On April 23, 2025, the Supreme People’s Court of the PRC and the Supreme People’s Procuratorate of the PRC co-issued the Interpretation on Several Issues Concerning the Application of Law in Handling Intellectual Property Criminal Cases (the Interpretation).
The Interpretation contains 31 provisions and is focused on the criminal cases that infringe intellectual property rights including trademark right, patent right, copyright, and trade secrets.
For instance, the Interpretation defines circumstances that can be recognized as “the same goods, service” under Article 213 “Crime of Falsifying Registered Trademark” of the PRC Criminal Law” as follows: “1) Where the name of the goods actually produced and sold by the perpetrator and the name of the services actually provided are the same as the name of the goods and services authorized for use in the registered trademark of the right holder; 2) Where the names of goods are different, but they are the same or basically the same in terms of function, application, main raw materials, consumer objects, sales channels, etc., and the relevant public generally believes that they are the same kind of goods; 3) Where the service names are different, but the purpose, content, mode, object and place of service are the same or basically the same, and the relevant public generally believe that it is the same kind of service.”
Further, the following circumstances are considered as “trademarks that are identical to its registered trademark” under Article 213 of the Criminal Law above by the Interpretation: “1) Changing the font, the case of letters or the horizontal and vertical arrangement of words of a registered trademark, which is basically no different from the registered trademark; 2) Changing the spacing between the characters, letters, numbers, etc. of the registered trademark, which is basically no different from the registered trademark; 3) Changing the color of the registered trademark, which does not affect the embodiment of the distinctive features of the registered trademark; 4) Merely adding the common name of goods, models and other elements that lack the distinctive features to the registered trademark, which does not affect the embodiment of the distinctive features of the registered trademark; 5) No difference to the three-dimensional symbol and planar elements of the three-dimensional registered trademark; 6) Other circumstances that are basically indistinguishable from the registered trademark and are sufficient to mislead the relevant public.”
Apart from further specifying the understanding of certain terms in the relevant criminal provision exemplified above, the Interpretation also provides the sentencing criteria. For example, in terms of falsifying another’s patent, circumstances as follows can be considered as “severe circumstances” under Article 216 “Crime of Falsifying Patent” of the Criminal Law: “1) The amount of illegal gain is more than 100,000 yuan, or the amount of illegal business is more than 200,000 yuan; 2) Causing direct economic loss of three hundred thousand yuan or more to the patentee; 3) Counterfeiting two or more patents of others, with the amount of illegal gain of more than 50,000 yuan or the amount of illegal business of more than 100,000 yuan; 4) Within two years, having been criminally or administratively punished for counterfeiting another person's patent, and the amount of illegal gain is more than RMB 50,000 yuan or the amount of illegal business is more than RMB 100,000 yuan; 5) Other serious circumstances.”
In terms of crime that infringes copyright, the Interpretation provides that “intentionally selling an infringing copy as stipulated in Article 217 “Crime of Infringing Copyright” of the Criminal Law, and the amount of illegal proceeds is 50,000 yuan or more” can be considered as “the amount of illegal gains is large” under Article 218 “Crime of Selling Infringing Copy” of the Criminal Law. Further, according to the Interpretation, circumstances as follows shall be considered as “other severe circumstances” under the said Article 218 above: “1) Where the sales amount is one hundred thousand yuan or more; 2) Within two years, having been criminally punished for committing the acts stipulated in Articles 217 and 218 of the Criminal Law or having committed the acts again after being administratively punished, the amount of illegal gains is more than 30,000 yuan or the amount of sales is more than 50,000 yuan; 3) The sale of other people's works or audio-visual recordings where the total number of copies is more than one thousand (pieces); 4) Infringing copies have not yet been sold and the amount of the value of goods or the number of infringing copies reaches more than three times the standards set forth in the first three paragraphs of this paragraph, or the sales amount or number of infringing copies sold is less than the standards set forth in the first three paragraphs of this paragraph but the amount of the value of the goods or the number of infringing copies with not yet been sold reaches a total of more than three times the standards set forth in the first three paragraphs of this paragraph.”
