NEW DEVELOPMENTS IN CHINA JURISDICTION REPORT: CHINA
Stephen Yang Peksung Intellectual Property Ltd
Te Intangible Cultural Heritage (ICH) Law of the People’s Republic of China, passed by the standing committee of the National People’s Congress, will come into force on June 1. Tis law is directed at the protection and appropriate development of ICH.
Te law consists of six chapters and 45 articles. Te law emphasises protection according to law, and prescribes that the cultural administration authorities of the state council should work out protection plans to protect the representative projects of national ICH. In its supplementary provisions, the law explicitly stipulates that where the use of ICH involves intellectual property, such use shall be governed by relevant intellectual property laws and regulations.
Criminal cases of IP infringement
Recently, China’s Ministry of Public Security reported the achievements of its special campaign against criminal intellectual property infringement and the making and selling counterfeit products. Tis campaign, called ‘showing the weapons’, has solved 5,442 cases worth Rmb4.5 billion ($680 million) since it started five months ago. In terms of cracking down on Internet IP infringement, 183 of the cases were related to the sale of counterfeit products and providing downloads of pirated works through the Internet, 292 pirate sites were destroyed, and the value of the Internet IP infringement cases was about Rmb0.5 billion ($77 million).
Te campaign mainly focused on four areas. Firstly, it cracked down on pirate downloads on the Internet. Secondly, it destroyed cross-region and cross-border criminal industrial chains. Tirdly, it struck against crime that threatens public well-being, such as fake food, fake medicine and fake agricultural materials. Fourthly, it focused on fighting the making and selling of brand name counterfeit goods.
Sentencing
On March 2, 2011, Shanghai No. 2 Intermediate People’s Court heard an appeal in a counterfeit trademark case and upheld the judgment of the first instance court. Zhang Weixing, who was convicted of selling more than 300 bottles of fake Moutai, one of the country’s most prestigious liquors, was sentenced to one year and 10 months’ imprisonment and fined Rmb25,000 ($3,800).
In November 2011, Zhang bought 600 bottles of ‘Moutai liquor 53° 500ml’ and 1,200 bottles of ‘Moutai Ying Bin Chiew (Special for Honourable Guests) 53° 500ml’ and began to sell them. Tese two liquors were both marked with the English letters ‘Moutai’, Chinese characters for ‘Guizhou Moutai’ and the design mark ‘Moutai’. When arrested, Zhang had sold
52 World Intellectual Property Review May/June 2011
“ THIS CAMPAIGN, CALLED ‘SHOWING THE WEAPONS’, HAS SOLVED 5,442 CASES WORTH RMB 4.5 BILLION ($680 MILLION) SINCE IT STARTED FIVE MONTHS AGO.”
58 bottles of Moutai liquor and 250 bottles of Moutai Ying Bin Chiew (Special for Honourable Guests) for a total of Rmb31,900 ($4,900) and Rmb20,200 ($3,100) respectively. Te police seized 538 bottles of Moutai liquor and 30 bottles of Moutai Ying Bin Chiew (Special for Honourable Guests) worth Rmb298,300 ($45,900) in total. Tese unsold liquors proved to be fake and Zhang was found to have infringed the exclusive rights to use a registered trademark.
Zhang appealed to the Shanghai No. 2 Intermediate People’s Court on the grounds of moderate subjective malice, claiming that there was negligible harm to society. Aſter hearing the case, the court held that Zhang knew the Moutai liquor and Moutai Ying Bin Chiew (Special for Honourable Guests) he had bought was counterfeit, but he still sold them, while both the sale amount and the value of the unsold products were large. He was convicted of the crime of selling merchandise bearing counterfeit registered trademarks. Te first instance court reduced Zhang’s punishment on the grounds that some merchandise was seized before being sold and his act was merely an attempted crime. Shanghai No. 2 Intermediate People’s Court upheld the first instance judgment and rejected the appeal.
Stephen Yang is a partner at Peksung Intellectual Property Ltd. He can be contacted at:
yyong@peksung.com
www.worldipreview.com
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