Zhang Wei 'an, president of the Quality Brand Protection Committee of China Association of Enterprises with Foreign Investment, believes that only by strengthening the criminal investigation of counterfeiters and their accomplices can the problem of counterfeiting and selling fakes in China be effectively solved. Zhang Wei 'an said that at present, from the legislative point of view, the biggest obstacle facing criminal prosecution is the lack of clear and appropriate legal provisions to determine whether the manufacture and sale of counterfeit products constitute a crime, or should only be subject to administrative penalties such as fines and confiscation. The Agreement on Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization has established a global standard for investigating the criminal responsibility of criminals who manufacture and sell counterfeit products, that is, all fraud cases that reach the "commercial scale" must be investigated for criminal responsibility. China's laws and judicial interpretations do not meet the above standards in this respect.
In addition, there are several interrelated practical problems that also hinder the judicial organs from criminal investigation and prosecution of counterfeiters, including: the public security and procuratorial departments lack the necessary human and material resources, the training of law enforcement personnel is insufficient, local protectionism prevails, and the administrative organs and judicial departments lack coordination and cooperation. The intervention, investigation and evidence collection of public security organs should begin after they have doubts about the illegal activities of manufacturing and selling counterfeit products, and should not begin after the criminal acts meet the prosecution standards stipulated by law. Zhang Wei' an believes that these specific operational issues are related to the above-mentioned legal issues involving prosecution standards. Because the standard of criminal prosecution is unclear (for example, the law has no clear method to calculate the value of counterfeit goods) or too strict (for example, the law requires evidence to prove that counterfeiters sell or manufacture counterfeit goods worth more than RMB 50,000), administrative organs and judicial organs usually refuse to investigate the criminal responsibility of counterfeit cases.
The practice of "substituting punishment with punishment" is also quite common: due to the lack of funds and interests, as well as the vague and imprecise restrictions of laws and regulations, law enforcement departments often do not seriously collect evidence and investigate some fraudulent acts that have been suspected of committing crimes, and generally close the case by confiscating counterfeit products, illegal income and fines, rather than handing over the case to public security organs. Wu, deputy director of the Institute of Industrial Economics, Guangdong Academy of Social Sciences, said that the main body of anti-counterfeiting is the government, but every anti-counterfeiting action is a huge systematic project, and the government cannot guarantee the world. Part of it should be distributed or entrusted to the society. At present, there is a shortage of manpower, financial resources, equipment and technical means in anti-counterfeiting functional departments, so it is of special significance to encourage intermediary anti-counterfeiting, and the function and role of intermediary anti-counterfeiting should be strengthened.
At present, domestic laws prohibit the establishment of private detective companies, and some "investigation companies" engage in the collection of anti-counterfeiting information in the name of consulting services and provide it to government law enforcement departments, which has indeed played a positive role in cracking down on counterfeit and shoddy products. However, under the existing legal environment, most of these companies can only use the investigation power beyond their authority, which has attracted criticism from all walks of life. Their work is basically going underground, and some places have even begun to ban such companies.
Experts pointed out that at present, "survey companies" in various places are mixed, and such companies may increase due to increasing market demand. Instead of letting them grow in an "underground state" in disorder, it is better to standardize their behavior and make their anti-counterfeiting activities public. In other words, we can make a clear explanation of their professional qualifications, operation mode, operation means, participation scope, charging standards and reward amount. Through legislation, they will enter the state of legal system and become reliable assistants of government law enforcement. Practical anti-counterfeiting companies, serving the anti-counterfeiting actions of many famous enterprises, work closely with the government to protect the rights of anti-counterfeiting enterprises.
The contents of enterprise anti-counterfeiting services are as follows
A. Investigate the origin, technology, output and warehouse of products, copies of works, copies of publishing places and the number of publications. Experienced investigators will solve this problem for you efficiently.
2. Investigate the sales process and channels of products and works, conduct various evidence collection activities, and do a good job in the next legal work.
3. Investigate the sales data of products and works and conduct all-round evidence collection.
4. Investigate the relevant information of the main infringers, and investigate the relevant responsible persons, internal planning, main technical personnel and marketing status of the counterfeiting enterprises.
B. combating copyright infringement:
1 Make an effective attack plan for customers. After accepting the entrustment of customers, on the basis of investigation and evidence collection, according to different cases, through administrative, criminal, civil and other channels, organize the crackdown activities involving industry and commerce, copyright bureau, public security, media and so on. Or after sufficient investigation and evidence collection, assist the client to bring a lawsuit or mediation to the people's court or the copyright bureau.
