catalogue
1. Case of infringement of trade secrets by three Chinese technology Co., LTD., Lu Mouchang, etc
2. Ji Yimin and four others violated trade secrets
3. Case of infringement of trade secrets by Hubei Shuangmou Blower Co., LTD., Ru Mou Peng, etc
4. A case of copyright infringement by seven people in Wang's middle school
5. Changxingwei Machinery Co., LTD., Li Murong, Ma Muri copyright infringement case
6. Hong Moushe and 58 others sold goods with counterfeit registered trademarks
7. Luo Mouzhou and other ten people counterfeiting registered trademarks
8. Administrative public interest lawsuit on the protection of geographical indications of "White banana sea bass"
9. Chengdu Qing a trading Co., Ltd. and Lu a Co., Ltd. and other trademark revocation administrative dispute appeal
10. Nantong Liquor Industry Co., LTD., and the State Intellectual Property Office trademark invalidation administrative dispute appeal case
Case 1
A technology Co., LTD., Lu Mouchang and other three cases of infringement of trade secrets
【 Key words 】
Crime of infringement of trade secrets chip packaging overall technical scheme loss amount
【 Main purpose 】
In handling criminal cases of infringement of trade secrets, if the violated technical information is the core technology of the overall technical scheme and cannot be separated from the overall technical scheme, the procuratorial organ may calculate the amount of losses of the right holder according to the profits generated by the overall technical scheme, and severely punish the crime of infringement of the key core technology of the enterprise according to law. Fully perform the functions of intellectual property procuratorial work, promote the enterprises involved in the case to improve the intellectual property protection mechanism and serve the self-reliance of high-level science and technology through the flexible use of procuratorial recommendations and the establishment of intellectual property protection platforms.
【 Basic case 】
High-end electronic component atmosphere firing furnace (hereinafter referred to as firing furnace) is one of the key equipment of chip packaging, Hui certain equipment Co., LTD. (hereinafter referred to as Hui certain equipment Co., LTD.) through independent research and development to obtain the core technology of firing furnace, according to different needs of customers, customized production. Mr. Lu joined Hui Equipment Company in 2000 as after-sales manager. Mr. Si joined a equipment company in 2011 as a network administrator. Both Mr. Lu and Mr. Si signed confidentiality and non-competition agreements with the company.
Zhongyi Technology Co., LTD. (hereinafter referred to as Zhongyi Technology Co., LTD.) was established in March 2017, the business scope is the research and development and sales of electrical machinery and equipment, instruments and meters, industrial kilns, etc. The initial legal representative is Xu Mou. Around July 2017, Xu Mou was introduced by Lu Mou Chang and made contact with Si mou Law, promising a good fee to entice Si Mou Law to provide a technology company with information containing technical information such as a furnace design drawing that a equipment company took confidential measures. In August of the same year, Si Mou, without authorization, decrypted the technical drawings of the burning furnace in the server of an equipment company and copied them to Xu mou. After Xu paid 80,000 yuan and 80,000 yuan worth of shares of a technology company in China as a reward. In addition, the company charged Xu 68,000 yuan in the name of decryption fees.
In February 2018, Lu Mou Chang resigned from Hui Mou Equipment Company, joined Zhong Mou Technology Company as deputy general manager, and replaced Xu Mou as the legal representative of the company in August 2019, Xu Mou will store the above technical information and other data mobile hard disk to Lu Mou Chang.
In June 2020, Xu transferred all his shares and withdrew from a technology company in China. From July 2020 to May 2021, during the operation and management of a technology company in China, Lu Mou Chang used the aforementioned technical drawings obtained by improper means to produce kilns with highly similar functions to the firing furnaces of Hui mou Equipment Company and sold them to Hui Mou Equipment Company's previous customers, resulting in a loss of more than 5 million yuan in sales profit of Hui Mou Equipment Company.
After identification, the technical information related to the "concave brick" in the technical drawings advocated by a equipment company is not known to the public, and the relevant parameter information of the infringing product drawings is the same as the above technical information and has the same identity.
[Performance of Procuratorial organs]
On June 15, 2021, after receiving the report from the right holder, the subordinate branch of the Suzhou Public Security Bureau in Jiangsu Province filed an investigation on the case of a certain equipment company being infringed on trade secrets. People's Procuratorate of Changshu City, Jiangsu Province (hereinafter referred to as Changshu City Procuratorate) was invited to intervene in the investigation, and discussed with public security organs on issues such as the identification of the amount of loss. According to the relevant judicial interpretation, if the trade secret of the right holder is obtained by improper means and used, the amount of loss can be determined according to the loss of sales profits caused by the right holder due to the infringement. Combined with the specific case, the procuratorial organ suggested that the amount of loss in this case should be calculated by multiplying the sales volume of the infringing product by the reasonable profit of each product of the right holder.
On October 22, 2021, the subordinate branch of Suzhou Public Security Bureau submitted to the Changshu Municipal Procuratorate for approval of the arrest of Lu and Si on suspicion of violating commercial secrets. On October 29 of the same year, the Changshu Municipal Procuratorate approved the arrest of Lu Mouchang and Si Moulu in accordance with the law.
On December 29, 2021, the branch directly under the Suzhou Public Security Bureau transferred a technology company, Lu Mouchang, Si Yulu, and Xu to the Changshu Municipal Procuratorate for investigation and prosecution on suspicion of violating trade secrets. Procuratorial organs focus on the following work: First, accurately determine the amount of loss. The defense of a Chinese technology company proposed that a Chinese technology company only violated part of the technical information in the whole set of drawings, and it was unreasonable to determine the loss based on the profit of the overall product. The prosecution analyzed that: First of all, the violated "concave brick" related technical information is the core technology of the furnace, which is related to whether the furnace top will collapse or deform during use, and directly affects the sintering effect of the product. After repeated experiments, the right holder obtained the relevant technical parameters at the last stage of the research and development process, and the technical information played a decisive role in the overall technical scheme. Secondly, the information of the violated technology cannot be separated from the overall technical solution. Whether it is a foreign enterprise that has mastered the manufacturing technology of the firing furnace or a certain equipment company, the whole furnace manufacturing sales and after-sales maintenance are carried out. In this case, the amount of loss of the right holder can be calculated according to the profits generated by the overall technical solution. The second is to strengthen the interpretation of the law, to promote Lu Mouchang, Si Moulu, Xu Mou guilty plea, refund compensation rights holder loss of 1.2 million yuan. The third is to hunt down Chen Mou, the manager of a technology company in accordance with the law. Chen Mou knew that the technical drawings involved were illegally obtained from a certain equipment company by improper means, and still used the drawings to engage in production. After the prosecution, Chen was sentenced to three years in prison for violating commercial secrets. Fourth, we will encourage enterprises to improve their IPR protection mechanisms. Changshu City Procuratorate combined with the case handling, carried out field visits, was invited to give a special lecture on risk prevention for a equipment company, and issued a "Procuratorial proposal" in view of the loopholes in the company's confidentiality system management. To handle the case as an opportunity, together with the Federation of Industry and Commerce, market supervision, public security, courts, judicial Bureau and other eight departments to establish the "Intellectual property law enforcement and judicial protection alliance", the corrected Hui a equipment company set up as an intellectual property protection demonstration site for other local high-tech enterprises to study and visit, enhance the awareness of trade secret protection, promote the improvement of trade secret protection system.
On April 14, 2022, Changshu Municipal Procuratorate prosecuted a technology company, Lu Mouchang, Si Yulu and Xu for the crime of violating trade secrets. On June 8, 2022, Changshu City People's Court made a judgment of first instance, adopted the facts charged by the procuratorial organs and the sentencing recommendations, and fined the defendant Zhongyi Technology Company 4.5 million yuan for the crime of violating commercial secrets, sentenced the defendants Lu Mouchang and Si Yulu to three years and six months in prison, and fined 350,000 yuan; Xu was sentenced to three years in prison, suspended for four years, and fined 300,000 yuan. Neither the defendant nor the defendant appealed, and the judgment has taken effect.
[Typical meaning]
(1) Severely punish the crime of infringing on trade secrets by key core technologies of enterprises in accordance with the law, and accurately determine the amount of losses. The key core technology is related to the survival and development of enterprises, and is of great significance to the high-quality development of national economy. In handling criminal cases of infringement of trade secrets, procuratorial organs strengthen cooperation and cooperation with public security organs, timely ascertain the facts of the case, accurately identify the amount of loss of the right holder, pursue the evaders according to law, form a powerful deterrent, protect and support the innovation and development of enterprises, and maintain the normal market competition order. When the technical information involved belongs to the core technology of the production of related products, plays a decisive role in the overall technical scheme, and cannot be separated from the overall technical scheme, the amount of loss of the right holder can be calculated according to the profits generated by the overall technical scheme, and the criminal act and its harmful consequences can be accurately evaluated.
