This morning (29th), the "Le Pin" counterfeit "Lego" case involving an amount of up to 330 million yuan was finally dropped at the Shanghai Higher People's Court, and the court rejected the appeal of Li Mou and others and upheld the original judgment. According to the original judgment, Li was sentenced to 6 years' imprisonment and fined 90 million yuan for copyright infringement; the remaining 8 defendants were sentenced to fixed-term imprisonment ranging from 4 years and 6 months to 3 years, and fined accordingly.
Liu Xiaoyun, president of the Shanghai Higher People's Court, served as the presiding judge of the case
The case was heard by a collegial panel composed of Liu Xiaoyun, president of the Shanghai Higher People's Court, Liu Junhua, president of the Intellectual Property Division, and Luo Kaijuan, vice president of the Criminal Division, with Liu Xiaoyun as the presiding judge. The Shanghai Municipal People's Procuratorate assigned Chief Procurator Zhang Bencai, Director of the Fourth Procuratorial Department Hu Chunjian, and Procurator Lu Chuan to appear in court to perform their duties.
Zhang Bencai (first from right), chief procurator of the Shanghai Municipal People's Procuratorate, appeared in court to perform his duties
Counterfeit "Lego" was prosecuted
In June 2011, Li founded Guangdong MeizhiZhijiao Technology Co., Ltd., which is engaged in toy research and development, production and sales. In 2015, he found that he had friends around him who made the building block toy industry very profitable. However, for this new business with promising market prospects, Li did not take the road of "independent research and development", but "aimed" at the well-known toy brand "Lego".
Since 2015, without the permission of LEGO, Li and Yan and 8 other people have purchased new LEGO series toys, set up a toy production factory through dismantling research, computer modeling, copying drawings, entrusting others to open molds, etc., specifically copying LEGO assembly building block toy products, and then titled "Le Pin" brand, through online, offline and other ways.
The picture shows the chat records of Li and others
On April 23, 2019, the Shanghai Municipal Public Security Bureau seized injection molds used to copy Lego toys, spare parts for assembling molds, various packaging boxes, instruction manuals, sales shipment lists, related computers, mobile phones, and "Lego" toy products that copied lego series in the factory rented by Li.
According to the copyright appraisal committee of the China Copyright Protection Center, the "Great Wall of China", "PRIMITIVE TRIBE", "FAIRY TALE" and "TECHNICIAN" toys of LEGO are respectively the "Great Wall of China", "THE FLINTSTONES", "DISNEY PRINCESS" and "ALL Terrain Tow Truck" of LEGO. Toys are basically the same and constitute a copy relationship. The NINJAG Thunder Swordsman album is the same as LEGO's NINJAGO Masters of Spinjitzu album and constitutes a copy relationship.
At the same time, the Accounting Appraisal Opinion also shows that from September 11, 2017 to April 23, 2019, Li and others produced and sold more than 4.24 million boxes of infringing products, involving 634 models, totaling more than 300 million yuan. On April 23, 2019, more than 600,000 boxes of infringing products to be sold were seized in relevant warehouses, involving 344 models, totaling more than 30.5 million yuan.
On September 2 this year, after trial, the Shanghai No. 3 Intermediate People's Court held that defendant Li Mou and nine other people copied and distributed LEGO's copyrighted works of art for the purpose of making profits without the permission of the copyright owner, and the circumstances were particularly serious, and their acts had constituted the crime of copyright infringement. Consider that some defendants have circumstances such as accessories, voluntary surrender, meritorious service, and confession, and are to be given a lenient punishment. After the first-instance judgment was pronounced, Li, Yan, Zhang, Wang, Du and Lu were not satisfied and appealed.
Courts severely punish copyright crimes
During the second-instance trial, the prosecution and defense debated around such issues as "whether the infringed assembled toys of LEGO Company are works of art", "whether the amount of illegal business operations committed by Li and others for copyright infringement is correct", "whether this case is a crime committed by a unit", and "whether the original sentence is appropriate".
"Fine art works refer to paintings, calligraphy and paintings and other aesthetically significant modeling works, Lego embodies the meaning of assembly, and there is no basis for defining assembled toys as fine art works in this case." Wang's defender said at the trial. Li believes that the amount of the crime determined by the first instance did not take into account the situation of sales returns and customer rebates, so he had objections. Yan proposed that "this case should be identified as a crime committed by the unit". In addition, the six appellants and their defenders all said that the first instance trial was "too heavy".
The picture shows lego products (left) and Lego products (right)
After trial, the Shanghai Higher People's Court held that, according to the relevant laws and regulations of the Copyright Law, "fine art works refer to paintings, calligraphy, sculptures and other works of aesthetically meaningful flat or three-dimensional plastic arts that are composed of lines, colors or other means". In this case, a total of 663 assembled three-dimensional models were infringed, and the expressions carried by these three-dimensional models were independently created by Lego Company, with originality and unique aesthetic significance, so the assembled three-dimensional toys belonged to the category of fine art works protected by China's copyright law.
As for the calculation of the amount of illegal business, the Shanghai Higher People's Court held that the original judgment combined with the Accounting Appraisal Opinion and relevant evidence to find that the amount of illegal business operations committed by Li Mou and others for copyright infringement crimes was more than 330 million yuan, which should be confirmed. Although Li and his defender submitted that the original judgment did not consider the sales return and customer rebates, which affected the determination of the amount of illegal business, there was no evidence to confirm it, so the court did not accept it.
At the same time, according to the provisions of the Criminal Law, unit crime refers to the crime of committing crimes in the name of the unit and the illegal proceeds are mainly attributable to the unit. In this case, the reproduction of Lego toys was decided by the main offender Li Mou, and each accessory division of labor was responsible for implementation. From the perspective of production and sales, the counterfeit Lego toys are produced and operated in the name of the Lihao Toy Factory, which has been written off. Moreover, from the details of the bank account, the income and expenditure of the production and sale of Lepin toys are entered and exited through the personal accounts of outsiders, the illegal gains do not belong to the relevant units, and the wages received by the defendants are paid in cash, so this case belongs to the gang crime and does not meet the requirements of the unit crime.
As for the issue of sentencing, the Shanghai Higher People's Court held that, according to the Criminal Law and relevant judicial interpretations, the acts of Li and others constitute copyright infringement and belong to "other particularly serious circumstances", and should be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and fined, and the amount of fines is generally not less than one times but not more than five times the illegal gains, or determined according to 50% to more than one times the amount of illegal business. Considering that this case not only caused major losses to the goodwill and economic interests of the right holder, but also undermined the market economic order and had serious social harm, it should be severely punished according to law. The court of first instance made the original judgment in light of the fact that some of the defendants had the circumstances of an accessory, voluntary surrender, meritorious service, confession, etc., and there was no impropriety.
Accordingly, the Shanghai Higher People's Court rendered a final judgment, rejecting the appeals of Li and six others and upholding the original judgment.
Column Editor-in-Chief: Wang Haiyan Text Editor: Wang Xianle
Source: Author: Wang Xianle Gao Yuan