The content of this issue is a qualitative case of buying and selling test vehicles, welcome to follow, discuss and share.
Gong Xiewei
Case writing
Deputy Chief Judge of the Case Filing Division of the Yiyang Intermediate People's Court
Li Jie
Case writing
Vice President of the Criminal Division of the People's Court of Ziyang District, Yiyang City
Case Awards
Excellence Award for 2022 Outstanding Case Analysis and Selection of the National Court System
Case index
First instance: Heshan District People's Court of Yiyang City, Hunan Province (2021) Xiang 0903 Xingchu No. 619
Second instance: Intermediate People's Court of Yiyang City, Hunan Province (2022) Xiang 09 Xingzhong No. 160
Summary of the trial
The key to characterizing the act of buying and selling a test vehicle lies in whether the actor has carried out other acts and what kind of acts he has carried out in the process of buying and selling. If the actor commits other acts in order to help the test vehicle to be successfully licensed, such as forging or purchasing forged vehicle certificates and vehicle nameplates printed with registered trademarks, he shall be convicted of the crime of counterfeiting registered trademarks, and if the perpetrator only sells test vehicles with counterfeit registered trademarks and vehicle nameplates, he shall be convicted of the crime of selling goods with counterfeit registered trademarks. If the perpetrator only sells the test vehicle and does not carry out any other acts, according to the principle of the law of crime and the modesty of the criminal law, it should not be punished as a trademark crime, but the necessary administrative punishment may be imposed.
Since the second half of 2018, without the permission of the owners of the registered trademarks "Volkswagen" and "Audi", the defendant Li has sold the test vehicles purchased at low prices by tampering with the frame number of the motor vehicle, purchasing forged vehicle certificates, nameplates, etc., and by the time of the case, Li had sold a total of 5 test vehicles to Yiyang, with an illegal business amount of 465,000 yuan. Without obtaining the authorization and permission of the owners of the registered trademarks "Volkswagen" and "Audi", the defendant Yang repeatedly purchased Volkswagen and Audi series test vehicles from Li, and required Li to tamper with the frame numbers used without registration on the vehicles, provide forged "Volkswagen" and "Audi" vehicle qualification certificates and other relevant formalities, and go to the vehicle management office to handle vehicle registration for the above-mentioned vehicles by himself or arrange for personnel. Defendant Gong purchased an Audi Q3 test vehicle with a tampered frame number and forged "Audi" vehicle certificate and nameplate from Li through Yang's introduction, and resold the car through a friend's introduction.
The Heshan District People's Court of Yiyang City rendered the (2021) Xiang 0903 Xingchu No. 619 Criminal Judgment: Defendant Li was sentenced to four years and six months imprisonment and a fine of RMB 30,000 for the crime of counterfeiting a registered trademark, defendant Yang was sentenced to three years and six months imprisonment and a fine of RMB 20,000, and defendant Gong was sentenced to one year imprisonment and a fine of RMB 10,000 for the crime of selling goods with counterfeit registered trademarks.
After the verdict was announced, Li appealed on the grounds that the characterization was wrong, the factual evidence was insufficient, and the sentence was too heavy. The Yiyang Intermediate People's Court rendered the (2022) Xiang 09 Xingzhong No. 160 Criminal Ruling: rejecting the appeal and upholding the original judgment.
