Keywords

Sales and distribution of pirated textbooks to guide investigation

Basic Case

From September 2019 to November 2021, the defendant Xu and the defendant Xie (Xu's wife) purchased a large number of pirated compulsory education textbooks from Liaocheng, Shandong at a price of about 50% off the book price without the permission of the copyright owner, and then sold them to the stores of Pinduoduo "Qianmou Office Stationery" and Youmou Bookstore at a price of about 20% off the book price. Xu is responsible for purchasing, receiving, packing and express delivery, while Xie is responsible for the operation of the store. After receiving the buyer's order, the two people sent the goods by express under an alias. When Xu and Xie were captured, 8870 pirated textbooks of all kinds that had not been sold were found on the scene, all of which were pirated and infringing books. By the time of the crime, the total amount of illegal business was 4368508.25 yuan after deducting refund, order swiping and non pirated textbook orders.

[Performance of procuratorial duties]

The case was investigated and concluded by the Economic Development Branch of Hefei Public Security Bureau, and was transferred to the People's Procuratorate of Hefei High tech Industrial Development Zone for investigation and prosecution as Xu and Xie were suspected of selling infringing copies. After accepting the case, the People's Procuratorate changed the nature of the case by reviewing criminal means, guided the public security to investigate and collect evidence by infringing copyright, and further verified the amount of illegal business involved, Effectively crack down on crimes and protect the legitimate rights and interests of copyright owners. On May 24, 2023, the People's Court of Hefei High tech Industrial Development Zone sentenced Xu to five years' imprisonment and a fine of 2.1 million yuan for the crime of copyright infringement; Xie was sentenced to fixed-term imprisonment of two years and six months, suspended for three years, and fined 100000 yuan for the crime of copyright infringement. After the judgment of the first instance, the defendant Xu appealed. On August 11, 2023, Hefei Intermediate People's Court ruled in the second instance to reject the appeal and uphold the original judgment.

Typical significance

（1） Guide investigation and evidence collection, and increase the amount of crime. This case was jointly listed and supervised by the Supreme People's Procuratorate, the Copyright Administration of the Propaganda Department of the CPC Central Committee and other six departments, and the amount of illegal business identified at the time of transfer for examination and arrest was only more than 520000 yuan. After questioning Xu and reviewing the evidence of the whole case, the procuratorial organ found that there was evidence proving that Xu still operated Pinduoduo "Youmou Bookstore" shop, and the public security organ did not retrieve the sales data of the shop. The procuratorial organ, while making the decision of approving arrest according to law, guided the public security organ to investigate and collect evidence in a timely manner, obtained all sales data of the stores involved in the case, and added more than 2.8 million yuan of criminal amount.

（2） Control the evidence of the whole case and deal with it accurately. The total number of orders of the two stores involved in this case is 607188, and the sales amount is more than 6.6 million yuan. After reviewing the electronic sales data, the procuratorial organ found that there was a situation of order swiping, and some orders were non pirated textbooks. For this reason, the procuratorial organ, by carefully interrogating the suspect, hearing the opinions of the defense lawyer in person, examined the massive electronic data item by item, and after excluding the order swiping, refund and non pirated textbook orders, determined that the amount of illegal business was more than 4.36 million yuan.

（3） Distinguish the nature of crime and apply the law accurately. At the beginning of the case investigation, the public security organ put the case on file for investigation with the crime of selling infringing copies. After study and judgment, the procuratorial organ believes that the defendant's "sales" behavior in this case should be identified as "distribution" in the crime of copyright infringement. Although the objects of the two crimes are the same, the crime of infringement of copyright stipulates that "distribution" includes general distribution, wholesale, retail, dissemination through the information network, leasing, exhibition and other activities. The Copyright Law defines the right of distribution as "the right to provide the original or copy of a work to the public by selling or donating". Therefore, this case should be identified as a crime of infringement of copyright.

