You may wonder why the Posecutorate Office has anything to do with IPR enforcement. Well, the Prosecutorate is an integral part of the IPR enforcement regimes in China because it presses charges against IPR infringement criminal cases. There are several crimes specified in the PRC Criminal Law that involves IPR infringement, most of which must be extremely severe in order for the Prosecutorate office to take actions and involves four major areas of IPR, namely patent, trademark, copyright and trade secret.
On 24 April 2015, the Prosecutorate publishes a report on the ten most prominent IPR criminal cases to serve as the model cases for handling IPR criminal matters. Among the ten cases, five cases involve trademark infringement or passing off, four involves copyright infringement and the remaining one is related to trade secret misappropriation.
Trade secret misappropriation is better off with criminal enforcement because the public security bureau (which investigate the cases) can take more vigorous actions than most civil citizens or detectives. For example, public security bureau can raid the site and confiscate potential infringing goods.
One good aspect of using criminal enforcement route is that the evidence collected by the public security bureau and prosecutorate can be automatically admitted into civil litigation proceeding because these evidence are seized by government authorities and enjoy the highest level of credibility.
Nevertheless, criminal IPR enforcement has very limited scope of subject matter jurisdiction. The cases must be something that are specifically laid out in the criminal law, and the prosecutorate cannot expand the interpretation to cover all other infringement matters. Further, the standard of proof is higher than civil litigation. Prosecutorate has to prove every elements in the criminal law in order to win the case in which the infringer may be incarcerated or fined.
If you want to read more information about the ten cases, click here for more information (Chinese only).
