How to identify the sales amount of the most popul

2022-09-22
  • Detail

How to determine the "sales amount" of counterfeit goods

[facts of the case]

he was prosecuted by the procuratorial organ for the crime of selling counterfeit goods with a registered trademark of Germany, "Montblanc" (Montblanc). According to the investigation, the approved fake fountain pens have not been sold, and there is no price. According to he, in the past, the price of each piece was about 5 yuan, but it could not be verified

[differences]

the first opinion holds that "if the infringing product has no bid price or the actual sales price cannot be found out, it shall be calculated according to the middle market price of the infringing product" in accordance with the provisions of the interpretation on Several Issues Concerning the specific application of law in handling criminal cases of infringement of intellectual property rights (hereinafter referred to as the interpretation of the Supreme People's court and the Supreme People's Procuratorate). In this way, the sales amount of this case is as high as millions of yuan

the second opinion is that according to the appraisal conclusion of the Municipal Price Certification Center, the procuratorial organ has confirmed that Mr. He's counterfeit water pens that have not been sold are 5.5 yuan per pen, totaling more than 200000 yuan. The appraisal conclusion is made according to the physical condition of counterfeit goods and market research, which is relatively fair and reasonable, and the sales amount of this case should be determined accordingly

[evaluation]

China's criminal law stipulates that the crime of selling goods with counterfeit registered trademarks is constituted by the sale of goods with a large amount of money knowing that they are counterfeit registered trademarks. It can be seen that this crime is a crime of amount. The interpretation of the Supreme People's court and the Supreme People's court also made Supplementary Provisions on the calculation of "sales amount": "The value of the infringing products that have been sold shall be calculated according to the actual selling price. The value of the infringing products that have been manufactured, stored, transported and not sold shall be calculated according to the bid price or the average actual selling price of the infringing products that have been found out. If the infringing products have no bid price or the actual selling price cannot be found out, it shall be calculated according to the middle market price of the infringing products." The judicial interpretation also stipulates that if the sales amount is more than 250000 yuan, the sentencing shall be advanced to a higher level, that is, the sentencing shall be within the range of fixed-term imprisonment of more than three years but less than seven years. It can be seen that the amount of "sales amount" plays a vital role in the conviction and sentencing of this crime

the author believes that there are some deficiencies in the calculation of "sales amount" in the interpretation of the Supreme People's court and the Supreme People's Court:

first, it is easy to lead to the phenomenon of different punishments for the same crime. The penalties imposed on defendants who hold the same counterfeit goods may vary greatly depending on whether the goods are priced or not

second, it creates an opportunity to circumvent the law. It is not excluded that a few defendants use the judicial organ to identify the value of counterfeit registered trademark goods at the price, deliberately lower the price of counterfeit goods for sale, but actually sell them at a higher price, in order to escape criminal sanctions

third, it is not in line with reality. Due to the wide gap between the appearance and quality of many products with fake registered trademarks and genuine products, the defendant is generally impossible to sell at the price of genuine products. Therefore, it is not in line with the actual situation and unfair to the defendant to calculate the sales amount of counterfeit products at the middle market price of authentic products. For example, if this case is calculated according to the "two high interpretations" and the middle market price of authentic products, the sales amount will be as high as millions of yuan, which is dozens of times higher than the price identified by the Municipal Price Certification Center, and the difference is very far. The appraisal conclusion made by the Municipal Price Certification Center is based on the physical condition of counterfeit goods, market research and price law, which has high reference value

therefore, the author believes that when dealing with such cases, the judicial authorities cannot simply and mechanically apply the "interpretation of the Supreme People's court and the Supreme People's court" to identify the calculation method of the sales amount of infringing products, especially when applying the "calculation according to the middle market price of the infringing products" to identify the sales amount, we should be more cautious. We should be based on the sales of fake plastic film and rubber The different experimental solutions of the case of counterfeit registered trademark goods in the tensile testing of wire and cable and other materials cover the plot of plastics, metals, automobile industry, building materials, textiles, paper and paperboard, food and packaging, composite materials, etc., and the sales amount is determined in accordance with the principles of objectivity and impartiality. As for how to identify the "sales amount" in the crime of counterfeiting registered trademarks, the author puts forward the following suggestions:

first, if the doer not only indicates the price of the counterfeit goods sold, but also actually sells them, it shall be identified according to the sales price, and if the sales price cannot be found out, it shall be identified according to the price; The unsold part shall be recognized according to the bid price. If the same counterfeit commodity has multiple bid prices or selling prices, its average bid permeability is the price or selling price of the gas under a certain climatic condition

second, if the counterfeit goods that have not been sold have a price, but the price is significantly lower than the purchase price, and the actor cannot make a reasonable explanation for this, and the judicial organ cannot find out the actual sales price, it should be determined according to the appraisal conclusion made by the appraisal department based on the physical condition of the counterfeit goods and the price of similar goods in the market survey

third, the doer has no price for the unsold counterfeit goods, and the judicial organ cannot find out the sales price, but if the doer can make a reasonable explanation for the price and can adapt to the purchase price of the counterfeit goods found (with reference to the profit situation of similar goods, etc.), it can be determined according to the price confessed by the doer

fourth, if the counterfeit goods that have not been sold have no price tag, and the sales price and purchase price cannot be found out, attention should be paid to examining the differences between the appearance design and internal quality of the counterfeit goods and the infringed goods (if necessary, it can be submitted to the technical department for identification). If the difference between the two is obvious, the appraisal department shall make a price appraisal and identify the commodity with the fake registered trademark; If there is a difference between the two, but the tensile force of the chain exceeds its yield limit, it will be "calculated according to the market intermediate price of the infringing product"

Copyright © 2011 JIN SHI