon criminal acts of intellectual property infringement including trademark and copyright, Article 16 of the Interpretation provides that one is an accomplice if he/she knowingly, or should have known, furnishes loans, funds, account number, invoice, certificate, license, or provides sites for production and management, or provides various conveniences of transportation and storage, or acts as an importing/exporting agent for someone who carries out the crime of trademark infringement.
The stipulation is drawn mainly because that the crime of trademark infringement has shown the features of a family-based operation, big scale operations and well organized in many places. Many big-scale counterfeit trademark crimes have developed into a full-range chain production from raw material purchase, equipment procurement, capital support, transportation, warehousing, and marketing, with especially great harm.
The principle that criminal liability and civil liability don’t repulse each other
In addition to criminal liability, civil liability may be found out to the person committing the crime of infringing the exclusive right to the use of a registered trademark. The owner of a registered trademark may still demand for compensation for civil damages. In a similar manner, in cases with civil liability having been looked into, judicial authorities may go on to investigate the criminal liability if they constitute crimes. Civil liability shall not cover for criminal liability and vice versa.
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