| Model Cases of Protection of Intellectual Property Rights by Procuratorial Organs in 2019 Published by the Supreme People's Procuratorate | | 最高人民检察院发布2019年度检察机关保护知识产权典型案例 |
| (April 25, 2020) | | （2020年4月25日） |
| Table of Contents | | 目 录 |
| Cases of Counterfeiting Registered Trademarks | | 假冒注册商标案 |
| Case No. 1: Case of Counterfeiting Registered Trademarks by Wang and Other Persons in Shanghai | | 案例1：上海汪某等假冒注册商标案 |
| Case No. 2: Case of Counterfeiting Registered Trademarks by Yao and Other Persons in Shandong | | 案例2：山东姚某某等假冒注册商标案 |
| Case No. 3: Protest Case of Counterfeiting Registered Trademarks by Gu in Chongqing | | 案例3：重庆古某某假冒注册商标抗诉案 |
| Cases of Selling Goods with Counterfeit Registered Trademarks | | 销售假冒注册商标的商品案 |
| Case No. 4: Non-prosecution Case of Selling Goods with Counterfeit Registered Trademarks by Zhang in Beijing | | 案例4：北京张某某销售假冒注册商标的商品不起诉案 |
| Case No. 5: Case of Selling Goods with Counterfeit Registered Trademarks by Deng in Jiangsu | | 案例5：江苏邓某某等销售假冒注册商标的商品案 |
| Case No. 6: Protest Case of Selling Goods with Counterfeit Registered Trademarks by Gao and Other Persons in Fujian | | 案例6：福建高某某等销售假冒注册商标的商品抗诉案 |
| Case No. 7: Docketing Supervision Case of Selling Goods with Counterfeit Registered Trademarks by Xiao in Henan | | 案例7：河南肖某某销售假冒注册商标的商品立案监督案 |
| Case No. 8: Protest Case of Selling Goods with Counterfeit Registered Trademarks and Counterfeiting Registered Trademarks by Xu, Li, and Other Persons in Sichuan | | 案例8：四川徐某、李某等销售假冒注册商标的商品、假冒注册商标抗诉案 |
| Cases of Illegally Producing and Selling Illegally-made Registered Trademark Logos | | 非法制造、销售非法制造的注册商标标识案 |
| Case No. 9: Case of Illegally Producing and Selling Illegally-made Registered Trademark Logos by Xue in Jiangsu | | 案例9：江苏薛某某非法制造、销售非法制造的注册商标标识案 |
| Case No. 10: Non-prosecution Case of Illegally Making and Selling Illegally-made Registered Trademark Logos by Chen in Zhejiang | | 案例10：浙江陈某某非法制造、销售非法制造的注册商标标识不起诉案 |
| Case No. 11: Protest Case of Illegally Making Registered Trademark Logos by Li in Guangdong | | 案例11：广东李某某非法制造注册商标标识抗诉案 |
| Cases of Copyright Infringement | | 侵犯著作权案 |
| Case No. 12: Case of Copyright Infringementby Chen and Other Persons in Shanghai | | 案例12：上海陈某等侵犯著作权案 |
| Case No. 13: Case of Copyright Infringementby Xu and Wang in Anhui | | 案例13：安徽许某、王某侵犯著作权案 |
| Case No. 14: Case of Copyright Infringement by Zhao in Anhui | | 案例14：安徽赵某某等侵犯著作权案 |
| Case No. 15: Case of Copyright Infringement by Qiu in Sichuan | | 案例15：四川邱某侵犯著作权案 |
| Cases of Trade Secret Infringement | | 侵犯商业秘密案 |
| Case No. 16: Case of Trade Secret Infringement by Tian in Beijing | | 案例16：北京田某某侵犯商业秘密案 |
| Case No. 17: Case of Trade Secret Infringement by Jin in Zhejiang | | 案例17：浙江金某某侵犯商业秘密案 |
| Case of Support to Prosecution Involving Copyright Infringement | | 侵犯著作权支持起诉案 |
| Case No. 18: A Series of Cases of Support to Prosecution between China Audio-Video Copyright Association and Xinlong Entertainment Club in Yushan Township, Changshu City in Jiangsu | | 案例18：江苏中国音像著作权集体管理协会与常熟市虞山镇鑫龙娱乐会所侵害作品放映权纠纷支持起诉系列案 |
| Case No. 1 | | 案例1： |
| Case of Counterfeiting Registered Trademarks by Wang and Other Persons in Shanghai | | 上海汪某等假冒注册商标案 |
| I. Facts of the Case | | 一、案件事实 |
| During the period from May to July 2018 when Wang operated Shanghai Tuohu Industrial Development Co., Ltd. (hereinafter referred to as “Tuohu Company”), he instigated the employee Yu to order packaging bags with counterfeit registered trademarks of Honeywell International Inc. and rent the warehouse of Shanghai Hui'an International Logistics Co., Ltd. (hereinafter referred to as “Hui'an Company”) operated by Huang. Without the licensing and authorization of the holder of the registered trademarks, Huang arranged his employees to subpackage the industrial wax in large packages without any brand logo to small packages of 25 kg printed with the registered trademark logos “Honeywell” and “A-C” and sold such industrial wax to several companies in Shanghai, Jiangsu, and Guangdong, with the sales amount of over CNY1 million in total. On August 17, 2018, 464 bags of “Honeywell” industrial wax (25 kg per bag) and 27 bags of raw materials for “Honeywell” industrial wax (25 kg per bag) stored by Tuohu Company were seized in the warehouse of Hui'an Company, with the value of the goods of over CNY110,000. | | 2018年5月至7月，汪某在经营上海拓斛实业发展有限公司（以下简称“拓斛公司”）期间，指使员工余某订购假冒霍尼韦尔国际公司注册商标的包装袋，并租赁黄某某经营的上海惠安国际物流有限公司（以下简称“惠安公司”）仓库，在未经注册商标权利人霍尼韦尔国际公司许可和授权的情况下，将无品牌标识的大包装工业蜡由黄某某安排其员工分装改包成25公斤装印有“Honeywell”“A-C”注册商标标识的小包装工业蜡，销售至上海、江苏、广东等多家公司，销售金额共计100万余元。2018年8月17日，在惠安公司仓库内查获拓斛公司存放的“霍尼韦尔”工业蜡464袋（每袋25公斤）、“霍尼韦尔”工业蜡原料27袋（每袋25公斤），货值金额11万余元。 |
| II. Proceedings | | 二、诉讼过程 |
| On August 13, 2018, the Baoshan Branch of the Public Security Bureau of Shanghai Municipality received the case reported by Honeywell International Inc. On August 17, jointly with the Shanghai Municipal Bureau of Quality and Technical Supervision, it went to Tuohu Company for law-enforcement inspection and discovered the industrial wax involved on the scene. After seizing such industrial wax, the administrative law enforcement organ transferred the case to the public security organ and on the same day, the public security organ docketed the case for investigation on the ground that Wang was suspected of the crime of selling goods with counterfeit registered trademarks. On September 14, the public security organ requested the People's Procuratorate of Baoshan District for approving the arrest of Wang. | | 上海市公安局宝山分局于2018年8月13日接霍尼韦尔国际公司报案后，于8月17日会同上海市质量技术监督局至拓斛公司进行执法检查，当场发现涉案工业蜡，行政执法机关查扣后将该案移送公安机关，公安机关于当日对汪某以涉嫌销售假冒注册商标的商品罪立案侦查。9月14日，提请宝山区人民检察院批准逮捕。 |
| During the period of examination of arrest, the procuratorial organ conducted a public hearing on whether to arrest Wang. The defense lawyer of Wang alleged that the approval of arrest of Wang would affect the operation of the enterprise he ran; the investigators raised the opinion that after being arrested, Wang did not make true confession and there were other criminal facts to be further investigated. The procurators deemed upon examination that granting bail to Wang may give rise to such social hazards as disturbing witnesses from testifying or making confessions in collusion and it was necessary to arrest Wang; they also deemed that Wang not only sold industrial waxes with counterfeit registered trademarks that were held by Honeywell International Inc., but subpackaged the aforesaid industrial waxes to packages with counterfeit registered trademarks, and the determination of nature of Wang's acts by the public security organ was inappropriate. On September 21, they made a decision on approving the arrest of Wang for a crime of counterfeiting registered trademarks. They then prepared and issued to investigators a written opinion on investigation and evidence-taking, which listed the items subject to further investigation, the objectives, and the requirements, and proposed that they should adjust the investigation direction so that investigators were guided on the basis of the trial standards and evidence was improved and fixed. In addition, the procurators also discovered that Yu assisted Wang in contacting suppliers and purchasing packaging bags with counterfeit registered trademarks of Honeywell International Inc. for packaging industrial waxes for external sales; knowing that Wang committed an act of counterfeiting registered trademarks, Huang still rented the warehouse to stack the products invovled and arranged his employees to provide services of subpackaging industrial waxes. The procurators deemed that both Yu and Huang should be punished as accomplices and they immediately prepared a Written Proposal that the Criminal Suspects Should Be Arrested and issued it to the investigators so that the omitted accomplices Yu and Huang were pursued. | | 审查逮捕期间，检察机关就是否应当逮捕汪某进行了公开听证。其辩护律师提出对汪某批准逮捕将影响其经营企业的运转；侦查人员则提出汪某到案后供述不实，且有其他犯罪事实尚待继续侦查。检察官审查后认为，对汪某采取取保候审可能出现干扰证人作证或者串供等社会危险性，有逮捕必要；并且认为，汪某不仅销售假冒霍尼韦尔持有注册商标的工业蜡，而且将上述工业蜡分装改包成印有假冒注册商标的包装，公安机关定性不当，遂于9月21日以假冒注册商标罪对汪某作出批准逮捕决定。进而向侦查人员制发了继续侦查取证意见书，列明需要继续侦查的事项、目的和要求，建议其调整侦查方向，以审判标准引导侦查人员完善固定证据。此外，检察官还发现余某帮助汪某联系购买假冒霍尼韦尔注册商标的包装袋用以包装工业蜡后对外销售；黄某某明知汪某实施假冒注册商标的行为仍将仓库租赁给汪某堆放涉案产品，并安排员工提供工业蜡分装服务，均应以共犯论处，随即向侦查人员制发《应当逮捕犯罪嫌疑人建议书》，追捕遗漏同案犯余某、黄某某。 |