Regarding the crime of infringing the trade secrets, the Interpretation provides methods to recognize the “amount of loss” as follows: “1) If the right holder's trade secrets obtained by improper means have not been disclosed, used, or allowed others to use, the amount of loss can be determined on the basis of the reasonable license fee for the trade secrets; 2) Upon obtaining the trade secrets of the right holder by improper means, disclosing, using or allowing others to use, the amount of loss can be determined according to the loss of profits of the right holder due to infringement, but if the amount of such loss is lower than the reasonable license fee for the trade secrets, according to the reasonable license fee to determine; 3) Where violating the obligation of confidentiality or the right holder's requirements relating to the preservation of trade secrets, disclosure, use or allowing others to use the trade secrets in their possession, the amount of loss can be determined on the basis of the loss of profits of the right holder due to the infringement; 4) Where acknowledging that the trade secrets are obtained by improper means or are disclosed, used, or allowed to be used in violation of the obligation of confidentiality or the requirements of the right holder regarding the preservation of trade secrets, and still obtain, disclose, use, or allow others to use them, the amount of the loss may be determined according to the loss of profits of the right holder as a result of the infringement; 5) Due to infringement of trade secrets resulting in such trade secrets have been known to the public or lost, the amount of loss can be determined on the basis of the commercial value of the trade secrets. The commercial value of the trade secrets can be based on their research and development costs, the implementation of the trade secrets of the revenue, and other factors to determine.”
In addition to individually clarifying certain issues regarding the crimes involving the trademark right, patent right, etc., the Interpretation also addresses certain issues that can be applied to all the relevant intellectual property rights related crimes. Taking joint crime as an example, unless it is specified in laws and judicial interpretations otherwise, the Interpretation provides that “Anyone who acknowledges that another person has committed a crime of infringing intellectual property rights and has one of the following actions shall be punished as a joint criminal: 1) Providing assistance in the production or manufacturing of the main raw materials, auxiliary materials, semi-finished products, packaging materials, machinery and equipment, labeling and marking, production technology, formulas, etc. for the infringing products; 2) Providing loans, funds, accounts, licenses, payment and settlement services; 3) Providing production, business premises, or transportation, warehousing, storage, courier, mailing, and other services; 4) Providing Internet access, server hosting, network storage, communication transmission, and other technical support; 5) Other circumstances that help infringement of intellectual property rights.” Another example can be seen in that “If a person commits a crime of infringing intellectual property rights and has one of the following circumstances, he or she shall generally be punished more severely, as appropriate: 1) The main business is the infringement of intellectual property rights; 2) Counterfeiting the registered trademarks of goods or services such as rescue and relief and epidemic prevention materials during major natural disasters, accidents and calamities, and public health incidents; 3) Refusing to hand over the illegal proceeds.”
Based on the above, the Interpretation is mainly focused on articles in Section 7 “Crimes of Infringing on Intellectual Property Rights”, Chapter III “Crimes of Undermining Order of Socialist Market Economy,” Part II “Special Provisions of the PRC Criminal Law”. In addition to the crimes mentioned above, the said Section 7 (Article 213-220) also covers crimes of the Crimes of Selling Goods with Falsified Registered Trademark, Crimes of Illegal Manufacturing, Selling Illegally Manufacturing Marks of Registered Trademark, Crimes of Stealing, Spying, Bribing, or Illegally Providing Trade Secrets for an Overseas Party, Punishment for Work Units that Violates the Intellectual Property Right Crimes.
According to the Supreme People’s Procuratorate, the Interpretation reflects China’s effort to strengthen intellectual property rights protection and intensify the criminal fight by lowering the standard of incrimination, increasing the number of incriminating circumstances, providing for aggravating circumstances, and raising the upper limit of the application of fines. The circumstance of “main business is the infringement of intellectual property rights” to be punished more severely above is one of the examples of “providing for aggravating circumstances.” The Interpretation has come into effect on April 26, 2025.
