【Issued units -- the Supreme People's Court and Supreme People's Procuratorate 】
【Release -- the symbol Act [2004] release on the 19th 】
[Date Published : 2004-12-08 ]
[2004-12-22 -- Commencement ]
【Expiry date -- ---------- 】
【Category -- State laws and regulations 】
The Supreme People's Court and Supreme People's Procuratorate
On the handling of criminal cases in violation of intellectual property specific application of the law a number of issues in
(November 2, 2004 the Supreme People's Court Judicial Committee 1331 meeting,
On November 11, 2004 the Supreme People's Procuratorate, the 10th prosecution Committee meeting of 28)
(France release [2004] 19)
PRC Supreme People's Court
Supreme People's Procuratorate
Notice
"The Supreme People's Court and Supreme People's Procuratorate on handling criminal cases in violation of intellectual property specific application of the law to explain a number of issues" was on November 2, 2004 by the Supreme People's Court Judicial Committee at its 1331 meeting, November 11, 2004 by the Supreme People's Procuratorate, the 10th Attorney appointed Members of the first 28 meetings, is hereby announced that since December 22, 2004 has come into effect.
On December 8, 2004
To punish violations of intellectual property crime, safeguarding the socialist market economic order, according to the relevant provisions of the Penal Code, now handling criminal cases of intellectual property rights violations specific application of the law a number of issues explained as follows :
First of all unregistered trademarks permission of the same kind of goods with the use of the registered trademark of the same trademark, is one of the following cases, the 213rd of the Criminal Law of "serious cases" should be fake registered trademarks sentenced to three years in prison or criminal detention, and Department or simply fined :
(1) the amount of illegal above 50,000 yuan of illegal income, or the amount of 30,000 yuan or more;
(2) two or more fake registered trademarks, in the illegal business volume or more than 30,000 yuan of illegal income in the amount of more than 20,000 yuan;
(3) Other aggravated the situation.
With one of the following cases, the Criminal Law of the 213rd "very serious" and should be fake registered trademarks sentenced to less than seven years of imprisonment and fined him :
(1) illegal amounts above 250,000 yuan in illegal income or the amount of 150,000 yuan or more;
(2) two or more fake registered trademarks, in the illegal business volume or more than 150,000 yuan of illegal income in the amount of more than 100,000 yuan;
(3) Other circumstances of the case particularly serious.
The second of knowingly selling fake registered trademarks of goods, sales in the amount of 50,000 yuan and above, the 214th of the Criminal Law of "large amount" should be selling fake registered trademarks of goods was sentenced to three years imprisonment or criminal detention, or his single-payment penalties.
Sales in the amount of 250,000 yuan, the 214th of the Criminal Law provisions of the "enormous amount" should be selling fake registered trademarks of goods sentenced to less than seven years of imprisonment and fined.
The third of forgery, unauthorized manufacture of others registered trademarks or sell counterfeit and unauthorized manufacture of the registered trademark logo is one of the following cases, the 215th of the Criminal Law of "serious cases", it should be illegal to manufacture, sell the illicit manufacture of a registered trademark logo sentenced following three years of imprisonment, criminal detention or control, in addition to the single punishment :
(1) forgery, unauthorized manufacture or sale of counterfeit and unauthorized manufacture of the number of registered trademarks in more than 20,000, or the amount of illegal above 50,000, or the amount of illegal income over 30,000 yuan;
(2) forgery, unauthorized manufacture or sale of counterfeit and unauthorized manufacture two or more registered trademarks in number over 10,000, or the amount of illegal above 30,000 yuan, or the amount of illegal income over 20,000 yuan;
(3) Other aggravated the situation.
With one of the following cases, the 215th of the Criminal Law provisions of the "very serious", it should be illegal to manufacture, sell the illicit manufacture of a registered trademark logo is sentenced to less than seven years of imprisonment and fined him :
(1) forgery, unauthorized manufacture or sale of counterfeit and unauthorized manufacture of the number of registered trademarks in more than 100,000, or illegal business volume in more than 250,000 yuan, or the amount of illegal income of 150,000 yuan;
(2) forgery, unauthorized manufacture or sale of counterfeit and unauthorized manufacture two or more registered trademarks in number over 50,000, or the amount of illegal above 150,000 yuan, or the amount of illegal income of 100,000 yuan;
(3) Other circumstances of the case particularly serious.
Fourth of counterfeit patents, with one of the following cases, the 216th of the Criminal Law of "serious cases" should be counterfeit patents sentenced to three years in prison or criminal detention, or his single-payment penalties :
(1) illegal amounts above 200,000 yuan in illegal income or the amount of 100,000 yuan or more;
(2) to the patentee caused direct economic losses of more than 500,000 yuan;
(3) fake and two others over patents, the illegal business volume of over 100,000 yuan in illegal income or the amount of 50,000 yuan or more;
(4) Other aggravated the situation.
The fifth of the profit for the purpose of implementation of the 217th listed in the Penal Code copyright infringement acts, illegal income in the amount of 30,000 yuan and above, the "large amount of illegal income"; With one of the following cases, the "other serious crimes," should be copyright infringement sentenced to three years in prison or criminal detention, or his single-payment penalties :
(1) the amount of illegal over 50,000 yuan;
(2) without the permission of the copyright, issued its written copy works, music, film, television, video art, computer software and other works, the total number of copies of 1000 (copies) above;
(3) other serious crimes cases.