| On December 20, the Baoshan Branch of the Public Security Bureau of Shanghai Municipality transferred the case where Wang, Huang, and Yu were suspected of the crime of counterfeiting registered trademarks for prosecution. In the course of examination and prosecution, the procurators discovered that upon receipt of the industrial waxes transferred by the administrative law enforcement organ, the investigators only checked the articles invovled, but they failed to fix evidence by such recording modes as taking pictures and videos. For irregularity of the evidence-fixing, the procurators immediately prepared and issued a Written Procuratorial Proposal to the public security organ for rectification. The public security organ thus carried out investigation, implemented rectification measures, and notified all case-handling entities under the Baoshan Branch of the Public Security Bureau of Shanghai Municipality. | | 12月20日，宝山公安分局将汪某、黄某某、余某涉嫌假冒注册商标罪一案移送起诉。审查起诉过程中，检察官发现侦查人员在接到行政执法机关移送的工业蜡后，仅查看了涉案物品，没有通过拍照、录像等记录方式予以固定，存在证据固定不规范的情况，立即向公安机关制发《检察建议书》建议整改。公安机关遂开展调查，落实整改措施，并通报全局各办案单位。 |
| From May to July 2019, the People's Procuratorate of Baoshan District instituted a public prosecution in the People's Court of Baoshan District on the ground that defendants Wang, Huang, and Yu had committed the crime of counterfeiting registered trademarks. In the course of trial, the procurators discovered that the lease of its warehouse to others by Hui'an Company was an act of the Company for seeking interests under the will of the entire entity and it should be evaluated as a crime committed by the entity. Therefore, they additionally prosecuted the omitted entity Hui'an Company in a timely manner. | | 2019年5月至7月，宝山区人民检察院以被告人汪某、黄某某、余某犯假冒注册商标罪向宝山区人民法院提起公诉。审理过程中，检察官发现惠安公司租赁仓库系单位整体意志支配下为单位谋取利益的行为，应评价为单位犯罪，遂对遗漏犯罪单位惠安公司及时追加起诉。 |
| Designated by the superior court, this case was tried by the People's Court of Yangpu District, Shanghai Municipality. On October 31, the People's Court of Yangpu District entered a judgment that Wang should be sentenced to a fixed-term imprisonment of three years and three months, in addition to a fine of CNY100,000; a fine of CNY20,000 should be imposed on Hui'an Company ; Huang should be sentenced to a fixed-term imprisonment of one year and six months, in addition to a fine of CNY8,000; and Yu should be sentenced to a fixed-term imprisonment of one year and three months, in addition to a fine of CNY5,000, for committing the crime of counterfeiting registered trademarks. The judgment took effect. | | 经上级法院指定，本案由上海市杨浦区人民法院审判。10月31日，杨浦区人民法院作出判决，以假冒注册商标罪判处汪某有期徒刑三年三个月，并处罚金十万元；判处惠安公司罚金二万元；判处黄某某有期徒刑一年六个月，并处罚金八千元；判处余某有期徒刑一年三个月，并处罚金五千元。该判决已生效。 |
| III. Analysis and Comments | | 三、评析意见 |
| The procuratorial organ adhered to the equal protection concept throughout the case-handling, treated domestic and foreign-funded enterprise equally in aspects of their litigation status, litigation rights, and legal protection, fully performed various legal supervision functions including arrest approval, prosecution, pursuit, additional prosecution, and raising of procuratorial proposals, actively improved the case-handling modes, enriched the methods for optimizing the business environment, and exerted more efforts to the protection of intellectual property rights in the following aspects: | | 检察机关坚持将平等保护理念贯穿办案始终，对内资外资企业诉讼地位、诉讼权利、法律保护一视同仁，充分履行批捕、起诉、追捕、追诉、提出检察建议等各项法律监督职能，积极改进办案方式，丰富优化营商环境的手段，加大知识产权保护力度。具体表现在： |
| First, the procuratorial organ shifted forward the evidence gateway and maximized the leading roles before the trial. In order to ensure that the criminal offenders be accurately and effectively accused of a crime in the court trial, the procurators adhered to centering on court trial, maximized the procuratorial leading roles, shifted forward the evidence gateway to the investigation stage at the front end of criminal proceedings, improved the quality of evidence for accusation of crime at the source, and implemented the requirements for evidence in the substantial trial. | | 一是证据关口前移，充分发挥审前主导作用。为确保在庭审中能够准确有力指控犯罪，检察官坚持以审判为中心，充分发挥检察主导作用，把证据关口前移至刑事诉讼前端的侦查阶段，从源头上提升指控证据的质量，落实庭审实质化对证据的要求。 |
| Second, the procuratorial organ held a public hearing of the arrest and always abided by an objective and impartial position. For the purposes of better exercising the right to approve arrest, preventing erroneous arrest, fully protecting the parties' right of action, and further making procuratorial affairs public, the procuratorial organ actively explored the litigation-based reform of arrest examination. The procuratorial organ showed the case-handling process by means of a public hearing of arrest examination, promoted the transformation of arrest examination from closed examination to public examination so that the procedural participation of criminal suspects and their defenders is significantly enhanced, the transparency of criminal proceedings is greatly improved, and the general public can effectively experience the fairness and righteousness of justice. | | 二是逮捕公开听证，始终坚守客观公正立场。为更好地行使批捕权，防止错误逮捕，充分保护当事人诉讼权利，进一步深化检务公开，检察机关积极探索审查逮捕诉讼化改革。通过审查逮捕公开听证的方式将办案过程予以展示，推动审查逮捕由封闭审查向公开审查转变，使得犯罪嫌疑人及其辩护人的程序参与度得到明显提升，提高了刑事诉讼程序透明度，让人民群众切实感受到司法的公平正义。 |
| Third, the procuratorial organ exerted efforts to supervision in multiple directions and conducted an in-depth exploration to primary responsibilities and business in litigation supervision. The procurators adhered to the concept of “conducting supervision in the case-handling and handling a case in the supervision” and by fully exercising various supervision functions, unearthed the whole chain of crime, effectively pursued omitted accomplices, and additionally prosecuted an omitted entity that committed a crime in a timely manner; and strengthened legal supervision over investigation activities, promoted standardization of law enforcement activities, and achieved good supervision effects. | | 三是监督多向发力，深耕诉讼监督主责主业。检察官坚持“在办案中监督、在监督中办案”理念，通过充分行使各项监督职能，深挖犯罪全链条，有效追捕遗漏同案犯，及时追诉遗漏犯罪单位；同时加强对侦查活动的法律监督，促进执法行为规范化，取得较好监督成效。 |
| Case No. 2 | | 案例2： |
| Case of Counterfeiting Registered Trademarks by Yao and Other Persons in Shandong | | 山东姚某某等假冒注册商标案 |
| I. Facts of the Case | | 一、案件事实 |
| From 2015, for seeking high profits, without obtaining the licensing of holders of such registered trademarks as “CISCO” and “HP,” defendant Yao (legal representative of Rizhao Wanneng International Trade Co., Ltd. at the time of committing the crime) arranged defendant Gu to buy printers, labelled paper, and transceiver modules for producing counterfeit registered trademarks from e-platforms, successively rent several houses for forging the trademarks and packaging logos of the aforesaid brands, engaged in OEM production of transceiver modules and other products, and arranged defendants Zhuang, Zhang, and Wei to contact clients and sell such products abroad. | | 自2015年以来，被告人姚某某（案发时为日照万能国际贸易有限公司法定代表人）为获取高额利润，在未取得“CISCO”“HP”“华为”等注册商标所有人许可的情况下，安排被告人古某从网络平台购进制作假冒注册商标的打印机、标签纸、光纤模块等，先后租赁多处房屋伪造上述品牌的商标和包装标识，贴牌生产光纤模块等，并安排被告人庄某某、张某、魏某某联系客户销售至境外。 |