Keywords

Guide and investigate the whole chain to crack down on recovering stolen goods and damage

Basic Case

From October 2020 to March 2021, Wang Moumou, in order to seek illegal interests, purchased second-hand forklifts with fake registered trademarks, contacted buyers through the Internet, delivered counterfeit second-hand forklifts through logistics, and hired Yang Moumou to sign a transfer agreement with buyers in a false identity, and used others' bank cards to collect money. The total amount of three counterfeit forklifts sold was 83400 yuan. Zhang, knowing that Wang sold fake forklifts, still used POS machine to withdraw cash for Wang.

From the end of 2021 to July 2022, Wang and Du worked together to sell second-hand forklifts with fake registered trademarks. Du was responsible for purchasing fake forklifts, and Wang was responsible for contacting buyers. The two hired Yang and Huang (another case) to sign transfer agreements with buyers in false identities, and used others' bank cards to collect money. Sun assisted Du to transfer money to his family. Liu, Li, Li, and Li purchased second-hand forklifts of inferior brands for refurbishment, stuck others' registered trademark logo and sold them to Du. Liu sold 10 counterfeit forklifts for a total of 174800 yuan, Li sold 6 counterfeit forklifts for a total of 104200 yuan, and Li sold 6 counterfeit forklifts for a total of 101900 yuan. The above fake forklifts have been sold to others at a premium by Wang and Du.

[Performance of procuratorial duties]

The case was investigated and concluded by the Feidong County Public Security Bureau, and was transferred to the People's Procuratorate of Hefei High tech Industrial Development Zone for prosecution with Wang, Du and others suspected of counterfeiting registered trademarks and selling counterfeit registered trademarks. After accepting the case, the procuratorial organ carefully carried out evidence review and accurately identified the charges. Fully listen to the opinions of all parties, carry out rule of law education for many times, and urge all suspects to plead guilty and accept punishment. On February 2 and March 22, 2023, the procuratorial organ made a decision not to prosecute Sun, and prosecuted the other seven defendants according to law. The People's Court of Hefei High tech Industrial Development Zone made judgments on April 18 and 26, 2023 after trial, and sentenced Wang and Du to three years of fixed-term imprisonment, four years of probation to six months of fixed-term imprisonment, one year of probation, and a fine ranging from 230000 yuan to 20000 yuan for the crime of counterfeiting registered trademarks and the crime of selling counterfeit registered trademarks.

Typical significance

（1） Insist on combating crime in the whole chain. During the period of review and arrest, the procuratorial organ comprehensively combed the facts and evidence of the case, guided the public security organ to study and judge the flow of funds received from the bank card by the criminal suspect, in addition to checking the purchase of counterfeit forklifts, focused on finding the criminal suspect who made and sold counterfeit forklifts, and directed the public security organ from the subjective knowledge, the flow of funds Electronic data and other aspects of comprehensive evidence collection, adhere to the whole chain to crack down on the crime of manufacturing and selling counterfeit forklifts.

（2） Distinguish the nature of crime and apply the law accurately. The procuratorial organ, by sorting out the relationship between the defendants and the facts of their participation, accurately identified the amount of money involved by the defendants, and analyzed whether the defendants constituted the crime of fraud or the crime of producing and selling fake and inferior products. Due to the small gap between the transaction price and the value of the traded goods in this case, the counterfeit forklift involved in the case has certain functions. Finally, it was prosecuted for the crime of counterfeiting registered trademarks and the crime of selling counterfeit registered trademarks and was judged by the court.

（3） Actively recover the stolen goods and protect the development of the enterprise. In the process of handling the case, the procuratorial organ fully listened to the opinions of the defenders and the parties, carried out rule of law education for the criminal suspects who refused to plead guilty for many times, urged the criminal suspects in the whole case to plead guilty and accept punishment, and withdrew the illegal income totaling 611300 yuan. And promote Wang Moumou to reach a civil compensation agreement with a forklift group limited liability company, the trademark owner, to make up for the loss of the trademark owner to the maximum extent and help the long-term development of the enterprise.