Defendants Li and Yang used trademarks identical to their registered trademarks on the same kind of goods without the permission of the owner of the registered trademarks, and the circumstances were particularly serious, and their acts constituted the crime of counterfeiting registered trademarks;
Mr. Li and his defender argued that Mr. Li only sold the vehicle, did not assemble the vehicle, or forged the nameplate and certificate of conformity, so there was no use of the trademark, and his act did not constitute the crime of counterfeiting a registered trademark. After investigation, Li purchased the test car many times, and in order to achieve the purpose of selling the test car and successfully illegally registering the vehicle, he carried out acts such as changing the frame number and purchasing forged vehicle nameplates and certificates. The act of "using" a trademark in the crime of counterfeiting a registered trademark refers to the use of a trademark in the production and publicity of goods, while the act of "selling" in the crime of selling goods with counterfeit registered trademarks is relatively simple, mainly referring to the business activities of selling goods. In this case, Li's purchase of forged vehicle nameplates and certificates for the purpose of successfully selling test vehicles should be regarded as the use of trademarks in the production and publicity of goods, rather than just "selling" vehicles. Therefore, it was not improper to find that Li's conduct constituted the crime of counterfeiting a registered trademark in the first instance.
The test vehicle is a vehicle used to test all aspects of the performance of the vehicle before the mass production of the vehicle, without vehicle certificate, vehicle nameplate, etc. However, in practice, in order to seek illegal benefits, some lawbreakers try to "create" conditions that can be used for buying and selling some brand test vehicles, so that the test vehicles can be successfully licensed, and the transaction price is much lower than the market price of normal vehicles. It is often difficult to distinguish between the crime of producing and selling fake and shoddy products, the crime of counterfeiting registered trademarks, and the crime of selling goods with counterfeit registered trademarks. In trial practice, it is necessary to characterize various types of conduct in light of the specific circumstances of the case and make accurate judgments.
1. Nature of the act: The boundary between the crime of counterfeiting a registered trademark and the crime of selling goods with a counterfeit registered trademark
The crime of counterfeiting a registered trademark refers to the act of using a trademark identical to the registered trademark on the same goods or services without the permission of the registered trademark owner. The crime of selling goods with counterfeit registered trademarks refers to the act of selling goods that are known to be counterfeit registered trademarks. Both crimes are crimes of infringement of intellectual property rights, and from the interpretation of the law, it is not difficult to distinguish between the two crimes, but in specific judicial practice, it is often because the act of "using" a trademark in the crime of counterfeiting a registered trademark may also cover the act of "sale", or there is a dispute over the nature of the stage of the act of "using" the trademark, that is, there are different understandings of whether the act of "using" the trademark occurs in the process of production or the sales process of goods, which can easily lead to differences in the characterization of the crime of counterfeiting a registered trademark and the crime of selling goods with counterfeit registered trademarks. Whether the defendant's conduct in this case should be convicted of the crime of counterfeiting a registered trademark or the crime of selling goods with a counterfeit registered trademark has the following issues in the application of law and the determination of facts.
First of all, there is the determination of "use" and "sale". There is a view that the characterization of the crime of counterfeiting registered trademarks and the crime of selling goods with counterfeit registered trademarks is related to the time node of "use" of counterfeit registered trademarks, and the "use" in the crime of counterfeiting registered trademarks should refer to the "acts that occur in the production of goods", and if the "use" acts occur in the sales process, the crime of selling goods with counterfeit registered trademarks should be convicted. This is the view held by the defender in this case. According to Article 8 of the Interpretation 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 (hereinafter referred to as the "Interpretation"), "use" as provided for in Article 213 of the Criminal Law refers to the use of registered trademarks or counterfeit registered trademarks in commodities, commodity packaging or containers, product manuals, and commodity transaction documents, or the use of registered trademarks or counterfeit registered trademarks in advertising, exhibitions and other commercial activities. Therefore, according to the above-mentioned judicial interpretation, the "use" of a registered trademark in the crime of counterfeiting a registered trademark may not only occur in the production of goods, but also the use of a trademark in the sales process such as advertising and exhibition also constitutes the crime of counterfeiting a registered trademark. On the other hand, the term "sale" as provided for in Article 214 of the Criminal Law should refer only to the business activities of selling commodities as commonly understood. If any other act of using a registered trademark is carried out for the purpose of selling goods, it shall be convicted of the crime of counterfeiting the registered trademark.
