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The State Council has decided to carry out an intellectual property protection campaign throughout the country in a one-year period or so and, on August 27, 2004, held a national TV/telephone conference for making arrangement for the campaign. As judicial organs, the people's courts have an unshirkable duty in the regulation of intellectual property right relations, the protection of the legitimate rights and interests of people concerned and the punishment on intellectual property infringements. With a view to further strengthening the judicial protection by the courts of various levels of intellectual property rights, bringing into full play the judicial functions and providing effective judicial support in the intellectual property protection campaign, this Circular is hereby given as follows: 1. Enhancing understanding, strengthening the leadership and treating the judicial protection of intellectual property rights as an important judicial task. The Party and the government have been paying great attention to the protection of intellectual property rights. With much effective work being done, a system of laws and regulations, a system of administration and law enforcement and a judicial protection system in respect of intellectual property rights have taken shape in China. We should notice, however, that China still faces a great challenge in the protection of intellectual property rights, with infringing acts frequently taking place in some regions and sectors, and that it is urgent to rectify the phenomena of non-compliance and non-strict enforcement of law. China's modernization construction and economic and social development, the implementation of China's opening policy, the building of a good international image and the improvement and standardization of the market order all call for more effective protection of intellectual property rights. The courts of various levels shall, under the guidance of Deng Xiaoping Theory and the important thoughts of "Three Represents" and from the high plane of the implementation of the Party Center's general plan for managing state affairs according to law, strategy of invigorating the country through science, technology and education and strategy of sustainable development, and of the establishment of scientific concept of development and correct concept of performance, fully understand the important significance of carrying out the intellectual property protection campaign, treat the strengthening of judicial protection of intellectual property rights as an import measure of the people's courts for serving the overall plan of the Party and government and implementing the policy of conducting the judicial work for the people, effectively strengthen the leadership, overcome interference of regional and sectoral protectionism, conduct prompt and fair trials of various criminal, civil and administrative cases involving intellectual property infringements. They shall give full play to the standardization, guidance, regulation and protection roles of China's intellectual property law and, through the judicial activities, safeguard legal acts, penalize illegal ones, punish crimes, standardize orders, guarantee that the campaign should be carried out in depth, and open up a new prospect of judicial protection of intellectual property rights in China. 2. Stressing and strengthening the main points, and severely punishing crimes of manufacturing and selling fake products and infringing intellectual property rights. Crimes of infringing intellectual property rights, such as trademark counterfeiting and piracy, have seriously undermined the operating rules and competitive orders of the socialist market economy, directly jeopardize the legitimate rights and interests of intellectual property holders and also of the consumers and, especially, the counterfeiting acts in sectors of food, drug and agricultural materials have seriously jeopardized the nation's economy and the people's livelihood. The courts of various levels shall further strengthen the criminal punishment upon crimes of infringing intellectual property rights and, according to the arrangement for the campaign and in the light of the local conditions, pay attention to and severely punish crimes that seriously jeopardize the life and health and the immediate interests of the people, gravely impact the market order and economic development and cause strong complaints among the local masses. The cases involving large amounts of money with serious circumstances and causing great damage to the interest of the country and people, especially those with the participation or harboring or connivance of any state functionary, shall be treated as major cases and promptly tried, with the offender concerned being severely punished and, if required by law, given a heavier punishment. In handling the cases, attention should be paid to the product quality so as to accurately apply the criminal law. Those who counterfeit any registered trademark or logo of any other person, and manufacture and sell inferior-quality products shall be convicted of the crime with a heavier punishment and punished accordingly in accordance with the criminal law. Various kinds of punishments shall be adopted to crack down on crimes of infringing intellectual property rights. In addition to principal punishments, the application of pecuniary punishments shall also be taken seriously. Where any law provides that a fine or confiscation of property shall be imposed in addition to a principal punishment, such fine or confiscation of property must be imposed; where any law provides that a fine or confiscation of property may be imposed in addition to a principal punishment, such fine or confiscation of property shall generally be imposed; the illegal gains of criminal offenders shall be recovered or a proper compensation shall be paid accordingly, and the property of the criminal offender used for committing the crime shall be confiscated. The right of a victim to bring a criminal private prosecution shall be effectively protected and the acceptance, mediation and trial of private prosecution cases in respect of intellectual property infringements shall be done properly. The people's courts shall accept the criminal intellectual property cases brought directly by the victims to the people's court if the requirements for a private prosecution are met, or transfer the case to the public security organ for investigation if it lacks sufficient evidence and may be entertained by the public security organ or if it is held that the prosecuted will likely be sentenced to at least an imprisonment of three years. 