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| Ten Model Cases concerning Protection of Intellectual Property Rights by Procuratorial Organs in 2016 as Issued by the Supreme People's Procuratorate | | 最高检发布2016年度检察机关保护知识产权十大典型案例 |
| (April 26, 2017) | | （2017年4月26日） |
| Model Case No. 1 | | 典型案例之一 |
| People v. Zhang Wei from Hubei Province for Counterfeiting Registered Trademarks | | 湖北张伟假冒注册商标案 |
| I. Case Facts | | 一、案件事实 |
| From September to November 2015, for seeking illegal profits, defendant Zhang Wei (an unemployed person) engaged in the production and sale of “Rejoice,” “head & shoulders,” “Pantene” shampoos and “Olay” multi-effect repair cream in a rented civil house located in Xujiakou Village, Xiannv Community, Hanchuan City, Hubei Province without obtaining trademark use licenses from Procter & Gamble (China). On November 12, 2015, the Administration for Industry and Commerce of Hanchuan City captured a total of over 5,300 jars of counterfeit finished products of “Rejoice,” “head & shoulders,” and “Pantene” shampoos and “Olay” multi-effect repair cream and a total of over 28,000 empty jars and cartons printed with the counterfeit trademark signs of “Rejoice,” “head & shoulders,” and “Pantene.” It was found upon identification that the aforesaid finished products of shampoos and repair cream valued over CNY 290,000; and the signs on the aforesaid empty jars and cartons involved were totally the same as the registered trademarks of “Rejoice,” “head & shoulders,” “Pantene,” and “Olay.” | | 2015年9月至2015年11月，被告人张伟（无业人员）为非法牟利，在未取得宝洁（中国）有限公司商标使用许可的情况下，在湖北省汉川市仙女街道办事处徐家口村租赁的一民房内，进行假冒“飘柔”“海飞丝”“潘婷”洗发露和“玉兰油”多效修护霜的生产和销售。2015年11月12日，汉川市工商局现场查获成品假冒“飘柔”“海飞丝”“潘婷”洗发露和“玉兰油”多效修护霜共计5300余瓶，查获印有假冒“飘柔”“海飞丝”“潘婷”商标标识的空瓶及纸箱共计2.8万余个。经鉴定，上述涉案成品洗发露、修护霜价值共计人民币29万余元；上述涉案空瓶、纸箱上的标识与“飘柔”“海飞丝”“潘婷”“玉兰油”注册商标完全相同。 |
| II. Proceedings | | 二、诉讼过程 |
| On January 8, 2016, after the People's Procuratorate of Hanchuan City identified this case on the information platform for linkage between administrative enforcement and criminal justice, its department of investigation supervision dispatched personnel to leave for the Administration for Industry and Commerce of Hanchuan City for learning case facts immediately. In the interview and investigation, the People's Procuratorate of Hanchuan City learned that informants repeatedly reported that Zhang Wei's act was an infringing and illegal act; although the Administration for Industry and Commerce of Hanchuan City investigated it in a timely manner, since Zhang Wei absconded on the day of investigation, the Administration for Industry and Commerce failed to transfer the case to the public security organ. After taking case materials, verifying evidence, and interviewing the relevant enforcement personnel, the People's Procuratorate of Hanchuan City identified that this case met the standard for criminal case-filing and prosecution and it was a model criminal case. | | 2016年1月8日，汉川市检察院通过“两法衔接”信息平台发现本案后，侦查监督部门派员迅速前往汉川市工商局了解案件情况。检察机关在走访调查中了解到，举报人多次反映张伟的行为系侵权违法行为，汉川市工商局虽然及时查处，但因张伟在查处当天潜逃而没有将案件移交给公安机关。汉川市检察院通过调取案件材料、核实证据、走访相关执法人员后发现，该案符合刑事立案追诉标准，系一起典型的刑事案件。 |
| In order to prevent the administrative enforcement organ from degrading the handling of a serious violation, on January 11, 2016, the investigation supervision department of the People's Procuratorate of Hanchuan City issued a Letter on Proposing the Transfer of the Suspected Crime Case to the Administration for Industry and Commerce of Hanchuan City. Upon receipt of the Letter, the Administration for Industry and Commerce of Hanchuan City transferred the case to the Public Security Bureau of Hanchuan City on the next day. The Public Security Bureau of Hanchuan City failed to make a decision on whether to place the case on file within the time limit as prescribed in the Opinions of the Ministry of Public Security on