What are the countermeasures for infringing intellectual property rights?

In recent years, crimes against intellectual property rights have become increasingly serious. As far as the current situation of intellectual property protection in China is concerned, a set of legal protection system of intellectual property rights has been basically established, including civil, administrative and criminal. However, compared with the administrative and civil protection of intellectual property rights, criminal protection is obviously insufficient. Undeniably, the criminal attack on the crime of infringing intellectual property rights is an important part of the legal protection of intellectual property rights, and it is also the last line of defense for intellectual property rights protection. Based on the empirical investigation of intellectual property crimes handled by procuratorial organs in this city, this paper summarizes the characteristics and existing problems in handling such cases, analyzes the reasons, and puts forward some suggestions on how to effectively crack down on intellectual property crimes.

First, in recent years, the city's procuratorial organs handled cases of infringement of intellectual property rights.

From 2005 to the first half of 2009, the city's procuratorial organs * * * accepted the public security organs' request for approval to arrest 5 10 suspects, and approved the arrest of 43 1 person after examination, but did not approve the arrest of 74 people. In the same period, 4 18 cases of 746 people were transferred for examination and prosecution, 348 cases of 583 people were examined and prosecuted by the court, and 336 cases of 554 people were convicted by the court. 〔 1〕

According to the author's investigation of Jiading District People's Procuratorate, from 2005 to the first half of 2009, the hospital handled 26 cases of intellectual property infringement 17, involving 8 cases of counterfeiting registered trademarks 10; There were 7 crimes of selling goods with counterfeit registered trademarks, 12 people; Crime of infringing trade secrets 1, 3 persons; The crime of illegally manufacturing or selling the illegally manufactured registered trademark logo is 1 piece, 1 person. All the public prosecution cases accepted by the court were convicted after trial, of which 10 case was sentenced to less than five years' imprisonment, 13 case was suspended, and 1 case was sentenced to more than five years' imprisonment and suspended.

According to relevant statistics, from June, 2005 to June, 2005 1993, the People's Procuratorate of Pudong New Area accepted 25 cases with 36 people transferred by public security organs for examination and prosecution, with an average of less than 2 cases per year. However, from July 2005 to September 2008, there were 46 cases of 77 people infringing intellectual property rights in Zhangjiang High-tech Park alone, with an average of 65,438+per year. 〔2〕?

Second, the characteristics of handling intellectual property infringement cases in this city are analyzed.

According to analysis, criminal cases of intellectual property infringement handled by this Municipality have the following characteristics:

(1) The types of cases are relatively concentrated.

The crime of infringing intellectual property rights * * * involves seven charges. However, from 2005 to the first half of 2009, the analysis of intellectual property crimes accepted by the city's procuratorial organs shows that the crime of selling counterfeit registered trademarks accounts for the vast majority, followed by the crime of counterfeiting registered trademarks, and the crimes involved are relatively concentrated. 〔3〕?

Among the cases of infringement of intellectual property rights handled by Jiading District People's Procuratorate, the cases of infringement of the exclusive right to use a registered trademark are the main ones, accounting for 88% of the total cases. The infringed registered trademarks are mainly Chinese and foreign well-known trademarks such as Zhonghua, Green Double Happiness, Philips, Shanghai Volkswagen, Canon and Hewlett-Packard. The commodities involved are usually tobacco, lamps, ink cartridges and other daily necessities, but there are also many technical instruments such as constant temperature and humidity testing machines and ultrasonic flow meters. In these cases, because the input cost of counterfeit brand-name products is low and the profits are huge, it is a remarkable feature of this kind of crime to obtain huge profits by counterfeiting well-known trademarks.

(two) the identity of the subject involved is complex and the education level is high.

According to the statistics of the city's procuratorial system, the identities of the subjects involved are complex, including professionals 1 1 person, 52 leading cadres, 96 managers, 323 unemployed people and 249 others. Among the people involved, there are 634 people with technical secondary school education or above, accounting for 80%, including 7 people with college education or above1/kloc-0.

Among the persons involved in intellectual property crimes handled by Jiading District People's Procuratorate, there are 4 legal representatives of enterprises, 4 sales managers 1 person, 2 buyers 1 person, 2 workers 1 person, 2 self-employed, 6 farmers, 4 unemployed people and 2 other occupations. Among them, 1 has a bachelor's degree, 2 has a junior college degree, 4 has a high school degree, 9 has a junior high school degree and 8 has a primary school degree.

