Chanel, gucci, louis vuitton... When you see these so-called luxury booms on certain trading platforms, as low as a “bonesliding” price, do you ever wonder if they might come from a well-organized family-style fake group
Previously, a class of six individuals who had been prosecuted by the zhong ming district public prosecutor's office had been sentenced by law in the case of false registration of trademarks. Six defendants were sentenced to prison terms ranging from five years, nine years to six months a year, and fines ranging from $2 million to $150,000。
At the beginning of the case, there was confusion. As many as a dozen people were involved, transaction data were available for millions of people, and the presence of key figures was followed by a screeching of the gang structure, resulting in a one-time impasse in investigations。
The public prosecution service intervened ahead of time to direct the investigation away from “accusations breakthroughs” to “evidence locks”, focusing on the consolidation of electronic data and building a tight chain of evidence. By interrogating persons who have a better attitude of guilty pleas and who have a clear role, a family-style network of fake sales with a core and family member is becoming clearer: a single unit is responsible for the development, testing and selection of materials, a younger brother is responsible for the sale of the son and a specialist is responsible for procurement, production management and outsourcing。
However, in the face of hard evidence, some of the accused tried to exonerate themselves on the grounds that they were “unknownly false”。
The key turning point appeared in a “talking list” — a set of statements was prepared in advance of the season at some point in order to deal with the investigation, instructing the partner to do the same when he was caught, falsely stating that “the boss is akai” “was unaware of the shipment”. Rather, this carefully designed “talklist” becomes strong evidence of its “knowingly guilty”。
The co-prosecutors have further broken the accused's lies in combination with multiple pieces of evidence, such as the lack of branding authorization, sales prices far below the originals and the issuance of false work orders in microletters。
Picture of the items involved
How should one criminalize a certain type of forgery or sale
In order to clarify the link between “false-making” and “sale-sale”, the public prosecutor directs investigations and conducts self-supplementary investigations. It has been discovered through micro-clinic chats and transfer records between a certain person and the manager of the plant during the season, that they work with others in the production of false bags by providing raw materials such as leather, hardware and sample packages. At the same time, logistics information and testimony from warehouse managers confirm that the seized warehouse is both a “false storage point” and a “salvation delivery point”. As a result, a complete chain of crime, from production to sale, was completely exposed。
The public prosecution service has found that a certain person is deeply involved in the preparation of a false link, that the forgery is committed against the same goods and that the offence of false registration of trademarks should be evaluated as a whole。
An initial audit revealed that a group sold out over $10 million in fake bags during the season. However, the prosecutor, after conducting a penetrating verification of the flow of funds, found that it was much more suspicious than that amount, and questioned whether it was possible to fully reflect the harmful nature of the crime committed by a group during the season when some of them were suspected of both selling and participating in forgery-making. In addition, is there any other evidence of neglect for the long duration of the crime that has been committed in the production and sale of fakes since 2018?
