Microsoft ‘s New Anti-piracy Development in China: An Ever-long Criminal Sentence for IPR Infringement

The screen print of POTATO windows’ desk, a pirated windows system in China

By You Yunting

The maximum imprisonment in China Criminal Law concerning the crime of intellectual property is 7 years, but a recent judgment in Beijing against the criminal is 7 years and 6 months.

According to the report of Sina Tech, the Chinese merchant Shang Yajun was penalized the imprisonment of 7 years and 6 months for copyright infringement and the sale of illegally manufactured registered trademarks. The 1st Intermediate People’s Court of Beijing upheld the Haidian District Court’s decision, representing the longest-ever criminal sentence in China for such crimes in China.

In the July 2011 raid of storage facilities of Shang, the Haidian District Police in Beijing confiscated more than 360,000 partially unfinished certificates of authenticity (COAs) and it is estimated that when finished and packed, their worth would be approximately 513.5 million RMB (approximately $79 million). Also during this raid, counterfeit products and finished COAs valued at approximately 10.4 million RMB (approximately $1.6 million) was found by the police, including 4,400 pirated disk. Furthermore, the law enforcement also found huge amounts of finished COAs.

In our view, the main reason to the court to sentence a beyond maximum criminal sentence against Shanghai in the case, is after the consideration of the simultaneous crime of copyright infringement and illegally manufacture and sale of the registered trademark. By the existing China laws and regulations, the maximum imprisonment of copyright infringement is 7 years, and the same of illegally manufacture and sale of the registered trademark. The main illegal conduct of Shang is manufacturing the pirated Microsoft label which shall be the crime of illegal manufacture of registered trademark and could be sentenced to 7 years imprisonment to maximum. And on the other hand, the maximum sentence to the copyright infringement crime is no more than 3 years. Therefore, with the consideration of both crime punishment in law, the final sentence in the case beyond 7 years.

“Shang Yajun was no casual counterfeiter; he ran a large-scale, sophisticated criminal enterprise,” commented by David Finn, associate general counsel, Worldwide Anti-Piracy and Anti-Counterfeiting at Microsoft Corp. “Microsoft is encouraged by the successful resolution of the case and appreciates the help and support of the Chinese government.

Actually, China laws held a rigorous attitude to the crime of intellectual property, and the crimes involved in the case include the crime of counterfeiting registered trademark, illegal manufacture and sale of registered trademark, which by China law s and regulations, their standard of conviction shall be the illegal gain of more than 30, 000 yuan (approximately $4, 769.5) after the infringement against the copyright and for the purpose of benefits for the first crime or without the permission from the copyright owner, to spread the works of others like literary works, music, film, television, fine arts, photography and video & radio recordings, etc. And as to the conviction standard of the latter crime, it shall be more than 20, 000 illegally manufactured trademarks are sold, and thereby the amounts involved in the operation is more than 50, 000 yuan or the benefit gained thereby is moret than 30, 000 yuan.

As to other crime concerning the IPR infringement, a low threshold to conviction is also regulated in China laws, and for more details you may CLICK HERE to read our past post.

Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)

Lawyer Contacts

You Yunting

86-21-52134918
youyunting@debund.com, yytbest@gmail.com

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