(3) Crime tends to be organized and large-scale.

One is that * * * has repeatedly committed crimes with criminals and gangs, and its internal organization is relatively strict, with a clear division of labor in counterfeiting, sales, liaison and transportation. This situation is widespread in the city. For example, from June 2006 to April 2009, the People's Procuratorate of Jing 'an District accepted a total of 9 criminal suspects 17, accounting for 89.4%.

Second, this kind of crime tends to be organized and intelligent. Nowadays, counterfeiting is no longer confined to small workshops, but tends to be organized and intelligent, and gradually forms a professional division of labor and one-stop service. In addition, criminals often use some professional technical means, which makes the imitation system of fake goods higher and higher, which is difficult for ordinary consumers to identify, and also brings certain difficulties to combating crime.

(d) It is more difficult to combat and investigate such crimes.

First of all, because counterfeiting places and counterfeiting places are often separated, and counterfeiting factories are usually located in other provinces and cities, it is usually difficult to find the source of counterfeit goods only by investigating counterfeiting places, which brings great difficulties to investigating such crimes. Only by stepping up the crackdown on storage places and cracking down on fake warehouses can a large number of goods infringing intellectual property rights be seized. Secondly, the criminal subject has high intelligence and is good at using the weak links of supervision to commit crimes. Many of these cases use the Internet to sell fake goods, which infringes online copyright. The emergence of cyber crime also puts forward higher requirements for evidence collection technology and timeliness. Finally, criminals often evade investigation by making false accounts or not. Even if it is caught, it will increase the difficulty for procuratorial organs to find out all the business amount and the amount of illegal income.

(5) The proportion of probation and misdemeanor is high.

In the statistical range of Jiading District People's Procuratorate for four years and six months, * * * 10 people (five of whom were charged with selling fake and inferior products in two cases) were prosecuted by the procuratorate and tried by the people's court according to law, among whom 13 people were sentenced to fixed-term imprisonment of not more than five years and suspended. It can be seen that the proportion of probation and misdemeanor sentenced by the court in such cases is relatively high. The main reasons are as follows: first, the amount involved is low, and some cases are because it is difficult to find out all the illegal income. Secondly, the degree of social harm is relatively small, and criminals have not caused personal injury and other serious harmful consequences except selling counterfeit products for high profits. Thirdly, give full consideration to the guilty attitude of criminals and give a lighter sentence as appropriate.

Three, handling cases and the problems encountered in the application of the law and analysis of the reasons.

(1) There are many difficult problems in the application of law in cases of infringement of intellectual property rights.

Although the criminal law stipulates the constitutive requirements and punishment standards of crimes against intellectual property rights, and the Supreme People's Court and the Supreme People's Procuratorate have also made relevant judicial interpretations on the trial of crimes against intellectual property rights, the case is complicated and many new problems have appeared in the practice of handling cases. For example, in judicial practice, there are different understandings of whether the persons involved in the case are identified as * * * criminals and how to deal with them, which is not conducive to the fairness of law application. Although article 16 of the Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights stipulates that those who knowingly provide loans, funds, account numbers, invoices, certificates and licenses, or provide convenience and help for others in production, business premises, transportation, warehousing, import and export agents, etc., shall be punished as crimes of infringement of intellectual property rights. However, from the specific situation of judicial practice, some of these people involved in the case in an auxiliary position have not been included in criminal proceedings, some have not been arrested, some have not been prosecuted, and some have not been convicted and sentenced by the court. For example, in the case of Tu's sale of counterfeit registered trademark goods, Xu knew that Tu illegally operated counterfeit cigarettes and provided them with assistance in vehicles and transportation to earn freight. The public security organ requested the procuratorial organ to approve the arrest, but the circumstances of its assistance were obviously minor and did not constitute a crime. The main reason for these problems in current judicial practice is that there are differences in the understanding of "the circumstances of the crime are relatively minor" and "the circumstances are obviously minor".