Reforming and Improving the System of Case Acceptance and Filing. On January 18, the People's Procuratorate of Hanchuan City issued to the Public Security Bureau of Hanchuan City a Notice on Requiring the Statement of Grounds for Not Placing the Case on File. The Public Security Bureau of Hanchuan City failed to give a written reply on the grounds for not placing the case on file as required. On March 8, 2016, the People's Procuratorate of Hanchuan City issued a Notice on Placing the Case on File, notifying the Public Security Bureau of Hanchuan City of placing the case on file for investigation. On March 11, the Public Security Bureau of Hanchuan City placed the case on file for investigation on the basis that Zhang Wei was suspected of committing the crime of counterfeiting registered trademarks and on July 7 of the same year, the criminal suspect Zhang Wei was arrested. | | 为了防止行政执法机关降格处理，2016年1月11日，汉川市检察院侦查监督部门向市工商局发出《建议移送涉嫌犯罪案件函》，汉川市工商局收到建议函后于次日将该案移送汉川市公安局。汉川市公安局没有在《公安部关于改革完善受案立案制度的意见》规定时间内作出是否立案的决定。1月18日，汉川市检察院向汉川市公安局发出《要求说明不立案理由通知书》。该局没有按要求书面回复不予立案理由。2016年3月8日，汉川市检察院发出《通知立案书》通知汉川市公安局立案侦查。3月11日，汉川市公安局以张伟涉嫌假冒注册商标罪对其立案侦查，并于同年7月7日将犯罪嫌疑人张伟抓获归案。 |
| On August 9, 2016, the People's Procuratorate of Hanchuan City made a decision on approval of arrest of Zhang Wei for the suspected crime of counterfeiting registered trademarks. On November 3, 2016, the People's Court of Hanchuan City sentenced Zhang Wei to a fixed-term imprisonment of three years for the crime of counterfeiting registered trademarks, in addition to a fine of CNY 50,000. Defendant Zhang Wei did not appeal within the statutory time limit and the judgment has come into force. | | 2016年8月9日，汉川市检察院以张伟涉嫌假冒注册商标罪对其作出批准逮捕决定。2016年11月3日，汉川市法院以假冒注册商标罪判处张伟有期徒刑三年，并处罚金5万元。被告人张伟未在法定期限内提出上诉，判决生效。 |
| III. Analysis and Comments | | 三、评析意见 |
| The successful supervision of this case has severely cracked down on the crime of infringement upon intellectual property rights, promoted the strict and standardized law enforcement of the administrative enforcement organ, enhanced the coordinative cooperation between administrative enforcement and judicial protection, and created a good legalized and market-oriented business environment. The practice of the People's Procuratorate of Hanchuan City is worth learning from in the following aspects: | | 本案的成功监督，严厉打击了侵犯知识产权犯罪，促进了行政执法机关严格规范执法，增强了行政执法与司法保护协调配合，营造了良好的法治化、市场化营商环境。汉川市检察院的做法值得借鉴： |
| First, giving play to the platform functions and making use of supervision clues. The People's Procuratorate of Hanchuan City has fully utilized the information sharing platform for the linkage between administrative enforcement and criminal justice, successfully identified and supervised this case by combining online identification and offline investigation, and effectively prevented the administrative organ from imposing administrative punishment instead of criminal punishment and “degrading the handling of serious violation.” | | 一是发挥平台功能，挖掘监督线索。汉川市检察院充分利用行政执法与刑事司法衔接信息共享平台，通过线上发现与线下调查相结合，成功发现并监督本案，有效防止了行政机关对该案以罚代刑和“降格处理”。 |
| Second, carrying out supervision according to the law and urging standardized law enforcement. With respect to the circumstance where the public security organ should place the case on file, but it failed to do so, the People's Procuratorate of Hanchuan City has repeatedly negotiated with the public security organ in the process of supervision, but it all failed. Therefore, it issued a notice on placing the case on file to the public security organ, which has effectively promoted the standardized law enforcement of the public security organ. | | 二是依法开展监督，督促规范执法。针对公安机关应当立案而不立案的情况，汉川市检察院在监督过程中多次与公安机关协商无果，遂依法向公安机关发出通知立案书，有力地促进了公安机关的规范执法。 |
