Based on the inquiry letter from the Intellectual Property Administration of Heilongjiang Province, China National Intellectual Property Administration has issued the responding approval to some of the questions that have arisen in specific practices as follows:
- About the standards for determining intentional infringement of intellectual property rights
China has fully established and implemented a punitive compensation system for infringement in the field of intellectual property, and increased the intensity of compensation for damages caused by intentional infringement. In the provisions of punitive compensation for intellectual property rights, "intentional" is the subjective element for the application of punitive compensation for intellectual property rights. As a more severe punishment for infringers, punitive compensation requires a higher degree of subjective fault for the infringement. "Serious case" is another element of the punitive compensation clause, which mainly focuses on the evaluation of the objective aspects such as the means and methods of the infringers and the consequences caused by them, and generally does not directly involve the judgment of the subjective status of the infringers.
Therefore, when refining the standards for determining intentional infringement of intellectual property rights, attention should be paid to strengthening the protection of intellectual property rights and making a reasonable distinction between "intentional" and "serious case", so as to avoid inappropriate cross-evaluation or overlapping of these two elements.
- About the judgment of whether the intentional infringement of intellectual property rights is included in the List of Serious Illegal and Dishonest Acts
Both two elements shall be taken into consideration, one is whether there is a heavier administrative penalty, and another is whether the act is serious and socially harmful.
The above “heavier administrative penalty” includes: 1) based on the benchmark of administrative penalty discretion, penalty is prescribed in accordance with the principle of severe punishment; 2) lowering the qualification level, revoke the licensing instrument and business license; 3) restriction on the production and operation activity, ordering the suspension of production and business, ordering the closure, restricting the practice; 4) other heavier administrative penalty based on laws, administrative regulations and departmental rules.
And when determining whether the act is serious and socially harmful, factors such as subjective malice, frequency of the violation, duration, type of punishment, the amount of forfeiture, the amount of the value of the product, the danger to the lives and health of the people, property damage and social impact should be taken into account.
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Mr. Mike Chang (Partner)