(2) Actively perform procuratorial functions and serve to ensure the innovation and development of high-tech enterprises. In handling cases of intellectual property infringement involving chips and other high-tech technologies, procuratorial organs should pay attention to responding to the reasonable demands of enterprises, apply the leniency system of guilty plea in accordance with the law, implement the criminal policy of combining leniency with severity, urge the infringer to actively compensate, strive to recover economic losses for the right holders, and activate the innovation vitality of enterprises. Combined with the actual situation of case handling, it can help enterprises to block leakage and improve the intellectual property protection system through the form of making and issuing procuratorial suggestions, entering enterprises to carry out risk prevention lectures. Strengthen cross-departmental coordination and protection, join relevant functional departments, improve the long-term mechanism by building intellectual property protection platforms and creating demonstration sites for intellectual property protection, and achieve the effect of "handling one case and managing one area".
Case 2
Ji Yimin and other four people infringement of trade secrets
【 Key words 】
Crime of infringement of trade secrets Trade secrets for the public to know the substantial participation of the patent return right holder in the lawsuit
【 Main purpose 】
In handling criminal cases of infringement of trade secrets, the procuratorial organ may refer to the research and development cost of the trade secret and determine its commercial value comprehensively if the trade secret has become known to the public as a result of the infringer's use of technical information for patent application. Strengthen the interpretation of the law in handling cases, and promote the return of patents and related interests of infringer. Actively guide the right holders to participate in the litigation, and comprehensively safeguard their legitimate rights. Promote the management of trade secret protection litigation sources through case-by-case handling, and promote the improvement of the level of trade secret protection in the region.
【 Basic case 】
Bag Machinery (Shanghai) Co., LTD. (hereinafter referred to as bag Machinery Company) was established in 2011, the main business includes the research and development, production and sales of bag making machine, the core technology includes "conjugate CAM control of the top card device", "paper bag flipping device" and so on.
In October 2016, Ji Yimin joined Bag Machinery Company as general manager. In March 2015, Liu Husheng joined the bag machinery company as executive deputy general manager. In October 2013, Wang joined the bag a machinery company as deputy general manager. In March 2017, Sui Huiguo joined a machinery company, as a mechanical design supervisor. The above personnel have signed labor contracts and confidentiality agreements with the company during their tenure.
Since December 2018, Ji Yimin, Liu Husheng and Wang Mou jointly funded the establishment of Youa Environmental Protection Technology (Shanghai) Co., LTD. (hereinafter referred to as Youa Technology Company), and then Youa Technology Company held the establishment of Baga Environmental protection Technology (Shanghai) Co., LTD. (hereinafter referred to as Baga Environmental Protection Company). At the beginning of 2019, Ji Yimin, Liu Husheng and Wang Mou successively resigned from a machinery company and entered a technology company. Before leaving his job, Liu Husheng backed up the hard disk containing all electronic mechanical drawings of a machinery company that he was responsible for keeping, and took it to a technology company for use until the case. After Ji Yimin and the other three recruited Sui to work in a technology company and promised to give it 5% of the stock. Before leaving, Sui Muguo copied and modified the electronic mechanical drawings such as "conjugate-cam controlled upper card device", "paper bag turning device" and L-type bag making machine developed by a machinery company and handed them to Wang, who was responsible for using the above drawings to produce and manufacture L-type bag making machines similar to that of a machinery company. The sales amount totaled 2.65 million yuan.
Since June 2019, Ji Moumin, Liu Mousheng, Wang Mouguo and Sui Mouguo have conspired to directly use or partially modified the technical information of the above "conjugate CAM controlled card device" and "paper bag flipping device" of a machinery company and make it public by applying for a utility model patent. After identification, the technical information of "conjugate CAM controlled card device" and "paper bag flipping device" of a mechanical company belongs to the technical information not known to the public. The technical information of "conjugate CAM controlled upper card device" held by a machinery company of the bag is the same as the technical information disclosed in the utility model patent "a CAM controlled upper card device" applied by an environmental protection company of the bag; The technical information of "paper bag turning device" held by a mechanical company is essentially the same as the technical information disclosed in the utility model patent "a paper bag turning device" applied for by an environmental protection company. After evaluation, the research and development value of the above two technical information of a machinery company totaled 2.0735 million yuan.
[Performance of Procuratorial organs]
On January 30, 2020, after the right holder bag a machinery company reported, the Fengxian branch of Shanghai Public Security Bureau filed a case of Ji Yimin and others suspected of violating trade secrets. Shanghai Fengxian District People's Procuratorate (hereinafter referred to as Fengxian District Procuratorate) timely intervention investigation, focusing on the following work: First, around the technical information involved in the non-public, identity identification, technical information value identification and other difficult issues, multiple communications with investigators, appraisers, to ensure the accuracy of appraisal opinions and other relevant evidence. Second, it is suggested that public security organs extract and fix electronic evidence, strengthen interrogation in a targeted way, and achieve mutual confirmation between subjective and objective evidence. The third is to visit the right holder company, understand the operation of the enterprise, the work situation and scope of responsibilities of the personnel involved, and the confidentiality of the company's technical information, and suggest that the public security organs obtain relevant information and improve the evidence system.
On June 9, 2021, Fengxian Branch of Shanghai Public Security Bureau submitted to Fengxian District Procuratorate for approval of the arrest of Ji, Liu, Wang and Sui on suspicion of violating commercial secrets. On June 16 of the same year, the Fengxian District Procuratorate approved the arrest of Ji Moumin and Sui Mouguo in accordance with the law, and did not approve the arrest of Liu Mousheng and Wang, who voluntarily pleaded guilty, actively compensated for losses and obtained understanding.
On August 16, 2021, Fengxian Branch of Shanghai Public Security Bureau transferred Ji Yimin, Liu Husheng, Wang Mou and Sui Qiguo to Fengxian District Procuratorate for investigation and prosecution on suspicion of violating trade secrets. Fengxian District Procuratorate focuses on the following work: First, to lock the direct infringement personnel. Synthesizing the evidence of the whole case, it was determined that the technical information involved came from Liu Huseng, executive deputy general manager of a machinery company at that time, and Sui Husuo, director of mechanical design, and suggested that the public security organs conduct a detailed search of the two people's residences, seize the relevant technical information carriers and seize and seal them. The second is to guide the right holders to participate in the litigation substantially. When serving notice of litigation rights and obligations to the right holder, fully listen to their opinions. Promote substantive participation of right holders in court hearings and express opinions on technical issues, so as to facilitate the court to ascertain the facts of the case. Third, actively carry out the work of recovering stolen goods. By fully interpreting the law and reasoning, the four infringer pleaded guilty and made a total compensation of 2.81 million yuan for the economic loss of the right holder. The fourth is to accurately identify the value of the trade secret involved and recover the competitive advantage of the right holder to the maximum extent. It is suggested that the public security organs should supplement the investigation of the relevant evidence that the infringer applied for a patent using the technical information involved in the case, resulting in the technical information being known to the public, determine the amount of loss caused by the infringement by referring to the research and development cost of the technical information, and facilitate the infringer and the right holder to reach a patent return agreement to reduce the cost of rights protection.
On November 15, 2021, Fengxian District Procuratorate prosecuted Ji Moumin, Liu Mousheng, Wang Mouguo and Sui Mouguo for the crime of violating trade secrets. On February 10, 2022, the Shanghai Pudong New Area People's Court (the court with centralized jurisdiction over intellectual property cases in Shanghai at that time) sentenced Ji Yimin and other four defendants to fixed-term imprisonment ranging from one year and nine months to two years, with suspended sentences, and fined from 100,000 yuan to 180,000 yuan; According to law, the four persons are prohibited from engaging in the production, sales and related business activities of bag making machines during the probation period. None of the four defendants appealed, and the sentences took effect.
[Typical meaning]
(1) Accurately determine the amount of losses in cases of criminal infringement of trade secrets. In the handling of criminal cases of infringement of trade secrets, it is one of the difficulties to determine the amount of loss of the right holder and the illegal income of the infringer. Where the defendant infringes the right holder's trade secret and uses it to apply for a patent, resulting in the trade secret being known to the public, the procuratorial organ may guide the right holder to fully provide research and development materials with relevant technical information, accurately identify the research and development cost, and comprehensively identify its commercial value.
(2) To promote the substantive participation of right holders in litigation and protect their legitimate rights in multiple ways. In handling the case of infringement of trade secrets, the procuratorial organ in this case fully listened to the demands of the right holders, guided the right holders to participate in the litigation substantively, expressed opinions on relevant technical issues, etc., and played a positive role in promoting the court to identify complex technical facts. By guiding public security organs to comprehensively seize technical information carriers and organizing litigation participants to sign confidentiality undertakings, we should strengthen the protection of trade secrets in the litigation process and prevent "secondary disclosure". Strengthen the interpretation of the law and promote the return of stolen goods and compensation. For the patent obtained by the infringer using the trade secrets involved in the application, the legitimate rights of the right holder can be protected to the greatest extent by facilitating the return of the patent and related interests of the infringer.
(3) Rely on individual cases, improve the trade secret protection mechanism to promote the source of litigation management. Based on individual cases and combined with the characteristics of regional economic development, the procuratorial organ in this case actively helped build the project of trade secret protection demonstration sites in the jurisdiction, and participated in the formulation of evaluation standards for enterprises in the jurisdiction to establish trade secret protection demonstration sites from four aspects, including personnel management, protection of classified information, management of classified regional activities, and inspection and improvement. Targeted procuratorial suggestions on the protection of trade secrets are put forward to the right holders to help improve the intellectual property compliance management system, enhance the ability of enterprises to prevent business risks, and contribute procuratorial forces to creating a law-based business environment that respects knowledge and protects innovation.