| Third, intensifying the tracking supervision and attaching importance to the supervision effects. In this case, the People's Procuratorate of Hanchuan City not only conducted the synchronous and effective supervision over the case transfer by the administrative enforcement organ and the case acceptance by the public security organ, but intervened in investigation at appropriate time and kept conducting tracking and supervision, and it did not end the supervision procedures only because the public security organ has made a decision on placing the case on file. With respect to how to collect evidence for the crime charged and how to prevent “mistake in the number of persons,” the People's Procuratorate of Hanchuan City has repeatedly exchanged views with investigation personnel, listed the detailed inventory of evidence to be collected and the outline of supplementary investigation, guided the public security organ in fully collecting and fixing evidence, and ensured that the approval of arrest in the case was accurate, the action was smoothly instituted, and a judgment was rendered according to the law. In this way, good effects have been achieved. | | 三是强化跟踪监督，注重监督实效。本案中，检察机关既对行政执法机关及时移送案件和公安机关受理案件进行同步有效监督，又适时介入侦查并始终跟踪监督，没有因公安机关作出立案决定而终结监督程序。检察机关就如何取证指控犯罪，如何防止“人头搞错”，多次与侦查人员交换意见，列出详细的取证清单和补充侦查提纲，引导公安机关全面收集、固定证据，确保案件准确批捕、顺利起诉和依法判决，取得了良好效果。 |
| Model Case No. 2 | | 典型案例之二 |
| People v. Chen Feihu from Fujian Province, et al. for Counterfeiting a Registered Trademark, Illegally Manufacturing Registered Trademark Signs, and Selling Commodities with a Counterfeit Registered Trademark | | 福建陈飞虎等人假冒注册商标、非法制造注册商标标识、销售假冒注册商标的商品案 |
| I. Case Facts | | 一、案件事实 |
| From October 2014 to November 2015, defendant Chen Feihu (former legal representative of Shanghai Huba Battery Co., Ltd.) rented a house in an industrial park of Luyang District, Hefei City, Anhui Province as a production workshop in the name of “Shanghai Huba Battery Co., Ltd.” and purchased naked batteries (batteries without any trademarks) from Jiangsu Province and other places, organized workers to label and pack counterfeit Nanfu “Shaped Ring” batteries, employed defendant Cheng Hangjing (an employee of Shanghai Huba Battery Co., Ltd.) to be in charge of production and defendant Li Yongshou (an employee of Shanghai Huba Battery Co., Ltd.) to receive raw materials by driving a truck and deliver the finished counterfeit Nanfu “Shaped Ring” batteries to customers across the country. The sales amount was over CNY 220,000 in total. At the same time, Chen Feihu also sold counterfeit “Nanfu” batteries produced by others in the store of “Huba” batteries located in Yangtze River Wholesale Market in Yaohai District, Hefei City under his operation. The sales amount was over CNY 190,000. | | 2014年10月至2015年11月，被告人陈飞虎（原上海虎霸电池有限公司法定代表人）以“上海虎霸电池有限公司”名义租赁安徽省合肥市庐阳区一工业区房间作为生产车间，从江苏省等地购进光身电池（无任何商标电池），组织工人贴标生产、包装假冒南孚“聚能环”电池，并雇用被告人程航静（上海虎霸电池有限公司职工）负责生产工作，雇用被告人李永寿（上海虎霸电池有限公司职工）驾驶货车接收原材料、发送成品假冒南孚“聚能环”电池给全国各地客户，共计销售金额22万余元。同时，陈飞虎还通过其经营的位于合肥市瑶海区长江批发市场内的“虎霸电池”店销售他人生产的假冒“南孚电池”，销售金额19万余元。 |
| From September 2013, with a forged certificate of Nanfu Company, Chen Feihu colluded with Longzhu Packaging Co., Ltd. located in Anqing City, Anhui Province (hereinafter referred to as “Longzhu Company”) whose legal representative was defendant Cao Jieyu in printing counterfeit package paper of “Nanfu” batteries. Chen Feihu assigned technicians of Shanghai Huba Battery Co., Ltd. to provide technical guidance and conduct supervision over production in Longzhu Company. From October 2014 to July 2015, Longzhu Company produced and sold over 10 million pieces of counterfeit package paper of “Nanfu” batteries to Chen Feihu. Chen Feihu sold such package paper to customers in Xinxiang City, Henan Province at the price of CNY 280 per 10,000 pieces and he sold over 3 million pieces of counterfeit package paper of “Nanfu” batteries in total. | | 2013年9月起，陈飞虎持伪造的南孚公司证明文件与被告人曹结渝任法定代表人的安徽省安庆市龙珠包装有限公司共谋，印刷假冒“南孚电池”标纸。陈飞虎指派公司技术人员到龙珠公司进行技术指导并监督生产。2014年10月至2015年7月，龙珠公司共生产并销售给陈飞虎假冒“南孚电池”标纸约1000万张。陈飞虎再以每1万张280元销售给河南省新乡市的客户，共计销售假冒“南孚电池”标纸约300万张。 |
