The Supreme People's Procuratorate issued typical cases on the protection of intellectual property rights by procuratorial organs

Interesting news

According to the news on the website of the Supreme People's Procuratorate on April 25, the Supreme People's Procuratorate issued typical cases of intellectual property protection by procuratorial organs. The details are as follows:

Notice on the Printing and Distribution of Typical Cases of the Procuratorate's Intellectual Property Protection Cases

The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government, the PLA military procuratorates, and the people's procuratorates of the Xinjiang Production and Construction Corps:

In order to thoroughly implement Xi Jinping Thought on the Rule of Law and Xi Jinping Thought on Culture, earnestly implement the "Outline for the Construction of a Strong Country with Intellectual Property Rights (2021-2035)", strengthen legal safeguards for intellectual property rights, vigorously support comprehensive innovation, build a business environment based on the rule of law, and promote the development of new productive forces, the Supreme People's Procuratorate has selected and compiled 9 cases, including the "Case of Infringement of Trade Secrets by Zhejiang Zhao XX Co., Ltd., Fang Moujun and Six Others", as typical cases of procuratorial organs for the protection of intellectual property rights, and is hereby printed and distributed to you for reference and reference in handling cases in all localities.

Supreme People's Procuratorate

April 19, 2024

Typical cases of intellectual property protection by procuratorial organs

directory

1. Case of infringement of trade secrets by Zhejiang Zhao Co., Ltd., Fang Moujun and six others

2. Copyright infringement case of Liu Mousheng and three others

3. Chongqing Qian's Machinery Equipment Co., Ltd., Guan, and Li's copyright infringement case

4. Case of infringement of trade secrets by Guan and others

5. Case of Xu Moujun and 26 others counterfeiting registered trademarks and selling goods with counterfeit registered trademarks

6. Case of Ye Moumin's counterfeiting of registered trademarks

7. Tianchang Xin Co., Ltd. v. Zhanjiang Su Co., Ltd., Haikou Coconut Co., Ltd. and other unfair competition civil dispute protest cases

8. Shanghai Jinmou Co., Ltd. v. Shanghai Jiading District Market Supervision and Administration Bureau involved in the non-litigation enforcement supervision of administrative penalties for infringement of the exclusive right to use registered trademarks

9. "Zhenhu Embroidery" intellectual property protection administrative public interest litigation case

Case 1

Case of infringement of trade secrets by six people, including Zhejiang Zhao Co., Ltd. and Fang Moujun

【Keywords】

The crime of infringing on trade secrets, the whole chain of crackdown, the determination of the amount of loss, and the confidentiality measures of evidence

【Gist】

In handling cases of infringement of trade secrets, procuratorial organs are based on their procuratorial functions, employing a variety of methods to promote thorough investigations, consolidating the evidence system, and prosecuting the principal offenders of crimes of infringement of trade secrets in accordance with law. Accurately determine the amount of losses incurred by the right holder of trade secrets, and earnestly protect the lawful rights and interests of the enterprise. Improve confidentiality measures for evidence involving trade secrets in the course of criminal proceedings, prevent "secondary leaks", and escort the innovation and development of new technologies and industries.

[Basic facts of the case]

Qingdao Yun Advanced Materials Technology Co., Ltd. (hereinafter referred to as Yun Company) is a listed key high-tech enterprise. In order to overcome the defects and deficiencies in the performance of the equipment used for amorphous strip production, Yun Company has successfully improved the core equipment such as spraying trucks, crystallizers, and mold grinding mechanisms after 8 years of technology research and development.

From May to July 2016, Fang Moujun, chairman and actual controller of Zhejiang Zhao Co., Ltd. (hereinafter referred to as Zhao Company), arranged for Yu Moukun and Zhang Mouwei, executives of Zhao Company, to establish contact with Yu Mou, Meng and Jiang Moupeng, employees of Yun Company, in the name of Zhao Company, and lured Yu, Meng and Jiang Moupeng with cash and high welfare benefits to illegally obtain the relevant technical secrets of the core equipment of Yun Company's amorphous strip production line, spraying trucks, crystallizers, and mold grinding mechanisms. Zhao Company established Zhejiang Zhong New Materials Co., Ltd. (hereinafter referred to as Zhong Company), and planned to build a new production line of "Zhao Phase II" with illegally obtained trade secrets. A certain gentleman in the rear arranged for Yu Moukun and Jiang Moupeng to order relevant confidential equipment in the name of a certain company, and arranged for Yu and others to poach more than 10 operators from a certain company in Yun to build a new amorphous strip production line with the same company as a certain company. The case came to light two months after the trial operation of the production line, and the products produced have not yet entered the market.

According to the appraisal of the Judicial Appraisal Center of Southwest University of Political Science and Law, the technical information contained in the spraying truck, crystallizer and crystallizer grinding mechanism involved in the case of Yun Company is not publicly known. After comparing the electronic evidence drawings extracted from Jiang Moupeng's laptop and mobile phone and the technical information in the on-site seizure drawings with the 33 secret point information asserted by Yun's company, 23 are the same, and 9 are substantially the same. According to the valuation of Beijing Liancheng Asset Appraisal Co., Ltd., the R&D expenses of the technical secrets involved in the case were appraised at RMB 40.07 million, resulting in a loss of RMB 19.53 million in license fees to Yun's company.

[Performance of duties by procuratorial organs]

On June 2, 2017, after receiving a report from the rights holder, the Jimo Branch of the Qingdao Municipal Public Security Bureau of Shandong Province (hereinafter referred to as the Jimo Public Security Bureau) filed and investigated the case of infringement of trade secrets of Yun's company, Jiang Moupeng and Zhang Mouwei were arrested on August 28, 2017 and November 28, 2017 respectively, and Yu Mou voluntarily surrendered on September 11, 2017; voluntarily surrendered on April 29, 2020, and Fang Moujun was arrested on April 22, 2020. The People's Procuratorate of Jimo District of Qingdao City (hereinafter referred to as the People's Procuratorate of Jimo District) was invited to consult with the public security organs on issues such as the identification of trade secrets and the amount of losses. In this case, the criminal suspect stole trade secrets and set up a similar production line, but the products produced had not yet entered the market, and the procuratorate suggested that the amount of losses in this case should be determined by the trade secret royalties. At the same time, in response to the refusal of Fang Moujun, the legal representative of the infringing company, to admit guilt, guide the public security organs to supplement the evidence materials and comprehensively fix the evidence.

On September 30, 2017, December 14, and May 28, 2021, the Jimo District Procuratorate successively approved the arrest of Jiang Moupeng, Zhang Mouwei, and Fang Moujun in accordance with the law.

From November 2017 to August 2021, the Jimo Public Security Bureau successively transferred Jiang Moupeng, Yu Mou, Zhang Mouwei, Meng Mou, Yu Moukun, and Fang Moujun to the Jimo District Procuratorate for review and prosecution on suspicion of infringing trade secrets. The procuratorial organs are to focus on the following work: First, carry out supplementary investigations and consolidate the evidence system. First of all, comprehensively review the case and dig deep into the mastermind behind it. The public security organs initially only investigated Jiang Moupeng, Yu Mou, and Zhang Mouwei, employees of Zhao Mou Company. After review, Meng Mou, a technician of Yun Company, Zhao Moujun and its actual controller Fang Moujun, and senior executive Yu Moukun were all suspected of committing crimes, so they submitted written investigation and evidence collection opinions to the public security organs, and then the public security organs successively filed cases and investigated the three in accordance with the law. Second, it is necessary to carry out supplementary investigations on their own and prosecute crimes committed by units. The public security organs transferred the case for review and prosecution as a natural person crime, and the procuratorate carried out its own supplementary investigation, and found out that this case was organized and implemented by Zhao XX Company to obtain the company's interests, and Zhao XX Company should be investigated for criminal responsibility, so the unit was added to commit the crime in accordance with law. The second is to accurately determine the losses of the right holder and determine the amount of the crime. In this case, Zhao Company illegally obtained the trade secrets of Yun Company and successfully built the same production line as Yun Company, but the production line was only in trial operation for 2 months, and the product had not yet entered the market and there was no sales amount, so the amount of the crime in this case could not be determined based on the amount of illegal gains. Since the trade secret has not been known to the public due to the criminal act, and has not led to the complete loss of the value of the trade secret, it is not appropriate to determine the amount of loss based on the research and development cost of the trade secret. After comprehensive research and judgment, the amount of losses in this case was finally determined based on the trade secret royalties. After evaluation, the license fee for the use of the trade secret was RMB 19.53 million. The third is to improve confidentiality measures and strengthen the protection of trade secrets. In response to the concern that there is a risk of leakage of the technical data involved in the case raised by a certain company in the criminal proceedings, the procuratorate comprehensively sorted out the possible risk points, fully listened to the opinions of the rights holders, and determined the scope of evidence related to trade secrets and corresponding protection measures under the condition of ensuring the smooth progress of the litigation; Separate management, requiring litigation participants to sign confidentiality agreements, and procuratorial organs are to research and formulate an accurate catalogue of evidence based on the needs of expert witnesses, and in principle only collect the parts necessary for professional determination, so as to prevent the "secondary leakage" of rights holders' self-developed technologies to the greatest extent. Fourth, procuratorial recommendations have been formulated and issued to comprehensively strengthen the comprehensive judicial protection of intellectual property rights. The procuratorial organs have conducted two on-site visits and investigations, delivered procuratorial suggestions to the rights enterprises, and promoted the plugging of loopholes in the protection of intellectual property rights from the system. At the same time, the procuratorial organs regularly go to enterprises to give lectures on law popularization, promote corporate compliance management, and achieve good social governance results.

From June 2018 to November 2021, the Jimo District Procuratorate successively prosecuted the defendants Jiang Moupeng, Yu Mou, Meng, Zhang Mouwei, Fang Moujun, Yu Moukun and the defendant Zhao Mou Company for the crime of infringing trade secrets. From November 2018 to December 2022, the Jimo District People's Court of Qingdao Municipality adopted the procuratorate's prosecution opinions and sentencing recommendations, and sentenced the defendant unit Zhao XX Company to a fine of RMB 3 million for the crime of infringing trade secrets, sentenced the defendants Fang Moujun, Yu Moukun, Jiang Moupeng, and Zhang Mouwei to fixed-term imprisonment ranging from three to five years and fines ranging from RMB 1 million to 2 million yuan, and sentenced defendants Yu X and Meng X to one year imprisonment, suspended for one year, and fined RMB 50,000. On April 18, 2019 and May 4, 2023, the Qingdao Intermediate People's Court ruled to reject the appeal and uphold the original judgment.

