On December 26, 2020, the 24th meeting of the Standing Committee of the 13th National People's Congress passed the amendment to the Criminal Law of the People's Republic of China (Eleven), which will come into force on March 1, 2021. In addition to the highlights of lowering the age of criminal responsibility for minors in this amendment, the entire section of Chapter 3, Section 7 of the Criminal Law to severely crack down on intellectual property infringement is also worthy of attention.

01

【Crime of counterfeiting registered trademark】

Amend Article 213 of the Criminal Law to read: "Using a trademark identical to its registered trademark on the same commodity or service without the permission of the owner of the registered trademark, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, and may also be sentenced to or A fine alone; if the circumstances are particularly serious, the sentence shall be fixed-term imprisonment of not less than three years but not more than 10 years, and a fine."

02

【Crime of selling commodities with counterfeit registered trademarks】

Amend Article 214 of the Criminal Law to read: "Whoever sells commodities that are known to be counterfeit registered trademarks, and the amount of illegal gains is relatively large or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years, and concurrently or solely with a fine; If the amount is huge or there are other particularly serious circumstances, the sentence shall be fixed-term imprisonment of not less than three years but not more than 10 years, and a fine."

03

[Crimes of illegally manufacturing and selling illegally manufactured registered trademarks]

Amend Article 215 of the Criminal Law to read: "Forgery or unauthorized manufacture of others' registered trademarks or sales of forged or unauthorized registered trademarks, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years and shall also, or only, be fined; If the circumstances are particularly serious, the sentence shall be fixed-term imprisonment of not less than three years but not more than 10 years, and shall also be fined."

04

【Punishments for Units Committing Crimes of Infringing Intellectual Property Rights】

Amend Article 220 of the Criminal Law to read: "Where a unit commits the crime specified in Articles 213 to 219-1 of this section, the unit shall be fined, and the person in charge who is directly responsible for it shall be fined. Personnel and other directly responsible persons shall be punished in accordance with the provisions of each of this section.”

Comparison before and after modification

【Interpretation】

01

Adjusted incrimination criteria

(1) Include counterfeit service marks in the criminal law

According to Article 213 [Crimes of Counterfeiting Registered Trademarks] of the revised Criminal Law, “If the owner of the registered trademark uses the same trademark on the same commodity or service without the permission of the owner of the registered trademark, if the circumstances are serious, the punishment shall be punished. Fixed-term imprisonment of not more than three years, and a fine or a fine; if the circumstances are particularly serious, the sentence of fixed-term imprisonment of not less than three years but not more than 10 years, and a fine." It is clarified that counterfeiting service trademarks can constitute the crime of counterfeiting registered trademarks.

(2) Change "sales amount" to "illegal income amount"

According to Article 214 of the revised "Criminal Law" [the crime of selling commodities with counterfeit registered trademarks], "whoever sells commodities that are known to be counterfeit registered trademarks, and the amount of illegal gains is relatively large or there are other serious circumstances, shall be sentenced to not more than three years. Fixed-term imprisonment, concurrently or solely with a fine; if the amount of illegal gains is huge or there are other particularly serious circumstances, the sentence shall be fixed-term imprisonment of not less than three years but not more than ten years, and a fine." The “larger amount” is changed to “the sale of goods that are known to be counterfeit registered trademarks, and the amount of illegal gains is relatively large or there are other serious circumstances”.

(3) Add "with other serious circumstances"

According to Article 218 [Crime of Selling Infringing Copies] of the revised Criminal Law, "The sale of the infringing copies specified in Article 217 of this Law for the purpose of making profits, resulting in a huge amount of illegal gains. Or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not more than five years, and concurrently or solely with a fine." The words "with other serious circumstances" are added.

(4) Change "causing heavy losses" to "serious circumstances"

According to Article 219 [Crimes of Infringement of Commercial Secrets] of the revised Criminal Law, "any of the following acts of infringing commercial secrets, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, and concurrently or solely with a fine; If it is particularly serious, it shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years, and shall also be fined.” Changed “causing heavy losses to the owner of the trade secret” to “serious circumstances”, expanding the types of criminal acts of infringing trade secrets.

02

Expanded scope of protection

According to Article 217 [Crime of Infringing Copyrights] of the revised Criminal Law, "In one of the circumstances of copyright-related rights, where the amount of illegal gains is relatively large or there are other serious circumstances, the sentence shall be fixed-term imprisonment of not more than three years, A fine shall be imposed concurrently or alone; if the amount of illegal gains is huge or there are other particularly serious circumstances, the sentence shall be fixed-term imprisonment of not less than three years but not more than 10 years, and a fine." Include "rights related to copyright" into the scope of protection; Internet communication to the public” as a means of infringement, thereby strengthening the protection of copyright or copyright-related rights.

03

aggravated sentence

After the revision of the Criminal Law, all crimes related to infringement of intellectual property rights use fixed-term imprisonment as the starting point for sentencing, and the maximum sentence is increased to 10 years of fixed-term imprisonment. Article 213 [Crimes of counterfeiting registered trademarks], Article 214 [Crimes of selling commodities with counterfeit registered trademarks], Article 215 [Crimes of illegally manufacturing and selling illegally manufactured registered trademarks], Article 217 [Crimes of copyright infringement], Article 219 [crime of infringing trade secrets] and other crimes, the maximum statutory sentence has been increased from seven years in prison to ten years; Article 218 [crime of selling infringing copies] has increased the statutory penalty from "less than three years" to "five years". the following". On the whole, the country will severely crack down on intellectual property infringement crimes.

Criminal Law Amendment (11) For the crime of intellectual property infringement in Chapter 3, Section 7, except for the crime of patent counterfeiting in Article 216, all the remaining seven articles in this section have been revised, and a 210th article has been added. One of nine. This large-scale centralized revision conforms to and reflects the country's requirements and determination for intellectual property protection.