In addition, the investigators have doubts or disputes about how to correctly grasp the constitutive elements of the crime and how to determine the conviction and sentencing standards such as the amount involved, the circumstances and the consequences. For example, great efforts have been made to investigate and deal with violations of intellectual property rights, but few cases have been transferred to judicial organs and eventually punished. The main reason lies in the flexible space of the crime amount standard and the deviation of the understanding of the conviction standard by various functional departments of judicial organs and administrative organs.

(two) the rules of conviction and sentencing are not uniform, and the punishment intensity is different.

The crime of trademark infringement overlaps with the crime of producing and selling fake and inferior products and the crime of illegal business operation. Although the Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Producing and Selling Fake and Inferior Commodities, the Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Producing and Selling Fake Drugs and Inferior Drugs and the Minutes of the Symposium on the Application of Laws in Handling Criminal Cases of Fake and Inferior Tobacco Products all clarify that when the above crimes overlap, they shall be convicted and punished according to the provisions of heavier punishment. However, judging from the judgment, the judicial organs still have great differences on the nature of such cases.

Because of the intersection of the three crimes, it is mainly concentrated in the cases of fake cigarettes and wine. Such cases often show that the suspects are caught red-handed with fake cigarettes and wine. At this time, these fake cigarettes and wines have not been sold. In addition, in the stolen goods seized, in addition to fake cigarettes and fake wine, real cigarettes and real wine are often mixed together. For example, in the case of Lin Moumou, the Tobacco Monopoly Bureau received a report and arrested Lin Moumou. On the spot, more than 900 real cigarettes were seized from the van and residence driven by Lin, with a value of more than 30,000 yuan, and more than 530,000 fake cigarettes 1 1000, with a value of more than 530,000 yuan. The procuratorate believes that the comprehensive comparison of the three crimes should be severely punished as the crime of illegal business operation, but the court believes that this case should be characterized as the crime of producing and selling fake and inferior products. The focus of the dispute is: when comparing the charges of 1 and 3, whether the total amount of unsold fake cigarettes should be divided by 3 before being used as the basis for comparison; 2. How to calculate the "sales amount" and "value amount" when there are both genuine cigarettes and counterfeit registered trademarks in the same batch of goods; 3. If cigarettes are identified as counterfeit registered trademarks and there are counterfeit cigarettes at the same time, is there a tendency to compare the three charges? It can be seen that the judicial organs have different understandings and treatments on how to apply the law and relevant judicial interpretations to the sale of fake and shoddy cigarettes.

(c) There are a large number of cases of infringement of intellectual property rights, in which criminal and civil cases overlap.

Due to the rapid development of intellectual property rights and the complexity of intellectual property cases, legal provisions often lag behind the actual intellectual property cases, especially in the handling of cross-disciplinary intellectual property cases. There is no special provision in our country's law, so we can only refer to the provisions on handling economic disputes and cross-disciplinary cases of economic crimes for review. Therefore, how to deal with cross-disciplinary intellectual property cases is controversial in theoretical discussion and judicial practice.

(four) the professional knowledge level of the case-handling personnel has not yet reached the requirements of handling cases.

Infringement of intellectual property rights requires the professionalism of specific case handlers. In many specific cases, there are still many disputes about whether characterization constitutes a crime of infringing intellectual property rights and whether it should be punished. At the same time, because most of the investigators of procuratorial organs have not studied the professional knowledge of relevant intellectual property rights and have no practical experience in handling various intellectual property cases, sometimes the investigators are at a loss as to how to identify and fix the evidence.

Four. Research on Countermeasures against Crimes of Infringement of Intellectual Property Rights

(a) the correct application of the law, crack down on crime according to law.

When handling specific cases of infringement of intellectual property rights, we should strictly follow the relevant provisions of Section 7 of Chapter III of the Specific Provisions of the Criminal Law and the judicial interpretation of cases of infringement of intellectual property rights in the Supreme People's Court and the Supreme People's Procuratorate, correctly grasp the elements of crime, and accurately apply the conviction and sentencing standards such as amount, circumstances and consequences. When dealing with intellectual property cases, especially criminal-civil cases, we should strictly abide by the relevant provisions of the Criminal Procedure Law and the Civil Procedure Law, and follow the traditional criminal-civil case handling mechanism, that is, solve criminal-civil cases that infringe intellectual property rights through criminal incidental civil litigation and criminal-civil two separate lawsuits.