| From 2015 to 2019, defendants Yao and Gu produced and sold over 100,000 pieces of transceiver modules with counterfeit registered trademarks including “CISCO,” “HP,” and “Huawei,” with the sales amount of over CNY31.62 million. When the crime was exposed, 11,975 pieces of transceiver modules, exchangers, power supplies, and cables with counterfeit trademarks of “CICSO” and “HP” that have been produced but are not sold yet were seized on the scene, with the value of over CNY3.83 million. From 2016 to 2019, defendant Zhuang sold the aforesaid transceiver modules with the sales amount of over USD580,000 (over CNY3.52 million), defendant Zhang sold the aforesaid transceiver modules with the sales amount of over USD710,000 (over CNY4.29 million), and defendant Wei sold the aforesaid transceiver modules with the sales amount of over USD1.24 million (over CNY7.45 million). | | 2015年至2019年，被告人姚某某、古某共计生产、销售假冒“CISCO”“HP”“华为”等注册商标的光纤模块10万余件，销售金额3162万余元。案发时，现场扣押已生产尚未销售的假冒“CISCO”“HP”商标的光纤模块、交换机、电源、线缆11975件，价值383万余元。2016年至2019年，被告人庄某某销售上述光纤模块58万余美元（折合人民币352万余元），被告人张某销售71万余美元（折合人民币429万余元），被告人魏某某销售124万余美元（折合人民币745万余元）。 |
| II. Proceedings | | 二、诉讼过程 |
| On April 8, 2019, the Public Security Bureau of Rizhao City, Shandong Province received the case reported by HP Company Limited, which alleged that its clients purchased transceiver modules with counterfeit registered trademark of HP from a company in Rizhao City, Shandong Province and provided information on the sales personnel and the shipping address. Upon case docketing and investigation, the public security organ captured the criminal suspects, executed criminal detention of Yao, Gu, Zhang, and Zhuang on the ground that they were suspected of the crime of selling counterfeit and inferior goods, and executed criminal detention of Wei on the ground that he was suspected of the crime of selling goods with counterfeit registered trademarks. On May 24, the People's Procuratorate of Rizhao City approved the arrests of Yao and Gu and made a decision on not approving the arrests of Zhang, Zhuang, and Wei. On July 19, the Public Security Bureau of Rizhao City transferred the case for prosecution on the grounds that Yao and Gu were suspected of the crime of counterfeiting registered trademarks and Zhuang, Zhang, and Wei were suspected of the crime of selling goods with counterfeit registered trademarks. | | 2019年4月8日，山东省日照市公安局接惠普公司报案，称有客户在山东日照某公司买到假冒惠普注册商标的光纤模块，并提供了销售人员、发货地点信息。公安机关经立案侦查抓获犯罪嫌疑人，以涉嫌销售伪劣产品罪对姚某某、古某、张某、庄某某刑事拘留，以涉嫌销售假冒注册商标的商品罪对魏某某刑事拘留。5月24日，日照市人民检察院对姚某某、古某批准逮捕，对张某、庄某某、魏某某作出不批捕决定。7月19日，日照市公安局以姚某某、古某涉嫌假冒注册商标罪，庄某某、张某、魏某某涉嫌销售假冒注册商标的商品罪移送起诉。 |
| In the course of examination and prosecution, considering that the buyer of the infringing products were mostly foreign clients, in order to solve such problems as difficult taking of evidence abroad and long period of time, the case-handling procurators guided the public security organ in supplementing key facts including the Registered Trademark Certificates and Authorization Certificates of HP and CISCO in a timely manner, providing that the infringed trademarks were registered trademarks and the infringed parties enjoyed the intellectual property rights of the registered trademarks, guided the public security organ in taking and fixing key electronic evidence including e-mail addresses for contacts between buyers and sellers and electronic contracts, strengthened standardized evidence-taking, and constructed a complete evidence chain in light of the WeChat and QQ chat records among defendants, the sales record ledgers, the bank statements on the payment of salaries, and other materials. On the basis of such electronic evidence as e-mails and WeChat chat records and in light of such verbal evidence as statements and testimonies of witnesses, the procurators deemed that Zhuang and other two persons knew the products they sold were goods with counterfeit registered trademarks, defendant Yao recruited and employed employees to engage in OEM production and sale of goods with counterfeit registered trademarks in the name of the company he registered, and under clear division of work and cooperation, they jointly committed acts of counterfeiting registered trademarks and selling goods with counterfeit registered trademarks. Therefore, the procurators changed the nature of the acts and instituted a public prosecution on the basis of a crime of counterfeiting registered trademarks. | | 在审查起诉过程中，鉴于侵权产品的买家多为国外客户，为解决境外取证难度大、周期长等问题，办案检察官引导公安机关及时补充惠普、思科公司的注册商标证、授权使用证书，证明被侵权商标系注册商标、被侵权方对该注册商标享有知识产权的关键事实，引导公安机关重点调取、固定买卖双方联系的电子邮件、电子合同等关键性电子证据，并强调取证规范，结合被告人之间的微信、QQ聊天记录、销售记录台帐、发放工资的银行流水等资料，构建了完整的证据链条。检察官根据在案电子邮件、微信聊天记录等电子证据，结合供述、证人证言等言词证据，认为庄某某等三人明知销售的产品系假冒注册商标的商品，被告人姚某某以本人注册的公司名义招聘、雇用其从事假冒注册商标商品的贴牌、销售行为，分工明确、互相配合，共同实施的是既假冒注册商标又销售该假冒注册商标的商品的行为，遂改变定性，将全案以假冒注册商标罪提起公诉。 |
| In the course of applying the system for imposing lenient punishments on those confessing to their crimes and accepting punishments, the procurators deemed that the five defendants had different division of work and roles in the joint crime and the legal liabilities each of them assumed should also be different. As the organizer and implementor of the crime, Yao sought huge profits and should be liable for all criminal facts. Gu and other three sales personnel played minor roles and fell under minor criminal circumstances and should be given lighter punishments. The procurators publicly explained laws and policies to all defendants and their defenders, verified the communication details, and accurately raised sentencing proposals for multiple times, which has reflected the principle that the punishment should be commensurate with the crime and responsibility. Finally, all of the five defendants pleaded guilty and four of them signed the written recognizance to plead guilty and accept punishment. | | 本案在适用认罪认罚从宽制度过程中，检察官认为5名被告人在共同犯罪中的分工、作用各不相同，各人所需要承担的法律责任也应有所区分。姚某某是犯罪的组织实施者且获取巨额利润，应对全部犯罪事实承担责任，古某及3名主要销售人员，作用相对较小、犯罪情节相对较轻，应从轻处理。检察官经多次向各被告人及其辩护人宣讲法律政策、核实沟通细节，精准提出量刑建议，体现罪责罚相适应原则，最终5名被告人全部认罪，4人签署认罪认罚具结书。 |
| In the course of case handling, the procurators paid attention to notifying the right holders of their rights of action, conscientiously listened to the opinions of the infringed enterprises, responded to problems to which the infringed enterprises paid close attention, including the litigation progress, the finding of facts, and the conviction and sentencing for several times and in a timely manner, and ensured the exercise of their legitimate rights and open and transparent case handling. | | 办案过程中，检察官注重告知权利人诉讼权利，认真听取被侵权企业意见、多次及时回应被侵权企业密切关注的诉讼进展、事实认定、定罪量刑等问题，确保其合法权利的行使，做到案件办理公开透明。 |
| On September 6, upon designated jurisdiction by the superior procuratorate, the People's Procuratorate of Donggang District, Rizhao City instituted a public prosecution against Yao and four other persons. On December 12, the People's Court of Donggang District sentenced defendant Yao to a fixed-term imprisonment of four years, in addition to a fine of CNY5 million, sentenced defendant Gu to a fixed-term imprisonment of three years with suspended execution of four years, in addition to a fine of CNY250,000, and separately sentenced defendants Zhang, Zhuang, and Wei to a fixed-term imprisonment of two years and four months with suspended execution of three years, a fixed-term imprisonment of two years and two months with suspended execution of three years, and a fixed-term imprisonment of two years and eight months with suspended execution of three years, in addition to a fine on them, for committing a crime of counterfeiting registered trademarks. In the meantime, the People's Court of Donggang District ruled to confiscate the goods with counterfeit registered trademarks. After the judgment of first instance was pronounced, the aforesaid defendants did not appeal and the judgment took effect. | | 2019年9月6日，经上级院指定管辖，日照市东港区人民检察院对姚某某等5人提起公诉。12月12日，东港区人民法院以犯假冒注册商标罪，判处被告人姚某某有期徒刑四年，并处罚金五百万元；判处被告人古某有期徒刑三年缓刑四年，并处罚金二十五万元；分别判处被告人张某、庄某某、魏某某有期徒刑二年四个月缓刑三年、二年二个月缓刑三年、二年八个月缓刑三年，并处罚金。同时，判决扣押在案的假冒注册商标的商品予以没收。一审判决后，上述被告人均未上诉，判决已生效。 |
| III. Analysis and Comments | | 三、评析意见 |
