Recently, the Third Intermediate People's Court of Shanghai made a final ruling on the case of counterfeiting "3M" and "Dasheng" branded masks and upheld the judgment of the court of first instance.

Since May 2020, the defendants Zhao, Mao and Fu had premeditated the production and sale of masks with fake registered trademarks for profit. The defendants Zhao and Mao contacted the defendants Jin and Hu to be responsible for the production respectively, and the defendant Fu was responsible for finding sales channels. Later, the defendants Zhao and Mao provided whiteboard masks, production machines and packaging materials, etc. the defendants Jin and Lu printed and packaged fake "Dasheng" masks, the defendant Hu printed and packaged fake "3M" masks, and the defendant Gu was responsible for the management of the printing workshop.

In September 2020, the defendants Zhao and Mao, introduced by the defendant Fu, signed a purchase and sales agreement with others in the name of a trading company, intending to sell 1 million fake "Dasheng" masks at the price of 4.5 million RMB. On September 17, 2020, the police arrested the defendants Zhao, Mao and Fu, and seized 1,235,200 fake "Dasheng" masks from the warehouse controlled by the defendant Zhao, with an illegal business amount of more than 5.5 million RMB. On the same day, the police arrested the defendants Hu and Gu, and seized 321,000 fake "3M" masks from the printing plant controlled by the defendant Hu, with an illegal business amount of more than 5.9 million RMB. On September 18, 2020, the police arrested the defendants Jin and Lu. After identification, all the masks seized above were counterfeit goods with registered trademarks.

The court of first instance held that the acts of the seven defendants had constituted the crime of counterfeiting registered trademarks. Therefore, the seven defendants were sentenced to fixed-term imprisonment ranging from 4 years, 6 months to 1 year and a fine ranging from 1.2 million RMB to 30,000 RMB respectively for the crime of counterfeiting registered trademarks. After the judgment of the first instance, Mao and Jin appealed to the Third Intermediate People's Court of Shanghai and requested the court of second instance to give them a lighter or mitigated punishment according to law.

After the trial, the court held that the seven defendants used the same trademark as the registered trademark on the same goods without the permission of the registered trademark owner, the circumstances were particularly serious, and their acts constituted the crime of counterfeiting registered trademarks. Among them, Mao played a major role in joint crime and was the principal offender. He should be punished according to all the crimes he participated in. Jin also plays a major role in joint crime. He should be identified as the principal offender and should be punished according to all the crimes he participates in. Where the existing evidence could not verify the illegal gains of the appellants Mao and Jin, according to the law, the amount of the fine is generally determined at more than 50% of and less than the amount of illegal business. The court of first instance had given full consideration to the penalty in view of the fact that the fake masks in this case were not actually sold, and therefore the judgment was not improper. The original sentence comprehensively considered the criminal facts, circumstances, confession and repentance attitude, etc. of Mao and Jin, and therefore it was in line with the law and not improper.

In conclusion, the Third Intermediate People's Court of Shanghai rejected the appeal and made the final ruling of upholding the original judgment. In this case, the seven defendants not only violate the legitimate rights and interests of the trademark owner and disturbs the normal market economic order, but also cause certain hidden dangers to the people's life, health and safety as well as the pandemic prevention and control work. Therefore, the defendantsbehavior is of great social harm and constitutes the crime of counterfeiting registered trademarks, which shall be punished by the court according to law.

              (Adapted from news of the Shanghai Law Journal and Shanghai Third Intermediate People's Court)


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Shanghai Court Upholds the Original Judgment on Counterfeiting Branded Masks

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