(two) innovative handling mechanism, and effectively ensure the quality and efficiency of cases.

The crime of infringing intellectual property rights is highly professional and involves a wide range of knowledge. It requires investigators not only to have rich knowledge of criminal law and civil and commercial law, but also to have the professional level of collecting and fixing relevant criminal evidence, examining and screening. Therefore, the People's Procuratorate of Pudong New Area, according to the requirement of Shanghai People's Procuratorate to try intellectual property infringement cases by special personnel and the frequent occurrence of intellectual property cases in Pudong New Area, has transferred a number of business backbones from public prosecution organs to handle intellectual property crime cases professionally. The institute also actively explored a new mechanism for the public prosecution department to intervene and guide the investigation in advance in intellectual property infringement cases, and sent personnel to participate in case research, review evidence, interrogate criminal suspects or other evidence collection work in time to improve the accuracy and pertinence of investigation and evidence collection. The above measures have adopted an innovative case handling mechanism of "special person, special matter and special use", which has obvious effects on improving the professional quality of case handlers, intensifying the crackdown on crimes and ensuring the quality and efficiency of cases.

Therefore, procuratorial organs should put forward relatively feasible schemes according to different situations and characteristics in different places, and procuratorial organs in different places should also communicate with each other, learn from the experience of handling similar or similar cases, strive to crack down on cases of infringement of intellectual property rights, and effectively protect the legitimate rights and interests of intellectual property rights holders.

(3) learn professional knowledge and improve the quality of handling cases.

High-quality case handlers are the premise to ensure the quality of cases. Intellectual property cases involve a wide range of fields, both criminal and civil and commercial. At the same time, the case handlers need to have a certain understanding of the characteristics of the brand itself. Compared with other types of criminal cases, this interdisciplinary feature requires higher comprehensive quality of case handlers. Cultivating business backbones familiar with intellectual property rights among case handlers, combining with the characteristics of IPR infringement crimes in various districts in practice, and strengthening targeted training and learning are not only conducive to cracking down on IPR crimes, improving the efficiency and quality of handling cases, but also conducive to enhancing the confidence of the business community in the judicial organs to protect their intellectual property rights through criminal means.

(four) to strengthen publicity and mobilize their rights.

Procuratorial organs should actively participate in and cooperate with relevant departments to do a good job in the publicity of intellectual property protection. In conjunction with relevant departments, through mass media such as television, newspapers and the Internet and "4.26" World Intellectual Property Day, we should vigorously publicize intellectual property protection knowledge, popularize laws and regulations such as patent law, trademark law and copyright law, and at the same time, take into account the deterrent power of criminal law and publicize punishment measures for intellectual property infringement. Procuratorial organs can choose typical cases to explain the law, deter intellectual property illegal and criminal activities, and educate the public and enterprises to respect intellectual property rights and consciously abide by the law; At the same time, we should publicize and mobilize to safeguard our legitimate rights and interests by reporting complaints. Procuratorial organs can also carry out publicity through procuratorial visits to communities and units, especially by implementing a return visit system for infringed enterprises and units, tracking and returning visits to cases of infringement of intellectual property rights, listening to the opinions of enterprises on the handling results of cases, and strengthening legal publicity and protection.

(5) Strengthen coordination and communication to form a joint force.

At present, there is still a gap between China and developed countries in the scope and degree of criminal protection of intellectual property rights. Therefore, all judicial organs, administrative law enforcement departments and economic management departments should give full play to their respective functions, not only by division of labor and cooperation. Procuratorial organs should strengthen contact and communication with the people's courts and public security organs, timely study specific issues such as the application of law, identification of nature, and standard of evidence encountered in handling cases, strive for mutual support in their work, and improve the efficiency of handling cases and litigation. At the same time, we should actively strengthen cooperation with administrative law enforcement departments and economic management departments such as industry and commerce, customs, quality inspection, drug administration, copyright and patent. Cooperate closely in information communication, case transfer, investigation and evidence collection, realize the effective connection between administrative law enforcement and criminal law enforcement, promote the rational use of law enforcement resources, and form a joint force to crack down on intellectual property infringement crimes.

Source: Hunting Business Survey Network/