| The criminal circumstances in this case are particularly serious mainly in the following three aspects: first, the infringed objects were “HP,” “CISCO,” “Huawei,” and other well-known registered trademarks at home and abroad; second, the duration for committing the crime lasted for four years; and third, the amount involved was particularly large. The procuratorial organ fully performed its duties, legally and severely punished the crime of infringement on intellectual property rights, and maintained China's international image of respecting and protecting intellectual property rights in the following aspects: | | 本案犯罪情节特别严重，主要体现在三个方面：一是本案侵权对象为“HP” “CISCO” “华为”等国内外知名注册商标；二是作案时间长达四年之久；三是涉案数额特别巨大。检察机关充分履行职责，依法严惩侵犯知识产权犯罪，维护了我国尊重和保护知识产权的国际形象。主要表现在： |
| First, the procuratorial organ improved the working methods, enhanced the case-handling efficiency, and shortened the time of detention before trial. The case-handling procurators did not return the case for supplementary investigation; instead, they insisted on using the working methods of “synchronous examination, synchronous supplementation of evidence, and synchronous communication and verification” and instituted a public prosecution within the time limit of prosecution of one and a half months, which has remarkably enhanced the case-handling efficiency, shortened the time of detention of defendant before trial, and effectively protected the procedural interests of defendant. | | 一是改进工作方法，提高办案效率，降低了审前羁押时间。办案检察官没有退回补充侦查，而是坚持同步审查、同步补证、同步沟通核实“三同步”工作法，在一个半月的审查起诉时限内提起公诉，显著提高了办案效率，减少了被告人在审前被羁押的时间，切实保护了被告人的程序性利益。 |
| Second, the procuratorial organ actively guided the taking of evidence, conducted intensive examination and research, and laid a sound foundation for prosecution. The procurators improved the evidence system by guiding the public security organ in improving evidence and supplementing 26 volumes of evidentiary materials; accurately determined the nature of the crime committed by the criminal suspect by appreciating minute differences and resolving doubts, and achieved high quality of prosecution. | | 二是积极引导取证，细致审查研判，夯实起诉基础。本案检察官通过引导公安机关完善证据，补充证据材料26册，完善了证据体系；通过辨微析疑，对犯罪嫌疑人所犯罪行准确定性，审查起诉质量高。 |
| Third, the procuratorial organ adhered to equal protection of lawful rights and interests of domestic and foreign holders of intellectual property rights. For all criminal facts involving the infringed registered trademarks, the procurators insisted on examination, guidance in supplementing evidence, and filing of a lawsuit according to equivalent standards, which is conducive to optimizing the business environment. | | 三是坚持平等保护中外知识产权权利主体的合法权益。检察官对所有涉及被侵权注册商标的犯罪事实，坚持同等标准审查、同等标准引导补证、同等标准起诉，有助于优化营商环境。 |
| Fourth, the procuratorial organ legally applied the system for imposing lenient punishments on those confessing to their crimes and accepting punishments and facilitated the closure of both the case and disputes. Since the rights of action of defendant and trademark owners were fully safeguarded at the early stage, domestic and foreign right holders raised no objection to the judgment and defendant did not appeal. The efforts of the procuratorial organ have effectively achieved the closure of both the case and disputes, saved the litigation costs, and realized the balance of impartiality and efficiency. | | 四是依法适用认罪认罚制度，促使案结事了。由于前期对被告人和商标权人诉讼权利保障充分，判决后，国内外权利人对判决结果均无异议，被告人也未上诉，切实做到案结事了，节约了诉讼成本，实现了公正与效率的平衡。 |
| Case No. 3 | | 案例3： |
| Protest Case of Counterfeiting Registered Trademarks by Gu in Chongqing | | 重庆古某某假冒注册商标抗诉案 |
| I. Facts of the Case | | 一、案件事实 |
| Shi Guang (middle name withheld), person-in-charge of Zhejiang Yongkang Lida Cutting Tools Factory (hereinafter referred to as “Lida Cutting Tools Factory”), obtained the registration certificate for the trademark “Ashima” issued by Trademark Office of the former State Administration for Industry and Commerce, with the term of validity to August 13, 2019 and the scope of application for registration of scissors, sickles, and gardening tools. On March 10, 2016, Shi Guang (middle name withheld) authorized Shi Meng (middle name withheld) from Lida Cutting Tools Factory to use the registered trademark “Ashima” for a long term. From 2018, for seeking illegal profits, without obtaining the permission to use the registered trademark of Lida Cutting Tools Factory, defendant Gu rented a workshop in Dazu District of Chongqing Municipality and produced and sold sickles with the counterfeit registered trademark “Ashima.” During the period, Gu sold 2,000 big crescent sickles and 3,600 small crescent sickles with the counterfeit registered trademark “Ashima” and the sales amount reached over CNY23,000 in total. On April 18, 2019, jointly with the Public Security Bureau of Dazu District, the Market Supervision and Administration Bureau of Dazu District seized over 23,000 small crescent sickles with the counterfeit registered trademark “Ashima” on the scene of the workshop rented by Gu, with the value of CNY90,000. | | 浙江省永康市利而达刀具厂负责人施某广经原国家工商行政管理总局商标局核发，获得“阿诗玛”商标注册证，注册有效时间至2019年8月13日，注册适用范围为剪刀、镰刀、园艺工具等。2016年3月10日，施某广授权利而达刀具厂施某梦长期使用“阿诗玛”注册商标。2018年以来，被告人古某某为非法牟利，在未取得利而达刀具厂注册商标使用许可的情况下，租用重庆市大足区一厂房，生产和销售假冒注册商标“阿诗玛”镰刀。期间，对外销售假冒的“阿诗玛”大月牙镰刀2000把、小月牙镰刀3600把，销售金额共计2.3万余元。2019年4月18日，重庆市大足区市场监督管理局会同大足区公安局，在古某某租赁的厂房内现场查获假冒注册商标“阿诗玛”的小月牙镰刀2.3万余把，价值9万余元。 |
| II. Proceedings | | 二、诉讼过程 |
| On April 18, 2019, Shi Guang (middle name withheld) filed a complaint with the Market Supervision and Administration Bureau of Dazu District, Chongqing Municipality and alleged that there were products with the registered trademark of “Ashima” produced and sold without authorization and permission in the jurisdiction of Dazu District. On the same day, after investigation, the Market Supervision and Administration Bureau of Dazu District transferred clues to the Public Security Bureau of Dazu District. The Public Security Bureau of Dazu District docketed the case for investigation on the ground that Gu was suspected of the crime of counterfeiting a registered trademark on the same day, executed criminal detention of Gu on the subsequent day, and submitted a request for approval of arrest. The procuratorial organ accurately grasped the fact proof standards and social hazard conditions and approved the arrest on May 24. On June 26, the Public Security Bureau of Dazu District transferred Gu for prosecution on the ground that Gu was suspected of the crime of counterfeiting a registered trademark. On September 3, upon conscientious preparation, the People's Procuratorate of Dazu District instituted a public prosecution and considering that defendant showed no repentance, it proposed that Gu should be sentenced to a fixed-term imprisonment of nine months, in addition to a fine of CNY80,000. On September 23, the People's Court of Dazu District sentenced Gu to a fixed-term imprisonment of nine months with suspended execution of one year, in addition to a fine of CNY80,000 for committing a crime of counterfeiting a registered trademark. On September 30, the People's Procuratorate of Dazu District instituted a protest on the grounds that probation was not applicable to defendant who failed to make compensation, was not forgiven by the victim, showed no repentance, and caused serious economic losses to the victim. On December 27, the No. 1 Intermediate People's Court of Chongqing Municipality adopted the protest opinions raised by the procuratorial organ, sentenced Gu to a fixed-term imprisonment of nine months, in addition to a fine of CNY80,000. The judgment took effect. | | 2019年4月18日，施某广向重庆市大足区市场监督管理局投诉称，在大足区辖区内有未经授权许可制造销售 “阿诗玛”注册商标的产品。同日，大足区市场监督管理局调查后向大足区公安局移送线索。大足区公安局于当日对古某某以涉嫌假冒注册商标罪立案侦查，次日对其刑事拘留，后提请批准逮捕。检察机关准确把握事实证明标准和社会危险性条件，于5月24日批准逮捕。6月26日，大足区公安局以古某某涉嫌假冒注册商标罪移送起诉。9月3日，大足区人民检察院经认真准备提起公诉，并针对被告人无悔罪表现的情况，建议判处有期徒刑九个月，并处罚金八万元。9月23日，大足区人民法院以假冒注册商标罪判处古某某有期徒刑九个月，缓刑一年，并处罚金八万元。9月30日，大足区人民检察院以被告人未赔偿、未取得被害人谅解、无悔罪表现、造成被害人严重经济损失而适用缓刑不当为由提出抗诉。12月27日，重庆市第一中级人民法院采纳检察机关抗诉意见，对古某某改判有期徒刑九个月，并处罚金八万元。该判决已生效。 |
