IP CRIME
weak excuses and defendants routinely respond inadequately. China has no provision for disclosure in criminal cases, and even if it did, there’s no guarantee that proving illegal gain would be any easier. Aſter all, counterfeiters are unlikely to be keeping accurate books detailing their various illegal transactions. And proving a company’s loss because of a counterfeit product is no easier, since it’s difficult to attribute loss to a specific counterfeit product when there may be several in the market, and it’s very hard to show that other factors (e.g. a slowing economy) weren’t responsible for a loss.
Chinese law outlines fixed thresholds below which an infringement won’t be considered criminal. Tese provide a measure of certainty to businesses, at least in the sense that they know that below a certain financial level, there is no point trying to bring a criminal case. But on the other hand, the thresholds provide carte blanche to low level counterfeiters, who know that the worst they can face is administrative action, and removes the ability of small companies who are victims of counterfeiting to gain criminal redress.
Tere is scope in China and other jurisdictions to bring criminal prosecutions privately, but
as Young explains, that may be fraught with difficulty “It’s good to be independent on the one hand, but the counterfeiters don’t take it as seriously as when the authorities prosecute. Oſten the counterfeiters have serious muscle behind them, and you may not want to tangle with them. It could be dangerous. So you’d normally bring it to the procuratorate (public prosecutor) and persuade them to take the case.”
No easy answers
One of the main purposes of any criminal law is deterrence. But where intellectual property is concerned, it’s difficult to see how effective a deterrent the law is. Vincent Volpi, CEO of PICA, points out that “you can be criminally prosecuted now on the state and federal level, and in international courts, but the chances you’re actually going to do jail time are slim to none.”
He adds: “At the end of the day, you’re talking about a crime that can be more lucrative than drug trafficking, but you’re not really facing jail time. Te worst thing that can happen to you is you get a criminal record, a suspended sentence, probation, and maybe a fine, restitution or
www.worldipreview.com
World Intellectual Property Review March/April 2011
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