Taking this case as an example, the defendant Gong purchased an Audi Q3 test car from the defendant Li that had tampered with the frame number and forged the vehicle certificate and nameplate and then sold it, and he only carried out the act of buying and selling, and it was not improper for him to be convicted of the crime of selling goods with counterfeit registered trademarks. As far as defendants Li and Yang are concerned, they changed the frame number and purchased forged printed "Volkswagen" and "Audi" The above-mentioned acts are not only the sale of goods with counterfeit registered trademarks, but also the purchase of vehicle certificates and vehicle nameplates with counterfeit registered trademarks make the test vehicle seem to have the necessary conditions that can be used for trading and objectively achieve the results of smooth transactions. The "use" of a registered trademark as stipulated in the Interpretation shall be convicted and punished as the crime of counterfeiting a registered trademark.
Second, whether the act of purchasing a certificate of conformity with a printed trademark is equivalent to "using" the trademark. This question actually contains two layers of logic, one is whether printing a trademark on the commodity certificate is a use of a trademark, and the other is whether only buying a certificate of conformity with a printed trademark is a use of a trademark.
Regarding whether printing a trademark on the merchandise certificate is a trademark of use. According to Article 48 of the Trademark Law, "the use of a trademark as used in this Law refers to the use of a trademark on goods, commodity packaging or containers, and commodity transaction documents, or the use of a trademark in advertising, exhibitions and other commercial activities to identify the source of goods." It can be seen from this that the "use" of trademarks in the Trademark Law is consistent with the provisions of the Interpretation, that is, the use of trademarks includes not only the use of trademarks on goods, commodity packaging or containers, and commodity transaction documents, but also the use of trademarks in advertising, exhibitions and other commercial activities. As a necessity required for the transaction, the commodity certificate should belong to the commodity transaction documents in the above provisions, so printing the trademark on the certificate has the same function as using the trademark on the goods to identify the source of the goods, and it is an act of using a trademark.
However, judging from the provisions of the Trademark Law and the Interpretation, the key to judging whether a trademark is a trademark is used is to use the trademark in the production of goods or in the promotion and exhibition of sales of goods. As mentioned above, although the act of printing the trademark on the certificate in this case was not done by Li, he purchased the certificate of conformity for counterfeiting the registered trademark and used the certificate, and his behavior made the test vehicle appear to have the conditions for trading. Therefore, Li's act of purchasing the certificate printed with the trademark and using the certificate can be said to have subjectively the intention of counterfeiting the registered trademark, that is, he purchased it knowing that the certificate was forged and that the printed trademark on the certificate was an act of counterfeiting the registered trademark, and objectively used the forged certificate to complete the test vehicle transaction and achieved the effect of the transaction, so according to the principle of subjective and objective consistency, his behavior should be understood as the use of the trademark in commercial activities such as commodity production or advertising in the above-mentioned laws and judicial interpretations, and should be found to be the crime of counterfeiting trademarks as the act of using the trademark on the goods or the commodity certificate。
2. Substantive criteria: the distinction between the crime of counterfeiting registered trademarks and the production and sale of counterfeit and shoddy products
The crime of producing and selling counterfeit and shoddy products refers to the adulteration or adulteration of products by producers and sellers, passing off fake products as genuine, shoddy products, or substandard products as qualified products. The crime of counterfeiting registered trademarks and the crime of producing and selling counterfeit and shoddy products are both crimes of undermining the order of the market economy and the society, but the object of infringement is obviously different. The object of infringement of the crime of counterfeiting a registered trademark is the state's management system for trademarks and the exclusive right to use trademarks of trademark owners, while the objects of infringement of the crime of selling counterfeit and shoddy products are the state's quality management system for products and the legitimate interests of consumers. Due to the different objects of violation, the two crimes are not only different in the objective aspect of the crime, but also in terms of the goods themselves.
