ANNOUNCEMENT

The Supreme PeoplelicCourt and Procuratorate of P.R. China

The Interpretation Concerning Specific Laws Applicable to Intellectual Property Infringing Crimes, passed at the 1331st Session of the Judicial Council, the Supreme PeoplelicCourt on November 2, 2004 and the 28th Session of Procuratorial Council, the Supreme PeoplelicProcuratorate on November 11, 2004, is hereby announced and implementation thereof shall commence on December 22, 2004.

This Eighth Day of December, 2004

For the purpose of punishing intellectual infringing crimes and maintaining socialist market order, in accordance with the Criminal Law, the specific laws applicable to intellectual property infringing crimes are interpreted as follows:

Article 1. Where a trademark identical with a registered trademark is used in respect of identical goods, without license from the proprietor of the registered trademark, any of the circumstances listed below shall be deemed as a crime of counterfeiting a registered trademark serious in nature and imprisonment or detention up to three years and/or a pecuniary penalty shall be imposed under Article 213, the Criminal Law.

A circumstance where the illegal business volume exceeds RMB50,000 or the illegal income exceeds RMB30,000;
A circumstance where more than two registered trademarks are counterfeited with an illegal business volume in excess of RMB30,000 or an illegal income in excess of RMB20,000; or
Other circumstances serious in nature.
Any of the circumstances listed below shall be deemed as a crime of counterfeiting a registered trademark "especially serious in nature" and imprisonment or detention ranging from three years to seven years and a pecuniary penalty shall be imposed under Article 213, the Criminal Law.

A circumstance where the illegal business volume exceeds RMB250,000 or the illegal income exceeds RMB150,000;
A circumstance where more than two registered trademarks are counterfeited, with an illegal business volume in excess of RMB150,000 or an illegal income in excess of RMB100,000; or
Other circumstances especially serious in nature.
Article 2. Where goods counterfeiting a registered trademark are knowingly marketed at a sales volume in excess of RMB50,000, the amount shall be deemed as large under Article 214, the Criminal Law. The case shall be determined as a crime of marketing goods counterfeiting a registered trademark. Imprisonment or detention up to three years and/or a pecuniary penalty shall be imposed.

Where the sales volume exceeds RMB250,000, the amount shall be deemed as significant under Article 214, the Criminal Law. The case shall be determined as a crime of marketing goods counterfeiting a registered trademark. Imprisonment or detention ranging from three years to seven years and a pecuniary penalty shall be imposed.

Article 3. Where the labels of a registered trademark are forged or unilaterally fabricated or where the forged and unilaterally fabricated labels of registered trademarks are marketed, any of the circumstances listed below shall be deemed as a crime of illegally fabricating or marketing labels of a registered trademark serious in nature and imprisonment, detention, or surveillance up to three years and/or a pecuniary penalty shall be imposed under Article 215, the Criminal Law.

A circumstance where the number of registered trademark labels forged or unilaterally fabricated or the labels of this kind marketed exceeds 20,000 pieces, where the illegal business volume exceeds RMB50,000, or where the illegal income exceeds RMB30,000;
A circumstance where the labels of more than one registered trademark is forged, unilaterally fabricated, or marketed and the number exceeds 10,000 pieces, where the illegal business volume exceeds RMB30,000, or where the illegal income exceeds RMB20,000; or
Other circumstances serious in nature.
Any of the circumstances listed below shall be deemed as a crime of illegally fabricating or marketing labels of a registered trademark especially serious in nature and imprisonment ranging from three to seven years and a pecuniary penalty shall be imposed under Article 215, the Criminal Law.

A circumstance where the number of registered trademark labels forged or unilaterally fabricated or the labels of this kind marketed exceeds 100,000 pieces, where the illegal business volume exceeds RMB250,000, or where the illegal income exceeds RMB150,000;
A circumstance where the labels of more than one registered trademark are forged, unilaterally fabricated, or marketed and the number exceeds 50,000 pieces, where the illegal business volume exceeds RMB150,000, or where the illegal income exceeds RMB100,000; or
Other circumstances especially serious in nature. 
Article 4. Any of the patent counterfeiting circumstances listed below shall be deemed as serious in nature and determined as a crime of patent counterfeiting and imprisonment or detention up to three years and/or a pecuniary penalty shall be imposed under Article 216, the Criminal Law.

A circumstance where the illegal business volume exceeds RMB200,000 or the illegal income exceeds RMB100,000;
A circumstance where the patenteelicdirect economic loss exceeds RMB500,000;
A circumstance where more than one patent is counterfeited and the illegal business volume exceeds RMB100,000 or the illegal income exceeds RMB50,000; or
Other circumstances serious in nature.
Article 5. Where any of the copyright infringing actions listed under Article 217, the Criminal Law, is taken for profit and the illegal income exceeds RMB30,000, the amount shall be deemed as large. The circumstances listed below shall be deemed as other circumstances serious in nature and determined as crimes of copyright infringement and imprisonment or detention up to three years and/or a pecuniary penalty shall be imposed.

A circumstance where the illegal business volume exceeds RMB50,000;
A circumstance where the written works, musical, cinematic, televisual and/or video works, computer software, and other works are reproduced and/or distributed in excess of 1,000 pieces in total, without the copyright holderliclicense; or
Other circumstances serious in nature. 
Where any of the copyright infringing actions listed under Article 217, the Criminal Law, is taken for profit and the illegal income exceeds RMB150,000, the amount shall be deemed as significant. The circumstances listed below shall be deemed as other circumstances especially serious in nature and determined as crimes of copyright infringement and imprisonment ranging from three years to seven years and a pecuniary penalty shall be imposed.