| II. Proceedings | | 二、诉讼过程 |
| On November 9, 2015, the Yanping Branch of the Public Security Bureau of Nanping City, Fujian Province placed the case on file for investigation against Chen Feihu, Li Yongshou, and other persons for their suspected crime of counterfeiting a registered trademark. On November 11 of the same year, the aforesaid personnel were subject to criminal detention. On December 16 of the same year, the People's Procuratorate of Yanping District, Nanping City approved the arrest of Chen Feihu, Li Yongshou, and other persons for their suspected crime of counterfeiting a registered trademark. On June 29, 2016, the People's Procuratorate of Yanping District, Nanping City instituted a public prosecution against Chen Feihu and other five persons for the suspected crimes of counterfeiting a registered trademark, illegally manufacturing registered trademark signs, and selling commodities with a counterfeit registered trademark. On December 8 of the same year, the People's Court of Yanping District, Nanping City rendered a judgment that defendant Chen Feihu committed the crime of counterfeiting a registered trademark, the crime of illegally manufacturing registered trademark signs, and the crime of selling commodities with a counterfeit registered trademark and he was sentenced to the joinder of penalties for plural crimes, namely, a fixed-term imprisonment of seven years and four months in addition to a fine of CNY 360,000; and the other five defendants were sentenced to fixed-term imprisonments ranging from one year and eight months to three years, in addition to various amounts of fines. The aforesaid judgment came into force on December 19, 2016. | | 2015年11月9日，福建省南平市公安局延平分局以涉嫌假冒注册商标罪对陈飞虎、李永寿等人立案侦查。同年11月11日对上述人员刑事拘留。同年12月16日，南平市延平区检察院对陈飞虎、李永寿等人以涉嫌假冒注册商标罪批准逮捕。2016年6月29日，南平市延平区检察院对陈飞虎等6人以涉嫌假冒注册商标罪、非法制造注册商标标识罪、销售假冒注册商标的商品罪提起公诉。同年12月8日，南平市延平区法院判决被告人陈飞虎犯假冒注册商标罪、非法制造注册商标标识罪、销售假冒注册商标的商品罪，数罪并罚判处有期徒刑七年零四个月，并处罚金36万元；其他5名被告人分别被判处一年零八个月至三年不等的有期徒刑，并处数额不等罚金。上述判决已于2016年12月19日生效。 |
| III. Analysis and Comments | | 三、评析意见 |
| Nanfu Battery Co., Ltd. located in Nanping City, Fujian Province is a famous enterprise in China and the registered trademark “Shaped Ring” it owns is widely known by the public. Defendants in this case produced and sold counterfeit Nanfu “Shaped Ring” batteries and package paper, which involved several provinces, many persons, huge amounts of money, and especially serious circumstances. A “one-stop” crime chain involving cross-provincial production, sales and purchase has been formed. In the handling of this case, the People's Procuratorate of Yanping District, Nanping City fully examined case evidence, accurately applied the law, actively guided evidence collection, intensified procuratorial supervision, and played an important role. At the stage of examination of arrest, when approving arrest in a fast and strict manner according to the law, the People's Procuratorate of Yanping District issued written detailed opinions on continuing investigation and evidence collection with respect to facts on Pei Zhenxin and other persons' suspected crimes of selling commodities with a counterfeit registered trademark that have not been found clearly yet, guided the public security organ in fully collecting and fixing evidence, and orally corrected the practice of the investigation organ that separately placed Chen Feihu and Li Yongshou's joint crime on file for investigation. At the stage of examination before prosecution, the People's Procuratorate of Yanping District fully examined the positions and roles of defendants in the case and the amounts of money involved. In particular, after examining the criminal behavior in the whole case in detail, the People's Procuratorate of Yanping District held