Overall, the "Draft for Comments" has a total of 21 articles, which will increase the number of intellectual property infringements. The intensity of sanctions is reflected in four aspects: including strengthening the application of preservation measures, making judgments to stop infringements in accordance with the law, increasing compensation in accordance with the law, and intensifying criminal crackdowns. These include strengthening the burden of proof, increasing the amount of compensation, and even increasing the amount of compensation. Including strengthening the criminal crackdown.
Based on previous practical experience in trademark infringement litigation, the author briefly discusses my personal opinions on increasing sanctions for trademark infringement:
1. Regarding strengthening the application of preservation measures
1. Regarding behavioral preservation
In June 2001 and January 2002, the Supreme People's Court promulgated the "Several Provisions of the Supreme People's Court on the Application of Legal Issues in the Suspension of Patent Infringement Before Litigation" and the "Supreme People's Court The Court’s Interpretation on Legal Issues Concerning the Pre-litigation Cessation of Infringement of the Exclusive Rights of Registered Trademarks and the Preservation of Evidence” has played an important role in the People’s Court’s correct review of cases of pre-litigation orders to cease infringement of intellectual property rights; the two judicial interpretations of pre-litigation cessation of infringement have played an important role; in the rights Regarding the issue of behavior preservation, in 2019, the "Regulations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Review of Act Preservation Cases in Intellectual Property Disputes" were officially implemented. There are 21 regulations in total, which mainly include four aspects. First, procedural rules, including The subject of the application, the competent court, the application and stated matters, review procedures, reconsideration, etc.; the second is the substantive rules, including considerations of the necessity of conduct preservation, the validity period of conduct preservation measures, etc.; the third is the error in the conduct preservation application Determination and jurisdiction of compensation lawsuits caused by errors in the application, lifting of behavioral preservation measures, etc.; fourth, simultaneous applicationPlease ask other questions such as the processing of different types of preservation, application fees, etc. Although Article 16 of the Regulations clarifies that the principle of objective attribution shall be used to determine whether an application is erroneous; however, for issues that lack case support in judicial practice or may be highly controversial, such as "difficult to make amends" in conduct preservation cases caused by anti-monopoly disputes There are no specific provisions on issues such as the determination of "damage" and the impact of the plaintiff's failure in antitrust disputes on the incorrect determination of the application for conduct preservation.Articles 1 and 2 of the "Draft for Comments" clearly stipulate the application of increased behavioral preservation measures. For infringement or imminent infringement, When it comes to intellectual property rights such as core technologies, well-known brands, and popular programs, as well as infringement or imminent infringement of intellectual property rights at exhibitions, the people's courts should intensify the application of behavioral preservation in accordance with the law.
2. Regarding property preservation
The "Supreme Rules" that came into effect on January 21, 2001 Article 2 of the Interpretation of the People's Court on Property Preservation of Registered Trademark Rights by People's Courts shall not exceed six months at a time, starting from the date when the Trademark Office receives the notice of assistance in enforcement.
Article 3 of this "Draft for Comments" does not limit the time for property preservation. It is clear that if property preservation measures need to be renewed after taking property preservation measures, the person who is under trial shall report Apply to the People's Court for intellectual property dispute cases. Due to the long trial period of intellectual property cases, during the litigation process, if the infringing party files an administrative lawsuit or it is invalid, the case may be suspended. Therefore, the six-month property preservation time is not enough, so when the six-month property preservation time expires , you can apply for renewal to prevent the infringer from transferring property and better protect the legitimate rights and interests of the right holder.
3. About evidence preservation
In civil litigation, evidence is the king of litigation. In response to the difficulty of providing evidence in intellectual property cases, the relevant person in charge of the Supreme People's Court said that the intellectual property courts comprehensively and rationally use the rules of distribution of the burden of proof to try to lower the threshold for the right holder to provide evidence, and at the same time use market-oriented principles to increase the intensity of damage compensation. Article 6 of the "Interpretation of the Supreme People's Court on Legal Issues Concerning Pre-litigation Cessation of Infringement of the Exclusive Rights of Registered Trademarks and Application of Evidence Preservation", which came into effect on January 22, 2002, applies for pre-litigation preservation of evidence that may involve property losses of the respondent. , the People's Court may order the applicant to provide corresponding guarantee. If the guarantee provided by the applicant in the form of guarantee, mortgage, etc. is reasonable and valid, the people's court shall approve it. If the applicant does not provide guarantee, the application will be rejected.
Articles 4 and 5 of this "Draft for Comments" clarify that if an intellectual property right owner has preliminary evidence to prove the existence of an infringement of intellectual property rights and the evidence may be lost or difficult to obtain, and applies for evidence preservation, the people's The court should review in a timely manner and take preservation measures in accordance with the law without requiring the provision of guarantees. For the right holders, it can reduce the burden on the right holders and safeguard their rights better and faster.
In judicial practice, there are situations where conduct preservation, property preservation or evidence preservation are applied for at the same time. Article 19 of the "Behavior Preservation Provisions" clearly requires that the people's court shall separately examine whether different types of preservation comply with the Civil Procedure Law and relevant Conditions stipulated in judicial interpretations. In terms of application fees, Article 20 of the "Provisions on Behavior Preservation" stipulates that "applicants applying for behavior preservation shall pay the application fee in accordance with the provisions of the "Measures for the Payment of Litigation Fees" on applying for behavior preservation measures. This "Draft for Comments" does not clarify the cost of preservation.
