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Online Panel on How to Follow up IPR Criminal Proceedings

Create Time:2022-01-27

On January 21, Quality Brands Protection Committee of China Association of Enterprises with Foreign Investment (QBPC) Personal Care Industry Working Group (IWG) and Legal Committee held an online panel on how to follow up IPR Criminal Proceedings. The topic was Legal Follow-Up Management of Trademark Criminal Cases. Nearly 100 QBPC members participated in the event, and Liu Qi, Personal Care IWG Coordinator, presided over the meeting.

 

As the keynote speaker, Legal Committee Chair and Unilever North Asia Brand Protection Head Michael Yu shared his experience in legal follow-up management of trademark criminal cases, including legal basis, follow-up reasons, case selection standards, law firm selection, timing of entrustment, follow-up key points and so on.

 

Based on Article 44 of the Criminal Procedure Law and the Development Plan of Procuratorial Work during the 14th Five-year Plan Period issued by the Supreme People's Procuratorate in April 2021, Michael explained to the participants the necessity for timely follow-up of trademark criminal cases, including avoiding dismissal, release on bail, arrest disapproval, no prosecution/omission, light punishment and probation; supporting law enforcement agencies in advancing cases; setting up typical cases and accumulating right protection records; laying the foundation for subsequent civil litigation and case review.

 

When selecting such cases, the focus could be put on the following factors, such as key brands and products, key regions, people, cases, omission of investigation, omission of criminal facts/defendants, legal complexity, and subsequent civil litigation. At the same time, when selecting law firms, in case of large law firms, the emphasis should be placed on whether they have previously dealt with important or complex cases, and whether they would follow up the whole case and maintain high-quality service level in the process; in terms of smaller law firms, attention should be paid to whether they are flexible in dealing with routine cases and whether the costs are controllable.

 

In addition, about the timing of legal entrustment, different factors should be considered in different stages of cases. During the case investigation, the law firm and the agency need to fully communicate with each other on case information, police alignment, transfer time, etc.; the review and prosecution was the most important stage of the whole case; in the trial stage, the right holder should be prepared for the scenario that the defendant pleads not guilty, disagrees with the facts and charges of the crime, and prosecution changes or new trial. Telephone, visit, examination report, legal advice and audit, court participation could be effective follow-up methods.

 

When following up the cases, Michael reminded the participants that there might be problems related to guilty plea and punishment acceptance, and illegal gains and compensation returning, e.g. illegal gains calculation method and threshold were not clear, which lead to obstacles for investigating, filing, transferring; for cases before the Eleventh Amendment of the Criminal Law took effect, some provinces and cities applied the previous judicial interpretation and had to spend a lot of time studying sentencing guidelines of various provinces; special issues such as private prosecution, protest and appeal also require the right holder to fully communicate with relevant judicial departments and make preparations in advance. When applying the criminal and civel procedure connection system, right holders should pay attention to the factors that affect the criminal judgment, such as the civil procedure attached to the criminal case, the civil procedure prior to the criminal case, and the territorial jurisdiction, the standard of proof and time limit of trial in the claim in the criminal cases.

 

During the Q&A session, the participants discussed the topic and asked some questions, including how to investigate the criminal responsibility of an organization, the reference function of class case retrieval to the law enforcement and judicial organs in practice, the comprehensive factors such as transaction practice and commodity prices should be considered in the determination of sales amount, and the important information that should be paid attention to when reviewing criminal examination papers. Michael responded one by one and invited all participants to think about the thorny issues in the legal follow-up management of trademark criminal cases.

 

At the end of the meeting, Michael summarized the legal follow-up management of trademark criminal cases, that was, case classification management, attending court trial, trial audit, review the report and legal opinions, summary of the practice of the main enforcement agencies involved and more exchanges. The meeting lasted for one and a half hours with enthusiastic participants contributing new ideas and suggestions for legal follow-up management of trademark criminal cases.