that Chen Feihu was also suspected of committing the crime of illegally manufacturing registered trademark signs and the crime of selling commodities with a counterfeit registered trademark and he should be imposed on an additional charge according to the law. Without omitting any criminal fact, the People's Procuratorate of Yanping District ensured the accurate application of law. The full performance of duties by the People's Procuratorate of Yanping District in this case has ensured that the criminal behavior was subject to full prosecution in an accurate and timely manner, formed effective deterrence to the illegal and criminal behavior related to infringement upon intellectual property rights, and achieved good legal effect and social effect. | | 福建南平南孚电池有限公司系国内知名企业，其所拥有的“聚能环”注册商标为公众广泛知晓。本案被告人生产、销售假冒南孚“聚能环”电池及标纸，涉及多个省份，涉案人员多，数额巨大，情节特别严重，并已形成跨省生产、销售、购买的“一条龙”犯罪链条。南平市延平区检察院在办理该案中，全面审查案件证据，准确适用法律，积极引导取证，强化检察监督，发挥了重要作用。在审查逮捕阶段，在依法从快从严批捕的同时，针对尚未查清的裴振新等涉嫌销售假冒注册商标的商品罪的事实，发出详细的继续侦查取证意见书，引导公安机关全面收集固定证据，并对侦查机关将陈飞虎、李永寿共同实施犯罪却分别立案侦查的做法予以口头纠正。在审查起诉阶段，全面厘清了被告人在案件中的地位、作用和涉案金额，特别是细致审查全案犯罪行为后，认为陈飞虎还涉嫌非法制造注册商标标识罪、销售假冒注册商标的商品罪，应依法予以追加起诉，不遗漏一起犯罪事实，确保准确适用法律。检察机关在此案中的充分履职，确保了准确及时全面追诉犯罪行为，对侵犯知识产权违法犯罪行为形成了有效震慑，取得了良好的法律效果和社会效果。 |
| Model Case No. 3 | | 典型案例之三 |
| People v. Shen Cheng, Huang Ruwei, et al. for Selling Commodities with Counterfeit Registered Trademarks | | 上海沈澄、黄如伟等人销售假冒注册商标的商品案 |
| I. Case Facts | | 一、案件事实 |
| At the beginning of 2013, defendants Shen Cheng, Huang Ruwei, and other persons contributed capital, registered, and established Kuangren Information Technology Co., Ltd. (hereinafter referred to as “Kuangren Company” and Shen Cheng and Huang Ruwei were shareholders of the Company). They rented the sixth floor of Minjie Building located in No. 777, Xingfu Road, Licheng District, Putian City, Fujian Province as the business office, successively employed Zhu Zhenya (legal representative of Kuangren Company) and other persons, rented overseas servers from Shanghai CNDNS Technology Information Development Co., Ltd., set up and operated over a hundred of Internet websites in many places across the country, and sold commodities with such counterfeit registered trademarks as LV, MK, and NIKE purchased from Guangdong Province, Fujian Province, and other places to foreign countries. After the case was exposed, it was found upon auditing that from the beginning of 2013 to March 2015, after selling commodities with counterfeit registered trademarks, Kuangren Company collected over CNY 84 million of payment for goods through the international payment settlement platform. | | 2013年初，被告人沈澄、黄如伟等人出资注册设立狂人信息技术有限公司（以下简称狂人公司，沈、黄二人为公司股东），租用福建省莆田市荔城区幸福路777号闵杰楼六楼作为办公场所，并先后雇用朱振亚（狂人公司法定代表人）等人，向上海美橙科技信息发展有限公司租用境外服务器，在全国多地开设、运营百余个互联网站，将从广东、福建等地采购的假冒LV、MK、NIKE等注册商标的商品向境外销售。案发后，经审计，自2013年初至2015年3月，狂人公司销售假冒注册商标的商品后，通过国际支付结算平台收取的货款为8400余万元。 |
| II. Proceedings | | 二、诉讼过程 |
| On April 1, 2015, the case was placed on file for investigation by the Water Public Security Bureau of Shanghai Municipality; on the same day, the Economic Investigation Squadron of the Shanghai Municipal Public Security Bureau and the Water Public Security Bureau of Shanghai Municipality captured over ten criminal suspects in the business office of Kuangren Company located in Putian City, Fujian Province. On May 7 of the same year, the People's Procuratorate of Hongkou District, Shanghai Municipality approved the arrest of Chen Cheng, Huang Ruwei, and other persons for their suspected crime of selling commodities with counterfeit registered trademarks. On October 23, the People's Procuratorate of Hongkou District, Shanghai Municipality filed a lawsuit with the People's Court of Yangpu District, Shanghai Municipality against 11 defendants of them. During this period, the People's Procuratorate of Hongkou District communicated and affirmed with the People's