【Typical Significance】

(1) Pursue the principal culprits behind the crime of infringing on trade secrets and the crimes committed by units in accordance with law. Procuratorial organs are to comprehensively use methods such as hearing opinions in major and difficult cases and supplementing investigations on their own, implementing mechanisms for investigation supervision and coordination, and consolidating the evidence system. While prosecuting the "inner ghost" of the rights holder, the procuratorate continued to dig deep and thoroughly investigate, successfully prosecuted the mastermind of the crime of infringing on trade secrets, and additionally identified the crime of the unit in accordance with the law. The procuratorate insisted on cracking down on the whole chain of trade secret infringement crimes, from the mastermind behind the scenes, to the inducement of contacts, to the relevant technical personnel who stole and leaked technical secrets, and were punished by law.

(2) Accurately apply the method for calculating the loss of the right holder to determine the specific amount. In judicial practice, the circumstances of cases of infringement of trade secrets are relatively complex, and the determination of the amount of the crime shall be determined by distinguishing between different circumstances and adopting corresponding calculation methods. The procuratorate conducts in-depth research and judgment, comprehensively examining whether the trade secrets involved in the case are known to the public as a result of the criminal acts, whether the trade secrets stolen by the infringer have been put into production, whether the products have flowed into the market, whether there is a sales amount, and other key facts, and accurately determine the amount of the crime based on the license fees for the trade secrets.

(3) Comprehensively study and assess the risk points of 'secondary leaks' of trade secrets in the course of criminal proceedings, and strengthen the protection of secret-related evidence throughout the process. In cases of infringement of trade secrets, the right holder is often worried about the "secondary leakage" of trade secrets in the course of criminal proceedings. When handling such cases, the procuratorial organs fully listen to the opinions of enterprises in light of the specific circumstances, comprehensively sort out the risk points of leakage of secrets in the course of criminal proceedings, and formulate targeted protective measures, so as to effectively ensure the smooth progress of the case proceedings while minimizing the risk of leakage of trade secrets involved in the case, and provide enterprises with precise legal services.

Case 2

Liu Mousheng and three others were involved in the copyright infringement case

【Keywords】

Copyright infringement Medical device software Circumvention of technical measures Full life cycle protection

【Gist】

The determination of "intentionally avoiding or destroying technical measures" in the crime of copyright infringement should be comprehensively judged on the basis of ascertaining the operating principles of technical measures, focusing on the protection object, purpose of protection, and protection effect of technical measures. The procuratorial organs are to punish the criminal acts of copyright infringement by deliberately avoiding technical measures in accordance with the law, and crack down on all aspects of the source of manufacturing and sales and dissemination throughout the chain. Improve the digital copyright protection system, gather social forces that support comprehensive innovation, implement the protection of intellectual property rights throughout the life cycle, and serve the innovation and development of the digital economy.

[Basic facts of the case]

The right holders, Royal Fei Moupu Co., Ltd. and its affiliates (hereinafter referred to as Fei Moupu Company) and Tong Electric Precision Medicine Co., Ltd. (hereinafter referred to as Tong Mou Company) are all manufacturers of medical equipment such as CT machines and vascular machines, and have created and published medical equipment software, supporting maintenance manuals and other works. In order to protect the copyright of its own medical equipment software and the security of the computer information system, the right holder has developed technical measures such as security authentication systems, authentication tools (commonly known as dongles), and computer calculator software. The digital certificate issued by the right holder is stored in the dongle, and the user needs to use the dongle at the computer terminal to pass the identity verification of the security authentication system in order to browse and use the hidden and restricted medical equipment software functions.

From March 2019 to July 2022, for the purpose of profit, Liu Mousheng made pirated dongle tools used to circumvent technical measures without the permission of the above-mentioned right holders, provided download links for medical equipment maintenance manuals and other works, copied medical equipment software such as Nebula workstations, AW workstations, and Feiyun workstations without authorization, provided download links for medical equipment maintenance manuals and other works, and used online platforms for sales and dissemination, with a sales amount of more than RMB 910,000. During this period, Liu Mousheng also instructed Liu to open an Xianyu account and sell the aforementioned pirated dongles and pirated medical equipment software, with a joint sales amount of more than 140,000 yuan.

From March 2020 to July 2022, for the purpose of making profits, Liu Mouwang purchased pirated dongle tools from the Internet without the permission of the rights holder, copied medical equipment software such as code calculators without authorization, provided network disk download links for medical equipment maintenance manuals, code calculator software and other works, and used online platforms to sell and disseminate, with a sales amount of more than RMB 150,000.

It was found that the pirated dongles sold by the above three persons all had the function of identity verification through the security authentication system, which could avoid the technical measures taken by the right holder for their medical device software, and the pirated software sold and disseminated was substantially the same as the work of the right holder.

[Performance of duties by procuratorial organs]

On January 5, 2022, the Shanghai Municipal Public Security Bureau filed and investigated the case, and the Shanghai Municipal Public Security Bureau filed and investigated Liu Mousheng and Liu respectively, and the Putuo Branch of the Shanghai Municipal Public Security Bureau filed and investigated Liu Mouwang. The Third Branch of the Shanghai Municipal People's Procuratorate (hereinafter referred to as the Shanghai Third Branch) and the Shanghai Putuo District People's Procuratorate (hereinafter referred to as the Putuo District Procuratorate) initiated a mechanism for hearing opinions on major and difficult cases, and recommended that the public security organs focus on the following investigation and evidence collection work: First, verify the ownership of the works involved in the case. More than 30 pieces of medical device software, security authentication system creation and publication, ownership registration, software copyright statement and signature interface were collected. In view of the fact that some of the works belong to a number of affiliated companies in multinational conglomerates, the public security organs are guided to conduct special evidence collection on the authorization of domestic affiliated companies by foreign rights holders and the admissibility of extraterritorial evidence. The second is to entrust judicial appraisal to guide the right holder to carry out identification and explanation of the works involved in the case and the dongle tool. Based on the appraisal opinions of the forensic appraisal agency and the identification opinions of the rights holder, the pirated dongles manufactured and sold by the criminal suspect were able to pass the identity verification of the security authentication system and contained more software use rights than the genuine dongles, and the medical equipment software involved in the case was substantially the same as the rights holder's work. The third is to identify the risks of using infringing software. The use of pirated dongles and pirated software to repair precision medical equipment will bring obvious uncertainty to the normal and stable operation of medical equipment, increase the probability of misdiagnosis and missed diagnosis, and may cause data leakage of patient information.

On September 2, 2022, the Shanghai Third Branch Court approved the arrest of Liu Mousheng. On December 2, 2022, the public security organs transferred Liu Mousheng, Liu Mousheng and Liu Mouwang to the Shanghai Branch People's Court and the Putuo District Procuratorate for review and prosecution on suspicion of copyright infringement. The procuratorial organs are to focus on the following work: First, fully investigate, study, and judge, and clarify the use and effectiveness of technical measures. Through on-site visits and investigations of the security authentication system and dongle tools applied by the right holder, the procuratorate understands the operating principle of the technical measures and the management mode of medical equipment maintenance personnel, ascertains the path of obtaining the maintenance authority certification, and clarifies that the relevant technical measures of the right holder are taken to protect the copyright and are effective. The second is to dig deep into the criminal chain and prosecute the crime of omission in accordance with the law. The procuratorate found that the public security organs had omitted the fact that Liu Mouwang had sold and disseminated the rights holder's works by sharing the link to the network disk and copying and installing software on a second-hand computer, so they applied the provisions of the crime of copyright infringement on reproduction and distribution without permission and the dissemination of works through information networks to make an additional determination in accordance with law. The third is to formulate and issue procuratorial suggestions to promote the governance of litigation sources. The procuratorate formulates and issues procuratorial recommendations on social governance to rights holders, and puts forward optimization suggestions such as filling loopholes in technical measures and improving the timeliness of response to maintenance guarantees in response to the intellectual property protection risks reflected in the case, so as to maintain the safety of public medical activities.

On January 31 and February 20, 2023, the Putuo District Procuratorate and the Shanghai Branch Court respectively prosecuted the defendants Liu Mouwang, Liu Mousheng and Liu Mousheng for copyright infringement. At the same time, the procuratorate ensures that the rights holder participates in the trial, expresses technical opinions and claims, and assists the court in ascertaining the facts. On April 12, 2023, the Shanghai No. 3 Intermediate People's Court and the Shanghai Putuo District People's Court respectively made first-instance judgments, both adopting the prosecution opinions and sentencing recommendations of the procuratorate, and sentenced the defendants Liu Mousheng, Liu Mousheng, and Liu Mouwang to fixed-term imprisonment ranging from one year to three years and two months, and fines ranging from RMB 80,000 to RMB 700,000, respectively, for the crime of copyright infringement, and applied suspended sentences to Liu and Liu Mouwang. None of the defendants appealed, and the judgment has entered into force.

After the case is concluded, in order to meet the needs of the protection of new technologies and new business forms such as copyright technical measures, the procuratorate visited and investigated the regional software industrial park, and issued the "Guidelines for the Protection and Compliance of Enterprise Digital Copyright Technical Measures" in conjunction with the Shanghai Copyright Society and other units, to support and encourage rights holders to improve the digital copyright protection system, promote the development and application of technological measures, coordinate the protection of digital copyright and network security, and alert possible security vulnerabilities and compliance risks, so as to maintain a good market economic order.

