Utilisation of law concurrence in criminal prosecutions

Rouse
Belinda Yang
[email protected]

Counterfeit drugs often bear counterfeit trade marks. If the product involved falls within the legal definition of counterfeit drugs, it is highly possible that the suspect's act constitutes both the crime of producing and distributing counterfeit drugs and the crime of counterfeiting a registered trade mark at the same time. This is in accordance with the Criminal Law of the People's Republic of China (the Criminal Law). There is therefore concurrence of two criminal acts, or law concurrence. This article looks at how trade mark owners can use this concurrence to their benefit.

As criminal cases are generally driven by the Supreme People's Procuratorate (the Procuratorate), the rights owner and its agent can play only a limited active role during their prosecution. This is mainly through the provision of assistance upon request from the Procuratorate. However, where there is concurrence, the rights owner and its agent may be able to influence the prosecution in a significant way. This is also a precious opportunity to obtain the highest deterrent through criminal prosecution. This is because the Procuratorate may have different interests from the rights owner and the criminal provision chosen by the Procuratorate may not be the best deterrent. From the viewpoint of the rights owner, this is generally the one that most heavily punishes the suspect.

Under Article 213 of the Criminal Law (regarding the crime of counterfeiting a registered trade mark) and the relevant judicial interpretation of the Supreme People's Court (SPC), the counterfeiters shall be sentenced to imprisonment of three years or less “if the case is of a serious nature”. This can be extended to imprisonment of three to seven years “if the case is of a special serious nature”. It was interpreted by the SPC that the term “serious nature” means the case involves a value of counterfeit goods of RMB50,000 (US$7,500) or more. Meanwhile, the term “special serious nature” refers to a value of counterfeit goods of RMB250,000 or more, among other criteria.

Under Article 141 of the Criminal Law (regarding the crime of counterfeiting drugs) and the relevant SPC interpretation, the counterfeiters shall be sentenced to imprisonment of three years or less if the drugs may potentially cause serious harm to human health i.e. the drugs have no active ingredient. This can be extended to imprisonment of three to 10 years if a serious harm to human health has “actually” been caused.

According to the above laws and interpretation, the sentence for the crime of counterfeiting a registered mark depends on the value of the counterfeit goods. Meanwhile, the sentence for the crime of producing and distributing counterfeit drugs is determined by the degree of the threat or harm to human health.

Under the SPC Interpretation of 2009, when the criminal act that constitutes the crime of counterfeit drugs also constitutes the crime of infringing intellectual property rights concurrently, the provision with the heavier punishment shall prevail.

Under this circumstance of law concurrence, the rights owner and its agent can analyse and compare the applicable provisions, and select the regulation with the heavier punishment. In the process of criminal prosecution and the court trial, the rights owner and its agent can urge the Procuratorate or the court to impose a more severe sentence through written legal opinions. For example, where counterfeit drugs may potentially cause serious harm but have not actually caused the harm, the sentence would be three years or less under Article 141 (regardless of how much the value of the goods involved). However, if the said case involves a value of counterfeit drugs using counterfeit marks estimated at RMB250,000 or more, the sentence could be up to seven years under Article 213. In such a situation, the rights owner and its agent can request the Procuratorate or courts to apply the crime of counterfeit trade mark so that the offenders can be punished by maximizing the deterrent available under the laws.

Put simply, law concurrence that occurs in criminal cases involving drug trade marks is a cherishable chance for rights owners and agents to request heavier sentences and the best deterrent.