** Jing'an Procuratorate.
Prosecutor, our self-created dolls have obtained the copyright registration certificate, and are being sold in a number of large supermarket chains across the country, and the sales volume is very good, it turns out that this is the charm of 'creativity', thank you for the prosecutor for doing so much for the company, helping us regroup, and also allowing the workers on the assembly line to keep their jobs, everyone wants to thank you in person! Three months after receiving the reply letter from the prosecutor, the prosecutor once again carried out a "retrospective" on the toy company involved in the case, said the person in charge of the company involved in the case.
Three procuratorial recommendations issued by the Jing'an District Procuratorate.
This is a microcosm of the Jing'an District Procuratorate's handling of a series of intellectual property cases. In order to provide more accurate and pragmatic services to ensure Jing'an's strategic priorities such as "vigorously developing a high-level headquarters economy" and "in-depth implementation of the global service provider plan", and amplifying the advantages of regional scientific and technological innovation, in recent years, the Jing'an District Procuratorate has issued the "Ten Measures to Strengthen the Comprehensive Judicial Protection of Intellectual Property Rights and Service Guarantee to Build a Vibrant Science and Technology Innovation Highland in the Central City" based on its procuratorial functions.
Link to the case:
In 2023, the Jing'an District Procuratorate will handle the copyright infringement case of A toy company and Zhu in a city in another province in accordance with the law. After review, since 2016, Company A, without the permission of the copyright owner, has produced **dolls that constitute a copying relationship with Barbie dolls, and sold them through ** and other channels. Among them, the Alisa doll and a certain Barbie doll formed a reproduction relationship, and the number of infringing copies totaled 1,997.
The prosecutor believes that Company A sells toys in the name of the unit, and the illegal gains belong to the unit, and the main activity is not to commit a crime, so it should be found to be a crime committed by the unit, Zhu is the directly responsible manager, and the other four are other directly responsible personnel. Adhering to the criminal policy of blending leniency and severity, the prosecutor distinguished between the principal and accessory offenders and prosecuted Company A and Zhu; Considering that the four employees committed a minor crime and the circumstances were relatively minor, they were relatively not prosecuted.
In August 2023, the Jing'an District Court imposed a fine of RMB 50,000 on the defendant Company A for copyright infringement; Defendant Zhu was sentenced to two years imprisonment, suspended for two years, and fined 50,000 yuan.
Plugging system
Enhance the level of rights protection of victim enterprises
False
The infringing model is a fake Barbie.
At the beginning of the case, the prosecutor issued a Notice of Procedural Rights and Obligations of Victims (Units) in Intellectual Property Criminal Cases to the victim unit, Mattel, to guide the relevant person in charge to participate in the criminal litigation of intellectual property rights as the right holder.
We found that Mattel's 'Barbie' product family is large and has a variety of shapes, but only a few classic images have been registered. Wu Jing, the prosecutor in charge, said, "The suspect carried out a partial 'micro-rectification' of the toy, and whether such a practice constitutes infringement involves the suspect's 'crime and non-crime', and it is difficult to determine without the prior confirmation of the rights of the copyright people." ”
Procurators seek advice from professional mentors.
In order to accurately evaluate this conduct, the procurator carried out supplementary investigations on their own, actively introduced "external brains", and relied on the court's "professional mentor" characteristic system to invite experts and scholars from colleges and universities to provide professional opinions for the handling of cases. In order to find a more appropriate criterion, the prosecutor also carefully studied the precedents of computer software and related infringement cases, and introduced the "principle of proportionality" in which the relationship of reproduction was determined. Based on the opinions of multiple parties, the procurator conducts accurate research and judgment based on factors such as the degree of originality and the proportion of similar elements in the overall situation, so as to achieve accurate accusations of crimes.
The problem was overcome, but the case also exposed Mattel's insufficient intellectual property layout, especially for the constantly innovative and wide variety of Barbie dolls, which lacked a work registration certificate to prove the preliminary evidence of copyright ownership, resulting in low efficiency and high cost for enterprises to protect their rights.
Accordingly, the procuratorate promptly "took the pulse" of the victim enterprise in the form of procuratorial suggestions, suggesting that Mattel should pay attention to the registration of the works in China, and for overseas design works, pay attention to the collection and fixation of evidence such as design drawings and design affidavits of the works; Achieve comprehensive coverage of product protection from the perspective of trademark rights, pay attention to the sameness of registered trademarks and used trademarks, and the sameness of registered trademarks and actual categories; Trademark engraving on doll molds to enhance the recognizability of the company's products.
Heartfelt thanks" and "stepping up the layout", Mattel's reply letter made the prosecutor feel the value of the extension of the procuratorial function, the conclusion of the case is not the same as the matter, and the performance of the procuratorial duties should allow more enterprises to get on the right track of the rule of law.