Profit for the purpose of implementation of the 217th listed in the Penal Code copyright infringement acts, illegal income in the amount of 150,000 yuan, the "huge amount of illegal income"; With one of the following cases, the "other particularly serious circumstances" should a copyright infringement sentenced to three years and seven years imprisonment and fined him :
(1) the amount of illegal business over 250,000 yuan;
(2) without the permission of the copyright, issued its written copy works, music, film, television, video art, computer software and other works, the total number of copies of 5000 (copies) above;
(3) Other particularly serious circumstances of the case.
The sixth of the profit for the purpose of implementation of the provisions of the Criminal Law of the 218th, in the amount of illegal income of 100,000 yuan, the "huge amount of illegal income" should be selling pirated copies sentenced to three years in prison or criminal detention, or his single-payment penalties.
The seventh of the 219th implementation of the provisions of the Penal Code as one of the secrets to the commercial rights cause losses in the amount of 500,000 yuan, the "commercial secrets to the right person causing significant losses" and should be violated commercial secrets sentenced to three years in prison or criminal detention, or his the penalties were single.
Commercial secrets to the right cause losses in the amount of 2.5 million yuan, the Criminal Law of the 219th "has caused serious consequences," should be violated commercial secrets sentenced to less than seven years of imprisonment and fined.
The eighth of the Penal 213rd of the same "trademarks", I was referring to was the fake registered trademarks identical, or with fake registered trademarks in visual basic differences sufficiently misleading to the public's trademark.
Criminal 213rd of "use", refers to the registered trademark or a registered trademark counterfeiting for commodities, goods or containers and packaging product brochures, a commodity trading instruments, or to fake registered trademarks or registered trademarks used in the advertising, exhibitions and other business - moving such acts.
Article 9 of the Penal 214th of "sales amount" refers to the sale of counterfeit registered trademarks of goods obtained and deserve all the illegal income.
With one of the following cases, it should be identified as belonging to the 214th of the Criminal Code of "knowing" :
(1) know the merchandise sales of the registered trademark has been altered, or swap coverage;
(2) the sale of counterfeit registered trademarks of goods faced administrative punishment or civil commitment has been made, with a sale of counterfeit registered trademarks of goods;
(3) forged, altered trademark registration authorization documents or knew that the documents were forged, altered;
(4) Other knows or should know is a registered trademark counterfeiting of goods situation.
The 10th of the following acts, the 216th of the Criminal Law of "patent counterfeit" acts :
(1) Unauthorized in their manufacture or sale of products, product marked on the packaging of the patent;
(2) without permission, in advertising or other promotional materials used another person's patent, people will be involved in the misuse of technology that is patented technology to others;
(C) 1989, in which the use of other people's patents, people will contract the misconception that technology is patented technology to others;
(4) forged or altered others patent certificates, patents or patent applications paper documents.
11 to charges published advertisements directly or indirectly charging fees for the case, the Criminal Law of the 217th "for profit-making purposes."
The 217th of the Criminal Law "without the permission of the copyright", which means the copyright holder has not been authorized or forged, altered the copyright holder's authorization documents or exceed the scope of the licensing situation.
The information network communication to the public works of others words, music, film, television, video art, computer software and other works, it should be considered as the 217th of the Criminal Code of "cloning issue."
Article 12 The interpretation of the alleged "illegal business volume", which means the actors in the implementation of intellectual property infringements process, the manufacture, storage, transportation and sale of infringing products value. The sale has the value of infringing products, according to the actual sales prices. The manufacture, storage, transport and sale of infringing outstanding value products, in accordance with the price or have been identified in the infringing products, the average actual sales prices. No price infringing products or unable to ascertain its actual sales price, in accordance with the infringement of intermediate products in the market prices.
Repeated violations of intellectual property rights, without administrative or criminal punishment to deal with the illegal business volume, or the amount of illegal income accumulated amount of sales.
The third interpretation of the provisions of the "pieces" is a comprehensive indicator of a reproduction of the mark logo.
Implementation of Article 13 of the Criminal Law of the 213rd fake registered trademarks crime, the sales of counterfeit registered trademark goods, which constitute a crime, it should be in accordance with the Criminal Law of the 213rd to fake registered trademarks convicted and punished.
The implementation of the provisions of the Penal 213rd fake registered trademarks crime, others are knowingly selling fake registered trademarks of goods, which constitute a crime, should be subject to graft.
Implementation of Article 14 of the Criminal Law of the 217th of criminal copyright infringement and selling the infringing copies, which constitute a crime, it should be in accordance with the 217th Article of the Criminal Law stipulates that copyright infringement to be convicted and punished.
The 217th implementation of the provisions of the Penal Code of criminal copyright infringement, even though sales of infringing copies of others, which constitute a crime, should be subject to graft.
Units of the 15th Penal implementation of the 213rd to 219th of the provisions of the act, in accordance with the provisions of the interpretation of the corresponding personal criminal conviction and sentencing of convicted three times the standard sentencing.
The 16th of knowing others to commit violations of intellectual property crime, while providing loans, funds, accounts, invoices, certificates or licenses, or for production and operation sites or transport, storage, import and export agent of such facilities, and the assistance to the criminal IPR infringement accomplice punished.
Previously released 17 of the criminal IPR infringement judicial interpretations, the interpretation and contradict the purposes of this interpretation no longer applies. |