【Typical Significance】

(1) Clarify the path for criminal regulation of indirect circumvention of technological measures. Amendment (11) to the Criminal Law adds a new clause on "deliberately avoiding or destroying technological measures" to the crime of copyright infringement. Indirect circumvention by providing circumvention means and tools is a link in the copyright infringement chain, which seriously harms the legitimate rights and interests of copyright holders, and should be included in the scope of criminal regulation. Whoever, without the permission of the rights holder, intentionally manufactures or sells devices or components that are mainly used to circumvent or destroy the technical measures provided for in article 217 of the Criminal Law, or intentionally provides technical services for others to circumvent or destroy the technical measures, and the amount of unlawful gains or illegal business operations reaches the corresponding standards, shall be pursued for criminal responsibility as the crime of copyright infringement.

(2) Accurately grasp the requirements for determining technical measures in the sense of the Copyright Law. In this case, it is clear that the technical measures involved in the case are effective technical measures taken by the right holder to protect the software work, which is the premise for determining that the defendant committed the criminal act of circumventing or destroying the technological measures. The procuratorate is to make a comprehensive judgment on the object of protection, the purpose of protection, and the effect of protection, and consider evidence such as the original computer software and other works involved in the case, appraisal opinions, defendants' confessions and justifications, rights holders' statements, witness testimony, and other evidence, to review the purpose of protection of technical measures, and ascertain whether the technical measures have the goal of protecting works from the principle and function of the technical measures. At the same time, attention should be paid to reviewing the protective effect of technological measures to ensure that they can stably and effectively achieve the function of restricting others' access to or dissemination of works under normal circumstances.

(3) Rely on the integrated performance of duties across the entire industry chain to combat crime, and actively carry out compliance governance in consideration of the characteristics of the industry. For chain crimes that last for a long time, have a wide range of sales, and have a large amount of crimes, the procuratorial organs should persist in performing their duties as one, pooling their efforts, and effectively cracking down on crimes in all links, effectively deterring illegal conduct, and expanding the warning and education effects of cases. Actively perform their duties in accordance with the law, and protect the lawful interests of relevant business operators, consumers, and the public in the long term through the formulation and issuance of targeted and effective procuratorial recommendations. Cooperate with administrative regulatory organs, industry associations, and others to complete industry compliance norms, build a digital copyright protection system, jointly promote industry governance, ensure the protection of intellectual property rights throughout their life cycle, and protect and regulate the healthy development of digital technologies, digital industries, and digital markets in accordance with law.

Case 3

Chongqing Qian Machinery Equipment Co., Ltd., Guan, Li copyright infringement case

【Keywords】

Copyright infringement Computer software Illegal business amount Corporate compliance

【Gist】

Copying the software code for the purpose of producing and selling the same chip without permission after obtaining the computer software code in the chip through reverse engineering is an act of illegally copying and distributing the computer software. The procuratorate reviewed and determined that the infringing chip was only a component of the CNC system illegally produced and sold, and comprehensively considered the role of the chip in the CNC system, the proportion of value and other factors, and accurately determined the amount of illegal operation. Implement the criminal policy of blending leniency and severity, lawfully carry out compliance rectification of enterprises involved in cases, strengthen legal explanations and reasoning, and help victim enterprises recover economic losses.

[Basic facts of the case]

Since 2012, Chongqing Qian Machinery Equipment Co., Ltd. (hereinafter referred to as Qian) and Chengdu Xin Mourui CNC Technology Co., Ltd. (hereinafter referred to as Xin Mourui Company) have carried out business cooperation to purchase machine tool CNC systems from Xin Mourui Company. At the end of 2017, in order to seek illegal benefits, the person in charge of a certain company, Guan, entrusted the company's temporary employee Li to reverse crack the software code from the main board chip of the machine tool CNC system of Xin Mourui Company for the production of 988T series CNC system products. As of September 2021, a total of 305 988T series CNC system products have been produced and sold by Qian. On November 9, 2021, the public security organs seized 89 988T series CNC system products and 380 burned motherboards from a company. It was found that the price of the chip purchased by Qian's company and Xin Mourui company in the early stage of cooperation was 300 yuan/block. Qian's company illegally operated with an amount of 232,000 yuan.

After identification, the hexadecimal code program in the motherboard chip of the above-mentioned 988T series CNC system products is 99.99% similar to the hexadecimal code generated by the compilation and conversion of the source code program in the chip with the copyright of Xin Mourui.

[Performance of duties by procuratorial organs]

This case is a case jointly supervised by six departments, including the Supreme People's Procuratorate and the National Copyright Administration. On December 21, 2021, the Beibei District Branch of the Chongqing Municipal Public Security Bureau (hereinafter referred to as the Beibei Public Security Bureau) filed a case for investigation based on the clues transferred by the copyright enforcement department. The People's Procuratorate of Beibei District of Chongqing Municipality (hereinafter referred to as the Beibei District Procuratorate) put forward the following suggestions for the investigation and evidence collection of the public security organs: First, find out whether there is a suspicion of infringement of trade secrets. In view of the criminal suspect's argument that the hexadecimal code in the chip was obtained through reverse engineering, it is important to find out whether the relevant technical means are feasible and whether the criminal suspect has the ability to reverse engineer. The second is to ascertain the number of infringing goods sold. Obtain relevant sales bills, combined with the testimony of the purchaser of the CNC system product, the confession of the official, etc. The third is to find out the components of the numerical control system, the functions of each part and the value ratio in the numerical control system.

On May 30, 2022, the Beibei Public Security Bureau transferred the case to the Beibei District Procuratorate for review and prosecution. The procuratorial organs are to focus on the following work: First, determine the nature of the case in accordance with law. Without the permission of the copyright owner, a company obtained the hexadecimal code in the chip through reverse engineering and used it to produce and sell the same chip, which is an illegal act of copying and distributing computer software. The second is to accurately determine the amount of illegal business. When the public security organ transferred the case for review and prosecution, the overall value of the infringing CNC system was 750,000 yuan as the amount of illegal operation, and the procuratorate made it clear that the chip involved in the case was only a component of the CNC system, and the amount of illegal business should be determined by comprehensively considering the proportion of the value of the chip in the CNC system. At the same time, the infringing software code is sealed in the chip, which is the main value of the chip, and the value of the infringing product can be determined according to the overall value of the chip. The third is to actively carry out compliance rectification of enterprises involved in cases. After receiving the application for compliance rectification submitted by Qian, the procuratorate comprehensively reviewed the company's materials on industry and commerce, employment, and tax payment, and worked with relevant departments to conduct on-site inspections and conduct on-site inspections, and lawfully initiated mechanisms for compliance rectification and third-party supervision and assessment of the enterprises involved in the case. During the rectification period, the company established an approval system for product research and development, production and sales, and improved the intellectual property management and compliance risk control mechanism. After inspection and acceptance by the third-party regulatory assessment organization, it is determined that the enterprise involved in the case is qualified for rectification. Fourth, implement the criminal policy of blending leniency with severity, and actively recover stolen goods and recover losses. The procuratorate strengthened the interpretation of the law and reasoning, prompting Guan, Li, and Qian to voluntarily admit guilt and accept punishment, and returned a total of 298,000 yuan to Xin Mourui's company.

On November 30, 2023, the Beibei District Procuratorate made a decision not to prosecute Qian's company and Li, and prosecuted the defendant Guan for copyright infringement. On December 21 of the same year, the Beibei District People's Court of Chongqing Municipality made a first-instance judgment, adopting the procuratorate's prosecution opinion and sentencing recommendation, and sentenced the defendant Guan X to two years imprisonment, suspended for three years, and a fine of RMB 120,000 for copyright infringement. The defendant did not file an appeal and the judgment entered into force.

【Typical Significance】

(1) Accurately determine the nature of the criminal conduct of infringing on computer software copyrights. When handling cases involving computer software, procuratorial organs should comprehensively review the facts and evidence of the case, accurately determine the nature of the conduct, and strengthen the protection of intellectual property rights in computer software in accordance with law. In this case, for the purpose of profit, without the permission of the right holder, the hexadecimal code of computer software is obtained from the purchased chip through reverse engineering, and then used to make and sell the chip for profit, which is an illegal reproduction and distribution of computer software, and if the amount of illegal gains is relatively large or there are other serious circumstances, the procuratorate shall pursue criminal liability for the crime of copyright infringement in accordance with law.

(2) Comprehensively consider the proportion of the value of the infringing software in the overall product, and reasonably determine the amount of illegal operations. As a divisible independent unit in the CNC system of the machine tool, the chip in this case should reasonably determine the functional role and value ratio of the chip in the system, and it is not appropriate to determine the amount of illegal operation based on the overall value of the CNC system of the machine tool. At the same time, the infringing software code is sealed in the chip, which is the main value of the chip and is inseparable from the chip, and the value of the chip should be used to determine the amount of illegal business for copyright infringement crimes.

(3) Carry out compliance with enterprises involved in cases in accordance with law, practicing the concept of placing equal emphasis on crime and governance. Where procuratorates handle cases of intellectual property rights infringement, and the relevant enterprises meet the requirements for initiating compliance procedures, promptly initiate compliance rectification procedures for the enterprises involved in the case in accordance with law. Implement the criminal policy of blending leniency with severity, and give lenient dispositions in accordance with law to enterprises involved in cases that have passed compliance corrections and those who admit guilt and accept punishment. Pay attention to the recovery of stolen goods and the resolution of conflicts and disputes throughout the whole process of case handling, help the victim enterprises recover economic losses, and escort the high-quality development of enterprises.

Case 4

Case of infringement of trade secrets by Guan and others

【Keywords】

Infringement of trade secrets, business information, additional prosecution, and coordinated protection

【Gist】

Trade secrets related to business information can bring market competitive advantages to rights holders and should be strictly protected in accordance with law. In handling cases, procuratorial organs are to actively perform their duties in accordance with law, clarifying difficult issues in the application of law, actively carrying out supplemental investigations on their own, and prosecuting crimes and offenders who have omitted crimes in accordance with law. In view of the practical dilemma of the difficulty in protecting the rights of foreign trade private enterprises after their trade secrets are infringed, promote the coordinated protection of intellectual property rights, and establish an integrated protection pattern in which all departments coordinate and linkage.