From the objective side of the crime. As mentioned above, the objective aspect of the crime of counterfeiting a registered trademark is mainly the act of using a trademark to identify the source of a commodity in the production or trading of goods without permission. Therefore, the focus of this crime is on the evaluation of the act, rather than the evaluation of the goods themselves, that is, regardless of whether the quality of the goods is qualified, as long as there is an act of using a trademark as provided for in Article 213 of the Criminal Law, it constitutes the crime of counterfeiting a registered trademark. Article 1 of the Interpretation 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 the Production and Sale of Counterfeit and Shoddy Commodities (hereinafter referred to as the "Judicial Interpretation on Handling Criminal Cases of the Production and Sale of Counterfeit and Shoddy Goods") stipulates that "adulteration or adulteration in products" as provided for in Article 140 of the Criminal Law refers to the adulteration of impurities or foreign substances into products, resulting in product quality that does not conform to national laws. Laws and regulations or products clearly indicate the quality requirements specified in the quality standards, reducing or losing the performance of the application. (1) This article gives detailed explanations to "fake as true", "shoddy products" and "substandard products", and clearly stipulates that if it is difficult to determine the above-mentioned acts specified in this article, the product quality inspection institutions stipulated in laws and administrative regulations shall be entrusted for appraisal. Therefore, it can be seen from the provisions of the above-mentioned judicial interpretation that the crime of producing and selling counterfeit and shoddy products not only stipulates the criminal acts, but also makes substantive judgments on the standards of counterfeit and shoddy products. According to the Judicial Interpretation on the Handling of Criminal Cases Involving the Production and Sale of Counterfeit and Shoddy Goods, the criterion for judging the substance of counterfeit products is whether they have the quality and performance of the counterfeit products. Goods with counterfeit registered trademarks do not necessarily meet the quality requirements of the product or do not have the proper performance of the product, that is, they are not necessarily counterfeit and shoddy products, therefore, the act of constituting the crime of counterfeiting a registered trademark does not necessarily constitute the crime of producing and selling counterfeit and shoddy products.
Specifically, in this case, as far as the quality of the vehicle itself is concerned, the test vehicle, like the vehicle in normal trading, was produced by a regular manufacturer in accordance with relevant standards, and without appraisal, it is impossible to determine whether the test vehicle involved in the case is a product that does not meet the quality requirements, or is inferior to the normal vehicle in terms of performance. Therefore, on the premise that the test vehicle is a counterfeit or shoddy product without the identification of the relevant product quality inspection agency, the act of selling the test vehicle cannot be convicted of the crime of producing and selling fake and shoddy products.
3. Extended thinking: whether the act of selling test vehicles constitutes the crime of illegal business operation
The test vehicle is a vehicle used for testing, and the sale of the test vehicle is obviously an act of illegal business operation, but if there is no such act as the above-mentioned crime of counterfeiting a registered trademark or selling goods with a counterfeit registered trademark and does not constitute the crime of producing or selling counterfeit and shoddy products, can it be convicted and punished as the crime of illegal business operation (2)? Judging from the provisions of Article 225 of the Criminal Law, the act of selling the test vehicle obviously does not belong to the illegal business operation listed in items (1) to (3) of this article, and can the catch-all provisions in item (4) be applied to convict it? The author believes that the principle of legality and moderation of criminal law should be followed, and it is not appropriate to convict the crime of illegal business operation. The specific analysis is as follows:
First of all, the word meaning of the law is analyzed. The "law" in the provisions on "illegal business operation" in the Criminal Law refers to laws and administrative regulations, that is, only those who operate in violation of the relevant provisions of laws and administrative regulations can constitute the crime of illegal business operation. According to the principle of criminal law and moderation of criminal law, business activities that violate local regulations and departmental rules cannot be convicted and punished as the crime of illegal business operation. As for whether the test car can be sold, the laws and administrative regulations are not clearly stipulated, and the relevant management specifications for automobiles are mostly found in the "Automobile Industry Development Policy" issued by the Ministry of Industry and Information Technology and the National Development and Reform Commission. Obviously, the policies of the Ministry of Industry and Information Technology (MIIT) and the National Development and Reform Commission (NDRC) are not laws and administrative regulations, and the perpetrator who violates the administrative norms issued by them cannot be convicted and punished for the crime of illegal business operation, but can be given the necessary administrative penalties.