Court of Yangpu District, the audit firm, and the computer judicial expertise department on case facts, standards of proof, and audit standards. From July to September 2016, the People's Court of Yangpu District successively rendered judgments that Shen Cheng and Huang Ruwei were separately sentenced to fixed-term imprisonments of six years and six years and six months, in addition to fines of CNY 9.8 million and CNY 9 million. Other defendants were separately sentenced to fixed-term imprisonments ranging from eight months to three years and six months, in addition to fines ranging from CNY 70,000 to CNY 380,000. | | 2015年4月1日，该案由上海市水上公安局立案侦查；同日，上海市公安局经侦总队、水上公安局在狂人公司福建莆田的经营场所，当场抓获犯罪嫌疑人10余名。同年5月7日，上海市虹口区检察院以涉嫌销售假冒注册商标的商品罪对沈澄、黄如伟等人批准逮捕。10月23日，上海市虹口区检察院将其中11名被告人起诉至上海市杨浦区法院。其间，虹口区检察院多次就本案的案件事实、证据标准、审计标准与杨浦区法院、审计事务所和计算机司法鉴定部门沟通、确认。2016年7月至9月，杨浦区法院先后对涉案被告人依法作出判决，沈澄、黄如伟分别被判处有期徒刑六年和六年零六个月，并处罚金980万元和900万元。其他被告人分别判处八个月至三年零六个月不等的有期徒刑，并处罚金7万元至38万元不等。 |
| III. Analysis and Comments | | 三、评析意见 |
| Shanghai is making great efforts in building the innovation center for science and technology and the Asia-Pacific intellectual property center with global influence. As the legal supervision organ, the procuratorial organ of Shanghai Municipality has undertaken important intellectual property right protection tasks by performing such procuratorial responsibilities as approval of arrest and prosecution. Although defendants in this case were all from Fujian Province, the servers rented by the company involved for setting up overseas websites were located in Shanghai Municipality, the target customers were all foreigners, the infringed brands were all internationally well-known brands, and the activities of defendants caused great damages to Shanghai's economic order and legal environment of intellectual property. Therefore, the successful handling of this case has maintained Shanghai's good image of attaching importance to judicial protection of intellectual property rights. | | 上海正在全力建设有全球影响力的科技创新中心和亚太知识产权中心，上海市检察机关作为法律监督机关，通过履行批捕、起诉等检察职责承担了重要的知识产权保护任务。虽然本案被告人均为福建人，但涉案公司开设境外网站所租用的服务器在上海，销售对象全部是境外人士，被侵权的品牌也均为国际知名品牌，对上海的经济秩序、知识产权法治环境带来了极大的损害。因此，该案的成功办理维护了上海注重知识产权司法保护的良好形象。 |
| With novel modus operandi, many persons involved, a large amount of money involved, great social concerns, and extensive social impacts, this case was a model criminal case concerning infringement upon intellectual property rights by virtue of Internet in the Shanghai region in recent years. The criminal offenders in this case had strong anti-detection capability, causing great difficulties in handling and evidence-taking in the following aspects: First, the crime was committed in wide areas. The criminal offenders sold commodities with counterfeit registered trademarks to foreigners through the websites they set up. In order to elude investigation, the company involved separated its departments, shut down a website after some interval of time, and opened a new one, so as to prevent from being caught the whole lot in an action, the servers it rented were all over the country. Second, it was difficult to seize articles involved. The commodities involved were all sold to foreign countries, causing difficulty in seizing the original articles of crime. Kuangren Company ordered goods only when there was an order and its channel department in charge of purchasing and delivery was located outside the main business office of the Company and hided in a rented civil house. After the public security organ investigated the main business office of the Company, the channel department immediately left the rented house and destroyed the specific evidence of goods. Third, it was difficult to determine the amount of money involved in the crime. Through the international payment settlement platform, Kuangren Company entered several individual bank accounts under its actual control for settling the payment for goods and avoided the company account, which caused great difficulties in determining the final amount of money arising from committing the crime. | | 该案作案手法新颖，涉案人数多，涉案金额大，社会关注度高，社会影响广泛，是近年来上海地区一起较为典型的借助互联网实施的侵犯知识产权犯罪案件。