The Interpretation contains 31 provisions and is focused on the criminal cases that infringe intellectual property rights including trademark right, patent right, copyright, and trade secrets.
For instance, the Interpretation defines circumstances that can be recognized as “the same goods, service” under Article 213 “Crime of Falsifying Registered Trademark” of the PRC Criminal Law” as follows: “1) Where the name of the goods actually produced and sold by the perpetrator and the name of the services actually provided are the same as the name of the goods and services authorized for use in the registered trademark of the right holder; 2) Where the names of goods are different, but they are the same or basically the same in terms of function, application, main raw materials, consumer objects, sales channels, etc., and the relevant public generally believes that they are the same kind of goods; 3) Where the service names are different, but the purpose, content, mode, object and place of service are the same or basically the same, and the relevant public generally believe that it is the same kind of service.”
Further, the following circumstances are considered as “trademarks that are identical to its registered trademark” under Article 213 of the Criminal Law above by the Interpretation: “1) Changing the font, the case of letters or the horizontal and vertical arrangement of words of a registered trademark, which is basically no different from the registered trademark; 2) Changing the spacing between the characters, letters, numbers, etc. of the registered trademark, which is basically no different from the registered trademark; 3) Changing the color of the registered trademark, which does not affect the embodiment of the distinctive features of the registered trademark; 4) Merely adding the common name of goods, models and other elements that lack the distinctive features to the registered trademark, which does not affect the embodiment of the distinctive features of the registered trademark; 5) No difference to the three-dimensional symbol and planar elements of the three-dimensional registered trademark; 6) Other circumstances that are basically indistinguishable from the registered trademark and are sufficient to mislead the relevant public.”
Apart from further specifying the understanding of certain terms in the relevant criminal provision exemplified above, the Interpretation also provides the sentencing criteria. For example, in terms of falsifying another’s patent, circumstances as follows can be considered as “severe circumstances” under Article 216 “Crime of Falsifying Patent” of the Criminal Law: “1) The amount of illegal gain is more than 100,000 yuan, or the amount of illegal business is more than 200,000 yuan; 2) Causing direct economic loss of three hundred thousand yuan or more to the patentee; 3) Counterfeiting two or more patents of others, with the amount of illegal gain of more than 50,000 yuan or the amount of illegal business of more than 100,000 yuan; 4) Within two years, having been criminally or administratively punished for counterfeiting another person's patent, and the amount of illegal gain is more than RMB 50,000 yuan or the amount of illegal business is more than RMB 100,000 yuan; 5) Other serious circumstances.”
In terms of crime that infringes copyright, the Interpretation provides that “intentionally selling an infringing copy as stipulated in Article 217 “Crime of Infringing Copyright” of the Criminal Law, and the amount of illegal proceeds is 50,000 yuan or more” can be considered as “the amount of illegal gains is large” under Article 218 “Crime of Selling Infringing Copy” of the Criminal Law. Further, according to the Interpretation, circumstances as follows shall be considered as “other severe circumstances” under the said Article 218 above: “1) Where the sales amount is one hundred thousand yuan or more; 2) Within two years, having been criminally punished for committing the acts stipulated in Articles 217 and 218 of the Criminal Law or having committed the acts again after being administratively punished, the amount of illegal gains is more than 30,000 yuan or the amount of sales is more than 50,000 yuan; 3) The sale of other people's works or audio-visual recordings where the total number of copies is more than one thousand (pieces); 4) Infringing copies have not yet been sold and the amount of the value of goods or the number of infringing copies reaches more than three times the standards set forth in the first three paragraphs of this paragraph, or the sales amount or number of infringing copies sold is less than the standards set forth in the first three paragraphs of this paragraph but the amount of the value of the goods or the number of infringing copies with not yet been sold reaches a total of more than three times the standards set forth in the first three paragraphs of this paragraph.”