Case 3
Hubei double a blower Co., Ltd. Ru a peng and other three cases of infringement of trade secrets
【 Key words 】
Compensation and settlement for unit crime of infringing trade secrets
【 Main purpose 】
Unauthorized or beyond the authorization of the use of computer information system to steal trade secrets, in accordance with the provisions of Article 219 of the Criminal Law, constitute the crime of infringing on trade secrets. Where, as decided by the unit, a business secret is obtained by improper means such as theft or bribery, and the benefits thereof belong to the unit, it shall be deemed as a unit crime. In the process of handling cases, the procuratorial organs should take into account the handling of cases and the reasonable demands of the enterprises involved, and properly handle the normal production needs of the enterprises.
【 Basic case 】
Shenyang Machinery Co., LTD., a subsidiary of Shen Group Co., LTD. (hereinafter referred to as Shen Group), is authorized to use Shen Group selection software, blower drawings and technical data to produce blower equipment. Ru Mou Peng is a technician of Shenyang Machinery Co., LTD., and the company signed a confidentiality agreement. Yang Mou is the deputy general manager of sales of Hubei Shuangmou Blower Co., LTD. (hereinafter referred to as Shuangmou Blower Company), and Yin Mou is an employee of the technical department of Shuangmou Blower Company.
From January 2015 to August 2020, Ru Mou Peng accepted property from Yang Mou Ming, violated the confidentiality obligation, illegally used Shen Mou Group's selection software for selection, stole Shen Mou Group's blower drawings and technical data, and sent them directly or after modification to Yin mou, an employee of the technical department of Shuangmou mou blower Company, who received them and used them in the company's blower production. Ru Mou Peng made a total of 2.11 million yuan in illegal profits. A double blower company used the drawings and technical information sent by Ru Mou Peng to produce 17 corresponding blower products and sell them abroad, causing an economic loss of more than 6.5 million yuan to Shen Mou Group.
It has been identified that the specific technical information such as "compressor production drawings" extracted by Shenyang Public Security Bureau at Ru's U disk and other places is identical with the specific technical information related to the secret points of "G408 (SV6-M) displacement gas compressor production technology and blower core components production technology" owned by Shen Group. The above technical information of Shen Group is not known to the public and reasonable confidentiality measures have been taken.
[Performance of Procuratorial organs]
On August 19, 2020, the Economic and Technological Development Zone branch of Shenyang Public Security Bureau received the report and investigated Ru Mou Peng on suspicion of illegally obtaining computer information system data. Due to the significant and complex nature of the case, the People's Procuratorate of Shenyang High-tech Industrial Development Zone (hereinafter referred to as the Shenyang High-Tech Industrial Development Zone Procuratorate) intervened in the investigation and mainly carried out the following work: First, accurately identify the nature of the case. By embezzling other employees' accounts to log in to the internal encryption system, he stole key core technical information, including blower drawings and technical data, and provided it to double a blower company for production, obtaining illegal interests, and has been suspected of violating commercial secrets, so he suggested that the public security organs change the direction of investigation. The second is to put forward the suggestion of investigation and evidence collection. Provide specific opinions to the public security organs on key issues such as the selection of identification institutions, the search of products involved, non-public identification and identity identification. It is suggested that the public security organs expand the scope of evidence to the recipients and users of technical information, organize experts to demonstrate key issues such as the identity identification of technical drawings, the technical problems of three-way flow single-stage blowers, and the existing technical capabilities of Shuang-certain blowers, and finally find out that Shuang-certain blowers do not have the corresponding selection ability and research and development ability.
On March 10 and April 15, 2021, the Shenyang Municipal Public Security Bureau successively requested approval of the arrest of Ru Moupeng, Yin Mouming and Yang Mouming on suspicion of violating trade secrets to the Procuratorate of Shenyang High-tech Zone. On March 12 and April 21 of the same year, the Procuratorate of Shenyang High-tech Zone successively approved the arrest of three people, including Ru Mou Peng, according to law.
From June to July 2021, the Shenyang Public Security Bureau successively transferred Ru Mou Peng, Yang Mou Ming and Yin Mou to the procuratorial organs for investigation and prosecution on suspicion of violating trade secrets. During the review and prosecution period, the Procuratorate of Shenyang High-tech Zone focused on the following work: First, accurately distinguish natural person crimes and unit crimes, and pursue prosecutions and omissions according to law. In this case, the double blower company decided to obtain trade secrets by way of commercial bribery, the products involved were produced by the company, and the proceeds were owned by the company, which should be identified as a unit crime, and the procuratorial organ added the double blower company as the defendant unit according to law. The second is to facilitate compensation settlement. In order to maximize the protection of the legitimate rights and interests of the right holder, the procuratorate strengthened the interpretation of the law, prompted a double blower company to plead guilty and take the initiative to compensate, the two sides reached a compensation agreement before the trial, and decided to play their respective advantages in the field of fan manufacturing technology and establish a cooperative relationship. The third is to accurately apply compulsory measures such as closure in accordance with the law. In the course of investigation, the public security organs seized 9 blower equipment produced by the defendant unit using the stolen trade secrets according to law. In the case, it was found that the defendant had signed a supply contract with an unwitting third-party enterprise, and because the equipment was seized, it could not be normally performed, affecting the normal advancement of a national key project undertaken by downstream enterprises. The procuratorial organs fully listen to the views of the relevant parties, especially the right holders, considering that the evidence in this case has been fixed, the two sides have reached a settlement agreement, and the right holders allow the two blower companies to continue to use relevant technical information, and timely recommend that the investigation organs lift the seizure. Fourth, it is suggested that enterprises improve the protection mechanism of trade secrets. In view of the shortcomings in trade secret protection exposed by Shen Group, it is suggested to strengthen risk prevention measures, install internal monitoring system hardware equipment in time, and upgrade encryption software as necessary.
On August 18, 2021, the Shenyang High-tech Zone Procuratorate filed a public prosecution against the defendant unit Shuangmou Blower Company and the defendants Ru Mou Peng, Yang Mou Ming and Yin Mou for the crime of violating trade secrets. On November 22, 2021, the People's Court of Shenyang High-tech Zone made a judgment of first instance, and sentenced the defendant Shuangmou Blower Company to a fine of 600,000 yuan for the crime of violating trade secrets; The defendants, Ru Moupeng, Yang Mouming and Yin, were sentenced to prison terms ranging from one year and six months to three years, with suspended sentences and fines ranging from 100,000 yuan to 200,000 yuan. Neither the defendant nor the defendant appealed, and the judgment has taken effect.
[Typical meaning]
(1) Comprehensively evaluate criminal acts and harmful consequences, and accurately determine the nature of crimes. The case of infringement of trade secrets involves a complex and professional evidence, and the procuratorial organ should promptly put forward evidence collection suggestions on key issues such as the nature of the behavior involved, non-public identification and identity identification. Whoever uses computer information systems to steal trade secrets without authorization or beyond authorization, in accordance with the provisions of Article 219 of the Criminal Law, shall constitute the crime of infringing on trade secrets. If the unit studies and decides to buy the staff of other units to obtain commercial secrets in the form of commercial bribery, and the illegal interests obtained belong to the unit, the unit shall be determined to commit a crime according to law, and the unit and relevant personnel involved shall be investigated for criminal responsibility.
(2) To accurately apply compulsory measures such as closure in accordance with the law to ensure the normal production and operation of relevant enterprises. In the process of handling the case, the procuratorial organ took into account the handling of the case and the reasonable demands of the enterprises involved. When the public security organs have completed collecting evidence and the infringer and the right holder have reached a settlement agreement, they have fully listened to the opinions of all parties, suggested the public security organs to lift the closure measures in accordance with the law, and ensured the normal production and operation of enterprises, and achieved good results in handling cases.
Case 4
Wang a middle seven people copyright infringement case
【 Key words 】
Digital procuratorial comprehensive management of map works of copyright infringement crimes
【 Main purpose 】
In handling criminal cases of intellectual property infringement, procuratorial organs accurately define the attributes of map works and the copyright ownership, severely crack down on piracy and infringement, and maintain the accuracy of maps and market order. Fully perform procuratorial functions, carry out their own supplementary investigations, effectively use digital procuratorial work, dig deep and thoroughly investigate the upstream and downstream criminal industry chains, determine additional criminal amounts, and prosecute perpetrators of illegal printing, wholesale sales and other links. Relying on the Yangtze River Delta integration cooperation mechanism of intellectual property protection, cross-regional governance of the e-commerce platform involved and promote industry governance.
【 Basic case 】
From March 2016 to March 2021, without the permission of copyright owners and exclusive publishing rights holders, Wang illegally copied, distributed and published a total of 36 maps, including China Traffic Map and World Map, with exclusive publishing rights enjoyed by others, totaling more than 9.6 million maps, and the amount of illegal business totaled more than 10 million yuan. Among them, through the overall organization of Wang Mouzhong, Qi Moufang printed more than 8.8 million infringing maps through the Spring Craft Paper Products Co., LTD., which he operated, and the amount of illegal business was more than 7.7 million yuan; He Mouguang and He Mouchang sold the infringing maps after processing through their partnership and a film factory, the number of which was more than 8.8 million, and the amount of illegal business was more than 9.6 million yuan; He Mouqiang, He Mouliang, He Mouas and a film factory employees, participate in map processing, sales and other links.