[Basic facts of the case]

Ningbo Kai International Trade Co., Ltd. (hereinafter referred to as Kai Company) was incorporated in 2003 and is mainly engaged in the import and export business of various types of goods. The German importer Company S is a customer of Kai, and the specific contact person of the company has inquired about quotations from Kai since 2009, and has purchased trolleys, accessories, lashing straps and other products from Kai on behalf of Company S since 2012. The contact person and email address, transaction history, transaction amount, customer needs, customer formation and maintenance and other information formed in the transaction process between Kai and S Company are identified as business information that is not known to the public.

Guan joined Kai in 2007 and left in July 2018, successively serving as a business assistant and manager of the business department, responsible for the export business and customer maintenance of Company S. During his employment, Mr. Guan signed the "Labor Contract" and the "Trade Secret Confidentiality Agreement" with Kai's company, stipulating that the employee had the obligation to keep the company's business information confidential.

In April 2014, Guan registered and established Ningbo Guan International Trade Co., Ltd. (hereinafter referred to as Guan Company), and since 2016, he has used the above-mentioned business information of Kai Company to carry out export business of similar products with S Company and specific contacts of the company in the name of Guan Company. When Guan resigned from Kai's company in July 2018, he brought the emails of Kai's transactions with Company S and the purchase contract of Kai's company to Guan without authorization, and worked with Zhang and Zhu to use the above-mentioned business information to continue to sell products to Company S. According to the audit, from 2016 to the end of 2021, Guan and others exported similar products to Company S, with a cumulative sales amount of more than 6,280 yuan, causing direct economic losses of more than 5.77 million yuan to Kai's company.

[Performance of duties by procuratorial organs]

On July 30, 2019, the Public Security Bureau of Ningbo City, Zhejiang Province, received clues transferred by the Ningbo Municipal Administration for Market Regulation, and filed a case for investigation on suspicion of infringement of trade secrets by a certain company, and on October 14, 2020, it was transferred for review and prosecution on suspicion of infringement of trade secrets by a certain company of Guan and Guan. The Ningbo Municipal People's Procuratorate transferred the case to the Ningbo Yinzhou District People's Procuratorate (hereinafter referred to as the Yinzhou District Procuratorate) for handling. After review, the Yinzhou District Procuratorate held that Guan's business activities since its establishment were to carry out foreign trade transactions with Company S, and that it was a company established by Guan for the purpose of carrying out illegal and criminal activities, and that it did not constitute a crime by a unit, and that the criminal responsibility of a certain person should be directly investigated. The procuratorate focuses on the following work: First, accurately determine that in-depth customer information constitutes a trade secret. After review, the business information involved in the case contained a number of core transaction elements, such as the specific contact person and email address, the demand for purchased products, the quality requirements, the type of traded products, the transaction volume, the transaction price, the payment terms, and the information of the supply factory, which was gradually accumulated, improved, and summarized by the company for specific customers in its long-term business activities, and was a complete and interrelated set of in-depth comprehensive information, which was not shallow information that was generally known or easily obtained by personnel in the field, and should be recognized as a trade secret. Second, the review confirmed that Guan had actually used the rights holder's trade secrets. The procuratorate carried out its own supplementary investigation, obtained the original materials such as emails and purchase and sales contracts between Kai and S Company, and compared them with the business information brought to Guan by Guan when he left the company, and confirmed that the two were completely consistent, and then carefully checked the correspondence between Guan and S Company, transaction contracts and other documentary evidence, and used a list to compare with Kai's business information one by one, confirming that the substance was the same, and Guan repeatedly cited Kai's company's quotation as a reference when negotiating prices with S company. The third is to exclude the defense of personal reliance. Guan and his defender argued that Company S traded with Kai based on its trust in Guan, and that after Guan left his job, Company S voluntarily chose to trade with Guan's company. In this regard, the procuratorate consolidated the evidence and clarified. First of all, the first transaction between Company S and Kai was initiated by Company S, and then a long-term transaction was initiated, and Jiang and Guan were successively connected and handled, and according to the content of the email, it was the quality, price and service provided by Kai that facilitated the transaction between the two parties, rather than the trust in a certain manager. Second, the applicable condition of the personal reliance defense is that after the employee leaves the company, and Guan used the business information of Kai to conduct transactions with S company in the name of Guan during his tenure at Kai, and the principle of personal trust exemption does not apply. Fourth, the amount of loss should be reasonably calculated. According to the characteristics of the industry, where the calculation of the profit margin of foreign trade enterprises is mostly based on the sales amount of the product, the procuratorate proposed to use the method of multiplying the sales amount of infringing goods by the profit rate of the right holder's similar products, which provides a reference path for the calculation of the crime amount in similar cases. Fifth, the facts of the crime are additionally prosecuted. After review, the procuratorate found that during the period when Guan was released on bail pending trial after the criminal case was filed, he still established a foreign trade company in the name of another person to continue trading with Company S. Then he cooperated with the public security organs to use the customs foreign trade export data platform to screen out the foreign trade company involved in the case, and found that Guan continued to commit infringement with the cooperation of his co-defendants during the administrative investigation and even after the criminal case was filed, and the transaction amount was as high as more than 50 million yuan. The procuratorate immediately changed the compulsory measures, decided to arrest Guan, and additionally determined that the amount of losses caused by the crime was more than 490 yuan, and recommended that the public security organs file a case for investigation of the co-defendants Zhang and Zhu.

In January and August 2022, the Yinzhou District Procuratorate prosecuted the defendants Guan, Zhang, and Zhu respectively for the crime of infringing trade secrets. In January and September 2023, the Yinzhou District People's Court of Ningbo Municipality (hereinafter referred to as the Yinzhou District Court) made first-instance judgments, adopted the procuratorate's prosecution opinions and sentencing recommendations, and sentenced defendant Guan to four years in prison and a fine of RMB 4 million for the crime of infringing trade secrets, and sentenced defendants Zhang and Zhu to one year and eight months in prison, suspended for two years, and fined RMB 40,000 and 50,000 respectively. On April 13, 2023, the Ningbo Intermediate People's Court ruled to reject the appeal and uphold the original judgment.

In response to the loopholes and risk points in the protection and management of trade secrets in the local foreign trade industry discovered in the course of handling the case, the Yinzhou District Procuratorate and the Yinzhou District Court jointly formulated and issued recommendations to the Ningbo Foreign Trade Association to guide foreign trade enterprises to improve and implement trade secret protection measures. Ningbo Foreign Trade Association adopted the policy, and jointly introduced a cross-departmental foreign trade cooperation mechanism with a number of units, carried out trade secret risk self-assessment in more than 100 foreign trade enterprises, and carried out training for more than 10,000 foreign trade practitioners. In May 2023, the Yinzhou District Procuratorate, together with the Yinzhou District Public Security Bureau, the Market Supervision Bureau, the Bureau of Commerce, the Federation of Industry and Commerce, the Customs and other departments, signed the "Strategic Cooperation Agreement on Strengthening the Collaborative Protection of Trade Secrets of Business Information in the Foreign Trade Industry" to jointly promote fair competition, healthy and orderly development of the foreign trade industry. In November of the same year, the Yinzhou District Procuratorate issued the Guidelines for Evidence for the Protection of Intellectual Property Rights Involving Enterprises, pointing out the path for market entities to protect their rights after their intellectual property rights have been infringed.

【Typical Significance】

(1) Strengthen the judicial protection of business information trade secrets, and escort the healthy development of the foreign trade market. Business information is an important form of trade secrets, and it has important commercial value for market players, especially foreign trade enterprises, to gain competitive advantages. In the course of handling this case, the procuratorate actively carried out its own supplementary investigation, and resolved the problem of "difficulty in criminalization" for infringement of business information trade secrets. Comprehensively analyze the formation process and specific content of business information, focusing on whether it is in-depth and comprehensive business information formed by the enterprise's long-term accumulation and whether the criminal suspect actually used the information, carefully review objective facts such as the customer development and maintenance process and the relevant transaction time, and synthesize all the evidence in the case to identify the criminal suspect's defense that the customer-enterprise transaction is based on personal trust in a specific employee. At the same time, the procuratorial organs adhere to digital empowerment, make full use of the customs foreign trade export data platform to verify all the facts of the crime, prosecute the omitted crimes, and ensure that the facts are clear and the prosecution is in place.

(2) Promote coordinated protection by multiple departments, and actively integrate into the overall pattern of comprehensive governance. Based on the experience of handling individual cases, combined with regional economic development and industry characteristics, the procuratorial organs have established a "rapid response" mechanism for cross-departmental coordinated protection and linkage of intellectual property rights by jointly formulating and issuing social governance recommendations in conjunction with the people's courts, leading multiple departments to sign strategic cooperation agreements, and issuing guidelines for the presentation of evidence for intellectual property rights protection, so as to improve the level of protection of trade secrets in the foreign trade industry in multiple dimensions, effectively solve the "stubborn diseases" that hinder the healthy development of private enterprises, and work together to promote fair competition in the foreign trade industry and promote healthy and orderly development.

Case five

Xu Moujun and 26 others counterfeited registered trademarks and sold goods with counterfeit registered trademarks

【Keywords】

The crime of counterfeiting registered trademarks, the crime of selling goods with counterfeit registered trademarks, the combination of leniency and severity, the whole chain of crackdown, and equal protection

【Gist】

When handling cases involving a large number of people, a wide range of cases, and complex cases, procuratorial organs give full play to the role of the mechanism of investigation supervision and coordination, promptly put forward suggestions for investigation and evidence collection, improve the chain of evidence, and achieve precise strikes on the entire chain of production, supply, and marketing. Implement the criminal policy of blending leniency and severity, comprehensively considering factors such as the status, role, illegal gains, and subjective malice of the persons involved in the case, and handle them in a hierarchical and categorical manner. Adhere to the concept of equal protection, safeguard the legitimate rights and interests of Chinese and foreign rights holders in accordance with the law, and help optimize the business environment based on the rule of law.

