Lower Court Docket No.: 92, first instance (初), criminal case (刑), (2020) 1191, the People's Court of Zhenjiang Economic and Technological Development Zone in Jiangsu Province (苏)

SUMMARY OF THE ARGUMENT

Where a person/party who, knowing that the goods purchased from the source are counterfeiting a registered trademark, still procures them and sells them to others in the name of his/her/its company or individual name through online or offline channels with a huge or large sales amount constitutes the crime of selling counterfeit goods of registered trademarks.

STATEMENT OF THE CASE AND FACTS

PEOPLE’S PROCURATORATE OF ZHENJIANG ECONOMIC AND TECHNOLOGICAL DEVELOPMENT ZONE,

Public prosecution organ

v.

ZHENJIANG HUAYE AUTOMOTIVE PRODUCTS CO., LTD.,

DANYANG FENGYI PLASTIC PRODUCTS CO., LTD.,

Defendant organizations

JIANG *HUA,

ZHAO *LING,

PENG *,

ZHANG *FANG,

ZHAO *DONG,

HU *FENG,

The defendant organization, Zhenjiang Huaye Automotive Products Co., Ltd. ("Huaye"), was established on August 27, 2013. The defendant Jiang *hua was the legal representative and defendant Zhao *ling was the shareholder of Huaye. From 2015 to 2020, Jiang *hua and Zhao *ling, knowing that the protective supplies including masks and respirators purchased from the source were counterfeit 3M products, still procured them and sold them to Danyang Fengyi Plastic Products Co., Ltd. ("Fengyi") in the name of Huaye with a sales volume amounting to RMB 297,839. On February 6 and February 7, 2020, the public security authorities seized a total of 234,832 pieces of 3M masks, respirators, 5N11C N and other protective products in the warehouse of Huaye, which were identified as counterfeit 3M products except for 5N11C N with a total value of RMB 82,188.97.

The defendant organization Fengyi was incorporated on July 4, 2012, and the defendant Peng * was the actual operator of the company. From 2015 to 2020, Peng *, knowing that the protective supplies procured from Huaye operated by Jiang *hua and Zhao *ling were counterfeit 3M masks and respirators, still procured them and sold them to others in the name of Fengyi with a sales volume amounting to RMB 569,075.5.

From 2015 to 2020, the defendants Jiang *hua, Zhao *ling, Zhang *fang, Zhao *dong and Hu *feng, knowing that the protective supplies including masks and respirators purchased from the source were counterfeit 3M products, still procured them and sold them to others in the name of Huaye with a sales volume of RMB 2,975,613.7, RMB 520,389.42, RMB 425,220.86 and RMB 67,500. The defendants Jiang *hua, Zhao *ling and Hu *feng were arrested and tried for the case, and the defendants Peng *, Zhao *dong and Zhang *fang surrendered on their own initiatives. Later on, all defendants confessed the above facts truthfully. Zhao *ling returned RMB 1.45 million in illicit money; Peng * returned RMB 300,000 in illicit money; Zhao *dong returned RMB 500,000 in illicit money; Zhang *fang returned RMB 400,000 in illicit money; and Hu *feng returned RMB 136,850 in illicit money.

The People's Court of Zhenjiang Economic and Technological Development Zone in Jiangsu Province held in the first instance that the defendant organization Huaye had sold goods that it knew were counterfeit products of a registered trademark with a huge amount of sales, and that the defendants, Jiang *hua, as the person directly in charge, and Zhao *ling, as the person directly responsible, had committed the crime of selling counterfeit goods of registered trademarks. The defendant organization Fengyi had sold goods that it knew were counterfeit products of a registered trademark with a huge amount of sales, and the defendants Peng * as the person directly in charge had committed the crime of selling counterfeit goods of registered trademarks. The defendants Jiang *hua, Zhao *ling, Zhang *fang, Zhao *dong, and Hu *feng had sold goods that they knew were counterfeit goods of a registered trademark; the sales volumes of Jiang *hua, Zhao *ling, Zhang *fang, and Zhao *dong were huge, and that of Hu *feng was large, so they should be held criminally responsible for the crime of selling counterfeit goods of registered trademarks. Therefore, the crime of the defendant organizations and defendants prosecuted by the public prosecution organ was established. The defendants Jiang *hua and Zhao *ling had played a key role in the joint crime, so they were treated as the key offenders and should be punished in accordance with the extent of their participation in the entire crime. The two defendants voluntarily pleaded guilty to the crime and accepted the fines, so they could receive lenient punishments according to the extent allowed by law. The court comprehensively took into account the nature of the crime, the circumstances and the repentance of the defendants Zhao *ling, Peng, Zhang *fang, Zhao *dong and Hu *feng, and held that they could be applied with sentences on probation.

Based on the above, the court ruled that (I) the defendant organization Huaye, and the defendants Jiang *hua and Zhao *ling were guilty of selling counterfeit goods of registered trademarks, so the defendant organization Huaye was charged with a fine of RMB 150,000, while the defendant Jiang *hua was sentenced to three years' imprisonment and a fine of RMB 150,000; and the defendant Zhao *ling was sentenced to three years' imprisonment with a probation of three years and a fine of RMB 150,000. (II) The defendant organization Fengyi had committed the crime of selling counterfeit goods of registered trademarks and was charged with a fine of RMB 290,000. (III) The defendant Peng * had constituted the crime of selling counterfeiting goods of registered trademarks and was sentenced to imprisonment of two years and four months with three years’ probation and fined RMB 290,000. (IV) The defendant Jiang *hua was sentenced to imprisonment of three years and six months and fined RMB 1,490,000 for the crime of selling counterfeit goods of registered trademarks. Combined with his punishment as a corporate body, i.e. imprisonment of three years and six months and a fine of RMB 150,000, it was decided that he be applied the execution of imprisonment of three years and six months and a fine of RMB 1,640,000. (V) The defendant Zhao *ling was sentenced to three years' imprisonment with three years’ and six months’ probation and fined RMB 1,490,000 for the crime of selling counterfeit goods of registered trademarks. Combined with her punishment as a corporate body, i.e. imprisonment of three years with three years’ and six months’ probation and a fine of RMB 150,000, it was decided that she be applied the execution of imprisonment of three years and six months and a fine of RMB 1,640,000. (VI) The defendant Zhang *fang had constituted the crime of selling counterfeiting goods of registered trademarks and was sentenced to imprisonment of two years and four months with three years’ probation and fined RMB 270,000. (VII) The defendant Zhao *dong had constituted the crime of selling counterfeiting goods of registered trademarks and was sentenced to imprisonment of three months with three years’ probation and fined RMB 220,000. (VIII) The defendant Hu *feng had constituted the crime of selling counterfeiting goods of registered trademarks and was sentenced to imprisonment of nine months with one year’s and six months’ probation and fined RMB 50,000. (IX) The infringing products including masks and respirators seized by and held in the public security organs shall be confiscated in accordance with the law.

ANALYSIS

This case is one related to the COVID-19 pandemic. The court comprehensively took into consideration the circumstances, nature and harmful consequences of the offense and crime of each defendant, sentenced the several defendants to substantial punishments, and found that they had constituted crimes as organizations and sentenced them to fines, which has vigorously stricken the illegal and criminal acts of selling counterfeit masks of registered trademarks and seriously disrupting the normal order of pandemic prevention and control and social order, safeguarded the overall situation of pandemic prevention and control, economic and social development and people's health, and achieved good social and legal effect.

This case was selected as one of the "Top Ten Typical Cases of Judicial Protection of Intellectual Property Rights of Jiangsu Courts in 2020".