** Pudong Procuratorate.
The connection between administrative law enforcement and criminal justice is an important part of the procuratorial organs' efforts to strengthen the connection and cooperation with administrative law enforcement organs, jointly promote strict law enforcement and fair justice, and jointly promote the construction of a rule of law in China. Among them, it includes both the positive connection of the transfer of suspected criminal cases by administrative law enforcement organs to judicial organs, and the reverse connection of administrative punishment cases transferred by judicial organs to administrative law enforcement organs. The "Opinions of the Communist Party of China on Strengthening the Legal Supervision of Procuratorial Organs in the New Era" puts forward clear requirements for reverse connection, "improve the system for procuratorial organs to transfer criminal suspects who decide not to prosecute to the relevant competent authorities for administrative punishment, governmental sanctions, or other sanctions in accordance with the law."
An infringement case under the foreign-related OEM model.
After the conclusion of the prosecution link.
The procuratorate will transfer the leads to the administrative organs.
However, in the face of criminal justice and administrative law enforcement.
Differences between the two domains.
How to open up the connection between executions.
How can we ensure that the clues can be smoothly transferred and the case can be completed?
Foreign-related OEM mode
Infringement
In 2015, Ke Moumou and his wife Gao Moumou registered K enterprise, specializing in the production and processing of various brands of packaging. Since April 2016, K Company has been entrusted to produce "FILA" brand bags and export them to Japan. The act of a domestic processor receiving the entrustment of an overseas right holder, processing the products in accordance with the requirements of the entrusting party, and then delivering all the products abroad and selling them overseas is an OEM processing. The production of "FILA" brand packaging by K enterprise is a typical foreign-related OEM processing behavior.
It is inevitable that there will be losses in the production process, and those defective products that fail to pass the test are called "tail orders". Since January 2021, Ke Moumou and his wife Gao Moumou, without the permission of the owner of the "FILA" trademark, sold the tail order packages with trademarks such as "FILA" produced by Company K in the ** store registered by the two of them to "make some extra money". In October 2021, when the trademark owner found out about this situation, he chose to report to the police.
After the case was transferred to the procuratorate, it was handled by the Zhangjiang District Procuratorate of Pudong New Area (hereinafter referred to as the "Zhangjiang Yuan"), which specializes in handling intellectual property cases. Dai Li, the prosecutor in charge, believes that Ke Moumou and Gao Moumou, without the authorization of the right holder of the "FILA" trademark, publicly sold their defective tail list to unspecified persons on **, which infringed the right holder's exclusive right to use a registered trademark, and should be determined to be an act of selling goods with counterfeit registered trademarks. According to the audit, from January 2021 to October 2021, the total amount of packages sold with counterfeit "FILA" registered trademark under the names of the two people was more than RMB 150,000.
At the same time, the procuratorate took into account that Ke XX and Gao XX sold the remaining tail orders after authorized production in China, which was different from the general behavior pattern of selling goods with counterfeit registered trademarks, and the circumstances of the crime were relatively minor. The two were first-time offenders, and after arriving at the case, they pleaded guilty and accepted punishment, and actively compensated the rights holder with RMB 150,000, and the rights holder expressed his understanding. After convening a public hearing, the procuratorate made a decision not to prosecute the two in accordance with the law.
Implement a mechanism for the reverse connection of criminal punishment
Write the "second half of the article" of non-prosecution
"Non-prosecution" is not the same as "non-punishment", "Although Ke and Gao do not need to be sentenced, their actions are indeed infringements." Prosecutors said it would be unfair to "not punish" or "not punish" them. Thus, the role of the reverse connection mechanism of execution is reflected.
In the course of handling cases, we have encountered many similar cases that need to be transferred to the administrative authorities after the decision not to prosecute. However, in practice, we have found that there are still some difficulties in the connection process. The person in charge of Zhangjiang Institute said: "Actually, it is very easy to understand. Criminal justice and administrative law enforcement are two fields, and there must be certain differences, which are reflected in many aspects such as case-handling ideas, evidence identification specifications, punishment subjects, and case jurisdiction. When handling this infringement case, we explored and tried to open up the reverse connection between the execution and execution of intellectual property cases. ”
The procurator found that when some intellectual property cases involving persons involved in the case were transferred to the administrative organs because the circumstances of the crimes were relatively minor and did not need to be sentenced, some of the evidence had already been destroyed because of the long time since the case occurred, which was not conducive to the administrative organs imposing administrative penalties in accordance with the law. In the process of handling the case, after studying and judging the overall facts of the case and the criminal circumstances of the two persons involved in the case, the Zhangjiang Court decided to communicate the clues of the case with the case-handling personnel of the Pudong New Area Intellectual Property Office during the case review stage to understand the specifications of evidence required for administrative punishment. In this way, to a certain extent, it can be avoided that after the procuratorial process is completed and the administrative organ takes over, the evidence will have to be collected again, or even the evidence cannot be collected. The person in charge of Zhangjiang Institute said.
After the specific case is studied and judged, the collection of evidence for administrative punishment is to be "moved forward". In the process of handling cases, intellectual property prosecutors can collect evidence from more angles and carry out supplementary investigations, so that after the non-prosecution case is transferred to the administrative organ, it can smoothly impose administrative penalties.
Based on the smooth communication in the early stage, in response to the case of Ke Moumou and Gao Moumou, the Pudong New Area Procuratorate issued a case to the Pudong New Area Intellectual Property OfficeProcuratorial opinionsand transfer the clues and evidence together. At the same time, the prosecutor did not send him away, but continued to follow up and supervise the case. Since this case involved the infringement mode of infringing the exclusive right to use the trademark through the sale of tail goods without authorization under the foreign-related OEM business model, the Pudong New Area Procuratorate and the Pudong New Area Intellectual Property Office held several seminars, focusing on the nature of the foreign-related OEM behavior, the application of the principle of trademark territoriality, and the exclusive licensing system.
In October 2023, the Pudong New Area Intellectual Property Office imposed an administrative penalty of more than 150,000 yuan on Ke Moumou.
The relevant person in charge of the Pudong New Area Intellectual Property Office said that through the reverse connection of individual cases and criminal punishments, the procuratorate and the administrative organs have jointly created a two-way collaborative intellectual property governance mechanism, and jointly wrote the "second half of the article" after the non-prosecution.
This is also a manifestation of the comprehensive performance of intellectual property prosecution. The person in charge of Zhangjiang Institute said. With the official inauguration of the Pudong New Area Intellectual Property Procuratorial Comprehensive Performance Practice Base, the procuratorial organs will join hands with administrative organs and various enterprises to rely on this new platform to fully study and judge difficult and complex cases, and provide a stronger legal guarantee for the comprehensive protection of intellectual property rights.