| III. Analysis and Comments | | 三、评析意见 |
| Although this case is a “small” case, it is a model case where the judgment should be amended upon protest arising from improper application of probation in a crime of infringement on intellectual property rights. It has demonstrated the dual effects of the procuratorial organ in the judicial protection of intellectual property rights and realization of accurate supervision. For cracking down on crimes of infringements on intellectual property rights, the procuratorial organ should not only faithfully perform the duties of arrest examination and prosecution, but actively carry out litigation supervision so as to effectively protect the lawful rights and interests of right holders and effectively improve the quality and effect of legal supervision. In this case, the procuratorial organ instituted a protest according to the law, corrected the erroneous judgment arising from improper application of probation, assisted the private enterprise in building the baseline for legal and honest management based on the judicial case-handling, and advanced the sound development of private economy. | | 本案虽属一起“小”案件，但是一起侵犯知识产权犯罪适用缓刑不当经抗诉后予以改判的典型案例，彰显了检察机关对知识产权司法保护力度和实现精准监督的双重效果。打击侵犯知识产权犯罪，检察机关不仅要忠实履行审查逮捕、审查起诉职责，还要积极开展诉讼监督，从而有效保护权利人合法权益，切实提升法律监督质效。本案中，检察机关依法提出抗诉，纠正了适用缓刑不当的错误判决，还立足司法办案，帮助民营企业筑牢合法诚信经营底线，促进民营经济健康发展。 |
| (1) Listening to opinions from multiple parties and accurately raising sentencing proposals. In the phase of prosecution, the procurators conscientiously carried out investigation and paid visits, interrogated criminal suspects for several times, listened to opinions of defense lawyers, and consulted previous similar cases. After examining the entire case and conducting a comprehensive evaluation, the procurators deemed that Gu was capable of making compensation but he refused to do so and he was not forgiven by the victim entity, and it was necessary to detain him. Afterwards, the procuratorial organ instituted a public prosecution and proposed that defendant Gu should be given a substantial punishment. | | （一）听取多方意见，精准提出量刑建议。在审查起诉阶段，检察官认真开展调查走访，多次讯问犯罪嫌疑人，听取辩护律师意见，查阅既往类似判例，审查全案后综合评估认为古某某有赔偿能力而拒绝赔偿，未取得被害人谅解，有继续羁押必要，后将该案提起公诉，并建议判处被告人古某某实刑。 |
| (2) Intensifying research before instituting a protest and accurately raising protest opinions. After the judgment of first instance was entered, the procuratorial organ conscientiously checked the “three documents,” including the written prosecution opinion of the public security organ, the charging documentof the people's procuratorate, and the judgment of the people's court, listened to the opinions of the victim, carried out a special research before instituting a protest, instituted a protest on the ground that defendant fell under such circumstances for not applying probation that he seriously infringed on the intellectual property rights, he refused to make compensation while he was capable of doing so, and he showed no repentance, and the protest was upheld by the judgment entered by the court of second instance. The victim once excitedly said, “I have been tracing Gu for three or four years. The procuratorial organ offered me visible fairness and justice. It is too hard for small enterprises like me to safeguard rights. The protest instituted by the procuratorial organ is the maximum protection of small private enterprises and I also hope that more people will jointly safeguard the intellectual property rights through the case involving me.” | | （二）强化抗前研究，精准提出抗诉意见。一审判决后，检察院认真对照核查“三书”（公安机关起诉意见书、人民检察院起诉书、人民法院判决书），听取被害人意见，开展抗前专题研究，以被告人严重侵犯知识产权、能赔而拒赔、无悔罪表现等不应适用缓刑为由提出抗诉，获得二审法院判决支持。被害人激动地表示“我一直追踪古某某三四年了，是检察机关给了我看得见的公平和正义，我们小企业维权太艰辛了，检察机关的抗诉就是对我们小型民营企业最大的保护，同时我也希望能通过我的案件让更多的人一起共同维护知识产权”。 |
| (3) Accurately carrying out the offering of legal services to private enterprises in light of the case handling. Dazu District of Chongqing Municipality has won fame of “hometown of hardware” both at home and abroad and the protection of intellectual property rights appears to be particularly important. For such problems discovered in the case-handling that some private enterprises lack legal knowledge and have weak awareness in safeguarding rights and poor capability of safeguarding rights, the People's Procuratorate of Dazu District paid visits to some private enterprises, learned difficulties and appeals in the protection of intellectual property rights, organized procurators to offer legal services to the Internet e-Commerce Union and the Internet e-Commerce Association of Dazu District and other private enterprises, and advanced private enterprises and entrepreneurs to improve their awareness of safeguarding rights, grasp the methods for safeguarding rights, and build a baseline for legitimate and compliance management. | | （三）结合办案，精准开展送法进民企服务。重庆市大足区是驰名中外的五金之乡，知识产权保护显得尤为重要。针对办案中发现的一些民企法律知识缺乏、维权意识不强、维权能力欠佳问题，大足区人民检察院走访了一批民营企业，详细了解知识产权保护方面的困难和诉求，组织检察官为大足区互联网电子商务联合工会、互联网电子商务协会等民企送法上门，促使民营企业和企业家提高了维权意识，掌握了维权方法，筑牢了合法守规经营底线。 |
| Case No. 4 | | 案例4： |
| Non-prosecution Case of Selling Goods with Counterfeit Registered Trademarks by Zhang in Beijing | | 北京张某某销售假冒注册商标的商品不起诉案 |
| I. Facts of the Case | | 一、案件事实 |
| Beijing Oriental Yuhong Waterproofing Technology Co., Ltd. (hereinafter referred to as “Beijing Oriental Yuhong Company”) is a national quality construction materials system service provider. From March to April 2018, Zhang, a person who was not prosecuted (an individual business), purchased waterproof rolls with the registered trademark of Beijing Oriental Yuhong Company from others at a low price, stored them in a warehouse located in Zhangyi Village, Fengtai District, Beijing Municipality, and sold them in a store in Fengtai District (with the sales amount failing to be identified). On April 25, 2018, the public security organ seized a total of 570 pieces of waterproof rolls of two models with the registered trademark of Beijing Oriental Yuhong Company that have not been sold in the warehouse actually used by Zhang. It was identified that the aforesaid waterproof rolls were goods with a counterfeit registered trademark. It was evaluated that the value of the aforesaid waterproof rolls was CNY159,000. | | 北京东方雨虹防水技术股份有限公司（以下简称“北京东方雨虹公司”）是全国优质的建筑建材系统服务商。2018年3月至4月，被不起诉人张某某（个体工商户）从他人处低价购进带有北京东方雨虹公司注册商标的防水卷材，存储在北京市丰台区张仪村一仓库内，并在丰台区某店铺处对外销售（销售额无法查明）。2018年4月25日，公安机关从被不起诉人张某某实际使用的仓库内查获尚未销售的带有东方雨虹注册商标的两种型号的防水卷材共570卷。经鉴别，上述防水卷材均为假冒注册商标的商品。经评估，上述防水卷材的货值金额为15.9万元。 |
| II. Proceedings | | 二、诉讼过程 |
| On April 25, 2018, the Fengtai Branch of the Public Security Bureau of Beijing Municipality received a case reported by Beijing Oriental Yuhong Company, which alleged that someone sold goods with counterfeit registered trademark of the Company. On the same day, the Fengtai Branch legally docketed the case for investigation on the ground that Zhang was suspected of the crime of selling goods with a counterfeit registered trademark and executed criminal detention of Zhang on the following day. Afterwards, the People's Procuratorate of Fengtai District made a decision on not approving the arrest of Zhang by accurately grasping the criminal circumstances and social hazard conditions and Zhang was granted bail. On April 8, 2019, the Fengtai Branch transferred the case for prosecution on the ground that Zhang was suspected of the crime of selling goods with a counterfeit registered trademark. | | 2018年4月25日，北京市公安局丰台分局接到北京东方雨虹公司报案，称有人销售假冒其公司注册商标的商品。同日，丰台分局依法对张某某涉嫌销售假冒注册商标的商品案立案侦查，并于次日对其刑事拘留。后丰台区人民检察院准确把握犯罪情节和社会危险性条件，对其作出不批准逮捕决定，张某某被取保候审。2019年4月8日，丰台分局以张某某涉嫌销售假冒注册商标的商品罪移送起诉。 |