本案犯罪分子反侦查能力极强，导致案件办理难度大、取证困难，具体表现在：一是作案区域广。犯罪分子是通过开设网站向境外销售假冒注册商标的商品，涉案公司为了躲避侦查，将公司各部门分开，间隔一段时间就会关停一个网站，开设新网站，防止被一网打尽，租用的服务器遍及全国各地。二是查获涉案物品难。涉案商品全部销往境外，致使难以获取犯罪原始物品。狂人公司有订单才进行订货，且负责进货、发货的渠道部设在狂人公司主要经营场所以外，藏匿在租借的民房中，当狂人公司主要经营场所被公安机关查处后，渠道部立即从租借处退出，销毁具体货物证据。三是犯罪金额难以确定。狂人公司通过国际支付结算平台进入公司实际掌控的多个个人银行账户进行货款结算，避开了公司账户，导致确定最终犯罪金额十分困难。 |
| In the process of case handling, the People's Procuratorate of Hongkou District, Shanghai Municipality intervened in the case in first time, discussed the case with the Water Public Security Bureau of Shanghai Municipality, determined the scope of crackdown, and specified the direction for evidence-taking, key points in fixing evidence, and later transfer procedures, which laid a sound foundation for the successful handling of the case. At the same time, in order to accurately determine the amount of money involved in the crime, the procuratorial organ of Shanghai Municipality integrated forces of the technology department, the identification department, and the audit department, specified the relationship between individual accounts and money arising from the sales of counterfeit commodities by comprehensively analyzing the capital flows and the use of account funds, and determined the actual amount of money arising from the crime of selling counterfeit commodities involved in the whole case. In addition, during the court session, many NPC delegates and delegates to the Shanghai People's Congress were invited to view and comment on the case trial process, which has highlighted the resolution of the procuratorial organ of Shanghai Municipality for cracking down on crimes of infringement upon intellectual property rights. | | 办案过程中，上海市虹口区检察院第一时间介入案件，与上海水上公安局研判案件，确定打击范围，明确取证方向、固证要点及后期的移送程序，为案件的顺利办理打下坚实基础。同时，为了准确认定本案犯罪金额，上海市检察机关整合技术部门、鉴定部门和审计部门的力量，通过对资金的走向，账户资金的使用情况综合分析明确个人账户与售假资金的关系，进而确定整个案件实际售假的犯罪金额。此外，本案开庭审理期间邀请了多名全国、上海市人大代表对案件庭审过程进行观摩评议，彰显了上海市检察机关打击侵犯知识产权犯罪的决心。 |
| Model Case No. 4 | | 典型案例之四 |
| People v. Liu Fei from Shandong Province, et al. for Selling Commodities with Counterfeit Registered Trademarks | | 山东刘飞等人销售假冒注册商标的商品案 |
| I. Case Facts | | 一、案件事实 |
| From 2012 to 2015, Liu Fei and other persons customized towels with counterfeit brands of Kingshore and Grace from a towel workshop in Gaoyang County, Hebei Province. With Taobao and Alibaba as the platform, they opened several online stores, including “Chenxu Pure Cotton Towel Trading Company” and “Pure Cotton World” and sold over 1 million towels with counterfeit brands of Kingshore and Grace. The amount of money involved was over CNY 1.5 million. | | 2012年至2015年期间，刘飞等人从河北省高阳县的毛巾加工作坊中定制假冒的金号牌和洁丽雅牌毛巾，以淘宝网和阿里巴巴网为平台，开设“晨旭纯棉毛巾商行”“纯棉大世界”等多家网店，销售假冒的金号牌和洁丽雅牌毛巾100余万条，涉案金额150余万元。 |
| II. Proceedings | | 二、诉讼过程 |
| On April 22, 2015, Shandong Kingshore Textile Co., Ltd. reported a case to the Economic Crime Investigation Brigade of the Public Security Bureau of Chiping County, Shandong Province and alleged that Chenxu Pure Cotton Towel Trading Company has been selling counterfeit Kingshore towels on Taobao and the trading volume in the latest 30 days amounted to over CNY 50,000. On the next day, the Public Security Bureau of Chiping County placed the case on file. In February 2016, the People's Procuratorate of Chiping County approved the arrest of Liu Fei and other persons for the suspected crime of selling commodities with counterfeit registered trademarks; and on July 22, it instituted a public prosecution against Liu Fei and other persons for the suspected crime of selling commodities with counterfeit registered trademarks. In November 2016, the People's Court of Chiping County sentenced Liu Fei to a fixed-term imprisonment of three years for the crime of selling commodities with counterfeit registered trademarks, in addition to a fine of CNY 200,000; and separately sentenced the other four defendants to fixed-term imprisonments ranging from seven months to two years and six months. The aforesaid judgment has come into force. | | 2015年4月22日，山东金号织业有限公司到山东省茌平县公安局经济犯罪侦查大队报案称：晨旭纯棉毛巾商行在淘宝网上大肆销售假冒金号牌毛巾，近30天的交易额就达5万余元。