A circumstance where the illegal business volume exceeds RMB250,000;
A circumstance where the written works, musical, cinematic, televisual and/or video works, computer software, and other works are reproduced and/or distributed in excess of5,000 pieces in total, without the copyright holderliclicense; or
Other circumstances especially serious in nature.
Article 6. Where any of the actions listed under Article 218, the Criminal Law, is taken for profit and the illegal income exceeds RMB150,000, the amount shall be deemed as significant. The actions shall be determined as crimes of marketing reproduced infringing works and imprisonment or detention up to three years and/or a pecuniary penalty shall be imposed.

Article 7. Where any of the actions listed under Article 219, the Criminal Law, is taken and the trade secret holder suffers an amount of loss in excess of RMB500,000, the loss should be deemed as significant. The action shall be determined as a crime of trade secret infringement and imprisonment or detention up to three years and/or a pecuniary penalty shall be imposed.

Where the amount of loss exceeds RMB2.5 million, the action shall be deemed as a consequence especially serious under Article 219, the Criminal Law. The action shall be determined as a crime of trade secret infringement and imprisonment ranging from three years to seven years and a pecuniary penalty shall be imposed.

Articles 8. An "identical trademark" under Article 213, the Criminal Law, refers to a counterfeited trademark that is perfectly identical with a registered trademark or without basic visual difference from the registered trademark and sufficient to mislead the public.

The "use" under Article 213, the Criminal Law, refers to the application of a registered trademark or counterfeit registered trademark to goods, packaging and containers of goods, user manuals, goods trading documents, or the application of the registered trademark or counterfeit registered trademark to commercials, exhibitions, and other business activities.

Article 9. The "sales volume" under Article 214, the Criminal Law, refers to all the illegal income that is earned and should be earned after the sales of goods carrying the counterfeit registered trademark.

Any of the circumstances listed below should be determined as "knowingly" under Article 214, the Criminal Law:

Be aware that the registered trademark on the goods to be marketed has been altered, exchanged, or covered;
Market again the goods carrying the same counterfeit registered trademark after being administratively punished for marketing goods carrying a counterfeit registered trademark or after bearing civil liabilities therefor;
Forge or alter a trademark registrantlicauthorization document or be aware that the document has been forged or altered; or
Other circumstances where the goods carrying a counterfeit registered trademark are known or should be known. 
Article 10. Any of the actions listed below shall be deemed as a patent counterfeiting action under Article 216, the Criminal Law:

Indicate without license others' patent number on the goods or the packaging of goods manufactured and marketed;
Use without license others' patent number in commercials or other promotional materials so that people misbelieve the technique involved as others' patented technique;
Use without license otherlicpatent number in a contract so that people misbelieve the technique in the contract as others' patented technique; or
Forge or alter others' patent certificate, patent document, or patent application document. 
Article 11. Circumstances where fees are directly or indirectly charged through publication of paid commercials shall be deemed as "for profit" under Article 217, the Criminal Law.

"Without the copyright holders' license" under Article 217, the Criminal Law, refers to circumstances where the copyright holderlicauthorization is absent, where the copyright holderlicauthorization or license document is forged or altered, or where the scope authorization or license is gone beyond,

Broadcasting to the public others' written works, musical, cinematic, televisual and/or video works, computer software, and other works through the information network shall be deemed as "reproduction and distribution" under Article 217, the Criminal Law.

Article 12. The "illegal business volume" stated in this Interpretation refers to the value of the products manufactured, stored, transported, and marketed by the actors during the course of intellectual property infringement. The value of the marketed infringing products shall be calculated according to the actual sale price. The value of the infringing products manufactured, stored, transported, but not yet marketed, shall be calculated according to the price labels or the actual average sale price of the infringing products found. Where the price labels are absent or where the actual sale price cannot be found out, calculation shall be based on the middle rate of the infringing products in markets.

Where intellectual property infringement is committed repeatedly without administrative or criminal punishment imposed, the illegal business volume, the illegal income, or the sales volume shall be accumulated.

A "piece" under Article 3 of this Interpretation refers to a label with an intact trademark specimen.

Article 13. Where a crime of counterfeiting a registered trademark under Article 213, the Criminal Law, is committed, and the goods carrying the counterfeit registered trademark are marketed so as to constitute a crime, a crime of counterfeiting a registered trademark alone shall be determined and punished under Article 213, the Criminal Law.

Where a crime of counterfeiting a registered trademark under Article 213, the Criminal Law, is committed, and the goods counterfeiting others' registered trademark are knowingly marketed so as to constitute a crime, combined punishment shall be imposed for several offenses.

Article 14. Where a crime of copyright infringement under Article 217, the Criminal Law, is committed and the reproduced infringing works are marketed so as to constitute a crime, a crime of copyright infringement alone shall be determined and punishment shall be accordingly imposed under Article 217, the Criminal Law.

Where a crime of copyright infringement under Article 217, the Criminal Law, is committed and the reproduced infringing works are knowingly marketed so as to constitute a crime, combined punishment shall be imposed for several offenses.

Article 15. Where the crimes under Article 213 through 219, the Criminal Law, are committed by a unit, the crimes shall be determined in accordance with the corresponding personal crimes and three-fold punishment shall be imposed.

Article 16. Where loans, capital, account numbers, invoices, certificates, license credentials, such conveniences and assistances as production and business places, transportation, storage, import and export agency are knowingly provided for intellectual property infringing crimes, the offenders shall be punished as an intellectual property infringing accomplice.

Article 17. Any prior promulgated judicial interpretation concerning intellectual property infringing crimes contradictory with this Interpretation shall no longer be applied beginning from the implementation of this Interpretation.