[Basic facts of the case]

From July 2015 to April 2021, Xu Moujun, Zhuang Moukuan and others, without the permission of the owner of the registered trademark "ROLEX", partnered to lease warehouses in Panyu District, Guangzhou City and other places, purchased unmarked watch movements, entrusted Hou Mouyan and others to disassemble the movement and engrave the "ROLEX" logo, and purchased watch straps engraved with the "ROLEX" logo from Cai Mouxing and others. Spare parts such as watch cases are assembled by Zeng Moufeng and others, and after quality inspection and packaging, they are sold to first-level agents such as Wang, and then sold to second-level and third-level sales agents such as Yu Mouran. Agents carry out publicity through online platform advertising and drainage, set up sales WeChat groups, physical store sales and other external sales. The amount of illegal business operations of the above-mentioned persons ranged from more than 230,000 yuan to more than 332 million yuan, and the illegal income ranged from 50,000 yuan to more than 20.75 million yuan.

[Performance of duties by procuratorial organs]

On February 19, 2021, the Runzhou Branch of the Zhenjiang Public Security Bureau of Jiangsu Province (hereinafter referred to as the Runzhou Public Security Bureau) received a number of reports of citizens buying counterfeit Rolex watches, and filed a case for investigation on suspicion of counterfeiting registered trademarks by Yu Mouran and others. The People's Procuratorate of Zhenjiang Economic Development Zone (hereinafter referred to as the Procuratorate of Zhenjiang Economic Development Zone) was invited to send personnel to intervene in the investigation, in view of the fact that the watch movement is a regular product purchased from the manufacturer, and the quality of the assembled products meets the relevant standards, it is recommended that the public security organs focus on the investigation of trademark infringement crimes: First, dig deep into the source of counterfeiting and realize the whole chain crackdown. From the analysis of the transaction details, purchase orders, logistics information, and WeChat users of the sellers at the end of the chain, the upstream crimes are comprehensively traced, and the source of sales of the infringing goods, the operation model, and the organizational structure are ascertained in accordance with the law. The second is to clarify the thinking of the identification of accomplices and accurately convict them. It is important to verify whether the suppliers of spare parts and the general sales agents of the first-level sales who only participate in the sale of counterfeits constitute a joint crime with the counterfeiters. In view of the fact that Cai Mouxing and the other 9 persons lacked joint criminal contact with the person who assembled and produced the fake watch, and it was difficult to determine the joint crime, based on the name and use of the straps and cases of the counterfeit "ROLEX" registered trademark, it was determined that the goods approved for use with the registered trademark were "the same kind of goods", and their production and sale of spare parts separately constituted the crime of counterfeiting registered trademarks, and the amount of illegal business was calculated separately based on the selling price and quantity of the above-mentioned spare parts. For Wang and other sales agents who only sell counterfeit watches and do not participate in counterfeiting, it is determined that the crime of selling goods with counterfeit registered trademarks is constituted. The third is to accurately determine the amount of the crime. Through the accounting books of the counterfeiting and selling gangs and the more than 230 bank cards involved in the case, the amount of each criminal suspect was calculated by combing and auditing the funds, and combining the verbal evidence of the persons involved in the case. Fourth, distinguish the situation and deal with it by category. In the stage of early intervention, the procuratorial organs, taking into account the circumstances of the entire case and the circumstances of each person's involvement in the case, recommend that custodial coercive measures be taken against the persons involved in the source of the counterfeiting and selling gangs; it is recommended that non-custodial coercive measures be taken against those involved in the case who have a good attitude of admitting guilt and repentance, play a relatively small role, make relatively little profits, and pose little danger to society; and may not be treated as a crime for those who only receive a small fixed salary and whose circumstances are obviously minor.

From July 2021 to January 2022, the Runzhou Public Security Bureau successively submitted a request to the Zhenjiang Economic Development Zone Procuratorate for approval of arrest against 8 people, including Xu Moujun, Zhuang Moukuan, Hou Mouyan, and Cai Mouxing, for the crime of selling goods with counterfeit registered trademarks. The Zhenjiang Economic Development Zone Procuratorate approved the arrest of the above 15 people in accordance with the law. In addition, the Runzhou Public Security Bureau released Zeng Moufeng and the remaining 11 others on bail pending trial.

From October 2021 to March 2022, the Runzhou Public Security Bureau successively transferred Xu Moujun and 26 others to the Zhenjiang Economic Development Zone Procuratorate for review and prosecution on suspicion of counterfeiting registered trademarks and selling goods with counterfeit registered trademarks. The procuratorial organs are to focus on the following work: First, add additional crimes and omissions in accordance with the law. The public security organs only determined the fact that Xu Moujun illegally operated more than 130 million yuan from September 2019 to April 2021. Interrogation of the persons involved in the case found that from July 2015 to September 2019, Xu Moujun and Zhuang Moukuan also jointly produced and sold fake watches, and during this time period, Xu Moujun and Zhuang Moukuan had a transaction flow of hundreds of millions of yuan, so they prosecuted Zhuang Moukuan, further verified the transaction details, and strengthened the interrogation of other co-defendants, and finally Xu Moujun's illegal business amount increased from more than 130 million yuan to more than 332 million yuan, and the public security organs supplemented the transfer for review and prosecution of Zhuang Moukuan, a counterfeiter with an illegal business amount of more than 196 million yuan. The second is to implement the criminal policy of blending leniency and severity, urging those who admit guilt and accept punishment. Strengthened the interpretation of the law and reasoning, prompting 22 criminal suspects to admit guilt and accept punishment during the review for prosecution phase, and 3 defendants to admit guilt and accept punishment during the trial phase. When submitting sentencing recommendations, fully consider circumstances such as each person's specific conduct, the size of the role, the amount of profits, the harmfulness to society, and the admission of guilt and acceptance of punishment, and it is recommended that actual punishment be applied to the main personnel at the source of the counterfeiting, and that accomplices and sellers who have a good attitude of admitting guilt and repentance and who involve a small amount of money involved in the case be lenient in accordance with law. The third is to protect the legitimate rights and interests of rights holders in accordance with the law. The procuratorate visits the rights holder's agency in China, serves a notice of the rights holder's litigation rights and obligations in criminal cases of infringement of intellectual property rights, informs them of the means of rights and remedies and the progress of the litigation, and listens to opinions on the authenticity of the goods involved in the case and the scope of the goods approved for use in the trademark registration certificate, so as to effectively protect the rights holders' right to know and participate.

From December 2021 to March 2022, the Zhenjiang Economic and Technological Development Zone Procuratorate prosecuted Xu Moujun and 26 others for the crime of counterfeiting registered trademarks and selling goods with counterfeit registered trademarks. From June to July 2023, the People's Court of Zhenjiang Economic Development Zone made a first-instance judgment, adopted the prosecution opinions and sentencing recommendations of the procuratorate, and sentenced the defendants Xu Moujun, Zhuang Moukuan, Hou Mouyan, Cai Mouxing, Zeng Moufeng and 14 others to fixed-term imprisonment and fines ranging from 60,000 yuan to 50 million yuan for the crime of counterfeiting registered trademarks; Yu Mouran and 12 others were sentenced to fixed-term imprisonment ranging from two years to five years and seven months, and fines ranging from 130,000 yuan to 3 million yuan, and some were given suspended sentences. None of the defendants appealed, and the judgment has entered into force.

【Typical Significance】

(1) Dig deep into the sources of upstream crimes, and realize the whole chain of crackdowns. The defendant in this case sold counterfeit goods through WeChat Moments, the "circle" of buying and selling was relatively closed, the selling price of the infringing goods was much lower than the market price, and some consumers knew that the counterfeit goods were fake, and it was difficult to find clues about the production and sale of counterfeits, and it was difficult to investigate and deal with them. In this case, due to the buyer's dissatisfaction with the after-sales service and the police, the preliminary investigation direction is mainly aimed at the counterfeiters at the end of the chain of counterfeiting and sales, the procuratorate implements the requirements of the whole chain to combat the crime of infringement of intellectual property rights, pays attention to digging deep into the clues of upstream crimes, and successfully prosecutes the counterfeiters and spare parts suppliers of infringing goods, and additionally identifies the amount of the crime of hundreds of millions of yuan, forming a joint force of the whole chain of crackdown work, and achieving the goal of "hitting the source, ending the den, and breaking the chain".

(2) Implement the criminal policy of blending leniency and severity, bringing about hierarchical and categorical handling. In this case, there are clear hierarchies and a clear division of labor, and the number of people involved in the case is large, and the procuratorate fully considers factors such as the degree of participation of the gang members, the criminal conduct, the unlawful gains, and the attitude of admitting guilt and repentance, to accurately assess the size of each perpetrator's crime and the criminal responsibility they should bear. The person in charge of the counterfeiting gang and those engaged in important positions such as organization and management are to be designated as principal offenders and severely punished in accordance with law, and it is recommended that real punishment be applied and a high fine should be imposed;

(3) Adhere to equal protection in accordance with the law, and help optimize the business environment based on the rule of law. In this case, the target of infringement was an internationally renowned trademark, and counterfeit watches were sold to more than 20 provinces across the country, with a criminal amount of more than 332 million yuan, which seriously infringed on the legitimate rights and interests of trademark owners and consumers. The procuratorial organs adhere to the judicial concept of equal protection for Chinese and foreign intellectual property rights holders in accordance with the law, strictly implement the system of informing rights holders of their procedural rights and obligations in criminal cases of intellectual property infringement, fully protect the rights holders' rights to know and participate, severely punish intellectual property infringement crimes, and create a law-based business environment for the operation and development of all types of market entities.

Case 6

Case of Ye Moumin's counterfeiting of registered trademarks

【Keywords】

Counterfeiting of registered trademarks, amount of illegal business, criminal protest, social governance

【Gist】

In handling cases of counterfeiting registered trademarks, the procuratorate shall, in accordance with the role of the trademark in indicating the source of the goods, correctly identify the goods indicated by the trademark, distinguish between independent goods and the components of the goods, and accurately determine the amount of illegal business. Where the court's judgment is truly in error, the procuratorate is to strengthen the integrated performance of duties by the higher and lower courts, lawfully performing the function of legal supervision of criminal counter-appeals, and ensuring the uniform and correct implementation of the law.