On March 10, 2021, the public security organs seized more than 280,000 copies of the above types of illegal maps that had not been sold in a film factory operated by He Yougang, He Yougang and a store in a small commodity market in Linyi; More than 300 copies of infringing map semi-finished products and 37 copies of PS map printed edition were seized in the Spring Craft Paper Products Co., LTD operated by Qi Mufang.
[Performance of Procuratorial organs]
On October 12, 2020, the Public Security Bureau of Haiyan County, Jiaxing City, Zhejiang Province, filed a case against Wang Muzhong and others for suspected copyright infringement. Haiyan County People's Procuratorate (hereinafter referred to as Haiyan County Procuratorate) intervened in the investigation, and proposed to the public security organs to extract mobile phone chat records and electronic transaction details in a timely manner, identify copyright ownership, and comprehensively investigate the upstream and downstream production and marketing chains, so as to improve the evidence chain.
On April 10, 2021, and July 6, 2021, the Haiyan County Public Security Bureau successively applied to the Haiyan County Procuratorate for approval of the arrest of He Mouguang, He Mouchang, Qi Moufang and Wang Mouzhong on suspicion of copyright infringement. On April 17 and July 9 of the same year, the Haiyan County Procuratorate successively approved the arrest of He Mouguang, He Mouchang, Qi Moufang and Wang Mouzhong.
On July 17, 2021, the Haiyan County Public Security Bureau transferred the case to the Haiyan County Procuratorate for review and prosecution. On August 16 of the same year, the Haiyan County Procuratorate transferred the case to the People's Procuratorate of Nanhu District of Jiaxing City (hereinafter referred to as Nanhu District Procuratorate) according to the cross-regional centralized handling mechanism of local intellectual property criminal cases. Procuratorial organs focus on the following work: First, relying on digital bill analysis system and other technical means to carry out their own supplementary investigation. Through modeling, collision and comparison of the data in the record, about 5 million infringement maps omitted by the investigation organs were discovered, the amount of illegal business was further identified as nearly 5 million yuan, and the upstream and downstream criminal chains were comprehensively tracked down, and eight people were prosecuted for illegal printing and wholesale sales and other links. The second is to accurately identify the attributes and copyright ownership of the map works involved. Organize and hold expert discussion meetings to listen to the professional opinions of personnel from the competent departments of cultural management and geographical mapping. After examination, the procuratorial organ held that the map involved in the case was organized and produced by the compilation unit, reflected intellectual labor in the overall composition, the selection of objective geographical elements, and the form of expression, was original, protected by the copyright law, and belonged to the work of a legal person, and the copyright should belong to the compilation unit. Wang is only engaged in data collection and other work as a project planner, and does not enjoy copyright on the map works involved. Third, we will perform our duties across administrative divisions. In view of the fact that some maps involved in the case are sold through the e-commerce platform in Shanghai where they are registered, the procuratorial organ of Jiaxing, Zhejiang Province, relying on the Yangtze River Delta integration cooperation mechanism for intellectual property protection, and the procuratorial organ of Shanghai, jointly convened the e-commerce platform involved in the case to conduct a special discussion on combating infringement and piracy, and put forward rectification suggestions for publication sales market access, daily inspection and sampling inspection. The e-commerce platform has actively reformed and upgraded its intellectual property protection regulatory measures. Fourth, we will promote administrative supervision and industrial governance. In view of the regulatory loopholes in the printing industry reflected in this case, governance suggestions are proposed to the relevant departments to promote the standardization of the production and operation order of the industry.
On September 16, 2021, the Nanhu District Procuratorate prosecuted seven people including Wang Mouzhong for copyright infringement. On April 28, 2022, the Nanhu District People's Court of Jiaxing City sentenced the defendant Wang to five years in prison and fined him 600,000 yuan for copyright infringement. He Mouguang and six other defendants were sentenced to fixed-term imprisonment ranging from one year and six months to four years and six months, and were also fined from 30,000 yuan to 500,000 yuan, and suspended sentences were applied to He Mouqiang and three others. None of the defendants appealed, and the verdict took effect.
[Typical meaning]
(1) Accurately identify the work attributes and copyright ownership of the maps involved. Procuratorial organs pay attention to listening to the professional opinions of relevant administrative departments, review whether the maps involved are original, and for those that meet the requirements of originality, they are identified as works according to law. As for the attribution of copyright, China implements a map audit system, the compilation unit must obtain the corresponding surveying and mapping qualification, and the map must be reviewed by the relevant administrative departments before publication to ensure the accuracy of the map. The procuratorial organ comprehensively reviewed the evidence such as map examination and archival materials, and accurately determined that the copyright of the map involved belongs to the compilation unit, and that the project planner engaged in data collection and other work were carried out under the auspices of the compilation unit, and the planner was not the copyright owner.
(2) Strengthen guidance of evidence collection and self-supplementary investigation, and crack down on copyright infringement crimes in the whole chain. In the handling of infringement and piracy cases with a long time span and division of labor in each link, the procuratorial organs actively assume the leading responsibility before the trial, suggest that the investigation organs collect and fix electronic data in a timely manner, and put forward specific investigation suggestions for the core issues such as the ownership of rights, the subjective intent of each perpetrator, and the amount of crime, so as to build a crime proof system centered on objective evidence. Relying on technical means to actively carry out self-supplementary investigation, starting with chat records, transfer transactions, supply and marketing channels and other evidence, the use of digital procuratorial means to comprehensively trace the upstream and downstream criminal chain, accurate supervision and prosecution of production and marketing links of the culprits.
(3) Strengthen cross-regional procuratorial cooperation and actively participate in comprehensive social governance. When handling trans-regional cases of criminal infringement of intellectual property rights, procuratorial organs give full play to the advantages of cross-regional procuratorial cooperation mechanism, jointly carry out intellectual property protection work, and help the enterprises involved to plug loopholes and improve governance efficiency by organizing discussions between prosecutors and enterprises and putting forward rectification suggestions. Adhere to the treatment of both symptoms and root causes, in view of the management loopholes in the industry field, carry out analysis and judgment and countermeasure research, and put forward opinions and suggestions in a timely manner.
Case five
Changxingwei Machinery Co., LTD. Li Murong, Ma Muri copyright infringement case
【 Key words 】
The copyright of computer software belongs to the amount of illegal business operation
【 Main purpose 】
When handling cases of copyright infringement of computer software works, procuratorial organs actively put forward investigation suggestions and carry out their own supplementary investigation to accurately identify the ownership of copyright. For software works commissioned by the Company to be developed by other units, employees of the Company shall not enjoy copyright due to their work responsibilities such as communication, coordination and suggestions during software development and subsequent updates. Take the number of software burning carriers as a breakthrough, accurately identify the number of sales and the amount of illegal business, try to recover the stolen goods, escort the business development.
【 Basic case 】
Zhejiang Chuang an intelligent Equipment Co., LTD. (hereinafter referred to as Chuang a company) entrusted Hangzhou University of Electronic Science and Technology (hereinafter referred to as a university of Science and Technology) to develop battery automatic packaging machine control software (hereinafter referred to as control software). Both parties agree that the software copyright belongs to both parties, the right to use belongs to a company, the software completed research and development in 2012 and obtained copyright registration in 2013. The control software is the core supporting software of a company's patented product packaging machine, burned on the control board of the packaging machine, the packaging machine is mainly sold to other companies for the production of batteries.
Li Murong was formerly an engineer of a company. From 2018 to July 2019, Ma Mouli, the director of Changxingwei Machinery Co., LTD. (hereinafter referred to as Wei Machinery Co., LTD.), asked Li Mourong to purchase the control board of the above-mentioned software of Burn Record Youchuang Co., LTD., and Li Mourong then purchased the customized blank control board from the Internet, and most of the costs were paid by Wei Machinery Co., LTD. Later, Li Murong burned the control software of a company to a blank control board and sold it to the outside world, a total of 210 pieces. Among them, 185 pieces were sold to Wei a machinery company, which was resold at a higher price, and the illegal proceeds were owned by the company. After investigation, the amount of Li Murong's illegal business was about 300,000 yuan, and the amount of Wei a machinery company's illegal business was about 600,000 yuan. After identification, the automatic 3-channel slave board slave machine control system of Chuang a company is basically the same as the automatic 3-channel slave board slave machine control system of Wei a machinery Company purchased from Li Yurong and sold to Jiangxi Energy Technology Co., LTD., which constitutes a replication relationship.
[Performance of Procuratorial organs]
On August 11, 2020, Changxing County Public Security Bureau of Huzhou City, Zhejiang Province (hereinafter referred to as Changxing County Public Security Bureau) filed a case for investigation of Wei Machinery Company, Li Murong and Ma Muri on suspicion of copyright infringement. On November 24 of the same year, the Changxing County Public Security Bureau submitted to the Changxing County People's Procuratorate (hereinafter referred to as the Changxing County Procuratorate) for approval of Li's arrest on suspicion of copyright infringement. On December 1 of the same year, Changxing County Procuratorate approved the arrest of Li Murong.