Regarding the crime of infringing the trade secrets, the Interpretation provides methods to recognize the “amount of loss” as follows: “1) If the right holder's trade secrets obtained by improper means have not been disclosed, used, or allowed others to use, the amount of loss can be determined on the basis of the reasonable license fee for the trade secrets; 2) Upon obtaining the trade secrets of the right holder by improper means, disclosing, using or allowing others to use, the amount of loss can be determined according to the loss of profits of the right holder due to infringement, but if the amount of such loss is lower than the reasonable license fee for the trade secrets, according to the reasonable license fee to determine; 3) Where violating the obligation of confidentiality or the right holder's requirements relating to the preservation of trade secrets, disclosure, use or allowing others to use the trade secrets in their possession, the amount of loss can be determined on the basis of the loss of profits of the right holder due to the infringement; 4) Where acknowledging that the trade secrets are obtained by improper means or are disclosed, used, or allowed to be used in violation of the obligation of confidentiality or the requirements of the right holder regarding the preservation of trade secrets, and still obtain, disclose, use, or allow others to use them, the amount of the loss may be determined according to the loss of profits of the right holder as a result of the infringement; 5) Due to infringement of trade secrets resulting in such trade secrets have been known to the public or lost, the amount of loss can be determined on the basis of the commercial value of the trade secrets. The commercial value of the trade secrets can be based on their research and development costs, the implementation of the trade secrets of the revenue, and other factors to determine.”
In addition to individually clarifying certain issues regarding the crimes involving the trademark right, patent right, etc., the Interpretation also addresses certain issues that can be applied to all the relevant intellectual property rights related crimes. Taking joint crime as an example, unless it is specified in laws and judicial interpretations otherwise, the Interpretation provides that “Anyone who acknowledges that another person has committed a crime of infringing intellectual property rights and has one of the following actions shall be punished as a joint criminal: 1) Providing assistance in the production or manufacturing of the main raw materials, auxiliary materials, semi-finished products, packaging materials, machinery and equipment, labeling and marking, production technology, formulas, etc. for the infringing products; 2) Providing loans, funds, accounts, licenses, payment and settlement services; 3) Providing production, business premises, or transportation, warehousing, storage, courier, mailing, and other services; 4) Providing Internet access, server hosting, network storage, communication transmission, and other technical support; 5) Other circumstances that help infringement of intellectual property rights.” Another example can be seen in that “If a person commits a crime of infringing intellectual property rights and has one of the following circumstances, he or she shall generally be punished more severely, as appropriate: 1) The main business is the infringement of intellectual property rights; 2) Counterfeiting the registered trademarks of goods or services such as rescue and relief and epidemic prevention materials during major natural disasters, accidents and calamities, and public health incidents; 3) Refusing to hand over the illegal proceeds.”
Based on the above, the Interpretation is mainly focused on articles in Section 7 “Crimes of Infringing on Intellectual Property Rights”, Chapter III “Crimes of Undermining Order of Socialist Market Economy,” Part II “Special Provisions of the PRC Criminal Law”. In addition to the crimes mentioned above, the said Section 7 (Article 213-220) also covers crimes of the Crimes of Selling Goods with Falsified Registered Trademark, Crimes of Illegal Manufacturing, Selling Illegally Manufacturing Marks of Registered Trademark, Crimes of Stealing, Spying, Bribing, or Illegally Providing Trade Secrets for an Overseas Party, Punishment for Work Units that Violates the Intellectual Property Right Crimes.
According to the Supreme People’s Procuratorate, the Interpretation reflects China’s effort to strengthen intellectual property rights protection and intensify the criminal fight by lowering the standard of incrimination, increasing the number of incriminating circumstances, providing for aggravating circumstances, and raising the upper limit of the application of fines. The circumstance of “main business is the infringement of intellectual property rights” to be punished more severely above is one of the examples of “providing for aggravating circumstances.” The Interpretation has come into effect on April 26, 2025.