[Basic facts of the case]

Delixi Group Co., Ltd. (hereinafter referred to as Delixi) is the owner of the registered trademark "DELIXI". From 2015 to 2020, Ye Moumin forged the "DELIXI" logo nameplate and installed it on the distribution boxes and distribution cabinets assembled and equipped by himself without obtaining the production qualification of distribution boxes and without the permission of De Mouxi Company, and then sold them in Inner Mongolia Autonomous Region, Ningxia Hui Autonomous Region and other places, selling a total of 447 distribution boxes and 21 distribution cabinets, with a total illegal business amount of 658,000 yuan.

[Performance of duties by procuratorial organs]

On June 5, 2020, the Wushenqi Public Security Bureau of Ordos City, Inner Mongolia Autonomous Region, filed a case for investigation on suspicion of Ye Moumin's counterfeiting of registered trademarks, and transferred it to the Wushenqi People's Procuratorate for review and prosecution on October 21 of the same year. On November 4, 2020, the Wushenqi People's Procuratorate submitted the case to the People's Procuratorate of Ordos City, Inner Mongolia Autonomous Region (hereinafter referred to as the Ordos City Procuratorate) for review and prosecution. The procuratorial organs focus on the following tasks: First, correctly distinguish between independent commodities and their components. After review, it was confirmed that Ye Moumin configured the distribution box (cabinet) by himself, assembled the purchased genuine components into the box (cabinet), and then sold the assembled distribution box (cabinet) to the outside world, and the box (cabinet) body and components should be regarded as a whole commodity; Crimes committed by units shall have constituent elements such as "committing the crime in the name of the unit" and "unlawful gains are owned and used by the unit". After review, although Ye Moumin signed the sales contract in the name of the company, he organized and implemented criminal acts such as forging trademark logos, installing logo nameplates, assembling electrical boxes (cabinets), installing and repairing commodities in his personal name, and the above-mentioned criminal activities could not reflect the will of the unit without the consent of the company, and Ye Moumin designated his personal account to collect payment, and the illegal gains were not owned and used by the unit, so the procuratorate determined that this case did not constitute a unit crime.

On February 4, 2021, the Ordos Municipal Procuratorate prosecuted Ye Moumin for the crime of counterfeiting registered trademarks, and on June 7 of the same year, the Intermediate People's Court of Ordos City, Inner Mongolia Autonomous Region (hereinafter referred to as the Ordos Intermediate Court) made a first-instance judgment, finding that the defendant Ye Moumin constituted the crime of counterfeiting registered trademarks, but believed that the distribution box (cabinet) assembled by Ye Moumin was not tied to the components, and the components in the box (cabinet) were genuine, and the value of the components should be reduced from the amount of illegal operation, so the illegal business amount was calculated only based on the value of the box and cabinet of the distribution box (cabinet) to be 134,700 yuan, and the defendant Ye Moumin was sentenced to two years in prison, suspended for three years and fined RMB 70,000.

After review, the Ordos Municipal Procuratorate held that the first-instance judgment erroneously identified the components of the commodity as independent commodities, resulting in an erroneous determination of the amount of illegal business. In this case, the genuine components assembled by Ye Moumin in the distribution box (cabinet) exist as a component of the distribution box (cabinet), and the components are not independent commodities, which is different from the mixing of real and fake independent commodities and selling them to the outside world. Defendant Ye Moumin sold a complete set of distribution boxes (cabinets) to customers, not individual components and shells, or a simple addition of the two. The core function of the trademark is to indicate the source of the goods, and according to commercial practice and relevant public perception, the trademark in this case indicates the source of the distribution box (cabinet), rather than the source of the components or the shell of the box (cabinet). Therefore, the overall price of the complete set of equipment of the distribution box (cabinet) should be 658,000 yuan to determine the amount of illegal operation, and the value of the components should not be reduced. On June 17, 2021, the Ordos Municipal Procuratorate found that the first-instance judgment was wrong and that the sentence of the defendant Ye Moumin was unusually light, and filed a counter-appeal. The People's Procuratorate of the Inner Mongolia Autonomous Region found that the grounds for the protest were sufficient and that the first-instance judgment was indeed in error, and supported the protest opinion. The High People's Court of the Inner Mongolia Autonomous Region ruled that the case was remanded for retrial after the second-instance trial.

After the remand for retrial, the chief procurator of the Ordos City Procuratorate attended the adjudication committee of the Ordos City Intermediate People's Court as an observer. On December 30, 2022, the Intermediate People's Court of Ordos City made a new first-instance judgment, adopted the prosecutor's protest opinion, and found that the defendant Ye Moumin was guilty of counterfeiting registered trademarks, with an illegal business amount of 658,000 yuan, and sentenced him to three years and six months in prison and a fine of RMB 330,000. After the first-instance judgment, the defendant Ye Moumin appealed. On June 15, 2023, the High People's Court of the Inner Mongolia Autonomous Region ruled in the second instance to reject the appeal and uphold the original judgment, and the judgment has taken effect.

Because the distribution boxes (cabinets) with counterfeit registered trademarks sold by Ye Moumin are mainly used in public places such as airports, gymnasiums, and residential areas, Ye Moumin has not replaced the infringing goods since the incident, and there are certain fire hazards. In order to ensure the safety of the people's personal and property, the Ordos Municipal Procuratorate issued procuratorial suggestions on social governance to the city's market supervision and emergency management departments, supervised the performance of administrative supervision duties, and eliminated fire hazards in a timely manner. In addition, the Ordos Municipal Procuratorate also contacted the procuratorates of Yinchuan City and Shizuishan City, Ningxia Hui Autonomous Region, where the counterfeit goods were sold, to inform them that the counterfeit goods in this case were still in use, and the local procuratorate would report the relevant situation to the emergency management department of the jurisdiction.

【Typical Significance】

(1) Accurately determine the amount of the crime in the case of counterfeiting registered trademarks in the category of assembled goods. The defendant in this case illegally manufactured and sold to customers a complete set of distribution boxes (cabinets), not a simple addition of components and box (cabinet) shells, the components are part of the goods rather than independent goods, and the use of its trademark also indicates the source of the distribution box (cabinet), not the source of individual components or box (cabinet) shells. Therefore, the amount of illegal operation should be determined by the value of the complete set of commodities in the distribution box (cabinet), and the value of the components should not be reduced.

(2) Fully perform the legal supervision functions of the procuratorial organs in accordance with law, ensuring the uniform and correct implementation of the law. Procuratorates shall uphold an objective and fair stance, and in the course of handling criminal cases of infringement of intellectual property rights, where they discover that the people's court's judgment is truly in error, they shall raise a prosecutorial counter-appeal in accordance with law, and earnestly analyze the reasons for the court's refusal to accept the prosecution opinion, so as to increase the pertinence and effectiveness of the procuratorial counter-appeal. In this case, the judgment of the court of first instance erred in determining the amount of the crime, and on the basis of accurately applying the law, the procuratorate strengthened the integrated performance of duties by the courts at the lower and lower levels, accurately raised a prosecutorial counter-appeal in accordance with law, and supervised the correction of the erroneous judgment.

Case 7

Tianchang Xin Co., Ltd. v. Zhanjiang Su Co., Ltd., Haikou Coconut Co., Ltd. and other unfair competition civil dispute protest cases

【Keywords】

Unfair competition, packaging and decoration with a certain impact, trademark invalidation protest

【Gist】

If the trademark is declared invalid due to adverse effects, the relevant packaging and decoration of the goods do not have the basis for obtaining legal protection, and should not be protected by the Anti-Unfair Competition Law as packaging and decoration with a certain degree of influence. In the course of supervision, procuratorates shall emphasize the search for similar cases, accurately raise prosecutorial counter-appeals, and ensure uniform adjudication standards.

[Basic facts of the case]

On April 12, 2018, Zhanjiang Su Co., Ltd. (hereinafter referred to as Su Company) filed a lawsuit with the People's Court of Yuhang District, Hangzhou City, Zhejiang Province (hereinafter referred to as Yuhang District Court) on the grounds that Haikou Coconut Co., Ltd. (hereinafter referred to as "Coconut Company") and Tianchang Xin Co., Ltd. (hereinafter referred to as "Xin Company") used the unique packaging and decoration of their well-known commodities without authorization, which constituted unfair competition.

On October 28, 2018, the Yuhang District Court made a first-instance judgment, holding that Su Mou Company was an authorized manufacturer of the "Special Forces Raw Coconut Juice" product, and enjoyed the unique packaging and decoration rights of well-known commodities. The unauthorized use of packaging and decoration similar to the well-known goods of Su Company constitutes unfair competition. The court ruled that the coconut company and the new company should stop the unfair competition against Su's company, compensate Su for economic losses (including reasonable expenses) of 150,000 yuan, and reject other litigation claims. Dissatisfied, the new company appealed to the Intermediate People's Court of Hangzhou Municipality, Zhejiang Province. On August 14, 2019, the second-instance judgment rejected the appeal and upheld the original judgment. The new company applied to the Zhejiang Provincial High People's Court for a retrial. On December 5, 2019, the court ruled to reject the retrial application of the new company.

[Performance of duties by procuratorial organs]

The new company applied to the Hangzhou Municipal People's Procuratorate of Zhejiang Province (hereinafter referred to as the Hangzhou Municipal Procuratorate) for supervision. After accepting the case, the procuratorial organs focused on the following work: First, it was necessary to ascertain the situation of the trademark No. 11118542 "THE SPECIAL ARMS and figures" in the packaging and decoration elements involved in the case. It has been ascertained that the trademark has been ruled invalid by the State Intellectual Property Office, and it is believed that "special forces" is a well-known name of the armed forces, and its use as a trademark on approved goods is easy to make the relevant public associate the goods with military materials, and is easy to have a negative impact on the public interests and public order such as politics and military affairs in the mainland, constituting the circumstances referred to in Article 10, Paragraph 1, Item (8) of the Trademark Law of the People's Republic of China. Later, after an administrative lawsuit, the court upheld the above ruling. The second is to ascertain the adjudication of similar cases. The trademark No. 16972248, which is the same as the trademark symbol in the packaging and decoration elements involved in the case, has been found by the court to have adverse effects and cannot be used as a trademark. The Supreme People's Court held in the (2019) Zui Gao Fa Min Shen No. 4847 Civil Ruling and the (2020) Zui Gao Fa Min Zai No. 133 Civil Judgment that since the constituent elements of the packaging and decoration involved in the case claimed by Su Mou Company all pointed to special forces, when there were effective judgments that the registration of the words and graphics of "special forces" as trademarks would have an adverse impact, the packaging involved in the case with the words "special forces" as a distinctive part of the trademark, Decoration should also not be protected as packaging or decoration with a certain influence within the meaning of the Anti-Unfair Competition Law.