On March 30, 2021, the Changxing County Public Security Bureau transferred Wei Machinery Co., LTD., Li Murong and Ma Mouli to the Changxing County Procuratorate for review and prosecution on suspicion of copyright infringement, and the Changxing County Procuratorate transferred the case to the Deqing County People's Procuratorate (the procuratorate with centralized jurisdiction over intellectual property cases in Huzhou City at that time, hereinafter referred to as the Deqing County Procuratorate). The procuratorial organs focus on the following work: First, to clarify the ownership of the copyright of the computer software involved. Li argued that he participated in the research and development, adapted and produced the software, and enjoyed the copyright of the updated software. Through their own supplementary investigation, the prosecution obtained the E-mail exchange records between developers of a science and technology university and Li Murong, the original code of the software and relevant materials for applying for copyright registration, etc., and found out that the development and subsequent modification and improvement of the software involved were completed by a science and technology university, and the research and development costs, including modification and update costs, were paid by the company. The procuratorate determined that the software was a work commissioned by a company to create a university of science and technology, and the copyright ownership was agreed between the client and the trustee, and Li Murong communicated with a developer of a university of science and technology about software development, modification and improvement and other technical content to perform his job duties, and could not obtain the software copyright involved. The second is to identify software identity accurately. The procuratorial organ promptly suggested that the public security organ extract the specific number of the infringing control board, and checked that the control board seized by the public security organ could correspond to the number of the control board sold by Li Murong, and confirmed the objectivity of the inspection material. In view of the fact that the control software has only been functionally improved in the later stage, the software framework is the same as when it was registered, and the control software before and after the modification is copyrighted by the company and a university of Science and Technology, it is only necessary to identify and compare the control software in the infringement control board with the control software installed in the workshop of the company to determine whether it constitutes a replication relationship. The third is to find out the missing transaction facts, and make every effort to recover stolen goods. The time span of Li Murong's unauthorized burning of the sales control board is long, and the number of control boards seized by the public security organs is limited, and how to accurately identify the amount of illegal business has become difficult. The procuratorate took the control board, the carrier of software burning, as a breakthrough, and comb through the relevant documents of Li's purchase of the control board, the specific number of each batch of control board, and the bank transfer records, etc., to guide the public security organs to supplement the investigation, and increase the number of infringing control boards from 125 to 210. At the same time, strengthen the interpretation of the law, and promote Wei a machinery company to compensate a company for 900,000 yuan and get understanding.
On August 27, 2021, Deqing County Procuratorate prosecuted the defendant Wei Machinery Company and the defendants Li Murong and Ma Muri for the crime of copyright infringement. On February 25, 2022, Deqing County People's Court made a judgment of first instance, and sentenced the defendant Wei Machinery Company to a fine of RMB 200,000 yuan for copyright infringement. The defendant Li Murong was sentenced to fixed-term imprisonment of three years and two months and fined 180,000 yuan; The defendant Ma Mouli was sentenced to fixed-term imprisonment of two years, suspended for two and a half months, and fined 180,000 yuan. Neither the defendant nor the defendant appealed, and the judgment took effect.
[Typical meaning]
(1) Severely punish crimes of infringing computer software copyright in accordance with the law, and stimulate innovation vitality. Computer software copyright is an important intangible asset, which can bring competitive advantages and economic benefits. The unauthorized burning of computer software enjoyed by others to physical carriers for profit is an illegal reproduction of works, and shall be punished according to law. Where a company entrusts other units to develop computer software and technical personnel of the company participate in the development, the procuratorial organ shall identify and objectively evaluate the specific role of technical personnel of the company in the development, determine the ownership of the copyright according to law, and accurately determine whether there is a copying relationship between the infringing software and the infringed software, so as to effectively punish the crime of infringing software copyright and stimulate the vitality of scientific and technological innovation of enterprises.
(2) Strengthen supplementary investigation and promote compensation understanding. The procuratorial organs take the computer software burning carrier as a breakthrough, comprehensively review the transactions and fund transactions between the defendant and the upper and lower families, strengthen the evidence base of the case by guiding the public security organs to investigate and supplement the investigation on their own, and add the missing criminal facts to identify the exact amount of the crime. At the same time, the procuratorial organs give full play to the advantages of the lenient system of guilty plea, and urge the infringing enterprises to voluntarily compensate and make up for the economic losses of the victim enterprises as much as possible.
Case six
Hong Moshe and other 58 people selling counterfeit registered trademarks of commodity cases
【 Key words 】
Crime of selling goods with counterfeit registered trademarks joint crime of live drainage combining mercy with severity
【 Main purpose 】
In handling cases involving the sale of counterfeit registered trademarks through online live broadcasting, the procuratorial organs comprehensively evaluate and accurately identify joint crimes according to the internal management methods and sales modes of the gangs involved. Comprehensively implement the criminal policy of combining leniency with severity, and deal with each gang member according to the status and role of each gang member according to law, so as to ensure that crime, responsibility and punishment are compatible.
【 Basic case 】
Hong set up a network criminal gang with others to sell fake goods, set up an anchor department in Jinjiang City and Shishi City, Fujian province (with bags group, accessories group and other cargo groups, Responsible for the live sale of goods on the e-commerce platform), customer service department (responsible for the link of goods in the promotion process of anchors), warehouse management department (responsible for coordinating the delivery of goods, exchange and return services), beauty department (responsible for the beautification and publicity of online stores) and other departments, recruit a large number of staff.
From May 2019 to August 2020, Hong Mou bought bags, sunglasses, watches and other goods with fake "LV" and "DIOR" and other registered trademarks from Wang mou and Tang Mou at low prices, and sold them through multiple broadcast accounts opened on the e-commerce platform. During the period, Hong asked the anchor to maintain the popularity of live broadcasting and increase sales by visiting the direct broadcast room and "drainage" for other anchors. It was verified that the sales amount of Hong's gang in the above period totaled more than 14 million yuan.
In September 2020, the public security organs in Fujian, Guangdong and other places, have arrested Hong Mou gang and suppliers Wang Mou Lian, Tang Mou and others, in Hong Mou's warehouse seized all kinds of counterfeit registered trademark goods 506 pieces, the value of the value of more than 500,000 yuan.
[Performance of Procuratorial organs]
In June 2020, the Changning Branch of the Shanghai Public Security Bureau filed an investigation into the case, and then successively requested approval for the arrest of 24 people including Hong Moshe. Shanghai Changning District People's Procuratorate (hereinafter referred to as Changning District Procuratorate) accurately grasped the arrest conditions, approved the arrest of 19 people including Hong Moshe, and did not approve the arrest of 5 people who had doubts about the evidence and the circumstances of the crime were minor and the attitude of confession was good. Adhering to the whole chain of attacks, a total of more than 30 people were hunted down and prosecuted.
At the stage of review and prosecution, Changning District Procuratorate focused on the following work: First, accurately identify the amount of crime. In this case, a wide variety of items were seized, especially bags with registered trademarks of various brands, most of which could not find the corresponding style and model in the genuine goods, and the first judicial audit report provided by the public security organ only audited the same goods with the genuine style, and the calculated sales amount was lower than the corresponding purchase cost of Hong, which was obviously irrational. The Changning District Procuratorate fully reviewed the evidence materials, and believed that the goods with counterfeit registered trademarks did not require the counterfeit goods to be completely consistent with the authentic style, and put forward supplementary audit opinions to the public security organs, and finally the sales amount identified in the case increased by more than 10 million yuan. Second, on the basis of identifying joint crimes, accurately distinguish the culpability of different personnel. During the review process, several anchors argued that they only worked in the bag or accessories group and were not responsible for the amount of crime committed by each group. After examination, the prosecution believes that the gang through the interview recruitment, punched attendance and other related systems to manage the gang members, the common existence of frequent visits between the anchors, mutual "drainage" situation, in essence to the criminal activities of the whole gang played a role in helping, should be identified as a joint crime. At the same time, according to the division of labor and contribution degree of each actor in the gang, the person in charge of the gang and the department management are identified as the principal criminals according to law, and the remaining personnel with low participation are identified as accomplices to ensure that they are punished as crimes. Third, actively carry out recovery of stolen goods. The procuratorial organ urged the personnel on the record to actively return the illegal gains, and recovered a total of more than 2 million yuan in stolen goods. Combined with the guilty confession and repentance of each perpetrator and the return of stolen goods, the compulsory measures of 18 people were changed or suggested to be changed according to the situation at the stages of investigation after arrest, review and prosecution, and court trial, and differentiated sentencing suggestions were put forward when prosecuting.
From April 2021 to April 2022, Changning District Procuratorate prosecuted 39 people including Hong Moshe to Shanghai Xuhui District People's Court (the court with centralized jurisdiction over intellectual property cases in Shanghai at that time) for the crime of selling goods with counterfeit registered trademarks. A decision was made not to prosecute 19 persons, including Lin Moqiong, who committed minor crimes, voluntarily pleaded guilty and withdrew their illegal gains and were identified as accomplices. The court adopted the facts and sentencing suggestions of the procuratorial organs, and sentenced the defendant Hong Mou to five years in prison and fined him 7 million yuan for the crime of selling goods with counterfeit registered trademarks; The remaining gang members and a total of 38 upstream suppliers were sentenced to prison terms ranging from six months to three years and six months, some of which were suspended, and were also fined. None of the defendants appealed, and the verdict took effect.