II. Regarding the legal judgment to stop infringement
This time Articles 6 to 9 of the "Draft for Comments" clarify the behaviors that should be judged to stop the infringement. The court's judgment on the defendant to stop the infringement should be clear and specific to facilitate the execution of the judgment. Actions to stop manufacturing, stopping use, stopping sales or stopping imports should be made based on the identified facts, rather than just stopping the infringement. When making a judgment to stop infringement, the court should pay attention to distinguishing the different claims of the parties and the specific infringement committed by the defendant, and make clear expressions in the main text of the judgment. In particular, attention should be paid to the following matters: (1) Stop all infringement activities such as manufacturing, use, offering for sale, sale, import, etc., or one or two of them. (2) Stop using the patented method or stop using and selling patented products manufactured according to the patented method. (3) Scope of cessation of infringement. (4) If the defendant manufactures multiple types of products, it should clearly stop the infringement on which models of products.
3. Regarding increasing compensation in accordance with the law
《 The Trademark Law was adopted by the 24th Session of the Standing Committee of the Fifth National People's Congress on August 23, 1982. It came into effect on March 1, 1983, and was revised four times on February 22, 1993, October 27, 2001, August 30, 2013, and April 23, 2019. The upper limit of statutory compensation has increased from 500,000 yuan in the 2001 Trademark Law to 3 million yuan in the 2013 Trademark Law, and to 5 million yuan in the 2019 Trademark Law.Yuan, showing the trend of "sesame blossoms are blooming steadily". The determination of the amount of compensation stipulated in Article 63 of the "Trademark Law" is in order, that is, the actual losses suffered by the right holder due to the infringement are first considered, followed by The benefits gained by the infringer due to infringement are again multiples of the trademark license fee. If these cannot be determined, the amount of compensation will be determined by the People's Court.
Articles 10 to 19 of the "Draft for Comments" are to consider all factors in the calculation of the amount of compensation, not only to investigate and collect evidence from the right holder The fees, relevant data disclosed using third-party platforms, the right holder’s request for punitive damages, the infringement circumstances of the infringer, the right holder’s reasonable expenses, etc. are all the basis that can support the amount of compensation. On April 23, 2019, at a press conference, Jiang Bixin, Vice-President of the Supreme People's Court, introduced the situation of judicial protection of intellectual property rights and pointed out that the People's Court has applied punitive damages, increased the amount of damage compensation, and severely punished intellectual property crimes. Patent and trademark infringement cases involving tens of millions of yuan in damages have become commonplace. The amount of compensation in intellectual property cases is an important indicator to judge the level and intensity of intellectual property protection. On the one hand, it shows that the country is gradually increasing the intensity of intellectual property protection. On the other hand, it also shows that the cost of violating the law is getting higher and higher, which also makes infringers When committing trademark infringement, consider whether it is necessary to commit such trademark infringement. Can you develop your own trademark?
IV. Regarding intensifying criminal crackdowns
There are three crimes related to trademark infringement in China’s criminal law They are: the crime of counterfeiting registered trademarks, the crime of selling goods with counterfeit registered trademarks, and the crime of illegally manufacturing and selling illegally manufactured registered trademarks. Previous judicial interpretations have stipulated that crimes involving trademark infringement may be subject to probation or may be fined solely or concurrently. For example, on December 22, 2004, the Supreme People's Court and the Supreme People's Procuratorate issued the "Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement". Interpretation of Several Issues" Article 1: Use of a trademark identical to the registered trademark on the same kind of goods without the permission of the owner of the registered trademark, and one of the following circumstances falls under the category of "serious circumstances" stipulated in Article 213 of the Criminal Law ” shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of counterfeiting registered trademarks, and shall also or solely be fined; Article 2 Anyone who knowingly sells goods that are counterfeiting registered trademarks with a sales amount of more than 50,000 yuan shall fall under Article 200 of the Criminal Law. If the "amount is relatively large" as stipulated in Article 14, the person shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of selling goods with counterfeit registered trademarks, and shall also be fined, or shall be fined alone; Article 3 Whoever forges, manufactures or sells other people's registered trademarks without authorization shall Counterfeit or unauthorized registrationIf a trademark sign meets any of the following circumstances, it is considered a "serious case" as stipulated in Article 215 of the Criminal Law and shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance for the crime of illegally manufacturing and selling illegally manufactured registered trademark signs. A fine may also be imposed or a fine may be imposed. In April 2007, the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement (II)" Article 3: If the crime of infringement of intellectual property rights meets the conditions for probation stipulated in the criminal law, probation shall be applied in accordance with the law. .
In this "Draft for Comments", Article 20 stipulates that those who mainly engage in infringement of intellectual property rights and counterfeit rescue, disaster relief and epidemic prevention materials during a specific period Registered trademarks for other goods, as well as infringement of trade secrets for overseas institutions, organizations, and personnel will be severely punished in accordance with the law, and probation is generally not applicable.
It also increases the application of fines, business prohibitions and prohibition orders. Article 21 of the "Draft for Comments" stipulates, Strictly recover illegal gains in accordance with the law, strengthen the application of fines, increase the application of business prohibitions and prohibition orders, and deprive criminals of the ability and conditions to infringe intellectual property rights again. This will make relevant practitioners have concerns when engaging in infringement, thus improving the intellectual property protection environment.
V. Summary
This "Solicitation of Comments" "Draft", there are many feasible ways to increase the sanction of intellectual property infringement, whether it is from evidence preservation or legal judgment to stop the infringement. In terms of the amount of compensation, there are also higher requirements and more Consider compensation factors; in relation to criminal crimes related to trademark infringement, the aggravating circumstances for which probation is not applicable have been clarified, and the application of fines, business prohibitions, and prohibition orders has been increased. With the strengthening of intellectual property protection and the creation of a high-quality business environment, Chinese people will be more aware of the importance of intellectual property, better enhance our country's intellectual property image, and make our country truly an intellectual property power!
Remarks: From the collected works of lawyer Tang Yanyan
