On March 25, 2022, the Shanghai Third Intermediate People’s Court announced the affirmance of an earlier ruling sentencing defendant Wu XX to 3-years imprisonment and a 100,000 RMB fine (~$15 thousand USD) for counterfeiting a registered trademark of 3M on masks. In a larger case last year, the same court upheld a sentence of 4.5-years imprisonment for counterfeiting registered trademarks for 3M on masks. The number of seized counterfeit 3M registered trademark masks in the instant case were about 1/10 of last year’s case but the prison sentence was still relatively lengthy at 3 years.
Since October 2020, Wu teamed up with others to use illegally produced “3M” 1860, 1870 and other types of masks in a factory building in a city in Guangdong Province without the authorization of the right holder. Masks were spray-painted and printed with registered trademarks of “3M”, and some illegally produced masks were delivered to Liu and others. On March 16, 2021, investigators arrested Wu and seized more than 100,000 fake “3M” registered trademark masks and printing molds in the above-mentioned factory. In view of the facts, nature, circumstances and the degree of harm to society of Wu , the court of first instance sentenced Wu Moumou to three years imprisonment and a fine of RMB 100,000 for the crime of counterfeiting a registered trademark. Illegal gains were recovered, and commodities, packaging, and criminal tools used to produce the counterfeit registered trademarks were confiscated. Wu appealed.
The Shanghai Third Intermediate People’s Court held that the appellant Wu XX, together with others, used the same trademark as the registered trademark on the same commodity without the permission of the owner of the registered trademark. Accordingly, the Court upheld the lower court’s decision.
In the announcement, the Court stated,
In this case, the appellant Wu XX collaborated with others to produce counterfeit 3M masks, which not only violated the legitimate rights and interests of the registered trademark owner, 3M Company, but also brought potential safety hazards to the lives and health of consumers. Its illegal operation generated far more than 250,000 RMB. According to the law, it belongs to “especially serious circumstances” and constitutes the crime of counterfeiting registered trademarks. The Shanghai No. 3 Intermediate People’s Court fully exerted its intellectual property criminal adjudication function, strictly protected intellectual property rights, severely cracked down on epidemic-related crimes, and safeguarded the lives, health and safety of the people.
This rationale is similar to that stated in the earlier case and explaining the relatively lengthy prison sentence.
The full text of the announcement is available here (Chinese only).
© 2022 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.National Law Review, Volume XII, Number 84