Keywords

Self supplementary investigation, layered processing and comprehensive performance of duties

Basic Case

Tao Moumou is the actual operator of Company C. In 2022, he will contract the installation of sanitary ware in the dormitory of W College of S University. In July 2022, during the operation of the online store LE of the "Sanitary Ware Wholesale Mall", Chen arranged workers to print the logo of the "Huida" registered trademark on 620 sets of non trademark sanitary ware squatting toilets and 79 sets of sanitary ware mop pools without the permission of the trademark registrant of "Huida", and sold it to Company C, with an illegal business amount of 205534.8 yuan. Tao Moumou later used these sanitary wares for the reconstruction and installation of the dormitory of W College of S University. Ye helped Chen to pack and box this batch of sanitary wares with fake "Huida" registered trademark.

[Performance of procuratorial duties]

In the investigation stage, the People's Procuratorate of Wuhu Economic and Technological Development Zone guided the public security organs to investigate and collect evidence, and at the same time, facilitated the settlement between company C and the infringed unit. On April 20, 2023, the public security organ transferred C Company, Ye Moumou, Chen Moumou and Tao Moumou to be prosecuted for the crime of counterfeiting registered trademarks. The procuratorial organ carried out its own supplementary investigation on the identity of Tao Moumou as the actual controller of C Company, the amount involved and other issues, consolidated the evidence base, and effectively improved the quality and efficiency of the lawsuit.

The procuratorial organ made a precise characterization, and made it clear that the act of combining construction and labor services with the provision of goods is profitable and should be regarded as a sales act, and Tao's act should be recognized as the crime of selling counterfeit registered trademarks. Comprehensively judge the degree of responsibility, deal with the joint criminals in layers, prosecute the companies and personnel involved, and relatively not prosecute the accomplice Ye according to law. On July 20 of the same year, the People's Court of Wuhu Economic and Technological Development Zone sentenced Chen Moumou to fixed-term imprisonment, suspended his sentence and fined him for the crime of counterfeiting registered trademarks and Tao Moumou for the crime of selling counterfeit registered trademarks; A fine shall be imposed on Company C for the crime of selling commodities with counterfeit registered trademarks.

Typical significance

（1） Self supplementary investigation and layered treatment according to law. The procuratorial organ improves the evidence chain in accordance with the law, accurately defines the nature of counterfeit registered trademarks and sells counterfeit registered trademarks, and improves the litigation efficiency by intervening in advance and self supplementing investigation. Classified and layered treatment shall be carried out according to the role and circumstances of the criminal suspect, so as to avoid the occurrence of serious punishment for misdemeanors or light punishment for serious crimes, balance social interests and personal rights and resolve social conflicts.

（2） Prepare and issue inspection suggestions to promote enterprise rectification. The procuratorial organ formulated and issued procuratorial suggestions for the loopholes in the operation and management of the enterprises involved, which were highly valued by the units involved and adopted for rectification. By giving play to the role of procuratorial suggestions in social governance, we will promote the improvement of the business model of enterprises involved in the case, promote the "case-based" handling of procuratorial suggestions, improve the "rigidity" and effectiveness of procuratorial suggestions, achieve a higher level of rule of law construction, and reflect the responsibility of the rule of law.

（3） Carry out comprehensive performance of duties and reverse connection of execution. After the procuratorial organ made the decision not to prosecute Ye, it issued the Procuratorial Opinion to the market supervision department to supervise the administrative performance of duties, and the market supervision department imposed an administrative penalty of RMB 6000 on Ye. In intellectual property cases, procuratorial organs actively carry out "one case, four investigations", fully perform various procuratorial functions, timely repair damaged social relations, and improve the comprehensive protection effect of intellectual property.

Keywords

Zero oral confession and whole chain attack on legal supervision

Basic Case

Since 2020, Du XX A, Du XX B and Ren XX have still manufactured and sold a large number of imitated liquors with fake registered trademarks such as Wenwang, Kouzijiao, etc. without the permission of the registered trademark owner, and sold them to Liu XX, Yuan XX, Guo XX, Deng XX and others in Linquan County (all handled separately). After Du bought fake raw materials and packaging materials, he worked with Du to make fake liquor and contact the sales department to go offline. Du transported the finished fake liquor to Henan Province for sale, and let him cooperate with them to manufacture and sell fake liquor. According to statistics, Du Moujia and Du Mouyi sold counterfeit liquor totaling 1016220 yuan.

