Over the past three years, our criminal enforcement team has successfully managed over 300 post-raid criminal cases across China. The service has been of great benefit to brand owners, not only by providing them with quality advice in specific criminal cases, but also by helping them improve their overall criminal enforcement operation.

Led by Donnie Wang in our Guangzhou office, our criminal enforcement team takes over once a raid has occurred. They build on the groundwork brand owners put in before a raid takes place e.g. carrying out its own investigations and keeping the police informed.

In China, there are essentially three authorities involved in criminal prosecution: the Public Security Bureau (PSB), Public Procurator (PP) and the Court. The PSB is responsible for investigations and the PP is responsible for supervising the investigation, approving the arrests and initiating public prosecutions before moving on to the Court.

Criminal prosecutions are considered to be the toughest sanction against IP infringement. However, successful criminal prosecutions against IP crimes are relatively difficult to achieve in China. In many cases, the conclusions were vastly different from initial expectations. Sometimes a good raid may not result in a good judgment.

For example, there is a case where the suspects went from 10 to just 1. While there was an eventual prosecution, the suspect only received a suspended sentence. Another example saw the value of seized goods reduce substantially from several million Chinese Yuan to just several hundred thousand.

There are a number of reasons why successful prosecutions are rare, from the complexity of the laws which cover this area as well as the different interpretations of different authorities in different locations; the increasing sophistication and legal knowledge of the counterfeiters themselves and sadly the old story of suspects gaining/buying undue influence over judicial authorities.

In addition, prosecutions can also come up against legal issues, including:

• Meeting the thresholds of the value of the counterfeit goods (click here to read about a success for our team to overcome this issue). 
• The disputed mark must be exactly the name as the registered mark.
• The goods themselves must also be the same. The authorities review the registration documentation to make sure the name on the goods matches.

However, our team has developed a package of legal services to manage post-raid actions to mitigate against the issues prosecutors face. These include:

• Ensuring open lines of communication with authorities about the evidence and providing them with our support.
• Quickly and efficiently filing petitions against unfavourable decisions/judgments.
• Where appropriate, seeking supervision from higher authorities.
• Demonstrating tenacity. While not a “legal” action, authorities in China tend to respond to appropriate levels of pressure.

We have found that these actions not only help bolster the substantial effect of a raid but also help the brand owner to improve their criminal enforcement operation by feeding back, researching and analysing the problems we encountered during the case.

For more information about how our Criminal Enforcement Team can help you, please get in touch with Donnie Wang or your usual Rouse contact. To read about a successful trade secret prosecution we were coordinated last year, please click here.

TAGS

• Asia
• China
• Enforcement