2. Follow-up unannounced visits after the strike to prevent the resurgence of illegal activities and assist customers to complete the necessary legal procedures after the strike.
Protection of trademark rights, patent rights and legal management rights;
C. Combating trademark infringement, patent infringement and unfair competition
1. Make an effective attack plan for customers. After accepting the client's entrustment, on the basis of investigation and evidence collection, according to different cases, through administrative, criminal and civil means, organize public security, patent office, industry and commerce, technical supervision and media to participate in the crackdown activities.
2. Follow-up monitoring after the strike to prevent the resurgence of illegal activities, and at the same time assist customers to complete the necessary legal procedures after the strike. When necessary, act as an agent for clients in administrative mediation and dispute litigation, and provide intellectual property legal services.
How do intermediaries deal with counterfeiting and infringement?
First of all, the administrative blow:
After obtaining illegal evidence related to the manufacture and sale of counterfeit goods through investigation, submit evidence materials to the industrial and commercial bureau, quality supervision bureau, customs and other regulatory authorities, apply for investigation, and cooperate with the investigation.
Action effect: Confiscate or seal up related articles (finished products, semi-finished products, packaging, labels, equipment and sales materials) involved in the case, confiscate their illegal income, and give corresponding administrative penalties according to their sales history and the total price of the sealed articles.
Second, the criminal attack:
In view of the infringement involving a huge amount of money, collect the evidence and report materials needed before filing a case through investigation, submit the evidence materials to the public security organs and apply for filing a case, and cooperate with the public security organs to investigate and deal with the subject matter involved.
Action effect: seal up and confiscate the items involved (finished products, semi-finished products, packaging materials, labels, related equipment, sales materials); Confiscate their illegal income; According to the amount involved and the illegal circumstances, the criminal responsibility of the main responsible person shall be investigated in accordance with the criminal law.
Three. For long-term market dynamic monitoring and intellectual property protection, we will implement the following measures:
☆ Set up a special service team to serve key brands for a long time;
☆ Establish a long-term information network and specialized information base, with specialized personnel and local market.
Local law enforcement departments conduct two-way information exchange;
☆ Establish files of infringers and fake samples, and regularly study, sort out and count these information;
☆ Conduct long-term, continuous and planned market monitoring in areas with high frequency of infringement, and master the law of infringement in this area;
☆ Stop the infringement through special legal means such as joint investigation by relevant law enforcement departments and exposure by news media;
☆ Regularly analyze and report the market infringement in the service area. Experts believe that China is in the primary stage of market economy, and various laws and regulations have not yet taken shape. Activities to crack down on fake and shoddy goods will exist for a long time. Government functional departments should give full play to the role of anti-counterfeiting, guide, coordinate and integrate social anti-counterfeiting resources, and form an effective regional, industry and national collaborative anti-counterfeiting supervision mechanism.
At present, all levels of quality and technical supervision departments in China have government anti-counterfeiting offices, but in most areas, the anti-counterfeiting offices are only a loose combination of government functional departments, and some even have titles, so it is difficult to play a substantive coordinating role. There is a lack of organic connection between functional departments, the anti-counterfeiting information resources are isolated and separated, and clues are not shared. Therefore, it is urgent to establish an effective anti-counterfeiting cooperation mechanism.
A person in charge of an enterprise suggested that government functional departments can adopt the principles of guidance, supervision, coordination and complementary advantages to non-governmental anti-counterfeiting institutions to form a cooperative anti-counterfeiting supervision mechanism. Specifically, the government anti-counterfeiting offices set up by local quality and technical supervision departments should take the initiative to regard commercial intermediaries and industry associations as necessary supplementary forces for government functional departments to crack down on counterfeiting and as "service points" for functional departments to crack down on counterfeiting. After receiving the report from the unit or individual, the functional department will carefully examine it in accordance with the established procedures, timely file a case that meets the requirements, and recommend it to the "service point" to investigate and deal with the counterfeiters.
The government anti-counterfeiting office should establish effective contact with "service points", consumer associations, enterprises and complaint agencies, and establish a professional large-capacity anti-counterfeiting information base for the government, enterprises and consumers to use and query, so as to maximize the social value of anti-counterfeiting resources.
Luo Shaohua, chief engineer of Guangdong Bureau of Quality and Technical Supervision, also suggested that in view of the fact that some wholesale markets or bazaars are becoming the distribution centers of counterfeit and shoddy products, we should reform the commodity circulation system, vigorously develop modern commercial formats such as chain stores and supermarkets, make the commodity circulation mainly rely on modern logistics distribution, and cut off the channels for counterfeit and shoddy products to enter the market through the circulation field.