How to judge infringement of intellectual property rights and how to impose fines

The amount of fines in crimes of infringement of intellectual property rights shall be determined by comprehensively considering circumstances such as the unlawful gains of the crime, the amount of illegal business operations, the losses caused to rights holders, and the harm to society. Fines refer to the method of punishment that compels the offender to pay a certain amount of money to the state.

[Legal basis].Article 52 of the Criminal Code.

When a fine is given, the amount of the fine shall be determined on the basis of the circumstances of the crime.

Article 53.

The fine shall be paid in a lump sum or in instalments within the time limit specified in the judgment. If the payment is not made at the expiration of the time limit, the payment shall be compulsory. Where the fine cannot be paid in full, the people's court shall recover it at any time if it discovers that the person subject to enforcement has property that can be enforced.

Where there is genuine difficulty in making payments due to irresistible disasters or other reasons, upon the people's court's ruling, payment may be postponed, reduced or waived as appropriate.

Legal Analysis: The crime is a fine penalty, and the people's court shall comprehensively consider the circumstances of the crime, such as the unlawful gains of the crime, the amount of illegal business operations, the losses caused to the rights holder, and the degree of harm to society, and sentence a fine in accordance with law. The amount of the fine is generally between 1 and 5 times the amount of the unlawful gains, or is determined in accordance with 50% to 1 time of the amount of the illegal business operation.

Legal basis: "Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights (Ershensun)" Article 4: Where crimes of infringement of intellectual property rights are committed, the people's courts shall comprehensively consider circumstances such as the unlawful gains of the crime, the amount of illegal business operations, the losses caused to the rights holder, and the harm to society, and sentence a fine in accordance with law. The amount of the fine is generally between 1 and 5 times the amount of the unlawful gains, or is determined in accordance with 50% to 1 time of the amount of the illegal business operation.

Where the property rights of the offender are infringed, the people's court shall comprehensively consider the circumstances of the crime, such as the unlawful gains, the amount of illegal business operations, the losses caused to the rights holder, and the harm to society, and give a fine in accordance with law. The amount of the fine is generally between 1 and 5 times the amount of the illegal gains, or is determined according to 50% to 1 time of the amount of the illegal business.

According to Article 4 of the Interpretation (II) of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights, "the people's court shall impose a fine in accordance with law by comprehensively considering the illegal gains of the crime, the amount of illegal business, the losses caused to the right holder, and the harm to society." The amount of the fine is generally between 1 and 5 times the amount of the illegal gains, or is determined according to 50% to 1 time of the amount of the illegal business.

The court considers the following factors when determining the penalty of fine:

1.unlawful gains;

2.the amount of illegal excavation;

3.Losses caused to the right holder;

4.social harm;

5.Other. There are two ways to calculate the amount of the fine:

1.Illegal gains are the base amount, between 1 and 5 times;

2.The amount of illegal business is the base number, and it is between 50% and 1 time.

It can be seen that the Interpretation gives judges different calculation methods and a basis for simplifying the facts, and judges can choose different calculation methods according to the actual circumstances of a specific case.

1) Counterfeiting of registered trademarks.

According to Article 213 of the Criminal Law, without the permission of the owner of the registered trademark, the use of a trademark identical to the registered trademark on the same kind of goods, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention and/or a fine; where the circumstances are especially serious, the sentence is between three and seven years imprisonment and a concurrent fine.

2) The crime of selling goods with counterfeit registered trademarks.

According to Article 214 of the Criminal Law, a person who sells goods that he knows to be counterfeit registered trademarks, and the amount of the sales is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention and/or a fine; where the amount of sales is huge, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.

3) The crime of illegally manufacturing or selling illegally manufactured registered trademark logos.

According to article 215 of the Criminal Law, whoever forges or manufactures another person's registered trademark logo without authorization, or sells a counterfeit or unauthorized registered trademark logo, and the circumstances are serious, shall be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine; where the circumstances are especially serious, the sentence is between three and seven years imprisonment and a concurrent fine.

4) Counterfeiting of patents.

According to article 216 of the Criminal Law, whoever counterfeits another person's patent, and the circumstances are serious, is to be sentenced to fixed-term imprisonment of not more than three years or short-term detention and/or a fine.

5) Crimes of copyright infringement.

According to article 217 of the Criminal Law, whoever infringes on copyrights in any of the following circumstances for the purpose of making profits, and where the amount of unlawful gains is relatively large or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention and/or a fine; where the amount of unlawful gains is huge or there are other especially serious circumstances, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.

1) Without the permission of the copyright owner, reproduce and distribute its written works, films, television, video works, computer software and other works;

2) Publishing books for which others have exclusive publishing rights;

3) Reproducing and distributing audio or video recordings produced by the producer without the permission of the producer of the audio or video recording;

4) Producing or counterfeiting works of art signed by others.

6) The crime of selling infringing copies.

According to article 218 of the Criminal Law, for the purpose of profit, whoever sells copies that are clearly known to be infringing as provided for in article 217 of this Law, and the amount of unlawful gains is huge, is to be sentenced to up to three years imprisonment or short-term detention and/or a fine.

7) Infringement of trade secrets.

According to article 219 of the Criminal Law, whoever infringes on any of the following imitative trade secrets, causing major losses to the rights holder of the trade secrets, is to be sentenced to up to three years imprisonment or short-term detention and/or a fine; where especially serious consequences are caused, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.

1. Obtaining the right holder's trade secrets by theft, inducement, coercion or other improper means;

2. Disclosing, using, or allowing others to use the rights holder's trade secrets obtained by means of the preceding paragraph;

3. Illegally agreeing or violating the rights holder's requirements for keeping trade secrets, disclosing, using, or allowing others to use the trade secrets in their possession.

Infringement of intellectual property rights is punishable by imprisonment. For example, if the perpetrator uses a trademark identical to his registered trademark on the same kind of goods without the permission of the owner of the registrar's hidden mark, and the circumstances are severe, the court shall give a sentence of up to three years imprisonment or short-term detention and/or a fine.

[Legal basis].

Article 213 of the Criminal Law of the People's Republic of China: Whoever, without the permission of the owner of the registered trademark, uses a trademark identical to the registered trademark on the same kind of goods, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention and/or a fine; where the circumstances are especially serious, the sentence is between three and seven years imprisonment and a concurrent fine. Article 214:Whoever sells goods that he knows to be counterfeit registered trademarks, and the amount of the sales is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention and/or a fine; where the amount of sales is huge, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.