After review, the procuratorate found that the packaging and decoration of the goods involved in the case of Su Mou's company were designed and conceived with the "special forces" trademark and related elements as the core, and the existing effective judgment determined that the relevant trademark signs would have an adverse impact and should not be used as trademarks. In similar cases, the court has found that the packaging and decoration of coconut water products that should not be protected by the Anti-Unfair Competition Law are basically the same as those involved in this case. The packaging and decoration of the goods involved in the case used the trademark "Special Forces" and related elements as a distinctive part of identification, and other constituent elements such as camouflage patterns in the packaging and decoration had a high degree of correlation with the words and graphics of the trademark, so the packaging and decoration involved in the case did not have a legitimate basis for obtaining legal protection, and should not be protected by the Anti-Unfair Competition Law as packaging and decoration with a certain degree of influence. The Hangzhou Municipal Procuratorate submitted a protest to the Zhejiang Provincial People's Procuratorate.

On January 17, 2023, the Zhejiang Provincial People's Procuratorate filed a protest with the Zhejiang Provincial High People's Court. On June 13, 2023, the Zhejiang Provincial High People's Court rendered a judgment, holding that the packaging and decoration involved in the case were designed and conceived with the "Special Forces" trademark and related elements as the core, of which the No. 11118542 trademark was fully presented on the packaging and decoration of the goods, and the "Special Forces" trademark and related elements were an integral part of the packaging and decoration involved in the case, rather than elements that could be replaced at will. In this case, the packaging and decoration involved in the case, which uses the "special forces" trademark and related elements as a distinctive part of the trademark, are inseparable from the trademark, which is likely to cause consumers to associate the packaging and decoration as a whole with "special forces", and it is difficult to be protected by the Anti-Unfair Competition Law. The camouflage patterns and other constituent elements of the decoration involved in the case have a high degree of relevance to the words and graphics of the "Special Forces" trademark, which is difficult to become an independent basis for rights, and cannot be protected by the Anti-Unfair Competition Law as packaging and decoration with a certain degree of influence. The Zhejiang Provincial High People's Court made a judgment: revoke the judgments of the first and second instance and reject all the litigation claims of Su's company.

【Typical Significance】

(1) Analyze the relationship between trademarks, packaging and decoration, and determine the basis for legal protection. According to Article 6 of the Anti-Unfair Competition Law, it is an act of unfair competition for a business operator to use without authorization a mark that is identical or similar to the packaging or decoration of a commodity that has a certain influence on another person, causing confusion, leading people to mistakenly believe that it is another person's goods or having a specific connection with another person. When the trademark is declared invalid due to adverse effects, if it is still recognized that the packaging and decoration are protected by the Anti-Unfair Competition Law, it means that the adverse influencing factors will continue to exist through the packaging and decoration. Under the circumstance that the packaging and decoration are closely related to the invalid trademark and are difficult to peel off, the packaging and decoration of goods designed with the trademark and related elements as the core will not have the legitimate basis for obtaining legal protection, and shall not be protected by the Anti-Unfair Competition Law as packaging and decoration with a certain degree of influence.

(2) Pay attention to the search for similar cases to ensure the quality and effectiveness of supervision. Unique packaging and decoration play a role in identifying the source of goods to a certain extent, and can promote the circulation of goods in the market. When designing packaging and decoration, business operators shall pay attention to avoiding the use of elements that are likely to have a negative impact, must not harm the national interest and the social public interest, and maintain the core socialist values and social public order. The Supreme People's Court has previously made a determination in a case of unfair competition dispute arising from the design of the packaging and decoration of the goods involved in this case, and the conclusion of the handling of similar cases is of important reference significance for this case. In situations where there are similar cases, the procuratorate should ascertain the circumstances of the adjudication of the similar case in the supervision of civil litigation cases, and ensure that the adjudication standards are consistent.

Case 8

Shanghai Jinmou Co., Ltd. v. Shanghai Jiading District Market Supervision and Administration Bureau involved in non-litigation enforcement supervision of administrative penalties for infringement of the exclusive right to use registered trademarks

【Keywords】

Administrative non-litigation enforcement, application for enforcement, approval of enforcement, procuratorial suggestions

【Gist】

When supervising the enforcement of administrative cases by the courts, procuratorial organs may simultaneously formulate and issue procuratorial recommendations to the courts and administrative organs for administrative punishment decisions that do not meet the legally-prescribed requirements for applying for compulsory enforcement, but are ruled by the court to approve enforcement, and the results are attributed to the administrative organ's application and the court's review conduct, to strengthen simultaneous oversight.

[Basic facts of the case]

On February 28, 2022, the Shanghai Jiading District Market Supervision Administration (hereinafter referred to as the Jiading District Market Supervision Bureau) imposed an administrative penalty on Shanghai Jinmou Co., Ltd. (hereinafter referred to as Jin's company) for infringing the exclusive right to use a registered trademark, ordering it to immediately stop the infringement, confiscate the infringing goods and impose a fine of RMB 131,275.55, and deliver the above-mentioned administrative penalty decision to Jin's company in accordance with the law.

On July 28, 2022, the Jiading District Market Supervision Bureau electronically delivered the "Reminder for the Performance of the Administrative Penalty Decision" to a company on the grounds that it had not fulfilled its obligation to pay the fine. On September 1 of the same year, a company filed an administrative lawsuit with the Shanghai Jiading District People's Court (hereinafter referred to as the Jiading District Court), and the court accepted the case on October 10. On November 24 of the same year, the Jiading District Market Supervision Bureau applied to the Jiading District Court to enforce the above-mentioned administrative penalty decision. After accepting the application for enforcement, the court ruled on December 16 to grant enforcement.

[Performance of duties by procuratorial organs]

When the People's Procuratorate of Jiading District of Shanghai (hereinafter referred to as the Jiading District Procuratorate) performed its procuratorial and supervisory duties in accordance with the law, it was found that before the Jiading District Market Supervision Bureau applied for compulsory enforcement of the administrative penalty decision made against the company, the company had filed an administrative lawsuit with the Jiading District Court within the statutory period, but the court still accepted the application for compulsory enforcement and made a ruling to approve the enforcement. The Jiading District Procuratorate then initiated the supervision procedure in accordance with the law on the clue.

The procuratorial organs are to focus on the following work: First, collect relevant case file materials. After ascertaining to the Jiading District Court, a company filed an administrative lawsuit with the Jiading District Court on September 1, 2022 on the administrative penalty decision, and the court accepted the case on October 10, and the Jiading District Market Supervision Bureau responded to the lawsuit as a defendant in the administrative lawsuit on the 30th of the same month. The second is to obtain relevant civil judgments. After investigation, on June 12, 2020, a company was judged by the court to constitute trademark infringement because the production and sale of building materials gusset infringed the exclusive right to use a registered trademark of a building materials technology company in Shanghai. Today, a company continued to produce and sell after slightly modifying the trademark logo, and was seized by the Jiading District Market Supervision Bureau and made the above-mentioned administrative penalty decision. The third is to hold case seminars. The procuratorate, together with the Jiading District People's Court and the Jiading District Market Supervision Bureau, held a case seminar and learned that the Jiading District Market Supervision Bureau had different departments responsible for responding to administrative litigation and applying for non-litigation enforcement, and there was a lack of information exchange mechanism between departments, which led to the occurrence of this case.

After examination, the procuratorate held that Article 53 of the "Administrative Coercion Law of the People's Republic of China" stipulates that "if a party does not apply for administrative reconsideration or initiates an administrative lawsuit within the statutory time limit, and fails to perform the administrative decision, the administrative organ that does not have the power of administrative compulsory enforcement may apply to the people's court for compulsory enforcement in accordance with the provisions of this chapter within three months from the date of expiration of the time limit." Article 97 of the Administrative Litigation Law of the People's Republic of China stipulates that "if a citizen, legal person or other organization fails to file a lawsuit against an administrative act within the statutory time limit and fails to perform it, the administrative organ may apply to the people's court for compulsory enforcement, or enforce it in accordance with law". Today, a company has filed an administrative lawsuit with the court for a specific administrative act within the statutory time limit, and the market supervision department still applies to the court for compulsory enforcement despite knowing the relevant circumstances, which violates the above provisions. The first paragraph of Article 160 of the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China stipulates that "after a people's court accepts a case in which an administrative organ applies to enforce its administrative act, it shall, within seven days, have the administrative tribunal review the legality of the administrative act and make a ruling on whether to approve enforcement". The court has accepted the administrative lawsuit filed by the company, and at the same time ruled to approve the application for compulsory enforcement filed by the Jiading District Market Supervision Bureau, which violated the above provisions.

On February 21, 2023, the Jiading District Procuratorate issued a procuratorial proposal to the Jiading District Court on the case, recommending that the ruling granting enforcement be revoked, and that the review of non-litigation enforcement applications be strengthened, and the related retrieval of case information should be strengthened to prevent the occurrence of a situation of "execution while trial". At the same time, the Jiading District Procuratorate issued a procuratorial proposal to the Jiading District Market Supervision Bureau for the administrative organ's illegal application for compulsory enforcement.

After receiving the procuratorial suggestions, the Jiading District Market Supervision Bureau promoted the implementation of rectification. The first is to comprehensively sort out the cases of application for compulsory enforcement since 2021, and sort out and compare the overlap between administrative litigation and non-litigation enforcement cases. The second is to improve the internal information exchange mechanism, strengthen horizontal communication between law enforcement supervision and management departments and relevant business departments, and improve the work of submitting and approving applications for compulsory enforcement cases. The third is to give full play to the coordinating and guiding role of the legal department, and urge the relevant departments to implement the work of responding to administrative litigation. The fourth is to formulate the "Notice on Implementing the Provisions on the Procedures for Compulsory Enforcement of Administrative Punishment Applications by Courts" to further clarify the prerequisites and internal approval procedures for applying to the court to enforce administrative punishment decisions.

