In China, It’s Easy to Be Put in Jail for IPR Infringement

The introduction on the minimum standard of IPR crimes

As the country being most frequently blamed for its intellectual property rights infringement, China has strengthened its legislature in IPR to wash its mud stuck reputation, though the enforcement of such laws still contains defect, any infringement against IPR could bring the criminal liability. In fact, many infringed companies have jailed the infringers for intellectual property infringement, such as the Microsoft against the author of “Tomato Garden”, Microsoft piracy and the IFPI against the owers of the “Knight Music”. Today, Bridge IP Law Commentary will introduce the regulations regarding to the lowest standards for crimes of trademark, copyright, patent and trade secret infringement. (the image above is the install CD of Tomato Garden)

I. Crime of Infringing on Trademark Right

The crime of counterfeiting registered trademarks is to, without permission from the owner of a registered trademark, use a trademark which is identical with a registered trademark on the same kind of commodities shall, and the amount of illegal business operation proceeds is no less than RMB 50,000 (the latest exchange rate is one dollar to RMB 6.29), or the amount of illegal gain is no less than RMB 30,000.

The crime of selling commodities bearing counterfeit registered trademarks is to knowingly sell commodities bearing counterfeit registered trademark and the amount of sales is no less than RMB 50,000.

The crime of illegal manufacture and sale of representations of registered trademarks illegally made is to forge or without authorization of another makes representations of the person’s registered trademarks or sells such representations, and the amount of representations sold is no less than 20000 pieces (one piece refers to one representation with whole graphic of a trademark) , or the amount of illegal business operation proceeds is no less than RMB 50,000 , or the amount of illegal gains is no less than RMB 30,000.

Comments: Although the value of commodities bearing counterfeit registered trademark is arguable in practice, the standard for this crime that the produced or sold such commodities totaled 8,000 dollars, which is calculated based on the sales price of such commodities, is easy to be reached in the infringement.

II. The crime of Infringing on Patent Right

The crime of counterfeiting patents is to counterfeit others’ patent and the amount of illegal business operation proceeds is no less than RMB 200,000 or the amount of illegal gains is no less than RMB 100,000.

Comments: Actually this crime hardly has been applied due to the fact that those who embezzle others’ patent won’t be so stipulated to mark the patent number of other’ s patent on the products.

III. The crimes of Infringing on Copyright

The crime of infringing on copyright is to, for the purpose of making profits, conduct any of the acts stipulated in the Article 217 of the China’s Criminal Law, and the amount of illegal gains is no less than RMB 30,000, or without the permission of the owner, publicly disseminate his written work, music, film, television programme, fine art, photographic works, visual works, computer software or other works and the amount of illegal business is no less than RMB 50,000 or the total amount of works disseminated is no less than 500 pieces.

The crime of selling infringing works reproduced is for the purpose of making profits, to knowingly sell works reproduced by infringing on others’ copyright and the illegal gains are no less than RMB 100,000.

Comments: Whoever sets up a website providing a download of pirated software, music and film shall be cautious! You may commit this crime if the owners of such works find provided works in your websites have been downloaded for over 500 times, as well as there’s advertisement of the Google in your website.

IV. The crime of Infringing on Trade Secrets

The crime of infringing on trade secrets is to commit any of the acts stipulated in Article 219 of China Criminal Law and cause the owners of trade secrets loss no less than RMB 500,000.

Comments: The owners of trade secrets generally can prove the trade secrets taken away by the employees when they left the value RMB 500,000, however, which can’t be regarded as the loss of the owners. Actually, it is hard to prove your loss of RMB 500,000 due to their acts.

Author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.

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