[Typical meaning]
(1) Accurately grasp the characteristics of online live broadcast counterfeiting cases, and crack down on criminal behavior in the whole chain. Compared with the traditional crime cases of selling counterfeit goods, the cases of selling counterfeit registered trademarks by means of network live broadcast have their own characteristics, which require higher requirements in the collection and examination of evidence, and there are difficulties in the identification of infringing goods, the judgment of joint crimes, and the calculation of criminal amounts. In this case, the procuratorial organ combined with the corporate characteristics of the criminal gang in the management, closely linked to the "drainage" characteristics of the criminal method, determined that the involved personnel constituted a joint crime in accordance with the law, and accurately determined the amount of crime. In view of the chain characteristics of online fake sales, suggestions are put forward for the investigation and collection of evidence by public security organs, timely correction of leakage, arrest and leakage lawsuits, and criminal responsibility of relevant personnel involved in the case such as suppliers are investigated according to law, so as to achieve the whole chain of attack.
(2) Implement the criminal policy of combining leniency with severity, and ensure that the handling of complex joint criminal cases is compatible with crime, responsibility and punishment. For the network counterfeit gangs involved in a large number of people, detailed division of labor, and clear levels, the procuratorial organs fully consider the participation of gang members, criminal behavior, illegal income and other factors, and accurately evaluate the criminal responsibility of each perpetrator. According to the law, the person in charge of the gang and the personnel engaged in important positions such as organization and management are identified as the principal criminals, and the punishment is strict, and the personnel with low participation degree, small role and less profit are identified as the accomplices, and the personnel with minor criminal circumstances, voluntarily pleading guilty and actively withdrawing from the illegal gains are not prosecuted according to the law, so as to achieve the adaptation of the crime and punishment handled by the gang members.
Case 7
Luo Mou Zhou and other ten people counterfeit registered trademark case
【 Key words 】
Crime of counterfeiting registered trademark electronic trademark use technical investigator
【 Main purpose 】
The display of a screen with a trademark logo on the interface of an electronic device can play a role in identifying the source of goods, constituting trademark use. In handling new cases of intellectual property infringement crimes, procuratorial organs can solve professional and technical problems in case handling by means of technical investigation officers assisting in case handling, entrusting experts to assist people, and guiding right holders to participate in litigation in a substantive manner.
【 Basic case 】
"DESIGNED BY APPLE IN CALIFORNIA", "AIRPODS" and "AIRPODS PRO" are registered trademarks of Apple Inc., approved for use in Category 9 headphones, earbuds and other products. From September to December 2020, Luo Mouzhou, the legal representative of Shenzhen Shengyi Electronic Industry Co., LTD. (hereinafter referred to as Shengyi Company), Ma Mouhua, the legal representative of Shenzhen Lingyi Technology Electronics Co., LTD. (hereinafter referred to as Lingyi Company) and others, without obtaining the permission of Apple Inc., the owner of the registered trademark, Production and processing of counterfeit Apple registered trademark Bluetooth headphones and external sales for profit.
On December 2, 2020, the public security organs arrested Luo Mouzhou and Ma Mouhua in the business premises of Sheng Company and Ling Company respectively, and seized more than 23,000 Bluetooth headsets suspected to be counterfeit Apple's registered trademarks on the spot. Some of these headphones have logos such as "DESIGNED BY APPLE IN CALIFORNIA" printed on the exterior, while others do not contain Apple's logo on the exterior, but will display "Airpods" or "Airpods Pro" on the pop-up screen of the electronic device when connected to the electronic device terminal. Identified by the right holder, the above earphones are counterfeit Apple registered trademark goods.
From September to December 2020, Luo Mouzhou, Ma Mouhua and others sold counterfeit Apple headphones for a total of more than 22.1 million yuan, and the value of counterfeit Apple headphones for sale seized at the scene was more than 770,000 yuan.
[Performance of Procuratorial organs]
On December 2, 2020, Longgang Branch of the Public Security Bureau of Shenzhen, Guangdong Province filed a case investigation. Shenzhen Longgang District People's Procuratorate (hereinafter referred to as Longgang District Procuratorate) intervened in a timely manner and made suggestions to the public security organs on the qualitative behavior and comprehensive evidence collection: First, collect key evidence such as fixed sales details, delivery notes, benefit tables, business commission tables, and statements in the first time to preliminarily determine the sales amount of the infringing products involved, the structure of the company involved, and the status and role of the personnel involved. The second is to further identify the technical means and realization path of the electronic trademark display in this case, and clarify whether the use of electronic trademarks involved can play a role in identifying the source of goods.
On March 8, 2021, the Longgang Branch of Shenzhen Public Security Bureau transferred ten people, including Luo Mouzhou, Ma Mouhua, Xiang Moumou, Ming Moumou, Li Moumou, Wang Mouru, Liang Mouyi, Lv Moufang, Luo Moulin and Zou Mouhua, to Longgang District Procuratorate for investigation and prosecution on suspicion of counterfeiting registered trademarks. Longgang District Procuratorate focuses on the following work: First, to guide the right holders to participate in the litigation. The trademark right holder in this case explained the working principle of Apple Bluetooth headset popup through on-site physical demonstration and submission of documentary evidence, indicating that the program of its genuine product chip has written the code of "Airpods" or "Airpods Pro". If the infringer has not specially set instructions in the Bluetooth headset involved, Electronic trademark display is impossible. The second is to use the technical investigation officer mechanism to assist in handling cases. Due to the complicated technical problems involved, Longgang District Procuratorate applied for the Shenzhen Municipal People's Procuratorate to assign technical investigators to assist in handling the case. Shenzhen People's Procuratorate simultaneously commissioned experts to assist people to participate in the technical investigation work, and issued a "Technical review Opinion." The prosecution believes that the Bluetooth headphones involved in the production process set the character "Airpods" or "Airpods Pro" as the name of their own Bluetooth protocol, and at the same time, by cracking and stealing Apple's communication protocol, the corresponding software that can activate the pop-up window is burned in the Bluetooth headset chip. In fact, it is an act of using a registered trademark through the software system of the product. This electronic use can play a role in identifying the source of goods, leading to consumer confusion and misidentification of the source of goods, should be identified as trademark use.
On June 21, 2021, the Longgang District Procuratorate prosecuted eight people including Luo Mouzhou and Ma Mouhua for the crime of counterfeiting registered trademarks, and decided not to prosecute Luo Moulin and Zou Mouhua for minor circumstances. On February 24, 2022, the Longgang District People's Court of Shenzhen, Guangdong Province sentenced eight defendants, Luo Mouzhou and Ma Mouhua, to two to six years in prison for counterfeiting registered trademarks, some of which were suspended, and fined between 100,000 yuan and 6.8 million yuan. Some of the defendants appealed against the first-instance judgment, and on December 28, 2022, the Shenzhen Intermediate People's Court ruled to reject the appeal and maintain the original judgment.
[Typical meaning]
(1) Accurately identify the use of electronic trademarks, and accurately combat new crimes of trademark rights infringement. With the development of Internet of Things technology and commercial applications, the use of trademarks is no longer limited to the traditional printing, attaching, laser engraving and other ways to present on the tangible carrier of goods, commodity packaging, electronic trademark use has increasingly become an important trademark realization scene. The prosecution focuses on the essential elements such as whether the use act can play a role in identifying the source of the goods and whether it causes consumers to misidentify the source of the goods, and accurately determines the "trademark use". In this case, although some earphones do not have Apple's registered trademark logo on the appearance, when connecting the electronic device terminal through Bluetooth function, the logo of "Airpods" or "Airpods Pro" will be displayed on the pop-up interface of the electronic device, causing consumers to mistakenly believe that the earphones are from Apple Inc., which belongs to the use of Apple's registered trademark.
(2) Relying on the system of technical investigators to solve technical problems in case handling. In the field of intellectual property, the development of rights protection is closely related to technological progress. In handling such cases, the procuratorial organs can solve professional technical problems by establishing and improving the system of auxiliary case handling such as technical investigators, special procuratorial assistants, and expert argumentation. This case involves complex technical issues such as the principle of electronic device terminal display of electronic trademarks paired with Bluetooth headphones, and the procuratorial organ initiated the system of technical investigators, entrusted experts to issue technical investigation opinions, accurately identified criminal facts, and provided references for handling similar cases.
Case VIII
"White banana sea bass" geographical indication protection administrative public interest lawsuit
【 Key words 】
Administrative public interest litigation pre-litigation procedure geographical indication procuratorial suggestion public hearing
【 Main purpose 】
In response to the inadequate protection of the intellectual property rights of geographical indications, procuratorial organs take the supervision of administrative public interest litigation as the starting point, through consultation, making and issuing procuratorial proposals, holding public hearings, convening joint meetings on industrial development, forming research reports, etc., to build multiple protection paths, promote administrative organs to perform their duties according to law, assist local governments in formulating normative documents, and promote local legislation. To provide all-round legal guarantee for the protection of geographical indications.