After re-examining the entire case of electronic data, the prosecutor found that one of the financial leaves employed by the factory owner held all the production data since 2018, amounting to over $30 million. In addition, there are frequent and large transfers between one person and the owner of another plant, and it has been established that the money was exchanged between two persons. On the basis of the supplementary audit, the prosecutor eventually determined that the amount of a certain period of time off was over $40 million。
Why do you “do” much more than “sold”? In response to this suspicion, by reviewing the continuity of sales records, the channels and methods of collection, the host prosecutor found that some mobile phones had been replaced for sale at some point in the season, resulting in a partial loss of sales data. According to the relevant judicial interpretation, the amount of the “illegal operation” includes the value of the products that are used in the manufacture, storage, transport, sale, etc., to commit an offence, so that the public prosecution service, in accordance with the law, bases its conviction and sentence on the amount of over 40 million yuan。
In the meantime, a 60-70 per cent “no-titled package” is produced by a certain argument on a quarterly basis and should not be included in the amount of the offence, in an attempt to mitigate liability. Is its justification valid? In response, the public prosecutor, by questioning the producer, examining objective evidence and analysing the purpose of production, found that the “white version” was seriously exaggerated, even though it existed. Finally, some of the quarterly admissions are that “a small number of white-copy packages are produced to be displayed in the pavement, to prevent detection and to allow customers to see what brand they are”. The public prosecution service then deducts the amount of the white-copy package for which there is evidence to ensure that the offence is committed。
On the basis of an accurate determination of the facts of the offence, the public prosecution service has implemented a policy of leniency and assistance, in accordance with the law, in which one of the principal offenders is found to be an accessory to the remaining five accused persons who receive a fixed salary and who perform support work. “we remain committed to the concept of a chain-wide strike”, according to the prosecutor, “the prosecution of those involved upstream and downstream, extending the scope of the attack to the manufacture of counterfeit trademarks, etc., will be achieved if the full chain of punishment for violations is established and the judicial protection of intellectual property rights is secured”
In addition, in order to guarantee the substantive participation of the rights holder in the proceedings, the public prosecutor, after the referral of the case and the examination of the indictment, promptly served the mark holder with documents in support of assisting the rights holder in bringing criminal incidental civil proceedings. Under the prosecutor's patient interpretation, the six accused pleaded guilty at the review stage and voluntarily refunded over $1. 1 million and obtained an understanding。
Innovation is the engine of development, and protection of intellectual property rights is protection of innovation. It is essential that the various market players operate in good faith, adhere to the legal red line, and try to do so without fear. Consumers in general should also take the initiative to choose the good and consciously resist abuse of counterfeit goods and work together to create a good market environment that respects knowledge and promotes innovation。
Article link
Criminal law of the people's republic of china
Article 213. The use of the same trademark on the same goods and services as the registered trademark without the permission of the registered trademark owner shall be punishable by imprisonment for a term not exceeding three years or a single fine in serious cases, and by imprisonment for a term not exceeding three years and not exceeding ten years in particularly serious cases。
Interpretation of the supreme people's court and the supreme people's procuratorate on certain questions of the law applicable in criminal cases of infringement of intellectual property rights
Article 3. The use of a trademark in the same commodity without the licence of the registered trademark owner shall be deemed to be “serious” under article 213 of the penal code if:
(i) the proceeds of the offence are in excess of $30,000 or the amount of the illicit business is in excess of $50,000
(ii) the counterfeiting of two or more registered trademarks, the amount of which is more than $20,000 or more than $30,000 for illicit operations
.
If the amount of the proceeds of the offence and the amount of the illegal business is more than ten times the corresponding criteria set out in the first three paragraphs of this article, it shall be deemed to be “extraordinary serious”。
Article 23. Offences against intellectual property rights are generally punishable by heavier penalties, as appropriate, if:
(i) is primarily based on infringement of intellectual property rights
.
Article 25 crime against intellectual property shall be punishable by a fine in accordance with the law, taking into account, inter alia, the amount of the proceeds of the offence, the amount of the illicit business, the amount of the damage caused to the rights holder, the amount of counterfeit goods and social hazards。
The amount of the fine is generally set at less than 10 times the amount of the offence. If the amount of the proceeds of an offence cannot be determined, the amount of the fine is generally fixed at less than 50 per cent of the amount of the illicit business. Neither the amount of the proceeds of the offence nor the amount of the illegal business can be ascertained, and if the penalty is a term of imprisonment, detention or a single fine of not more than three years, a fine of not less than $30,000 or not more than $1 million is usually set; if the penalty is not more than three years, a fine of not less than $150,000 or not。
Article 28 this interpretation refers to “the amount of the illicit business” as the value of the products manufactured, stored, transported, sold by the perpetrator in the course of committing an intellectual property violation. The value of products that have been sold to infringe has been calculated at the actual sale price. The value of products that have not yet been sold is calculated on the basis of the actual average price of the products identified. The actual average price of the sale could not be determined, based on the price of the tort product. Where it is not possible to ascertain the actual sales price or the price of the tort product is not priced, it is calculated on the basis of the market intermediate price of the abused product。
