China Drafts Interpretation on IP Crimes

Translated by Mr. Timothy Jia of Chofn IP

Edited by Mr. Hui Wang and Mr. Elliot Zhou of Chofn IP


The Supreme People's Court and the Supreme People's Procuratorate of China Solicit Opinions on Judicial Interpretation of Criminal IP Cases.

On June 17, 2020, the Supreme People's Court and the Supreme People's Procuratorate of China published a draft The Interpretation (III) on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Involving Infringement of Intellectual Property Rights to solicit opinions. The draft is open for public comment until 2nd August 2020. Comments and opinions can be sent to xssfjs@163.com with the email subject: " Amendments Suggestions for Interpretation (III)/解释(三)修改建议".

The draft contains a total of 17 articles, which provide more specific application of the Criminal Law of the People's Republic of China and the Criminal Procedure Law of the People's Republic of China in IP related criminal cases.

The draft highlights the following issues in particular:

1.  How to determine “a trademark identical with the registered trademark” in the crime of passing off;

2. How to define the "copyright owner" and "without the permission of the copyright owner" in the crime of copyright infringement;

3.  The specific "other illegitimate means" in the crime of trade secret infringement;

4. How to determine "causing substantive damage to the owner of the trade secret" or "causing severe consequences" and how to calculate or determine the amount of loss or the illegitimate income;

5.  Protective measures for trade secret during the criminal proceeding;

6.  The scenarios where probation, mitigated penalty, and/or exemption are not applicable; and

7.   Application of non-competition restrictions, application of penalties, etc.