Collaborate off-site
Help the companies involved get back on track
The prosecutor went to the warehouse to investigate.
If you change it, it won't be copied" "I also added accessories such as bicycles to the doll". During the interrogation, the prosecutor realized that Zhu, as the founder and actual controller of Company A, lacked basic respect for intellectual property rights, resulting in many problems in the prevention and control of legal risks and the structure of the management system of Company A. However, as a start-up toy company, Company A has a number of production lines and many employees, and the toys involved in the case are only part of the products of the toy factory.
In this regard, the procurator combined punishment and punishment, on the one hand, resolutely cracked down on illegal and criminal acts of infringing on intellectual property rights, and punished Zhu and other major persons involved in the case in accordance with the law; On the other hand, "prescribe and grasp medicine", and guide enterprises back on the right track with procuratorial suggestions.
In order to avoid the procuratorial suggestion being "unsuitable" and to better fit the actual situation of the enterprise, the procurator took the initiative to send the procuratorial suggestion to the procuratorate where the enterprise involved in the case was located to solicit comments, and at the same time invited specially invited assistant procurators to participate in the joint investigation and research by consulting the enterprise's business information, visiting and researching, and other means.
This procuratorial suggestion ranges from enhancing personal legal awareness and improving the construction of corporate rule of law culture, to further establishing rules and regulations, outlining and leading, and precise governance. "In July 2023, a procuratorial recommendation condensed the crystallization of the wisdom of many parties was sent to the current head of the company. In the same month, the prosecutor received a reply from Company A, and the company immediately checked itself one by one in accordance with the procuratorial suggestions, improved the awareness of law-abiding business responsibility from the whole process of production and operation, established a professional legal department and hired professional lawyers in the field of intellectual property to strictly control it, established the concept of corporate integrity management and formulated a punishment system for violations, put forward a detailed rectification plan, and demonstrated its determination to comply with the law.
Take it a step further
Coordinate the promotion of the governance of the toy industry
Prosecutors remotely "look back" at the enterprise
Although the case is closed, the prosecutor has a "matter on his mind". It turns out that in the handling of a series of intellectual property cases, it is not the first time that the place involved has appeared. In recent years, there have been another copyright infringement case of Luo who counterfeited the "Minions" and Wu and six others who counterfeited the "Wang Wang Team" counterfeited registered trademarks and copyright infringement cases, both of which occurred in a city in other provinces, among them, the enterprise operated by Wu and the above-mentioned company A are the same as the governing units of the local toy association.
A city in other provinces is a well-known toy production and export base in the country, with a toy industry cluster with complete support, huge scale and high market share, and a toy association.
There have been many cases of infringement of intellectual property rights in the region, which are not only due to the management of the enterprises themselves, but also reflect the problems that the Toy Association, as an industry non-profit social organization, does not have the proper self-discipline management of the intellectual property rights of member enterprises, and the effect of industry self-discipline needs to be improved. In order to guide the healthy development of the toy industry and strengthen the legal protection of scientific and technological innovation, the procurator believes that it is necessary to carry out comprehensive social governance, promote industry autonomy with legal supervision, and promote social co-governance.
The procurator used remote special meetings, first-class investigations, etc., to understand the characteristics of the district's location, economic development and industrial structure, comprehensively investigated and verified the rules and regulations and basic information of the Toy Association's functional scope and special services, and found that the association had specific problems such as the poor implementation of rules and regulations, the failure to fulfill the obligation to timely remind member companies that failed to operate in good faith, the lack of a clear and specific member withdrawal mechanism for members suspected of violating the law and crimes, and the incomplete supply of intellectual property services.
In December 2023, the Jing'an District Procuratorate formulated and issued procuratorial recommendations for comprehensive social governance, and put forward suggestions for improvement in the refinement of rules and regulations, strengthening membership management, and improving the service system of the Toy Association. The Toy Association has actively adopted, strengthened the self-discipline management of enterprises, paid more attention to guiding enterprises to operate legally, and increased the content and frequency of legal training on intellectual property rights to manage and serve the toy industry at a higher level.
Pay more attention to "treating the disease" and pay more attention to "treating the disease before it happens", and formulate and issue targeted procuratorial suggestions for the units involved in the case, the victim units, and industry associations at different time periods, so as to realize the "one" perspective to the infringer to the "many" perspective to the rights holder and infringer; From the "point" to the infringer in the case to the "face" of the self-regulatory organization of the industry association; From "handling" to "handling", we will promote the systematic governance of the toy industry. "Everyone is a business environment, everything is related to the business environment", escorting the development of enterprises with active performance, and the exploration and practice of the procuratorial organs are always on the road.