Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellec

Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights (III) Article 1 In any of the following circumstances, it may be recognized as a "trademark identical to its registered trademark" as stipulated in Article 213 of the Criminal Law:

(1) Changing the font, case or alphabetical arrangement of a registered trademark that is basically the same as its registered trademark;

(2) Changing the spacing between characters, letters and numbers of a registered trademark to be basically the same as that of a registered trademark;

(3) Changing the color of a registered trademark does not affect the distinctive features of the registered trademark;

(4) Only adding the common name, model and other elements lacking distinctive features to a registered trademark will not affect the expression of the distinctive features of the registered trademark;

(5) It is basically indistinguishable from the three-dimensional signs and plane elements of a three-dimensional registered trademark;

(six) other trademarks that are basically the same as registered trademarks and mislead the public. Article 2 A natural person, legal person or unincorporated organization that signs a work or sound recording in the usual way as stipulated in Article 217 of the Criminal Law is presumed to be the copyright owner or producer of the sound recording, and the work or sound recording has corresponding rights, unless there is evidence to the contrary.

In the case that there are many kinds of works and sound recordings involved, and the rights holders are scattered, if there is evidence that the copies involved are illegally published and copied, and the publishers and copy publishers can't provide relevant evidential materials for obtaining the permission of the copyright owner and the sound recording producer, they can be regarded as "without the permission of the copyright owner" and "without the permission of the sound recording producer" as stipulated in Article 217 of the Criminal Law. However, unless there is evidence that the obligee has given up his rights, the copyright of the works involved or the related rights of the sound recordings are not protected by China's copyright law, and the period of rights protection has expired. Article 3 Whoever illegally copies or uses a computer information system without authorization or beyond authorization to steal business secrets shall be deemed as "theft" as stipulated in Item 1, Paragraph 1, Article 219 of the Criminal Law.

Obtaining the business secrets of the obligee by means of bribery, fraud, electronic intrusion, etc. It should be recognized as "other improper means" as stipulated in the first paragraph of Article 219 of the Criminal Law. Article 4 Any of the following acts stipulated in Article 219th of the Criminal Law shall be deemed as "causing great losses to the holder of trade secrets":

(1) Infringement of trade secrets has caused losses to the obligee of trade secrets, or the amount of illegal gains is more than 300,000 yuan;

(2) The owner of the business secret directly goes bankrupt or closes down due to major difficulties in business operation;

(3) Causing other heavy losses to the obligee of trade secrets.

Infringement of trade secrets causes losses to the obligee of trade secrets or the amount of illegal gains is more than 2.5 million yuan, which shall be deemed as "causing particularly serious consequences" as stipulated in Article 219 of the Criminal Law. Article 5 The amount of losses or illegal gains caused by the acts specified in Article 219 of the Criminal Law can be determined in the following ways:

(1) If the business secret of the obligee is obtained by improper means, but it has not been disclosed, used or allowed to be used by others, the amount of loss can be determined according to the reasonable license fee of the business secret;

(2) If the trade secret of the obligee is disclosed, used or allowed to be used by others after being obtained by improper means, the loss amount may be determined according to the loss of sales profit caused by the infringement of the obligee, but if it is lower than the reasonable license fee of the trade secret, the loss amount shall be determined according to the reasonable license fee;

(three) in violation of the agreement, the obligee is required to keep business secrets, and the amount of loss can be determined according to the loss of sales profits suffered by the obligee due to infringement;

(four) knowing that the business secret was obtained by improper means or in violation of the agreement, the right holder requests to disclose, use or allow the use of the business secret, and the amount of loss can be determined according to the loss of sales profits suffered by the right holder due to the infringement;

(5) If a trade secret is known to the public or is lost due to infringement of the trade secret, the amount of loss can be determined according to the commercial value of the trade secret. The commercial value of a trade secret can be comprehensively determined according to the research and development cost of the trade secret and the income from the implementation of the trade secret;

(6) Property or other property interests obtained by disclosing or allowing others to use business secrets shall be deemed as illegal income.

The loss of sales profit caused by the infringement of the right holder specified in items (2), (3) and (4) of the preceding paragraph can be determined by multiplying the total sales reduction caused by the infringement by the reasonable profit of each product of the right holder; If the total sales reduction cannot be determined, it can be determined by multiplying the sales volume of the infringing product by the reasonable profit of each product of the obligee; If the total sales reduction caused by infringement and the reasonable profit of each product cannot be determined, it can be determined by multiplying the sales volume of the infringing product by the reasonable profit of each infringing product. If the trade secret is used for other business activities such as services, the amount of loss can be determined according to the reasonable profit reduced by the obligee due to infringement.

Remedial expenses incurred by the right holder of trade secrets for reducing the loss of business operations and business plans or restoring the security of computer information systems and other systems shall be included in the losses caused to the right holder of trade secrets.