First-instance case number: (2018) Yue 0307 Xing Chu No.420

When it is determined that the trademarks with slight differences in the crime of counterfeiting registered trademarks are the same, changing the font, letter case and color of registered trademarks is basically visually indistinguishable from the registered trademarks, which is enough to mislead the public, and should be recognized as "the same trademark" as stipulated in Article 213 of the Criminal Law.

Case introduction

Private prosecutor: SPIN MASTER LTD. (Spin Master Company for short)

Defendant unit and defendant: Shenzhen A Technology Co., Ltd. (referred to as Company A), Wang 1, Zhou, Wang 2, Shenzhen B Technology Co., Ltd. (referred to as Company B), Ma

SPIN MASTER LTD. is a world-renowned toy manufacturer, and is the owner of the trademark "HATCHIMALS" No.19331979 and registered trademark No.3728508 "". The above-mentioned trademarks approved commodities include toys and game machines, which are valid from April 21, 2017, to April 20, 2027, and October 7, 2009, to October 6, 2019, respectively. On September 18, 2017, according to the report of Spin Master Company, a branch office in Shenzhen Public Security Bureau seized 135 fake Hatchimals magic egg products in Company A and arrested Wang 1, the legal representative of Company A, Wang2 and Zhou, and then When it is determined that the trademarks with slight differences in the crime of counterfeiting registered trademarks are the same, changing the font, letter case and color of registered trademarks is basically visually indistinguishable from the registered trademarks, which is enough to mislead the public, and should be recognized as "the same trademark" as stipulated in Article 213 of the Criminal Law. Ma, the legal representative of Company B. According to the investigation, the fake Hatchimals Magic Egg Toys sold by Company A were copied by Wang and Zhou of Company A and then commissioned by Company B to produce them. Company A provided product packaging, and the legal representative of Company B, Ma, organized workers to produce and package them. The illegal business turnover of Company A and Company B both exceeded RMB150,000.

The public security Bureau submitted the case to the People's Procuratorate of a certain district of Shenzhen for approval to arrest the suspects involved. The People's Procuratorate of a certain district of Shenzhen made a decision not to approve the arrest on the grounds that the defendant units and the defendants did not constitute a crime, and the public security Bureau accordingly released the defendants Ma, Wang 1, Zhou and Wang 2 on October 25, 2017. Spin Company refused to accept the above-mentioned handling results of the case, and filed a criminal private prosecution with Longgang District People's Court of Shenzhen on the grounds that it constituted the crime of counterfeiting registered trademarks.

On November 22, 2019, the People's Court of Longgang District, Shenzhen City, Guangdong Province ruled that the defendant units and defendants constituted the crime of counterfeiting registered trademarks, and each defendant unit was fined RMB50,000; The defendants Ma, Wang 1 and Zhou were imposed to a fixed-term imprisonment of 3 years with suspended sentence of 4 years, and fined RMB50,000; The defendant Wang 2 was imposed to a fixed-term imprisonment of to 10 months, suspended for one year and fined RMB 10,000. The defendent units and the defendents pleaded guilty and served the sentence without appeal, and the judgment of the case has taken effect.

The lawyers of Beijing Lusheng(Shanghai) Law Firm, as the agent of the private prosecutor (Spin Master Company), participated in the first-instance lawsuit of this case.

Typical significance

This case is the first case in China, after the procuratorate found that the infringement of the defendant units and the defendants did not constitute a crime, the intellectual property right holder filed a criminal private prosecution, and the defendant units and the defendants were convicted and punished by the court. As a pioneering precedent, it is of great significance and far-reaching influence.

In this case, the reason why the procuratorate refused to approve the arrest was that the "" used in the infringing goods involved in the case and the registered trademark "HATCHIMALS" of Spinmaster Company did not constitute the "same trademark" as stipulated in Article 213 of the Criminal Law, so the defendant units and the defendants did not constitute a crime. In the stage of criminal private prosecution, according to Article 6 of Opinions of Supreme People's Court, Supreme People's Procuratorate and Ministry of Public Security on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights, Longgang District People's Court of Shenzhen determined that the registered trademarks of "" and "" used by the defendant units and the private prosecutor's "HATCHIMALS" and "" respectively constitute the "same trademark" stipulated in Article 213 of the Criminal Law, and each defendant unit and defendant constitute crimes.

The successful judgment of this case highlights the supervision and restriction of the criminal private prosecution system of intellectual property rights on public security Bureau and people's procuratorates, and provides a relief channel for victims to strengthen their rights and interests protection.

The original intention of setting up the relief system of private prosecution in China's law is to endow the victim with independent personality as the subject of litigation, which is the result of scientific and democratic criminal proceedings. Generally speaking, the court's supervision and restriction on Public Security Bureaus and procuratorates is mainly reflected in the judgment of public prosecution cases which are transferred and accused as crimes, but the cases which are not considered as crimes by public security organs and procuratorates cannot be supervised because they are usually transferred out of court jurisdiction. The successful conclusion of this case shows that the criminal private prosecution system of intellectual property rights has supplemented relief channels for victims to strengthen their rights and interests protection, and has realized criminal investigation of criminal acts, which is beneficial for the courts to strengthen supervision and restriction on the determination of innocent cases by public security organs and procuratorates.