| After accepting the case, the People's Procuratorate of Fengtai District served the written notice of litigation rights and obligations upon the holder of the intellectual property right in a timely manner and listened to opinions of the right holder and its attorney for several times. Upon comprehensive examination, the People's Procuratorate of Fengtai District held a public hearing on May 21 and listened to and examined opinions of the person who was not prosecuted, the attorney of the intellectual property right holder, the lawyer on duty, and the special supervisor. After Zhang voluntarily pleaded guilty and accepted punishment, the procuratorial organ made a decision on non-prosecution and neither the person who was not prosecuted nor the intellectual property right holder raised an objection. The procuratorial organ also urged the person who was not prosecuted to voluntarily perform the civil compensation of CNY50,000 to the intellectual property right holder and came to an understanding with the right holder. After non-prosecution was decided, the People's Procuratorate of Fengtai District prepared and issued a written procuratorial opinion and decided to transfer the infringing act of the person who was not prosecuted to the Market Supervision and Administration Bureau of Fengtai District for examination and handling. On November 18, the Market Supervision and Administration Bureau of Fengtai District made an administrative penalty decision that the infringing goods of the person who was not prosecuted should be confiscated and a fine of nearly CNY800,000 should imposed on him. | | 丰台区人民检察院受理案件后，依法及时向知识产权权利人送达诉讼权利义务告知书，多次听取权利人及其诉讼代理人意见。经全面审查，丰台区人民检察院于5月21日召开公开听证会，听取并审查了被不起诉人、知识产权权利人诉讼代理人、值班律师、特约监督员等多方意见。张某某自愿认罪认罚后，检察机关对张某某作出相对不起诉决定，被不起诉人、知识产权权利人均未提出异议。检察机关还督促被不起诉人主动向知识产权权利人履行民事赔偿5万元，取得了权利人谅解。不起诉后，丰台区人民检察院制发检察意见书，将被不起诉人的侵权违法行为移送丰台区市场监督管理局审查处理。11月18日，丰台区市场监督管理局依法对被不起诉人作出了没收侵权商品，并罚款近80万元的行政处罚决定。 |
| III. Analysis and Comments | | 三、评析意见 |
| In this case, on the basis of strictly and legally handling the case, the procuratorial organ fully safeguarded the litigation right of the intellectual property right holder and the human right of the person who was not prosecuted, actively conducted the work of pleading guilty and accepting punishment and education and reformation, urged the person who was not prosecuted to actively make compensation and come to an understanding with the right holder, made a decision on non-prosecution after examining the opinions of all parties in the public hearing, and transferred the person who was not prosecuted to the administrative organ for investigating his liability for administrative violation. The efforts of the procuratorial organ have injected confidence and momentum for the sound development of private economy. | | 本案中，检察机关在严格依法办案的基础上，全面保障知识产权权利人诉讼权利和被不起诉人人权，积极做好认罪认罚和教育感化工作，促使被不起诉人积极赔偿并获得权利人谅解，公开听证审查各方意见后作出不起诉决定，并移送行政机关追究其行政违法责任，为民营经济健康发展注入了信心和动力。 |
| (1) The procuratorial organ accurately determined the amount involved in the crime and increased the costs for committing the crime. With respect to the sale prices of the seized products, Zhang stated that the sale prices of infringing products with two models were far lower than the market prices of the infringed products. Since there was only statement of Zhang, under the circumstance of lacking confirmation by the relevant evidence and in accordance with the provisions of Article 12 of the Interpretation on Several Issues concerning the Specific Application of Law for Handling Criminal Cases of Infringement on Intellectual Property Rights issued by the Supreme People's Court and the Supreme People's Procuratorate in 2004 that the amount of compensation should be calculated at the market median price of the infringed products where the actual sale price failed to be identified, it was finally determined that the value of the goods with the counterfeit registered trademark owned by the person who was not prosecuted that have not been sold was CNY159,000, which reflected the spirit of increasing the costs for committing the crime to some extent. | | （一）准确认定犯罪数额，提高违法犯罪成本。对于起获物品的销售价格，张某某供述两种型号的侵权产品售价均远低于被侵权产品市场价格，由于仅有张某某供述，在缺乏相关证据印证的情况下，按照2004年最高人民法院、最高人民检察院《关于办理侵犯知识产权刑事案件具体应用法律若干问题的解释》第十二条的规定，对于无法查明实际销售价格的，按照被侵权产品的市场中间价计算，最终认定被不起诉人尚未销售的假冒注册商标的商品货值金额为15.9万元，在一定程度上也体现了提高违法犯罪成本的精神。 |
| (2) The procuratorial organ actively applied the public hearing and made a decision on non-prosecution according to the law. The person who was not prosecuted was an individual business and he has been engaged in legal business activities of waterproof materials. He got confused temporarily and purchased the goods invovled. It was also found that such goods had apparent quality problems. Considering that the person who was not prosecuted was a first and casual offender, had a good attitude of confession, and fell under minor circumstances, the procuratorial organ legally carried out the work of pleading guilty and accepting punishment and education and reformation. Afterwards, the person who was not prosecuted voluntarily pleaded guilty and accepted punishment and took the initiative to compensate for losses to the right holder and come to an understanding with the right holder. In order to guarantee the case-handling effects, the procuratorial organ held a public hearing, listened to the opinions of the person who was not prosecuted, the intellectual property right holder, and other parties, and made a decision on relative non-prosecution according to the law by taking into full account of the entire case. | | （二）积极适用公开听证，依法作出不起诉决定。被不起诉人系依法注册登记的个体工商户，长期从事合法防水材料经营活动，因一时糊涂购进涉案商品，且未发现该商品存在明显质量问题，考虑到其系初犯、偶犯，认罪态度好，情节较轻，检察机关依法开展认罪认罚和教育感化工作，后被不起诉人自愿认罪认罚，主动赔偿权利人损失获得谅解。为保证案件效果，检察机关召开公开听证会，听取被不起诉人、知识产权权利人等多方意见，经综合全案，依法作出相对不起诉决定。 |
| (3) The procuratorial organ realized the seamless connection between administrative law enforcement and criminal justice and jointly punished the infringing acts. For the purpose of legally and severely cracking down on infringing and counterfeiting acts, after making a decision on non-prosecution, the procuratorial organ raised a procuratorial proposal to the Market Supervision and Administration Bureau of Fengtai District, transferred the illegal infringing act of the person who was not prosecuted to the administrative organ for examination and handling, and traced the subsequent handling in the whole process. Afterwards, the Market Supervision and Administration Bureau of Fengtai District legally made a decision on confiscating the infringing goods and imposing a fine. This case also became a successful case for the connection of administrative law enforcement and criminal justice. | | （三）实现行政执法与刑事司法无缝衔接，合力惩治侵权行为。为依法严厉打击侵权假冒行为，检察机关在作出不起诉处理决定后，及时向丰台区市场监督管理局提出检察意见，将被不起诉人的侵权违法行为移送行政机关审查处理，并全程跟踪后续办理情况，后丰台区市场监督管理局依法作出没收侵权商品并罚款的行政处罚决定，本案也成为两法衔接的成功案例。 |
| Case No. 5 | | 案例5： |
| Case of Selling Goods with Counterfeit Registered Trademarks by Deng in Jiangsu | | 江苏邓某某等销售假冒注册商标的商品案 |
| I. Facts of the Case | | 一、案情事实 |
| During the period from May 2017 to the beginning of January 2019, in collusion with defendant Zhang Jian (middle name withheld) (at large and handled in another case), defendant Deng sold over 21,000 pieces of products to defendant entity Shuangshan Food (Xiamen) Co., Ltd. (hereinafter referred to as “Shuangshan Food Company”) at the price of over CNY180 per piece (20 cases and five bars in each case) knowing that the instant coffee he purchased or held were those with counterfeit registered trademarks including “STARBUCKS” and “STARBUCKS VIA,” with the sales amount of over CNY3.8 million. | | 2017年5月至2019年1月初，被告人邓某某伙同张某建（在逃，另案处理）明知购入、持有的速溶咖啡为假冒“星巴克”“STARBUCKS VIA”等注册商标的商品，仍以每件（每件20盒，每盒5条）180余元的价格，将2.1万余件销售给被告单位双善食品（厦门）有限公司（以下简称“双善食品公司”），销售金额380万余元。 |
| From December 2017 to January 2019, after purchasing counterfeit “STARBUCKS” instant coffee products from Deng, in the name of “Shuangshan Food Company,” defendants Chen, Zhen Lian (middle name withheld), Zhang, and Zhen sold over 19,000 pieces of counterfeit “STARBUCKS” instant coffee to over 50 commercial tenants in Wuxi, Hangzhou, Shantou, Urumchi, and other 14 provinces by means of salesman selling and logistics delivery, with the sales amount of over CNY7.2 million. | | 2017年12月至2019年1月初，被告人陈某某、甄某连、张某某、甄某从邓某某处购入假冒“星巴克”速溶咖啡后以“双善食品公司”名义通过业务员推销、物流发货等方式，将1.9万余件假冒“星巴克”速溶咖啡销售给无锡、杭州、汕头、乌鲁木齐等全国18个省份50余家商户，销售金额共计720万余元。 |