茌平县公安局于次日立案。2016年2月，茌平县检察院以涉嫌销售假冒注册商标的商品罪对刘飞等人依法批准逮捕；7月22日，对刘飞等人以涉嫌销售假冒注册商标的商品罪提起公诉。2016年11月，茌平县法院以销售假冒注册商标的商品罪对刘飞依法判处有期徒刑三年，并处罚金20万元；其他4名被告人分别判处七个月至二年零六个月不等的有期徒刑。上述判决为生效判决。 |
| III. Analysis and Comments | | 三、评析意见 |
| At the present, e-commerce with the main content of “Internet Plus” is under rapid development. This emerging business model brings the people's living with great convenience, but it also becomes an object of public denunciation due to the occurrence of a large amount of infringing and counterfeit goods. Therefore, it is imperative to exert more efforts to crack down on online sales of counterfeit commodities. The series cases concerning Li Fei and other persons' sales of commodities with counterfeit registered trademarks caused adverse social impacts to manufacturers of towels with such well-known brands as Kingshore and Grace and severe losses of brand value. When intervening in the investigation, the People's Procuratorate of Chiping County raised the case-handling thought of “synchronous online and offline investigation,” guided the public security organ in investigation and evidence-taking, and banned five relevant workshops, which has effectively cracked down on criminal activities of manufacturing and selling counterfeit commodities, purified the network market, and achieved good legal effect and social effect. | | 当前，以“互联网＋”为主要内容的电子商务发展迅猛，这一新兴商务模式在为人们的生活带来便捷的同时，也因侵权假冒行为大量发生而备受社会诟病，加大打击网络售假力度势在必行。刘飞等人销售假冒注册商标的商品系列案件，给“金号”“洁丽雅”等知名毛巾生产企业造成恶劣社会影响，品牌价值损失严重。茌平县检察院在介入侦查时提出“上线下线同步查”的办案思路，引导公安机关侦查取证，一举端掉5个相关生产作坊，有力地打击了制假售假犯罪活动，净化了网络市场，取得了较好的法律效果和社会效果。 |
First, the procuratorial organ guided investigation and evidence-taking and specified investigation direction. The criminal gang involved had a well-knit system and specific upstream and downstream division of work, and involved manufacturers and sellers of counterfeit towels, and manufacturers of packages. A complete industrial chain of manufacturing and sales of counterfeit commodities has been formed. The People's Procuratorate of Chiping County got intervened at appropriate time, proposed that the public security organ should inspect the workshop producing counterfeit towels and take photographs in a timely manner by keeping a foothold of “synchronous online and offline investigation” and based on issues concerning hidden criminal means for online sales of counterfeit commodities and great difficulties in investigation and evidence-taking, and took the relevant evidence, which has consolidated the evidence chain on criminal suspects' manufacturing and sales of counterfeit commodities; with respect to such issues in the operations of online stores as common phenomena of “scalping” (indicating that a commodity sold well with false records) and difficulty in determining the sales amount, the procuratorial organ proposed that the public security organ should take the delivery list, online trading records, and other relevant documentary evidence for verification. The case was finally investigated and handled in a successful manner.
．．．．．． | | 一是引导侦查取证，明确侦查方向。涉案犯罪团伙体系严密，上下游分工明确，假冒毛巾生产者、销售者、包装生产者均有涉及，制假、售假形成完整的产业链条。茌平县检察院适时介入，立足“上线下线同步查”的办案思路，针对网络售假犯罪手段隐蔽、查处取证难度大的问题，建议公安机关对生产假冒毛巾作坊及时勘查、拍照，并调取相关证据，巩固了犯罪嫌疑人制假、售假的证据链条；针对网店经营中“刷单”（用虚假的销售记录表示该商品的畅销）现象比较普遍、销售金额难以认定的问题，建议公安机关调取发货单、网络交易记录等相关书证多方印证。该案最终成功侦办、顺利诉讼。
．．．．．． |
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