(Adopted at the 1811th Session of the Judicial Committee of the Supreme People's Court on August 31, 2020 and the 48th Session of the Thirteenth Procuratorial Committee of the Supreme People's Procuratorate on August 21, 2020, and cameinto force on September 14, 2020)

For the purposes of legally punishing the crimes of infringements upon intellectual property rights and maintaining the order of socialist market economy, in accordance with the Criminal Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China, and other relevant provisions, several issues concerning the specific application of law in the handling of criminal cases involving infringements upon intellectual property rights are hereby interpreted as follows:

Article 1. Any of the following circumstances may be determined as a "trademark identical to a registered trademark"as set forth in Article 213 of the Criminal Law:

(1) changingthe font, letter case, or horizontal or vertical layout of characters of the registered trademark, so that it basically has no difference from the registered trademark;

(2) changingthe space between characters, letters or figures, among others, of the registered trademark, so that it basically has no difference from the registered trademark;

(3) changingthe color of the registered trademark without affecting the distinctive features that reflectthe registered trademark;

(4) adding to the registered trademark the factor lacking distinctive features such as the common name or model of the goods only without affecting the distinctive features that reflectthe registered trademark;

(5) havingbasically no difference from the three-dimensional mark and graphic element of the stereoscopic registered trademark;

(6) anyother trademark that has basically no difference from the registered trademark or is sufficient to mislead the public.

Article 2. A natural person, a legal person or an unincorporated organization that affixes the signature thereof in a common way to any work or sound recordings set forth in Article 217 of the Criminal Law shall be presumed to be the copyright owner or soundrecording producer and have corresponding rights in relation to such work or sound recordings, unless there is any evidence to the contrary.

In a case involving multiple works or sound recordings and dispersed right holders, if there is any evidence proving that the reproduction involved in the case is illegally published or reproduced for distribution, and the publisher or reproduction distributor fails to provide relevant evidentiary materials proving that it has obtained the approval of the copyright owner or the soundrecording producer, it may be determined as "without the approval of the copyright owner"or "without the approval of the sound recording producer"as provided for in Article 217 of the Criminal Law, except that there is any evidence proving that the right holder has waived the rights thereof, or the copyright of the work involved in the case or relevant rights relating to the sound recordings are not protected by the Copyright Law of China, or the term for the protection of copyright has expired.

Article 3. Stealing any trade secret by such means as illegally reproducing and using without or beyond authorization a computer information system shall be determined as "theft"as provided for in Article 219.1(1) of the Criminal Law.

Where any trade secret of a right holder is obtained by such means as bribery, fraud, and electronic intrusion, such means shall be determined as "other illicit means"set forth in Article 219.1(1) of the Criminal Law.

Article 4. Any act prescribed in Article 219 of the Criminal Law committed under any of the following circumstances shall be determined as "causing heavy loss to the right holder of the trade secret":

(1) theamount of loss caused to the right holder of the trade secret or the amount of illegal income obtained from the infringement upon the trade secret is RMB300,000 Yuan or more;

(2) itdirectly causes the bankruptcy or closure of the right holder of the trade secret due to great difficulty in operation;

(3) anyother heavy loss is caused to the right holder of the trade secret.

Where the amount of loss caused to the right holder of the trade secret or the amount of illegal income obtained from the infringement upon the trade secret is RMB 2,500,000Yuan or more, it shall be determined as "causing particularly serious consequences"as provided for in Article 219 of the Criminal Law.

Article 5. The amount of loss caused by or the amount of illegal income obtained from committing any of the conduct set forth in Article 219 of the Criminal Law may be determined according to the following methods:

(1) where any trade secret of the right holder obtained by improper means has not been disclosed, used or allowed to be used by any other person, the amount of loss may be determined based on the reasonable royalty of the trade secret;

(2) where the trade secret of the right holder obtained by improper means is disclosed, used or allowed to be used by any other person, the amount of loss may be determined based on the loss of sales profit caused by the right holder due to infringement, but the amount of loss shall be determined based on the reasonable royalty of the trade secret if it is lower than the reasonable royalty;

(3) where the possessed trade secret is disclosed, used or allowed to be used by any other person in violation of the agreement or the requirements of the right holder for keeping the trade secret confidential, the amount of loss may be determined based on the loss of the sales profit caused by the right holder due to the infringement;

(4) where the trade secret is obtained, used or disclosed with clear knowledge that the trade secret is obtained by improper means or in violation of the agreement or the requirements of the right holder on keeping the trade secret confidential,the amount of loss may be determined based on the loss of the sales profit caused by the right holder due to the infringement;

(5) whereany trade secret has been known by the public or lost due to the infringement upon the trade secret, the amount of loss may be determined based on the commercial value of the trade secret. The commercial value of the trade secret may be determined comprehensively based on the research and development cost of the trade secret and the proceeds obtained from the exploitation of the trade secret;

(6) propertyor any other property interest obtained from disclosing or permitting any other person to use the trade secret shall be determined as illegal income.