3. Properly handling the civil and administrative cases involving intellectual property infringements and giving equal protection of the legitimate rights and interests of all parties. When handling the civil and administrative cases involving intellectual property infringements, the people's courts of various levels shall firmly eliminate the interference of regional or sectoral interests and accept and try promptly the cases that meet the requirements for acceptance. Attention shall be paid to the effectiveness of judicial protections. Measures of property preservation and advance execution shall be applied properly in accordance with the law, and infringing acts shall be promptly prohibited, so as to effectively prevent the increase of loss and ensure the execution of effective judgments. The people's courts shall give full play to the orientation role of judicial work by taking severe sanctions against various intellectual property infringements. When handling the civil cases involving intellectual property infringements with serious circumstances, the people's courts may, in the light of the specific conditions and according to law, apply economic sanctions, such as confiscation of property and a fine, in addition to civil liabilities, such as cessation of infringements, elimination of ill effects, extension of a formal apology and compensation for losses. The people's courts shall make their work dovetail with that of the criminal investigation organs and, when discovering any clue to or information of a suspected crime or believing that the case involves a suspected crime during the trial of any civil case involving intellectual property infringement, shall promptly transfer the case to the criminal investigation organ strictly according to the relevant provisions of the criminal procedure law and the Provisions of the Supreme People's Court on Several Problems concerning Trials of Economic Dispute Cases Involving Suspected Economic Crimes. 4. Doing a good job of publicity and education of intellectual property protection by combining the job with the judicial practice. The intellectual property protection in China is confronted with a severe challenge, for the whole society generally has little sense of intellectual property protection. The people's courts of various levels shall elaborately organize open trials of civil and criminal cases involving intellectual property infringements, and publicize the knowledge of intellectual property rights through publicly announcing judgments or press releasing of typical cases, so as to promote the whole society's sense of intellectual property protection and increase the ability of people to safeguard their legitimate rights and interests. The people's courts of various levels shall treat the intellectual property protection as a key point of the fourth five-year plan for the dissemination of general knowledge of law, conscientiously support the relevant departments in the relevant work of publicity and education, participate in an all-round way in the Intellectual Property Awareness Week and other relevant publicity and education activities, pay attention to the collection of publicity materials and increase the publicity effects through lively cases. When handling cases, attention shall be paid to the discovery of loopholes and sources of trouble in the administrative system and chains of management, promptly put forward judicial proposals, give guidance to and urge the relevant departments and entities to improve their systems, strengthen their management, close loopholes and eliminate sources of trouble, and offer advice and suggestions for the establishment and improvement of a long-term mechanism of intellectual property protection. 5. Strengthening the work of investigation, research, guidance and superintendence, and ensuring the successful development of the intellectual property protection campaign. Since the intellectual property cases usually involve specialized knowledge, the taking and ascertainment of evidence could be difficult and there will be a lot of new issues and problems in the trial of such cases, the courts of various levels shall strengthen the relevant investigation and research and ensure the quality of trials. The superior courts shall strengthen the supervision and guidance over the work of the inferior courts, so as to ensure that the trial of intellectual property cases will be conducted smoothly. The Supreme People's Court shall, in conjunction with the Supreme People's Procuratorate and as soon as possible, make judicial interpretations with regard to the major problems relating to law application in handling criminal cases involving intellectual property infringements, which shall serve as the judicial basis for the trial of such cases. The Supreme People's Court shall also strengthen the work of publishing the results of trials of typical cases. Each Higher People's Court shall, in strict accordance with the requirements in the relevant circulars of the Supreme People's Court, strengthen information exchange and submit information in a timely manner. With regard to the major cases and other typical cases under the superintendence of the Supreme People's Court, the particulars of the acceptance and trial of the cases shall be submitted level by level to the Supreme People's Court. As to the cases whose result of trial should be publicly announced as required by the Supreme People's Court, the courts concerned shall give active support in the work of publicly announcing the judgments and press releasing. |
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