On January 18, 2023, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the Draft of Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights (hereinafter referred to as the Draft for Comments), in order to strengthen the criminal judicial protection of intellectual property rights and punish the crimes of infringement of intellectual property rights according to law. The deadline for providing feedback is March 5, 2023.
The Draft for Comments pointed out that a trademark that is identical to the counterfeit registered trademark, or basically indistinguishable from the counterfeit registered trademark, and sufficient to mislead the public, should be recognized as "the same trademark as its registered trademark" as stipulated in Article 213 of the Criminal Law. If the sales of goods that are known to be using counterfeit registered trademarks and the amount of illegal gains reach more than 30000 yuan, the sales shall be recognized as "the amount of illegal gains is relatively large" as stipulated in Article 214 of the Criminal Law. If the sales turnover of goods reaches 30,000 yuan, it could be recognized as falling into "other serious circumstances".
"Two High" also clearly stated in the Draft for Comments that, except for special circumstances, goods with counterfeit registered trademarks, illegally manufactured registered trademark logos, copyright-infringed copies, goods mainly used to manufacture counterfeit registered trademarks, registered trademark logos or materials and tools of infringing copies should be confiscated and destroyed according to law.
The Draft for Comments stipulates that there are three circumstances in which a heavier punishment may be imposed as appropriate, and the probation is generally not applicable: (1) those who mainly engage in infringement of intellectual property rights for a living; (2) during major natural disasters, accident disasters, and public health events, counterfeiting the registered trademarks of goods for emergency relief and epidemic prevention; and (3) those refusing to hand over the illegal gains.