On January 19, 2023, the Linquan County Public Security Bureau seized the raw materials, fake tools, various liquor brand trademarks, packaging materials and other items for manufacturing imitation liquor in the residence and rental warehouse of Du Moujia and Du Mouyi. There were more than 1000 pieces of imitation Wenwang brand, Kouzijiao brand and other brand white liquor products that had not yet been sold, with a total value of 398802.1 yuan, and the total amount of illegal business was 1415022.1 yuan.

[Performance of procuratorial duties]

The case was investigated and concluded by Linquan County Public Security Bureau. The defendants Du Moujia, Du Mouyi and Ren Moumou were suspected of counterfeiting registered trademarks and were transferred to the People's Procuratorate of Yingdong District, Fuyang City for review and prosecution on May 23 and July 27, 2023, respectively. After accepting the case, the procuratorial organ intervened in advance to guide the public security organ to fully collect and fix the evidence, prosecute Ren, comprehensively attack the offline Liu, timely inform the murdered distillery of its rights and obligations, carefully listen to the opinions, and recover more than 1 million yuan of stolen goods and damages. The People's Court of Yingdong District, Fuyang City, made a judgment after trial, and sentenced the defendants Du Moujia, Du Mouyi and Ren Moumou to fixed-term imprisonment ranging from four years and ten months to two years, suspended for three years, and fined them for the crime of counterfeiting registered trademarks. Liu and other underlings were sentenced to fixed-term imprisonment ranging from three years to four months of criminal detention, and were also fined.

Typical significance

（1） Involve in investigation in advance and make a final decision without confession. This case is a family gang crime, and the way of transaction and settlement is relatively hidden. The three defendants refused to admit during the investigation and prosecution stage, which makes it difficult to handle the case. The procuratorial organ intervened in advance to guide the investigation organ to obtain evidence from its offline statement, vehicle operation and personnel movement track, identification of online and location, search of dens, sales channels, etc. All evidence forms a closed loop. On the basis of zero confession in the investigation stage, the defendant pleaded guilty in court.

（2） Excavate downstream crimes and crack down on them in the whole chain. The fake liquor produced by Du Moujia and others has flowed into the supermarkets in towns and villages of Linquan, seriously disrupting the order of the local liquor market. The procuratorial organ timely drew the crime framework map, sorted out the downline of Liu and Yuan, accurately identified the crime mode and sales amount, and suggested the investigation organ to crack down on each line. Actively communicate with the Market Supervision Administration, properly keep counterfeit liquor, impose administrative penalties on relevant sellers, and improve the quality and efficiency of handling cases.

（3） Correct illegal procedures and perform duties in an all-round way. The procuratorial organ earnestly performs its legal supervision function. For the supervision of investigation activities, such as the investigators' failure to make a record of extraction when collecting electronic data, the administrative organ's failure to re detain when the seizure is due, and the failure to timely notify the expert opinions, the procuratorial organ has issued the Notice of Correcting Violations, urging the investigation organ to enhance its procedural awareness and effectively resolve the risk of court proceedings.

（4） Prosecutors protect the development of enterprises and optimize the business environment. In the process of handling this case, the procuratorial organ timely informed the trademark obligee of its rights and obligations and carefully listened to its opinions, actively responded to the enterprise's demands, saved the enterprise's economic losses, and purified the local liquor market environment, which was highly recognized by the enterprise. The procuratorial organs take the initiative to promote the modernization of procuratorial work and escort the high-quality development of private enterprises.

Keywords

Geographical indications in administrative public interest litigation

Basic Case

Huaiyuan pomegranate has a long history of cultivation, which began in the Tang Dynasty and flourished in the Qing Dynasty. With unique quality, it is well-known at home and abroad. It is known as "the world's rare trees and famous fruits". In 2009, it was registered as a certification trademark (geographical indication). In 2010, it was awarded the national geographical indication protection product, with a brand value of 1.155 billion yuan. There are 24 varieties, with a planting area of 35000 mu and an output value of 1.2 billion yuan in 2021, which is of great significance to ecological protection, cultural inheritance and rural revitalization.