The loss of sales profit caused by the right holder due to the infringement as set forth in subparagraph (2), (3) or (4) of the preceding paragraph may be determined based on the total of decreased sales volume of the right holder due to the infringement multiplied by the reasonable profit of the right holder from each product; if the total of the decreased sales volume cannot be determined, the loss may be determined based on the sales volume of infringing products multiplied by the reasonable profit obtained by the right holder from each product; if neither the total of decreased sales volume of the right holder due to the infringement and the reasonable profit from each product cannot be determined, the loss may be determined based on the sales volume of infringing products multiplied by the reasonable profit of each infringing product. If the trade secret is used for services or any other business activities, the amount of loss may be determined based on the decreased reasonable profit of the right holder due to the infringement.

The remedial expenses incurred to the right holder of a trade secret for the purpose of mitigating the damage to business operation or business plan or restoring the security of the computer information system or any other system shall be included in the loss caused to the right holder of the trade secret.

Article 6. Where a party, a defender, an agent ad litem or a person that is not a party to the case applies in writing to keep confidential the evidence or materials on relevant trade secrets or other business information that needs to be kept confidential in criminal proceedings, necessary confidentiality measures such as organizing participants in proceedings to sign a written confidentiality commitment shall be taken in light of case circumstances.

Whoever violates the requirements of the preceding paragraph regarding confidentiality measures or the confidentiality obligation as provided for by laws and regulations shall assume corresponding liability in accordance with the law. Whoever discloses, uses or allows any other person to use any trade secret accessed or obtained in criminal proceedings without authorization shall be held criminally liable in accordance with the law if it complies with Article 219 of the Criminal Law.

Article 7. Except under special circumstances, the goods bearing counterfeit registered trademarks, illegally produced logos of registered trademarks, reproductions infringing copyright, as well as materials and tools mainly used for manufacturing the goods bearing counterfeit registered trademarks, logos of registered trademarks or infringing reproductions shall be confiscated and destroyed in accordance with the law.

Where any of the aforesaid articles need to be used as evidence in a civil or administrative case, upon application by the right holder, they may be destroyed after the civil or administrative case is concluded or after the evidence is fixed by such methods as sampling and photographing.

Article 8. Whoever falls under any of the following circumstances may be given a heavier punishment as the case may be, to which probation shall generally not apply:

(1) takingthe infringement upon intellectual property rights as the main business;

(2) infringingupon intellectual property rights once again, which constitutes a crime, after being imposed on an administrative punishment due to the infringement upon intellectual property rights;

(3) counterfeiting the registered trademark of the goods for emergency rescue and disaster relief or epidemic prevention, among others, during the period of a major natural disaster, accident or disaster, or a public health incident;

(4) refusingto surrender the illegal income.

Article 9. Whoever falls under any of the following circumstances may be imposed on a lighter punishment as the case may be:

(1) pleadingguilty and accepting punishment;

(2) obtainingthe forgiveness of the right holder;

(3) showingrepentance;

(4) not disclosing, using or permitting any other person to use the trade secret of the right holder obtained by improper means.

Article 10. Whoever commits a crime of infringement upon intellectual property rights shall be legally imposed on a fine by taking into comprehensive consideration such circumstances as the amount of criminal and illegal income, the amount of illegal operation, the amount of loss caused to a right holder, the quantity of infringing and counterfeit articles and the severity of social harm.

The amount of fine shall generally be determined as not less than one time nor more than five times the amount of illegal income. If the amount of illegal income cannot be ascertained, the amount of fine shall generally be determined as not less than 50% nor more than one time the amount of illegal operation. If neither the amount of illegal income nor the amount of illegal operation can be ascertained, and a sentence of fixed-term imprisonment of not more than three years, criminal detention, public surveillance or a separate fine is imposed, the amount of fine shall generally be determined as not less than RMB 30,000 Yuan and not more than RMB 1,000,000 Yuan; and if a sentence of fixed-term imprisonment of not less than three years is imposed, the amount of fine shall generally be determined as not less than RMB 150,000 Yuan and not more than RMB 5,000,000 Yuan.

Article 11. For any discrepancies between this Interpretation and judicial interpretations and regulatory documents issued previously before this Interpretation comes into force, this Interpretation shall prevail.

Article 12. This Interpretation shall come into force on September 14, 2020.