【 Basic case 】
Doumen, Zhuhai is located at the mouth of the Pearl River. The superior climatic conditions and abundant brackish water resources have cultivated the white banana sea bass, a fine aquatic product that enjoys a national reputation. In 2009, "white banana sea bass" became the first national geographical indication protection product in the fishery industry of Guangdong Province, and was selected into the first batch of national famous and excellent new agricultural products list. The People's Procuratorate of Doumen District of Zhuhai City, Guangdong Province (hereinafter referred to as Doumen District Procuratorate) found through investigation and visit that as a national geographical indication product and a pillar industry with local characteristics, "white canghai sea pier" has problems such as confusion in the use of geographical indications, invalidation of normative documents, inadequate management and lagging brand construction, which affect brand reputation and sustainable development, resulting in a crisis in industrial development. The public interest is violated.
[Performance of Procuratorial organs]
In May 2022, the Doumen District Procuratorate conducted an in-depth investigation on the protection and utilization of the geographical indication of "White banana sea bass". After visiting and investigating, it was found that a number of production enterprises and sales merchants had illegal or wrong use of the geographical indication of "white banana sea bass". The Doumen District Procuratorate hired relevant industry experts to consult on the specialized issues of the case, and consulted with the relevant functional departments of the district and the sea bass Association to reach a consensus on jointly promoting the development of this characteristic industry of "white banana sea bass".
After the Doumen District Procuratorate filed an administrative public interest lawsuit on July 6, 2022, it organized a public hearing, inviting representatives of relevant administrative organs at the municipal and district levels, experts and scholars, as well as deputies to the People's Congress, members of the CPPCC, and people's supervisors to participate. After the hearing, the representatives agreed that the procuratorial organs should make and issue procuratorial suggestions to the administrative departments, and reached consensus on the joint protection efforts of various functional departments and the establishment of a long-term mechanism. On August 24, 2022, the Doumen District Procuratorate issued a Procuratorial Recommendation to the Market Supervision Administration of Doumen District, Zhuhai City, Guangdong Province (hereinafter referred to as the Doumen District Market Supervision Administration) in combination with the facts of the identified case and the comments of the public hearing, suggesting that the administrative authorities fully perform their duties according to law, guide the standardized use of the geographical indication of "white canga sea fish", and increase the intensity of infringement. Revise and improve the management methods and quality standard system of the geographical indication of "white banana sea bass", establish and improve the long-term supervision mechanism, and strengthen the comprehensive protection of the geographical indication of "white banana sea bass".
After receiving the procurational suggestions, the Doumen District Market Supervision Administration attached great importance to the establishment of a geographical indication protection working group, formulated work implementation plans and a number of measures, carried out online and offline integration of special rectification actions, and completed 28 batches of sea bass related food sampling. Five enterprises were investigated and punished according to law for falsely using geographical indications to publish false advertisements, unauthorized use and wrong use of geographical indications, 4 enterprises were urged to rectify, 4 cases were investigated and investigated, 1 Administrative Prompt was issued, 16 enterprises were guided on the spot, and 4 production enterprises were mobilized to become Guangdong Province's local standard participating units for prepared dishes.
At the same time, the Doumen District Procuratorate invited the relevant functional departments of the Doumen District People's Government (hereinafter referred to as the District Government) to hold a joint meeting on the intellectual property protection and industrial development of the "White Jiao sea perch" geographical indication, and reached a consensus on the protection of geographical indication and the promotion of industrial development. After the meeting, the district government issued minutes of the meeting to clarify work responsibilities and lay the foundation for the establishment of a collaborative work mechanism for multiple departments. The Doumen District Procuratorate continued to follow up and supervise, actively assisted the district government in formulating normative documents such as the "Measures for the Protection and Management of the" White Banana Sea Bass "geographical indication Products", and submitted the "Legislative Project Proposal Declaration Form" to the Zhuhai Bureau of Justice, coordinating and promoting the separate legislation of "white banana sea bass" geographical indication into the local legislative project in 2023. The Doumen District Procuratorate also submitted to the relevant departments the "Research Report on the protection of the intellectual property rights of the" White banana sea bass "geographical indication", and put forward suggestions for the comprehensive protection of the "white banana sea bass" geographical indication industry chain in multiple dimensions.
[Typical meaning]
(1) Focus on prevention at the source and protect geographical indications in accordance with the law. Geographical indication contains the natural ecological environment and historical and human factors unique to the region, which is the guarantee of product quality and reputation. The protection of geographical indications not only involves the interests of intellectual property rights holders and consumers, but also involves the construction of local characteristic brands and the development of local regional economy. For the protection of geographical indications, procuratorial organs should give full play to the advantages of centralized and unified performance of intellectual property prosecutions, actively explore administrative public interest litigation, focus on the source of geographical indication protection, and do a comprehensive protection.
(2) Adhere to accurate supervision and build multiple protection paths. In view of the problems existing in the protection of the geographical indication of "white sea turtle", the procuratorial organs have given full play to the function of the pre-litigation procedure of administrative public interest litigation, discussed good measures through public hearings, expert consultation and other means, and urged the administrative organs to perform their duties according to law. Through holding a joint meeting on industrial development work, multi-sectoral consultation to promote collaborative governance, and put forward targeted litigation source governance programs. By actively assisting local governments to formulate normative documents, promote local legislation, and form research reports, we can achieve both symptoms and root causes, and provide all-round legal guarantee for the protection of geographical indications.
Case 9
Chengdu Qing a trade Co., Ltd. and Lu a Co., Ltd. and other trademark revocation administrative dispute appeal
【 Key words 】
The results of administrative judgment supervise the investigation and verification of the revocation of trademark rights
【 Main purpose 】
In the case of administrative litigation supervision of trademark cancellation without use for three consecutive years, the procuratorial organ should fully exercise the right of investigation and verification, not only to examine the authenticity, legality and relevance of a single evidence, but also to pay attention to the overall review of the evidence on the record, and comprehensively judge whether there is real commercial use of the contested trademark.
【 Basic case 】
No. 1671451 "Tianchengsheng" trademark (hereinafter referred to as the contested trademark) is approved for use in Class 33 alcoholic beverages (except beer) and other commodities, and the trademark is registered by Lux Co., LTD. (hereinafter referred to as Lux Company). Chengdu Qing Certain Trading Co., LTD. (hereinafter referred to as Qing Certain Company) on the grounds that the contested trademark was not used during the period from December 15, 2011 to December 14, 2014 (hereinafter referred to as the designated period), the Trademark Office of the former State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office) filed an application for cancellation, and the Trademark Office revoked the contested trademark. A company of Lu refuses to accept the decision made by the Trademark Office, and applies to the Trademark Review and Adjudication Board of the former State Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board) for review. On June 7, 2016, the Trademark Review and Adjudication Board made Shang Pingzi [2016] No. 51786 "Review Decision on No. 1671451" Tianchengsheng "Trademark Revocation" (hereinafter referred to as the sued decision), holding that the evidence submitted by a Lu company could not prove that the contested trademark was used within the specified period, and the contested trademark was revoked. Lu a company refused to accept the decision to be sued, and filed an administrative lawsuit with the Beijing Intellectual Property Court.
The Beijing Intellectual Property Court held that the new evidence submitted by Lu company in the lawsuit, such as the sales order, delivery notice and value-added tax invoice, all showed the contested trademark, which could form a complete evidence chain to prove that Lu Travel Agency company (an affiliated company of Lu Company) used the contested trademark during the specified period. And from the "Tianchengsheng" wine bottle and packaging submitted by a Lu company, it can be clearly seen that the company's corporate name. The comprehensive documented evidence can prove that a company of Lu has made true, open and lawful use of the contested trademark in the approved use of goods within the specified period. The court decided to revoke the decision and ordered the Trademark Review and Adjudication Board to make a new decision. After the judgment took effect, a company refused to apply to the Beijing Higher People's Court for a retrial. On January 8, 2020, Beijing Higher People's Court made (2019) Jingxing Shen 850 administrative ruling, ruling to reject Qing's application for retrial.
[Performance of Procuratorial organs]
A company applied for supervision to the Fourth Branch of the Beijing People's Procuratorate (hereinafter referred to as the Beijing Fourth Branch), claiming that the main evidence of the original judgment to determine the facts was forged. After accepting the case, the procuratorial organ focused on the following work:
First, investigate and verify the authenticity of evidence. Lu A company in the first instance litigation to supplement the submission of new evidence sales order, the sales order seller is Lu a company, the buyer is Luzhou Ju a wine Co., LTD. (hereinafter referred to as Ju company). The consignee of a company is Yan, and Yan is also an authorized agent in a notarial certificate submitted by a company in the lawsuit. In view of the relationship between Yan and the buyer and the seller, the procuratorial organ sent a "Notice of Assistance in investigation" to the Social Insurance Administration of Luzhou City, Sichuan Province, to investigate the information of Yan's social security payment units over the years. After investigation, when the sales order was signed, Yan was an employee of a filter company, but ordered and received the goods involved as a representative of a company of the buyer. Yan's actual identity is inconsistent with the identity displayed on the sales order and delivery notice of the goods involved. And through the inquiry of industrial and commercial information, it was found that Zeng, the legal representative of a company, had long worked in a company. Based on the above investigation, the authenticity of the evidence submitted by a company is doubtful and should not be accepted.
