Trial Docket: (2017) Jing 0108 XingChu No. 406
City of Beijing
[Headnotes]
Article 213 of the Criminal Code provides that the crime of trademark counterfeit refers to an act in violation of the national trademark law and regulations, without permission from a trademark registrant, for using a mark identical with the registered trademark, with aggravating circumstances.
[Synopsis]
Plaintiff: People's Prosecutorial Court of Haidian District, Beijing
Defendant: YE Yina
Defendant YE Yina, since 2014, conspired with WANG Kedi (charged in separate case) to make and sell Hewlett- Packard (HP) toner cartridges. On July 25, 2016, defendant Ye was arrested by Beijing police, who uncovered 50 HP toner cartridges, a toner refilling device, and other stuff in her business location at Kemao Plaza, Suite 4A027, Haidian, Beijing. Police also found in the warehouse No. 1123C in the building 195 HP toner cartridges, and HP tamper-proof labels, bubble bags, and packaging boxes, etc. Subsequently, police discovered 131 more HP toner cartridges and toner from a renting place in Shuangta Village in Haidian, and 272 HP toner cartridges and HP packaging boxes from the village warehouse. These are all found to be fakes of registered HP trademarks, estimated to be worth of 624,961 yuan.
The court found: defendant YE Yina, without permission from trademark registrant, used an identical mark on the same goods, with aggravating circumstances, thus constituting the crime of trademark counterfeit, deserving punishment. The accusation of trademark counterfeit brought by the People's Prosecutorial Court of Haidian, Beijing against defendant Ye was based on clear facts with ample evidence, and Ye was indicted. Defendant's counsel raised the point that the seized cartridges filled with toner might be sold under the mark JINGHUI. Ye's statement to police and a witness Lü Bei testimony indicated that the HP label was pasted over with JINGHUI before refilling, and when the JINGHUI labels were applied some cartridges would be left unpasted without JINGHUI labels, and went directly with second refilling. Therefore, changing the HP labels were done prior to refilling. Based on the cartridges seized, only a small portion had been changed from HP to JINGHUI labels; in most pasted cartridges, HP labels were easily discernible, and the JINGHUI labels were of shabby quality, which would merely be applied over the HP labels, and many wouldn't even cover completely, including those sealed, ready for sale where HP labels could still be seen, which was in line Ye's statement. Such simplistic cut-and-paste was more than sufficient to mislead consumers to the product source as the well known HP brand. Moreover, the on-site seizure also showed cartridges refilled and loaded into the bubble bags or packaging boxes, which appeared basically consistent with other seized cartridges refilled but unpackaged. Taken together with the large number of counterfeit plastic seals or pulling rings, the bubble bags and packaging materials, it is more than enough to supporting a finding of intentional act by Ye for counterfeiting. The pasting by Ye and others was merely an attempt to cover up the counterfeiting, and would not rebut the finding of counterfeiting, nor the determination of the number of counterfeited cartridges seized. The trial court rendered the judgment: one, defendant YE Yina was guilty of trademark counterfeiting, and therefore sentenced to three years in prison, with a fine of 400 thousand yuan. Two, the seized cartridges with counterfeit HP labels, the packaging materials and criminal instrumentalities were by law confiscated.
After announcement of the trial decision, defendant Ye did not appeal.
[Judge's Comment]
This case serves as a powerful support and guidance for suppressing the trademark counterfeit crimes by sales with cut-and-paste trademark labels. Currently, many counterfeiters, in order evade strikes and liabilities, would no longer sell counterfeit goods blatantly with well known brands; instead, they would use some coverup skills and conduct sales undercover, some by selling the refilled branded cartridges without packaging as original attachment or as test products, or by keeping them unpackaged until delivery, or selling them as discounted after covering the brand. Some of them even have their own brands by which to promote their business. But when consumers contact them, they will hint some connection with the branded products. Some simply cover the original brand and when selling them they will just peel off their own brands, to profit by outright passing off. The present case sets an example in the counterfeiting goods of HP toner cartridges, taking together the feature of printer toner cartridge product and business mode, in accordance with the basics of registered trademark, and the constituent elements of criminal violation of trademark counterfeit, to define toner cartridge processing, and the finished products, i.e., to make an in-depth an analysis and determination of simple cut-and-paste, coverup, and false labeling, giving clearer standard and rules for judicial guidance, and providing sufficient support for detection and prosecution in similar cases.