On February 23, 2023, the Jiading District Court replied to adopt the procuratorate's recommendation, revoke the original ruling, and agree with the Jiading District Market Supervision Bureau to withdraw the non-litigation enforcement application. The Jiading District Procuratorate and the Jiading District Court jointly carried out special activities for administrative non-litigation enforcement, sorting out and investigating the administrative non-litigation enforcement cases handled by the Jiading District Court in the past five years, and the Jiading District Court specially formulated the process for accepting and reviewing administrative non-litigation enforcement cases. At the same time, the procuratorate and the law conducted a visit and investigation to the administrative law enforcement agencies in the whole region, comprehensively investigated the initiation and acceptance of administrative non-litigation enforcement cases in their jurisdictions, and promptly urged the two administrative organs with similar problems to correct illegal acts, and suggested that some administrative organs improve their internal case-handling mechanisms to avoid similar situations.

【Typical Significance】

(1) Perform their duties in accordance with law, and strengthen oversight of administrative non-litigation enforcement. Article 108 of the Rules for the Supervision of Administrative Litigation of the People's Procuratorate stipulates that "the People's Procuratorate shall exercise legal supervision over the enforcement activities of the people's courts in administrative cases". Administrative non-litigation enforcement refers to a system in which after an administrative organ makes an administrative decision, the administrative counterpart does not apply for administrative reconsideration or initiate an administrative lawsuit within the statutory time limit, still fails to perform the determined obligations after being reminded, and the administrative organ that does not have the right of enforcement applies to the court for compulsory enforcement, and the court makes a ruling to approve the administrative organ for compulsory enforcement or directly take compulsory measures to enforce it after acceptance and review, so that the content of the administrative decision of the administrative organ can be realized. The development of procuratorial supervision of administrative non-litigation enforcement is conducive to promoting the implementation and administration of relevant organs in accordance with the law.

(2) Actively perform their duties, and strengthen simultaneous supervision of the judiciary and administration. When supervising the enforcement of administrative cases by the courts, the procuratorates shall simultaneously review whether there are any illegal applications made by the administrative organs. For administrative punishment decisions that do not meet the statutory requirements for applying for compulsory enforcement but are ruled by the court to approve enforcement, and the result is attributed to the administrative organ's application and the court's review behavior, in order to ensure the accuracy of the application of law and solidly promote administration in accordance with law, the procuratorial organs should strengthen the role of synchronous supervision. On the one hand, through procuratorial suggestions, urge the court to revoke illegal administrative non-litigation enforcement rulings, and safeguard the legitimate rights and interests of the parties in administrative litigation. On the other hand, procuratorial suggestions are used to urge administrative organs to correct illegal applications, find and analyze the root causes and institutional loopholes that produce illegal applications, improve working mechanisms, and promote administrative procuratorates to move from individual case supervision to similar case management.

Case 9

"Zhenhu Embroidery" intellectual property protection administrative public interest litigation case

【Keywords】

Intangible Cultural Heritage, Geographical Indications, Pre-litigation Procedures for Administrative Public Interest Litigation, Social Governance

【Gist】

Procuratorial organs have strengthened the comprehensive protection of intellectual property rights in the field of traditional culture, using administrative public interest litigation as the entry point to promote administrative organs to perform their duties in accordance with the law, continuously improve the protection of intellectual property rights for intangible cultural heritage and geographical indication products, promote the establishment of plugging leaks and protection at the source, and help the development of traditional culture.

[Basic facts of the case]

On May 20, 2006, Suzhou embroidery was approved by the State Council to be included in the first batch of national intangible cultural heritage list, and the heritage number is VII.-18. Zhenhu Street, Huqiu District, Suzhou City, Jiangsu Province is the main birthplace of Suzhou embroidery, and in 2010, "Zhenhu Embroidery" was listed as a national geographical indication product protection. At the beginning of 2023, a number of embroiderers reported to the procuratorate through the "Suzhou Embroidery Procuratorial Service Center" and "Suzhou Embroidery E Inspection Pass" WeChat mini program that Suzhou embroidery intellectual property disputes are frequent, mainly manifested in the flooding of the market with machine embroidery pretending to be manual embroidery, and frequent disputes over the design patent rights of Suzhou embroidery products and copyright disputes over Suzhou embroidery manuscripts. The above situation not only harms the legitimate rights and interests of consumers, but also seriously affects the creation of embroidery, business operation and the development of Suzhou embroidery industry, which is not conducive to the protection and inheritance of national intangible cultural heritage and geographical indications, and infringes on the public interest.

[Performance of duties by procuratorial organs]

The People's Procuratorate of Huqiu District, Suzhou City, Jiangsu Province (hereinafter referred to as the Huqiu District Procuratorate) believes that Suzhou embroidery, as a national intangible cultural heritage, is an important part of the traditional culture of the Chinese nation. "Zhenhu Embroidery" is a national geographical indication product, which is a living carrier for the protection and inheritance of excellent traditional culture. On April 18, 2023, the Huqiu District Procuratorate filed an administrative public interest lawsuit against the protection of Su embroidery.

After investigation, the procuratorate found that Suzhou embroidery had difficulties in protecting intellectual property rights such as copyrights, trademarks, design patents, and geographical indications. The Huqiu District Procuratorate issued a procuratorial recommendation for administrative public interest litigation to the Market Supervision Administration (Intellectual Property Office) of Suzhou High-tech Zone (Huqiu District) (hereinafter referred to as the Huqiu District Market Supervision Bureau), suggesting that it investigate and deal with the sale of fake and shoddy Suzhou embroidery products, strengthen the protection of the geographical indication of "Zhenhu embroidery", and increase the protection of the intangible cultural heritage of Suzhou embroidery. After receiving the procuratorial suggestions, the Huqiu District Market Supervision Bureau attached great importance to it, and increased the investigation and punishment of machine embroidery pretending to be handmade and producing non-compliance with the standards of "Zhenhu Embroidery for Geographical Indication Products" in the jurisdiction, improving the complaint and reporting mechanism for Suzhou embroidery intellectual property infringement, warning and interviewing relevant merchants 9 times, mediating 5 intellectual property transaction disputes between embroidery girls, and maintaining the trading order of the Suzhou embroidery market in the jurisdiction.

In order to strengthen the source governance, enhance the level of industry self-discipline and the awareness of rights protection in accordance with the law, the Huqiu District Procuratorate promoted the Zhenhu Embroidery Association to strengthen the management of the embroidery market and the protection of intellectual property rights through the social governance procuratorial suggestions, and strive to build a well-known brand of Zhenhu embroidery. Zhenhu Embroidery Association attaches great importance to comprehensively investigating the ownership of intellectual property rights of Suzhou embroidery, using the Suzhou embroidery copyright trading platform to encourage Suzhou embroidery creators to carry out copyright registration, summarize the customary design of Suzhou embroidery, and do a good job in patent application and rights protection. Zhenhu Embroidery Association has helped members of the association to apply for 27 registered trademarks, 20 invention patents and nearly 100 design patents, and at the same time give full play to the advantages of industry associations, actively use mediation and reconciliation to resolve intellectual property disputes, improve the awareness of rights holders in accordance with the law, increase the publicity of law popularization, and improve the level of self-discipline in the industry.

In the handling of the case, the Huqiu District Procuratorate found the difficulties and blockages faced in the protection of Suzhou embroidery through investigation, and took the lead in coordinating the administrative organs and industry associations to jointly formulate the "Several Opinions on Promoting the Development of the Suzhou Embroidery Industry in Zhenhu", and promoted the establishment of the "Suzhou Embroidery Brand Legal Guarantee Center" in the whole region, and strengthened the cooperation of all parties in judicial linkage, execution connection, and collaborative protection. At the same time, the Huqiu District Procuratorate formulated and issued the "Guidelines for Strengthening the Protection of Intellectual Property Rights of Sugong Suzuo" to promote the protection, inheritance and innovative development of excellent traditional culture.

【Typical Significance】

(1) Take public interest litigation cases as a starting point to protect intangible cultural heritage and geographical indication products. Intangible cultural heritage is an important symbol of the historical and cultural achievements of the country and the nation, and an important part of the excellent traditional Chinese culture. A GI product is a product that originates from a specific region and whose quality, reputation or other characteristics are essentially determined by the natural and human factors of the place of origin. Geographical indication products contain the unique natural ecological environment and historical and cultural factors of the region, which is the guarantee of product quality and reputation. In the performance of their duties, procuratorial organs should focus on the protection and inheritance of intangible cultural heritage and geographical indications, sort out the specific manifestations of infringement of different types of intellectual property rights such as trademark rights, copyrights, patent rights, and geographical indications that may be involved in traditional culture, and make overall use of a variety of procuratorial functions. Actively build a comprehensive performance model that conforms to the characteristics of intellectual property cases in the field of traditional culture, and protect intangible cultural heritage and geographical indication products in accordance with the law.

(2) Strengthen coordinated protection and promote social governance. The protection of intangible cultural heritage and geographical indication products requires the joint work of judicial organs, market supervision departments, intellectual property management departments, etc., and needs to cooperate with multiple departments to discuss good policies. Procuratorial organs have strengthened the comprehensive protection of intellectual property rights, giving full play to the synergistic advantages of public interest litigation, and promoting the joint performance of duties by all departments through methods such as round-table consultations, procuratorial suggestions, and countersigning coordination mechanisms, so as to achieve resource sharing and superposition of advantages, so that the coordinated protection of intellectual property rights has become a powerful driving force for the innovation and development of traditional cultural industries. Give full play to the advantageous role of industry associations in liaising with enterprises, conduct in-depth visits and investigations, field research, and discussion and exchanges, promote the improvement of industry governance with procuratorial suggestions, form a joint force for the protection of intangible cultural heritage and geographical indication products, and create a good situation of co-construction, co-governance and sharing of intellectual property protection in the field of traditional culture.

Editor: Liu Rui