| After the crime was exposed, the public security organ successively seized over 8,500 pieces of counterfeit “Starbucks” instant coffee from the workshop of Deng and the warehouse of Shuangshan Food Company, with the value of over CNY1.16 million. | | 案发后，公安机关先后在邓某某加工点、双善食品公司的仓库内查获假冒“星巴克”速溶咖啡8500余件，价值116万余元。 |
| II. Proceedings | | 二、诉讼过程 |
| On May 28, 2018, upon receipt of clues from the market regulatory department, the Xinwu Branch of the Public Security Bureau of Wuxi City, Jiangsu Province docketed this case for investigation and the People's Procuratorate of Xinwu District initiated the mechanism of synchronous review of docketing of cases involving intellectual property rights, conducted early intervention, and guided the evidence-taking. Afterwards, the arrest of Deng, Chen, and Zhen Lian (middle name withheld) was approved and Zhen was granted bail. On April 1, 2019, the Xinwu Branch of the Public Security Bureau of Wuxi City transferred Chen, Zhen Lian (middle name withheld), and Zhen for prosecution on the ground that they were suspected of the crime of counterfeiting registered trademarks and a crime of selling goods with counterfeit registered trademarks; on August 22, it transferred Deng for prosecution for the same suspected crimes. The People's Procuratorate of Xinwu District served the Notice of Litigation Rights and Obligations of Right Holders in Criminal Cases involving Intellectual Property Rights upon Starbucks Coffee Company in a timely manner. On June 18, the People's Procuratorate of Xinwu District required that the public security organ should supplement the transfer of Zhang for prosecution and Zhang was afterwards granted bail. On August 28, the public security organ supplemented the transfer of Zhang for prosecution. In the course of review and prosecution by the procuratorial organ, the five defendants all pleaded guilty and accepted punishments and under the assistance of the attorney on duty, they signed the Letter of Recognizance to Plead Guilty and Accept Punishment. On September 26, the People's Procuratorate of Xinwu District instituted a public prosecution on the ground that Shuangshan Food Company, Deng, Chen, and three other persons sold goods with counterfeit registered trademarks and it additionally determined that the amount invovled in the crime committed by Deng was CNY1.72 million and that in the crime committed by Shuangshan Food Company was CNY4 million. On December 18, the People's Court of Xinwu District entered a judgment that for selling goods with counterfeit registered trademarks, defendant entity Shuangshan Food Company should be fined CNY3.2 million; defendants Deng, Chen, and Zhen Lian (middle name withheld) should be sentenced to fixed-term imprisonments ranging from five years to four years and six months, in addition to fines ranging from CNY3 million to 2 million; defendant Zhang should be sentenced to a fixed-term imprisonment of two years with suspended execution of two years and three months, in addition to a fine of CNY180,000; Zhen should be sentenced to a fixed-term imprisonment of one year and nine months with suspended execution of two years, in addition to a fine of CNY100,000; and Zhang and Zhen were prohibited from engaging in business activities of producing and selling coffee during the probationary period. After the judgment of first instance was pronounced, the five defendants did not appeal and the judgment took effect. | | 2018年5月28日，江苏省无锡市公安局新吴分局接市场监督管理部门线索后对该案立案侦查，新吴区人民检察院启动知识产权案件立案同步审查机制，提前介入侦查引导取证。后邓某某、陈某某、甄某连被批准逮捕，甄某被取保候审。2019年4月1日，无锡市公安局新吴分局以双善食品公司、陈某某、甄某连、甄某涉嫌假冒注册商标罪、销售假冒注册商标的商品罪移送起诉；8月22日又对邓某某以涉嫌相同罪名移送起诉。新吴区人民检察院及时向星巴克公司送达《知识产权刑事案件权利人诉讼权利义务告知书》。6月18日，新吴区人民检察院要求公安机关补充移送起诉张某某，后张某某被取保候审。8月28日公安机关将张某某补充移送起诉。检察机关审查起诉过程中5名被告人均表示认罪认罚，在值班律师帮助下，签署了《认罪认罚具结书》。9月26日，新吴区人民检察院以双善食品公司及邓某某、陈某某等5人犯销售假冒注册商标的商品罪提起公诉，其中追加认定犯罪金额邓某某172万元、双善食品公司400万元。12月18日，新吴区人民法院以销售假冒注册商标的商品罪判处被告单位双善食品公司罚金三百二十万元；判处被告人邓某某、陈某某、甄某连等3人五年至四年六个月不等有期徒刑，并处三百万元至二百万元不等罚金；判处被告人张某某有期徒刑二年缓刑二年三个月，并处罚金十八万；判处甄某有期徒刑一年九个月缓刑二年，并处罚金十万元；禁止张某某、甄某在缓刑考验期内从事生产、销售咖啡的经营活动。一审判决后，五名被告人均未上诉，判决已生效。 |
| III. Analysis and Comments | | 三、评析意见 |
| The People's Procuratorate of Xinwu District, Wuxi City, Jiangsu Province conducted early intervention and guided investigation, solved challenges in cross-border evidence-taking, evidence-fixing, and determination of charges, prosecuted omitted crime and criminal offender according to the law, conducted targeted accusation of crimes, applied the system for imposing lenient punishments on those confessing to their crimes and accepting punishments, equally safeguarded the lawful rights and interests of foreign trademark holders, and ensured the “safety of every bite of food” for the public. | | 江苏省无锡市新吴区人民检察院提前介入引导侦查，破解跨境取证、固定证据、罪名认定等难题，依法追诉漏罪漏犯，精准指控犯罪，适用认罪认罚从宽制度，平等保护外国商标权利人合法权益，保障人民群众“舌尖上的安全”。 |
| (1) Conducting guidance in the “four” aspects by relying on the mechanism and laying a solid evidence foundation. Upon receipt of the clues from the Market Supervision and Administration Bureau, the procuratorial organ immediately initiated the mechanism of synchronous review of docketing of a case involving intellectual property rights, conducted early intervention and guided investigation, and raised opinions on further investigation in the following four aspects: First, the procuratorial organ guided the investigators in sampling and identifying coffee products in various batches and with different flavors, excluded the possibility of toxic and harmful food and counterfeit and inferior products, and thus determined that the alleged crime was sale of goods with counterfeit registered trademarks. Second, the procuratorial organ guided the investigators in ascertaining that the personnel selling counterfeit goods had subjective knowledge based on such objective evidence as electronic data and product appearance, and proposed that the verbal confessions of senior managers of the Company Chen and Zhen Lian (middle name withheld) should be first fixed so that the sales personnel were prohibited from denying their subjective knowledge on the ground of complete formalities of product sources and incapability of identifying the authenticity of the products. Third, the procuratorial organ guided the investigators in ascertaining whether the companies with which Deng and Chen separately worked had legal business so as to pave the way for accurately determining the crime committed by entities. Fourth, the procuratorial organ guided the investigators in tracing the source and dens producing the counterfeit products by means of taking the customs declaration forms and inspection and quarantine forms and caught both the criminal offenders and the products invovled. | | （一）依托机制“四”引导，筑牢证据根基。接到市场监督管理局移送线索后，检察机关立即启动知识产权案件立案同步审查机制，提前介入引导侦查，从四个方面提出继续侦查意见：一是引导侦查人员对多批次、不同口味的咖啡抽样鉴定，排除了有毒有害食品和伪劣产品的可能，从而确定涉嫌罪名是销售假冒注册商标的商品罪。二是引导侦查人员从电子数据、产品外观等客观证据查明售假人员主观明知，建议先固定公司高管陈某某、甄某连口供，避免了销售人员以商品来源手续齐备、无法辨识咖啡真伪为由否认主观明知。三是引导侦查人员查明邓某某、陈某某各自所在公司是否有合法业务，为准确认定单位犯罪做好铺垫。四是引导侦查人员通过调取海关报关单、检验检疫单等多种手段，跟踪溯源，追踪制假窝点，进而人赃俱获。 |