The second is to examine the relevance of the evidence. The VAT invoice submitted by a company after review only has the name of the goods and does not show the contested trademark. The lack of correspondence between the VAT invoice and the sales order and bill of lading cannot prove the use of the contested trademark.
Third, a comprehensive search of related cases. In another case of a Lu Company and a Qing company for No. 9659147 "Tianchengsheng" trademark cancellation review administrative dispute, a Lu company submitted the same sales order, delivery notice, value-added tax invoice as the case as evidence of use, the Beijing Intellectual Property Court did not accept the above evidence.
On November 18, 2020, the Fourth Branch of Beijing submitted a protest to the Beijing Municipal People's Procuratorate. The procuratorial organ believes that some of the evidence submitted by Lu a company does not show the contested trademark, some of the evidence lacks correlation, some of the evidence is self-made evidence, and the authenticity of some of the evidence is doubtful. Therefore, the original judgment found that the evidence for the contested trademark use was insufficient.
On February 19, 2021, the Beijing Municipal People's Procuratorate filed a protest with the Beijing Municipal High People's Court. On March 25, 2021, the Beijing Higher People's Court issued a ruling ordering the Beijing Intellectual Property Court to retry the case. On December 26, 2022, the Beijing Intellectual Property Court made a judgment that, combined with the new evidence obtained by the procuratorial organs, it was difficult to prove that the contested trademark had been true, legal and effective commercial use within the specified period, and decided to revoke the original judgment and reject the lawsuit request of a company of Lu.
[Typical meaning]
(1) Focus on the focus of evidence review in cases of administrative disputes over the revocation of trademark rights, and fully exercise the right to investigate and verify. In accordance with Article 49 of the Trademark Law of the People's Republic of China, where a registered trademark has not been used for three consecutive years without justifiable reasons, any entity or individual may apply to the Trademark Office for cancellation of the registered trademark. The core issue in such "withdrawal" cases is to examine whether there was genuine commercial use of the trademark during the specified period. When handling such cases, procuratorial organs should not only pay attention to examining the authenticity, legality and relevance of individual evidence, but also pay attention to the overall review of the evidence on the record, and comprehensively judge whether a complete evidence chain can be formed to prove the existence of real transactions and actual use of the contested trademark. For doubtful evidence, procuratorial organs should actively exercise the right of investigation and verification, accurately identify the evidentiary power of evidence through various ways such as querying industrial and commercial information, social security information, invoice verification, and so on, and accurately put forward supervision opinions.
(2) Consolidate the evidence base by searching relevant cases. The procuratorial organ conducted a search through the China Judgment Documents network and found that in another trademark "withdrawal three" case, which was basically the same as the parties and the facts of the case, the parties submitted the same sales order, delivery notice and invoice as the trademark use evidence, and the original trial court did not accept it. By comparing the evidence of the two cases, the prosecution found that the same evidence was submitted as evidence for use in the two cases. The procuratorial organs checked key evidence in a timely manner, consolidated the evidence base, and safeguarded the legitimate rights and interests of the parties.
Case 10
Nantong Liquor Co., Ltd. and a certain, State Intellectual Property Office trademark invalidation administrative dispute appeal case
【 Key words 】
Administrative counterappeal invalidation of trademark right retrieval of similar commodity cases
【 Main purpose 】
When the procuratorial organs judge whether it is a similar commodity in the handling of a case, they should fully consider the historical evolution of the trademark and the actual market development, pay attention to the search of related cases and class cases, accurately put forward supervision opinions, and protect the intellectual property rights of enterprises in accordance with the law.
【 Basic case 】
No. 15137303 "Yisheng Tang 'an" trademark (hereinafter referred to as the contested trademark) was approved for use in Class 5 "human medicine, medicinal wine, pharmaceutical beverage" and other commodities, and the trademark registration was He. 122396 "Yishengyingð« and Tu" (hereinafter referred to as the citation trademark), approved to be used in Class 33 "Yinð« wine" goods, the trademark registration is Nantong Liquor Industry Co., LTD. (hereinafter referred to as Nantong On December 12, 2016, a wine company in Nantong filed a request for invalidation of the contested trademark on the grounds that the contested trademark and the cited trademark constituted similar trademarks. The former Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board) made Shang Pingzi [2017] No. 134919 "Ruling on No. 15137303" Yisheng Tang 'an "Trademark Invalidation Request" (hereinafter referred to as the ruling of the lawsuit), It is found that the contested trademark and the cited trademark do not constitute similar trademarks used on the same or similar goods, and the contested trademark is upheld. A Nantong wine company refused to accept, and filed an administrative lawsuit with the Beijing Intellectual Property Court.
The Beijing Intellectual Property Court held that the commodity "medicinal liquor" approved for use by the contested trademark and the commodity "Yin d « liquor" approved for use by the cited trademark did not constitute a similar commodity, and the contested trademark and the cited trademark did not constitute an approximation for use on the same or similar commodity The lawsuit ruled that this determination was correct, and the judgment rejected the lawsuit request of a Nantong wine company. After the judgment took effect, a Nantong wine company applied to the Beijing Higher People's Court for a retrial. On July 8, 2021, the Beijing Higher People's Court made an administrative ruling (2021) Jingxing Shen 386, ruling to reject the retrial application of a Nantong wine company.
[Performance of Procuratorial organs]
A Nantong wine company applied for supervision to the Fourth Branch of the Beijing People's Procuratorate (hereinafter referred to as the Beijing Fourth Branch), claiming that the "medicinal wine and pharmaceutical beverage" approved for use in the disputed trademark and the "Yinð« wine" approved for use in the cited trademark constituted similar commodities, and the original judgment determined that After accepting the case, the procuratorial organ focused on the following work:
First, a comprehensive understanding of the facts of the case. By reviewing the original trial files, the procuratorate repeatedly listened to the opinions of the parties and verified that "Yisheng" had been identified as a "Chinese time-honored brand" by the Ministry of Commerce in 2011. Through the changes of The Times, the current Classification Table of Similar Goods and Services (hereinafter referred to as the "Classification Table") has deleted the commodity category of "Inð« wine", and it is not in line with the historical evolution and market to determine whether the contested trademark is similar to the cited trademark only by referring to the current Classification Table
The second is to actively carry out class case search. Procuratorial organs rely on the China Judgment Documents network to carry out case search, after detailed sorting and comparison, It was found that a Nantong wine company applied to the Supreme People's Court for retrial on the effective judgments of the administrative disputes over the invalidation of trademark No. 17141199 "Zhenbao Yisheng" trademark, No. 17141203 "Zhenyuan Yisheng" trademark and No. 19476450 "Zhenyao and Tu" trademark. The Supreme People's Court made three administrative judgments (2020) No. 259, No. 260 and No. 454 of the Supreme Law Bank respectively, which all held that "medicinal wine" and "Yinð« wine" constituted similar commodities, and the judgment supported the retrial of a Nantong wine company The basic facts and dispute focus of this case are similar to those of the above three cases, but the judgment results are inconsistent.
On January 21, 2022, the Beijing Fourth Branch appealed to the Beijing Municipal People's Procuratorate. The prosecution believes that " wine" has a history of more than 100 years, "medicinal wine" and " wine" in the function, use, raw materials, consumer groups and other aspects of the same Therefore, the contested trademark and the cited trademark constitute similar trademarks used on similar goods, and the contested trademark should be declared invalid.
On May 7, 2022, the Beijing Municipal People's Procuratorate filed a protest with the Beijing Municipal High People's Court. On June 15, 2022, the Beijing Higher People's Court issued a ruling ordering the Beijing Intellectual Property Court to retry the case. On January 13, 2023, the Beijing Intellectual Property Court made a judgment, holding that the "medicinal liquor" approved for use in the contested trademark and the "Yingd « liquor" approved for use in the cited trademark constituted similar trademarks used in similar goods, and decided to revoke the original judgment and the sued ruling, which shall be made again by the State Intellectual Property Office
[Typical meaning]
(1) Pay attention to verifying the history of trademark development and safeguard the legitimate rights and interests of the right holder in accordance with the law. The "Yingd « wine" involved in the case has a history of more than 100 years, and has a certain knowledge after long-term publicity and use When handling similar cases, procuratorial organs should pay attention to understand the historical evolution of trademarks, the changes of the "Differentiation Table", the development of the market and so on; On the other hand, we should consider whether the function, use, production department, sales channels, consumer groups, etc. of the commodity are the same or have a greater correlation to make a comprehensive judgment. It is necessary to respect the historical evolution of trademarks and fully consider the actual development of the market, accurately put forward supervision opinions, and protect the legitimate rights and interests of trademark owners in accordance with the law.
(2) Big data enables case retrieval to help precise legal supervision. The procuratorial organs should pay attention to the use of big data in the supervision of the effective judgment results and do a good job in the search of class cases. Cases that are similar to the basic facts of the case, the focus of dispute, and the application of law will be taken as the scope of search, and related cases will be taken as an important reference in case handling, so as to enhance the persuasiveness and effectiveness of the legal supervision of the procuratorial organs, and help accurate legal supervision.
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