Secondly, from the analysis of the catch-all clauses. From a logical point of view, other illegal business activities that seriously disrupt the market order should be equivalent to the illegal business activities expressly provided for in this provision, so that the same penalty can be imposed on them. In market economic activities, the main purpose of trading vehicles is to obtain the normal use value of the vehicle, which mainly refers to the operating interests of the vehicle. The test vehicle itself does not have a vehicle certificate, frame number, etc., and cannot be successfully licensed, that is, it cannot drive on the road normally, and the basic use value of the vehicle cannot be realized. As a normal and rational consumer, there is a high probability that he will not buy a test car without any relevant documents and procedures. If it is only the sale of test vehicles, and other illegal and criminal acts are not imposed to make the test vehicles meet the conditions for sale and normal use, first, the purpose of selling test vehicles may not be successfully realized, and second, even if it is realized, it should only be a few incidents, and it is difficult to seriously disrupt the market order. Therefore, considering the reality of the crime, there is no need to convict and punish the sale of test vehicles as the crime of illegal business operation.
Finally, not convicting and punishing the crime of illegal business operation does not indulge in crime. Through the above analysis, it can be seen that in order to achieve the purpose of smooth sales of the test vehicle, the sale of the test vehicle will inevitably be accompanied by other illegal acts, such as the crime of counterfeiting registered trademarks and the crime of selling goods with counterfeit registered trademarks in this case. Therefore, not convicting the sale of test vehicles for the crime of illegal business operation does not indulge the crime, but only accurately convicting according to the circumstances of the crime, which is also the basic observance of the principle of legality of crimes.
Exegesis:
1. Article 1 of the "Interpretation 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 the Production and Sale of Counterfeit and Shoddy Goods" Article 140 of the Criminal Law "adulteration or adulteration in products" refers to the act of adulterating impurities or foreign substances into products, causing the quality of the products to not meet the quality requirements stipulated in national laws, regulations, or the express quality standards of the products, and reducing or losing the performance that should be used.
"Pretending to be genuine" as provided for in Article 140 of the Criminal Law refers to the act of passing off a product that does not have a certain use performance as a product that has that kind of use performance.
"Shoddy" as provided for in Article 140 of the Criminal Law refers to the conduct of passing off low-grade or low-grade products as high-grade or high-grade products, or passing off defective or waste spare parts as genuine or new products after being combined or assembled.
"Substandard products" as provided for in Article 140 of the Criminal Law refer to products that do not meet the quality requirements stipulated in the second paragraph of Article 26 of the Product Quality Law of the People's Republic of China.
If it is difficult to determine the above-mentioned acts provided for in this article, the product quality inspection agency provided for by laws and administrative regulations shall be entrusted to conduct an appraisal.
2. Article 225 of the Criminal Law of the People's Republic of China [Crime of Illegal Business Operation] Whoever violates state regulations by committing any of the following illegal business activities, disrupting market order, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or short-term detention, and/or a fine of not less than one time but not more than five times the amount of illegal gains;
(1) Engaging in franchised or monopoly goods or other restricted items provided for by laws or administrative regulations without permission;
(2) Buying and selling import and export licenses, import and export certificates of origin, and other business licenses or approval documents provided for by laws and administrative regulations;
(3) Illegally engaging in securities, futures, or insurance business without the approval of the relevant competent state departments, or illegally engaging in fund payment and settlement business;
(4) Other illegal business activities that seriously disrupt market order.
Source: Hunan High Court
Editor: Sharon