| (2) Intensifying litigation supervision and prosecuting an omitted crime. Although the customs declaration forms, false licensing document, and other documents of Shuangshan Food Company were confusing to some extent, upon intensive examination of electronic data, re-check of key witnesses, and comparison of confessions, the procurators determined that Zhang and other sales personnel once coordinated in the handling of tip-offs and complaints of consumers and removal of counterfeit goods from the shelves in supermarkets for several times and finally specified that they had the subjective intent of selling counterfeit goods knowing that they were counterfeit ones and prosecuted such persons according to the law. In light of the confessions of defendants and testimonies of witnesses, the procurators attached importance to the “thorough” examination of remittance records and account bills of the company and additionally determined the amount invovled in the crime. | | （二）强化诉讼监督，依法追诉遗漏犯罪。经检察官细致审查，虽然双善食品公司报关单、虚假授权等文件有一定迷惑性，但通过仔细查验电子数据、复核关键证人、比对供述细节，确定张某某等销售人员曾多次出面协调处置消费者举报投诉、超市销售商要求下架假货等情况，最终明确其具有知假售假的主观故意，并依法予以追诉。结合被告人供述和证人证言，重点对汇款记录、公司账单等客观证据进行“拉网式”审查，追加认定了犯罪金额。 |
| (3) Making good preparations for appearing in court as the public prosecutor and vigorously improving the court trial results. Although the system for imposing lenient punishments on those confessing to their crimes and accepting punishments was appliable in this case, it was difficult to control emergencies in the court trial. The procurators made full preparations before trial. In the court trial, the principal criminal offender Deng intended to withdraw his confession. The public prosecutors urged Deng to finally completely plead guilty in court by interrogation, testification, and explanation of possible consequences brought by the withdrawal of confession. | | （三）出庭公诉准备充分，有力提升庭审效果。本案虽适用认罪认罚从宽制度，但庭审突发情况难以掌控。检察官充分做好庭前准备工作，庭审中主犯邓某某欲翻供，公诉人通过讯问、举证、释明翻供可能导致的后果，促使其最终当庭彻底认罪。 |
| (4) Establishing the concept of equal protection and effectively safeguarding the lawful rights and interests of the right holders. After intervening in the investigation, the procurators actively guided the public security organ in conducting a “deep investigation” and assisted it in identifying the sources and eradicating the dens where counterfeit goods were sold. After accepting the examination and prosecution, the procurators served upon Starbucks Coffee Company the Notice of Litigation Rights and Obligations of Right Holders in Criminal Cases involving Intellectual Property Rights in both Chinese and English versions, conscientiously listened to the opinions of the right holder, and proposed that the right holder should dispatch personnel to participate in the litigation. In this way, the litigation rights of the right holder have been fully safeguarded. The efforts of the procurators in legally protecting intellectual property rights have won respect of Starbucks Coffee Company, actively provided cooperation in the issuance of the authentication certificate that the products involved and their packages were counterfeit goods, advanced the speedy handling of the case, fully safeguarded the rights and interests of the trademarks, and improved the litigation quality and efficiency. | | （四）树立平等保护理念，切实保障权利人合法权益。检察官介入侦查后积极引导公安机关“顺藤摸瓜”，帮助发现源头并铲除售假窝点。受理审查起诉后，检察官向星巴克公司送达中英文对照版《知识产权刑事案件权利人诉讼权利义务告知书》，认真听取权利人意见，并建议其派员出庭参加诉讼，权利人诉讼权利获得充分保障。检察官依法保护知识产权的举动，赢得星巴克公司尊重，并积极配合出具了该案所涉产品和包装系假冒商品的鉴定证明，推动案件快速办理，使商标权益获得到充分保障，提高了诉讼质效。 |
| Case No. 6 | | 案例6： |
| Protest Case of Selling Goods with Counterfeit Registered Trademarks by Gao and Other Persons in Fujian | | 福建高某某等销售假冒注册商标的商品抗诉案 |
| I. Facts of the Case | | 一、案件事实 |
| In December 2014, defendants Lin, Gao, and Tang jointly made investment and set up the Yinuo Cigarette and Liquor Store in Fuqing City. From April 2015 to June 2017, for the purpose of seeking illegal profit, knowing that the imported liquors sold by Lu and other persons (handled in another case) were high-grade liquors mixed with low-grade liquors (which were adulterated but not inferior), the three defendants still purchased a large amount of imported liquors with counterfeit registered trademarks including Chivas and Royal Salute at prices that were significantly lower than the market prices from the aforesaid personnel, with the sales amount of over CNY17 million. On June 21, 2017, the public security organ seized over 1,600 bottles of imported liquors with counterfeit registered trademarks including Chivas in the Yinuo Cigarette and Liquor Store and its warehouse. According to the confirmed actual sales prices, the value of the seized imported liquors amounted to over CNY1.4 million. It was appraised that the liquor products seized on the scene were products with counterfeit registered trademarks, but complied with the national quality standards. | | 2014年12月，被告人林某某、高某某、唐某某共同出资，在福清市开设伊诺烟酒店。2015年4月至2017年6月，3名被告人为牟取非法利益，明知陆某某（另案处理）等人销售的洋酒系在高档洋酒中掺入低档洋酒（假而不劣），仍从上述人员处以明显低于市场价格大量购进假冒的芝华士、皇家礼炮等注册商标的洋酒并予以销售，销售金额达人民币1700余万元。2017年6月21日，公安机关在伊诺烟酒店及仓库内扣押假冒芝华士等注册商标的洋酒1600余瓶。按照已查清的实际销售价格，被查扣洋酒价值140余万元。经鉴定，现场扣押的酒产品为假冒注册商标，但符合国家质量标准的产品。 |
| II. Proceedings | | 二、诉讼过程 |
| In the case handling, the Public Security Bureau of Fuqing City, Fujian Province identified that the Yinuo Cigarette and Liquor Store committed acts of selling counterfeit and inferior products and on June 22, 2017, it docketed the case for investigation. On July 3 and 27, defendants Gao, Tang, and Lin separately surrendered themselves. On September 27, the public security organ transferred the case to the People's Procuratorate of Fuqing City for prosecution on the ground that defendants Gao, Tang, and Lin were suspected of selling counterfeit and inferior products. Due to change in jurisdiction, the People's Procuratorate of Gulou District, Fuzhou City conducted examination and prosecution on November 24. | | 福建省福清市公安局在办案中发现伊诺烟酒店有销售伪劣产品行为，于2017年6月22日立案侦查。7月3日、27日，被告人高某某、唐某某、林某某分别投案。9月27日，公安机关以被告人高某某、唐某某、林某某涉嫌销售伪劣产品罪移送福清市人民检察院审查起诉。后因管辖变更，由福州市鼓楼区人民检察院于11月24日审查起诉。 |
| After examination, the procurators deemed that the imported liquors sold by defendants were high-grade imported liquors mixed with low-grade ones and whether such liquors fell under the circumstances of passing off the adulterated liquors as genuine ones and passing off the inferior liquors as high-quality ones as prescribed in Article 140 of the Criminal Law required further evidence. Therefore, the procurators actively guided the public security organ in the taking of evidence and 21 inspection reports were supplemented, proving that the imported liquors involved complied with the industrial quality standards. “Passing off the adulterated liquors as genuine ones and passing off the inferior liquors as high-quality ones” was an act of passing off products that do not have specific functional performance as those with such functional performance. In light of the identification certificates of the products invovled and other evidence, it was determined that the imported liquors involved complied with the industrial quality standards and were not counterfeit and inferior products. Therefore, the acts of defendants should be determined as a crime of selling goods with counterfeit registered trademarks. | | 经审查，检察官认为，被告人销售的洋酒系在正品洋酒中掺入了低档次洋酒，是否属于刑法第一百四十条规定的“以假充真、以次充好”仍需证据予以证明，遂积极引导公安机关取证，补充了21份检验报告，证明涉案洋酒符合行业质量标准要求。“以假充真、以次充好”本质上是以不具有某种使用性能的产品冒充具有该种使用性能的产品的行为，结合本案产品鉴定证明书等其他证据，认为涉案洋酒符合行业质量标准，不属于伪劣产品，故应当定性为销售假冒注册商标的商品罪。 |
On June 4, 2018, the People's Procuratorate of Gulou District instituted a public prosecution in the People's Court of Gulou District on the ground that defendants Gao, Lin, and Tang were suspected of the crime of selling goods with counterfeit registered trademarks, accused the three defendants of selling the products involved with the value of over CNY17 million and the value of the products invovled that were not sold amounted to over CNY1.4 million, and raised the sentencing proposals that the three defendants should be sentenced to fixed-term imprisonments ranging from five years and six months to six years, in addition to a fine.
．．．．．． | | 2018年6月4日，鼓楼区人民检察院以被告人高某某、林某某、唐某某犯销售假冒注册商标的商品罪向鼓楼区人民法院提起公诉，指控3人销售金额为1700余万元，未销售金额为140余万元，对三名被告人均提出在五年六个月至六年幅度内判处有期徒刑，并处罚金的量刑建议。
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