In September 2022, Huaiyuan County People's Procuratorate carried out a special activity of public interest litigation to help rural revitalization, and found that dealers were selling pomegranates from other places as "Huaiyuan pomegranates". In combination with the proposal of the CPPCC members of the county on "attaching importance to the protection project of geographical indication products of Huaiyuan pomegranates", the case was filed on September 18. After investigation, it is found that there are loopholes in the protection and use management of "Huaiyuan Pomegranate" landmark products. Some sellers in the market use, counterfeit or forge "Huaiyuan Pomegranate" geographical indications without authorization, or use names or signs that are similar to geographical indications and easily misunderstood to mislead consumers, or even use pomegranates from other places to pretend to be sold, which not only infringes intellectual property rights Destroy the fair competition order in the market, and damage the legitimate rights and interests of fruit farmers and unspecified consumers.

[Performance of procuratorial duties]

On September 22, 2022, the People's Procuratorate of Huaiyuan County issued procuratorial recommendations to the County Market Supervision Bureau and the Agriculture and Rural Affairs Bureau, suggesting that they perform their duties according to law, strengthen the protection and use management of the "Huaiyuan Pomegranate" brand, investigate and punish the illegal use of the "Huaiyuan Pomegranate" geographical indication, protect intellectual property rights and the legitimate rights and interests of consumers, establish a traceability mechanism, and improve brand construction and promotion, Maintain market order.

Under the promotion of the procuratorial organ, Huaiyuan County Market Supervision Bureau and Agriculture and Rural Affairs Bureau attached great importance to it, held a round table meeting to study measures to further strengthen the supervision and protection of "Huaiyuan Pomegranate" landmark products, jointly carried out special rectification activities, inspected 265 enterprises, and filed dozens of cases of illegal use of "Huaiyuan Pomegranate"; Cooperate with township government, city administration bureau and pomegranate association to designate special sales points, and designate 7 stores in the urban area to sell "Huaiyuan pomegranate"; Strengthen the application, use and management of landmark products, formulate the Application Scheme of Traceable Anti counterfeiting Mark Technology for Huaiyuan Pomegranate Geographical Indications Products, and implement the traceability management of one code per household for pomegranate planting; Apply for Huaiyuan Pomegranate Provincial Geographic Indication Protection Demonstration Zone, issue the implementation opinions on revitalizing the development of pomegranate industry, and standardize the brand authorization to add 24 enterprises and cooperative standard users.

Due to the adjustment of administrative divisions, some core production areas of "Huaiyuan Pomegranate" were assigned to Yuhui District, Bengbu City. The special report of the People's Procuratorate of Huaiyuan County on the cross regional protection problem of "Huaiyuan Pomegranate" landmark products, the People's Procuratorate of Bengbu City, relying on the procuratorial integrated case handling mechanism, requested the People's Procuratorate of Yuhui District to cooperate in case handling, and supervised the market supervision bureau Agricultural and rural water conservancy bureaus perform their duties according to law. On April 24, 2023, the two cities held a joint working meeting, and the relevant departments jointly established a cooperative mechanism for inter regional protection of Huaiyuan pomegranate, strengthening joint law enforcement and integrated protection.

Typical significance

"Huaiyuan Pomegranate" has a long reputation as a geographical indication certification trademark. Geographical indications are an important carrier of excellent history and culture, and also an important starting point to promote rural revitalization. The procuratorial organs actively explore new ways of public interest litigation in the field of intellectual property rights, actively perform their duties in accordance with the law, adopt procuratorial suggestions, round tables and other ways, promote "city management" by "self management", promote joint law enforcement and supervision, and investigate and deal with illegal use; Set up special sales outlets and establish a traceability anti-counterfeiting system; Declare the provincial-level geographical indication protection demonstration zone, and issue the implementation opinions on revitalization of industrial development; We will promote the establishment of a cross regional collaborative protection and collaboration mechanism, work together to protect the intellectual property rights of "Huaiyuan Pomegranate", effectively maintain market order and the legitimate rights and interests of consumers, and help rural revitalization.